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The Beautiful Game: a view of the EPO Board of Appeal manpower shortage

Football (not to be confused with American Football) is famously described as "The Beautiful Game" [as described by legendary Brazilian soccer star Pele: see here and here].  One frequently-discussed feature of the Beautiful Game is the phenomenon that, in the highly competitive world of professional football, in which teams consisting of eleven players contest each other, a team which is one man short will play better than when at its full complement of eleven [for discussions of this phenomenon, which really is the exception rather than the rule, click here and here]. Merpel wonders whether the same principle is being applied at the European Patent Office (EPO), where it may appear to the interested bystander that fielding a weakened team is to become a matter of official policy and that the Boards of Appeal are assumed to deliver better results when their numbers are depleted.

With only her retractable claws to count on, Merpel has been doing some counting. It seems to her that, when January comes around, there will be somewhere in the region of seven unfilled vacancies in the Legal Board, out of a total of 31, and plenty of other gaps in the team line-up. As she sees it:
  • Boards 3.2.3, 3.2.4 and 3.2.6 will each be lacking one technical member;
  • Board 3.2.8 will be short of a chairperson;
  • Board 3.3.1 and 3.2.2 will each be short of two technical members;
  • Board 3.3.3 will be short of a chairperson;
  • Board 3.3.9 short of one technical member;
  • Boards 3.4.1 and 3.4.3 will each be missing one technical member;
  • Board 3.4.2 will be chairless;
  • Board 3.5.1 will be short of two technical members and a chairperson;
  • Board 3.5.2 will be short of a chairperson;
  • Board 3.5.4 will be short of just one technical member and a chairperson;
  • Board 3.5.7 will be short of one technical member. 
[Note to puzzled readers: the three number code used above is redolent with meaning. The initial "3" refers to Directorate-General 3 of the EPO, which means the Boards of Appeal. The second and third digits represent a technical subject category and subcategory. Further information about the distribution of business between the Boards can be found here]. 

If Merpel's arithmetic is right, and assuming that no appointments are being made between now and the end of the year, this all means that there are seven legal, 14 technical and six chairs missing [not counting the one currently suspended member].

It has been suggested that the EPO can do without so many Board of Appeal members because the volume of appeals may be falling.  This suggestion has however been disputed.  While statistics can lie or mislead, there should be some actual and verifiable numbers floating round which can confirm or deny (i) whether the number of appeals is falling and (ii) whether, if there is data to support this claim, it reflects an actual trend or is merely a deviation from the norm.

Merpel also hears a rumour that the number of Board of Appeal members is being culled since a large number of potential users of the EPO system will wish to opt for the untried and indeed currently non-operative Unified Patent Court revocation proceedings in preference for EPO oppositions. If this is the case -- and it would be surprising if it were -- it would be good for someone at the EPO to say so.

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