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| Prof. Broß |
Broß believes that the EPO Boards of Appeal are not independent from the EPO President and the EPO administration. He considers the recent reforms as being mere “cosmetics“.
A further point was the unjust imbalance regarding legal measures against validity decisions. While a European Patent is retroactively invalid with a final invalidation decision of the EPO’s Boards of Appeal, the opponent can – if the EP is upheld by the EPO’s Board of Appeal – continue to attack the then national parts of the upheld European patent in national invalidity proceedings.
Finally, Broß criticizes that the EPO would not commit to the protection of its employee’s fundamental rights guaranteed by national law and the EU Charter. A state transferring sovereign rights to a supranational administration has to safeguard that his nationals employed by such a supranational administration benefit from the same rights and standards as guaranteed by the German constitution. Prof. Dr. Broß strongly believes that these “fundamental constitutional deficiencies” have been overlooked and neglected during the drafting phase of the Unitary Patent Package.
Regarding the timing of the proceedings before the German Federal Constitutional Court, Prof. Dr. Broß says that it would be possible to decide the case within seven months but that the matter is not urgent. Rather, the Court would have to wait for the result of the Brexit negotiations until it hands down a decision.
Keep in mind that while Prof. Broß is certainly a competent lawyer with high standing - he was a judge at the Federal Court of Justice for twelve years and at the German Constitutional Court from 1998 to 2010 - he has been retained as a party expert in the Mundipharma complaints pending before the Constitutional Court, and his views expressed above certainly are in line with the complainant's position.