April 1996: A working party was set up by the president of the office to establish whether the independence of the members of the Enlarged BoA and BoA should be safeguarded by means of legal measures and/or made more apparent, particularly with respect to the outside world (CA/51/96).
December 1996: UK patent Court Lenzing AG’s
Jacob J. stated (Lenzing AG’s European Patent (UK), [1997] R.P.C., 245):
“[t]he fact is that the members [of the Boards of Appeal] are independent in their judicial function and that independence is guaranteed by the EPC itself. They are judges in all but name – and it is rather a pity that they were not so-called by the Convention.”
July 1997: Office opinion on conformity of the EPC with TRIPS. The Office answers questions put by the Japanese mission at the WTO meeting in May 1997, on the conformity of the EPC with the TRIPS Agreement (Info 4/PL 5 e):
“The conformity of Art. 106(1) EPC with the TRIPS Agreement should be tested against the prescription of Art. 62(5)…. [this latter] requires that final administrative decisions in procedures for the acquisition of rights, as well as inter partes procedures for the opposition or revocation of patents be subject to review by a judicial or quasi-judicial authority….. At the very least, the EPO Boards of Appeal constitute a quasi-judicial authority…… Art. 106(1) EPC goes beyond the minimum prescriptions of TRIPs Art. 62(5), in that review by a Board of Appeal provides an opportunity for judicial review.”
November 1997: The DG3 Working Party report (CA/84/97) advocates immediate and future measures to increase the administrative autonomy for DG 3.
Point 70 concludes that, within the framework of a revision of the EPC, serious consideration should be given to making DG 3 an autonomous judicial body of the European Patent Organisation that is independent of the Office. The President submits it – with comments – to the Council for opinion and as a basis for further reflection about institutional reform.
December 1997: AC discuss DG3 Working Part report
AC favourably receives (CA/171/97, point XVIII) the Report of the DG3 Working Party.
National delegates comment, on the one hand, that substantive questions required further study and that the EPC already provided a firm guarantee of independence of DG3 members, and, on the other hand, that the suggestions made should be implemented. Mention is also made that the TRIPS council had already raised the question of the jurisdiction of the boards of appeal.
July 1999:Bavarian Administrative Court’s review of EPO decisions
Bavarian Verwaltungs-Gericht “National review of EPO decisions” (EPO OJ 2000, 205), Headnote 2:
“the system of legal protection under the European Patent Convention and the composition of the boards of appeal of the European Patent Office meet the minimum requirements of Article 19(4) GG.”
March 2003: Office proposes (CA/59/03) a project to submit proposals for amendment of the EPC to establish organisational autonomy of the boards of appeal within the EP Organisation, on the basis of the Report of the DG3 Working Party. The aim is to make the independence of board of appeals’ members clear and convincingly apparent to the outside world and to systematically enshrine in the EPC the principles and structures essential for the boards to function as a judicial body.
June 2003: AC welcomes the proposal, subject to some clarification. Delegations express favourable basic views on the project (CA/72/03, point 17). However, doubts are expressed about financial implications and the permanent appointment of BoA members. The President notes that the independence of the BoA had been the subject of frequently voiced doubts and cites several examples of such misgivings. The AC invites the Office to elaborate further on the proposal and agreed to decide in October 2003 if a corresponding revision of EPC is to be put in the Agenda of a future Diplomatic Conference.
October 2003: Sademund-Treiber Report presented to AC.
AMBA commissions an expert opinion (CA/103/03 Add. 2) on the proposal for autonomy of the boards, which was along the same lines as the EPO’s proposals and gave full backing to the organisation autonomy of the Boards.
October 2003: Preliminary Draft of EPC for organisational autonomy.
President submits to the AC a status report (CA/103/03) on organisational autonomy for the boards of appeal and a draft for proposed EPC amendments with the aim of deciding at the December meeting of the AC to submit the matter to the appropriate Council bodies for further examination, and then submission to the forthcoming diplomatic conference.
November 2003: The UK Delagation comments on the organisational autonomy project
The UK expressed (CA/PL 12/03), inter alia, the belief “that organisational autonomy will make a meaningful contribution to the standing of the Boards of Appeal in the eyes of the world”. It however, did not consider a lifetime appointment for the judges of the proposed court appropriate and concluded that: ”It seems more appropriate in that context for reappointments to be considered routinely, although we may contemplate a requirement that a reappointment could only be blocked by a four-fifths majority within the High Chamber”
November 2003: Discussions at the AC (CA/132/03) touched on, inter alia, the issue of lifetime appointment. The President of the Office and VP3 stressed the differences between the proposed new Court and other international courts, as well as other reasons that could justify lifetime appointments.
May 2004: AMBA letter to AC justifying lifetime appointment.
In a contribution (CA/71/04) to the AC, AMBA states:
“the non-removability of judges until retirement…is an established provision in the judicial systems of the states which recently joined the EU … What is appropriate for the legal order of the EU must also be appropriate for the future European Patent Appeal Court. ln this respect reference has been made to some other international courts whose judges hold limited appointments. However this cannot be applied to the future European Patent Appeal Court, since this is a specialist court similar to a national civil or administrative court in which the judges are permanently in post; whereas generally the judges of other international courts are, on account of the character of the court’s business, seconded for a limited period from their national Judicial systems.”
May 2004: Draft basic proposal for a revision of the EPC.
Draft basic proposal (CA/46/04) from the President of the EPO for a revision of the EPC implementing the organisational autonomy of the Boards of Appeal of the European Patent Office within the European Patent Organisation
June 2004: Decision of the AC not to have a Diplomatic Conference
According to the minutes (CA/85/04) at point 68:
“The Council thought that, on the basis of the text proposed in CA/46/04 + Corr. 1, the project was ripe for a diplomatic conference and that it would be put on the agenda for such a conference. However, further discussion would be needed on the budgetary impact of organisational autonomy and on the appointment of the judges of the future European Court of Patent Appeals.”
Point 71:
”The President declared that he shared the view of the chairman of the Council that it was no longer reasonable to continue to think in terms of holding a diplomatic conference in November 2004, but felt that it should be clear that the question of the autonomy of the boards of appeal should be on the agenda of such a conference, as and when it could be held.”
AMBA 