The AMBA Consultation on the Reform of the Boards of Appeal

Fellow Kat Jeremy briefly reported that AMBA (the Association of the Members of the Boards of Appeal) has launched its own consultation on its proposed new structure of governance for the Boards of Appeal of the European Patent Office.  Now, Merpel has had a chance to purr-ruse the proposal, and would like to share her thoughts.

AMBA: not to be
confused with Amber

The IPKat has already reported that the EPO launched a consultation on its proposed new governance structure for the Boards of Appeal, set out in document CA/16/15.  That consultation closed on 30 June 2015.  There was perceived a need for reform of the current structure for a number of reasons, but chiefly in order to increase the actual and perceived independence of the Boards of Appeal following Enlarged Board of Appeal decision R19/12.  The main feature of the proposal was to set up a new position of President of the Boards of Appeal, to whom certain powers of the President of the EPO would be delegated, and a Board of Appeal Committee (BOAC), to be composed of seven members, with three being members of the Administrative Council and four being external members to be chosen by the Council from among presidents and/or senior judges of national, European and international courts upon proposals from the delegations.  AMBA, the Presidium of the Boards of Appeal, the European Patent Lawyers Association and the Council of Bars and Law Societies of Europe, among others, have all commented on these proposals (reported by the IPKat here and here).  The EPI (the Institute of Professional Representatives before the European Patent Office) has also commented and provided its own proposal.  In the comments, the legitimacy of the proposed transfer of powers from the President of the EPO to the President of the Boards of Appeal has been questioned, and the constitution and proposed function of the BOAC has also led to doubts.  Moreover, the conflation in document CA/16/15 of the independence of the Boards of Appeal with their efficiency and the management of conflicts of interest of Board members has led to adverse comment.

The new AMBA proposal, dated 18 June 2015, reiterates the earlier concerns, but then takes the further step of proposing alternative possible reforms to the structure and governance of the Boards of Appeal in order to increase their autonomy.  It is a detailed and considered document.  The main feature of the proposal is to have, in place of the proposed BOAC of CA/16/15, a different body, called (for the sake of nominative differentiation) the "Senate of the Boards of Appeal", that would have external members (in the same way as the proposed BOAC), but, importantly, would include a majority of Board of Appeal members.  This would integrate better with the already existing "Presidium of the Boards of Appeal", whose residual function under the CA/16/15 proposal was unclear and seemed rather limited.  AMBA's proposals are analysed with reference to accepted standards for the governance of the judiciary, embodied in the Burgh House Principles on the Independence of the International Judiciary, and the Council of Europe recommendations on the judiciary CM/Rec(2010)12,  "Judges:  independence, efficiency and responsibilities".

The section of the AMBA website with the consultation (http://www.amba-epo.org/reform) also has useful background materials (see menu on the right hand side), including the background and key issues, a summary of the CA/16/15 proposal, a summary of the AMBA proposal, a summary of the EPI proposal, and a comparison table of these different proposals.  There is also background information on each of the areas covered by the AMBA consultation (which mirrors the structure of the EPO consultation), such as efficiency, conflicts of interest, and appointment and re-appointment of Board of Appeal members.

Readers are of course very welcome, nay encouraged, to comment here, but it will be of more benefit to the world of IP in general to respond to AMBA at http://www.amba-epo.org/reform.  There is no specific deadline for response, but Merpel believes that the reform of the structure of the Boards of Appeal will be discussed at the Administrative Council meeting in December, so it would assist AMBA to have feedback in good time before then (Merpel has also noticed an additional meeting of the Administrative Council "to be confirmed" on 15 September, and is not sure what this will be for, but she does not understand it to be to consider CA/16/15.)

As ever, Merpel welcomes comments, but begs to remind readers of the following:

Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).   The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning of the comment itself (for example, start your comment with "Descartes says: You forgot one point ..."). This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.