Art. 23 1/15 | |
---|---|
![]() | |
Submitted 31 June 2015 Decided 17 September 2015 | |
Full case name | Administrative Council v. Respondent |
ECLI | ECLI:EP:BA:2015:G230115.20150917 |
Chamber | Enlarged Board of Appeal |
Language of proceedings | English |
Ruling | |
Request for a proposal of removal from Office: "Article 12a(5) RPEBA requires that the request under Article 12a(1) RPEBA specify individual incidents and the evidence for them, and give reasons why they constitute a serious ground within the meaning of Article 23(1) EPC." | |
Court composition | |
President I. Beckedorf | |
Judges |
Art. 23 2/15 | |
---|---|
![]() | |
Submitted 26 October 2015 Decided 11 February 2016 | |
Full case name | Administrative Council v. Respondent |
ECLI | ECLI:EP:BA:2016:G230215.20160211 |
Chamber | Enlarged Board of Appeal |
Language of proceedings | English |
Ruling | |
Request for a proposal of removal from Office: "Case terminated by withdrawal of the request from the Administrative Council. Reimbursement of all respondent's procedural costs proposed, as well as publication" | |
Court composition | |
President M.-B. Tardo-Dino | |
Judges |
Art. 23 1/16 | |
---|---|
![]() | |
Submitted 11 February 2016 Decided 14 June 2016 | |
Full case name | Administrative Council v. Respondent |
ECLI | ECLI:EP:BA:2016:G230116.20160614 |
Chamber | Enlarged Board of Appeal |
Language of proceedings | English |
Ruling | |
Request for a proposal of removal from Office: "Decision not to propose removal from office after threat by president of the European Patent Office to the Enlarged Board of Appeal; which the Administrative Council did not sufficiently distance itself of." | |
Court composition | |
President M.-B. Tardo-Dino | |
Judges |
Art. 23 1/15 (also referred to as G 2301/15 [1] ), Art. 23 2/15 (also referred to as G 2302/15 [2] ) and Art. 23 1/16 (also referred to as G 2301/16 [3] ) are three related cases decided by the Enlarged Board of Appeal of the European Patent Office concerning the removal from office of Patrick Corcoran, a member of the Boards of Appeal, who had been previously suspended by the Administrative Council of the European Patent Organisation. According to Article 23(1) EPC, members of the Boards of Appeal may only be removed from office by the Administrative Council on a proposal from the Enlarged Board of Appeal. Two cases were successively initiated by the Administrative Council, but the Enlarged Board eventually dismissed both of them. [1] [2] [4] In the third case initiated by the Administrative Council, the Enlarged Board decided not to propose the removal from office of Corcoran. [3] [4]
The European Patent Convention (EPC) is a multilateral treaty instituting the legal system according to which European patents are granted. It contains provisions allowing a party to appeal a decision issued by a first instance department of the European Patent Office (EPO). The appeal procedure is under the responsibility of its Boards of Appeal, which are institutionally independent within the EPO. According to Robin Jacob, the members of the Boards of Appeal are "judges in all but name". [5]
The members of the Boards of Appeal are appointed by the Administrative Council of the European Patent Organisation on a proposal from the President of the European Patent Office (EPO). [6] The Administrative Council exercises disciplinary authority over the board members and, during their five-year term, the board members may only be removed from office "if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect." [7] The Administrative Council is also the appointing and disciplinary authority for the President of the EPO. [8]
Further, employees of the EPO, no matter whether they are members of the Boards of Appeal, may apply to the Administrative Tribunal of the International Labour Organization (ILO) to resolve employment disputes they may have with the European Patent Organisation. [9]
On 3 December 2014, Patrick Corcoran, an Irish member of Board of Appeal 3.5.05, "was escorted out of the [European Patent] Office by [EPO's] investigation unit," and Benoît Battistelli, president of the EPO, imposed a "house ban" on him. [10] [11] [12] [notes 1] In reaction, a number of members of the Enlarged Board of Appeal, the highest body of the EPO judiciary, wrote to the Administrative Council to express their concerns over this move, regarded as challenging the judicial independence of the Boards of Appeal. [10] [13] [14] [11] [15] Battistelli stated that he acted "in accordance with the rules at all times" and that he was "absolutely committed to the independence of the [EPO's] judiciary". [16]
The Administrative Council of the European Patent Organisation then suspended Corcoran. [notes 2] The decision [notes 3] was taken at the Administrative Council's meeting held on 10 and 11 December 2014 in Munich, Germany. The suspension is unique in the history of the EPO. [18] Corcoran was originally suspended until 31 March 2015, for alleged misconduct "[a]s a precautionary and conservative measure" pending an investigation of the matter. [13] [14] [18] According to the French newspaper Les Échos , Corcoran was accused of having launched a smear campaign against Željko Topić, one of the Vice-Presidents of the EPO. [19] The Irish Times later reported that Corcoran had been suspended for defamatory statements he allegedly made against Battistelli using a pseudonym, and for bringing "weapons and Nazi memorabilia to work". [12]
After the suspension of Corcoran, the Rules of Procedure of the Enlarged Board of Appeal (RPEBA) were amended by decision of 25 March 2015 (CA/D 3/15) to implement a procedure for Article 23(1) proceedings, [4] [20] and to fill a legislative lacuna in that respect. [21] A new Article 12a RPEBA provides for that the Administrative Council or the Vice President of EPO in charge of the Boards of Appeal may request that the Enlarged Board of Appeal make a proposal to the Administrative Council for the removal from office of a board member. [20]
Following an internal investigation, the Administrative Council requested on 25 June 2015 the Enlarged Board of Appeal to make a proposal for the removal from office of Corcoran, pursuant to Article 23(1) EPC and Article 12a of the Rules of Procedure of the Enlarged Board of Appeal. [22] [23] [24] This was the first dismissal procedure instituted against a member of the Boards of Appeal in the history of the European Patent Office. [23]
In that first case, which received the case number "Art. 23 1/15" (also referred to as "G 2301/15" [1] ), the Administrative Council sent data which it said were sufficient evidence. In its decision issued in September 2015, the Enlarged Board indicated that the Council however failed to make a statement regarding the facts which should lead to removal from office, or give arguments why the evidence should lead to removal. The Enlarged Board thus dismissed the case. Namely, the Administrative Council's request for a proposal that Corcoran be removed from office was rejected as inadmissible. [1] [25] [26]
A second case, which received the case number "Art. 23 2/15" (also referred to as "G 2302/15" [2] ), was then initiated on 26 October 2015 and subsequently withdrawn by the Administrative Council. The Enlarged Board thus dismissed the case. It also ordered publication of the decision and proposed reimbursement of legal costs by the defendant. [2] [27] [28]
A third case, which received case number "Art. 23 1/16" (also referred to as "G 2301/16" [3] ), contained a redrafted request from the Administrative Council asking for a proposal for the removal of Corcoran. During first non-public oral proceedings held on 10 to 12 May 2016, the Enlarged Board of Appeal held that the Administrative Council's request was formally admissible for discussion as to its merits, unlike the first request filed in case Art. 23 1/15. The Enlarged Board also decided that public oral proceedings would be held in June 2016, in order to discuss the merits of the case. However, shortly before the scheduled oral proceedings, the Enlarged Board received a letter from the president of the EPO, who was not a party to the proceedings, indicating that he considered the planned public oral hearing and the hearing of witnesses from the Office as "unlawful". Following this intervention from the president of the EPO, the Enlarged Board considered that it could only proceed further with the proceedings if the chairman of the Administrative Council (the "petitioner" that started the proceedings, and appointing authority of the president) distanced himself from the letter. The Administrative Council replied, but the Enlarged Board deemed that the Administrative Council did not do so satisfactorily. The Board thus decided not to request removal from office of the defendant, i.e. Corcoran, without deciding on the substantive allegations made against him. [3] [29] [30] [31] [32] [33]
In 2017, the Administrative Council did not renew Corcoran's term of office. [34]
On 6 December 2017, the Administrative Tribunal of the International Labour Organization (ILO) issued two decisions, i.e. judgments 3958 and 3960, [17] [24] in which the Tribunal largely sided with Corcoran in ordering his immediate reinstatement in his position as well as monetary compensations to be paid to cover lost wages, legal costs and “moral damages”. [12] Corcoran had filed complaints with the ILO Administrative Tribunal against his suspension. [35] The Tribunal held that Battistelli, the President of the EPO, should not have played a decisive role in the suspension proceedings since he was the subject of the alleged defamation by Corcoran. [12] That is, the Tribunal held that Battistelli had acted in a partial manner, [35] had a conflict of interest, [12] [36] [37] and "had improperly involved himself in the decision to suspend [Corcoran]". [38]
The "house ban" issued in December 2014 was later lifted on 11 December 2017, and Corcoran resumed his work as member of the Boards of Appeal. However, as his five-year term as member of the Boards of Appeal was not renewed by the Administrative Council, he returned to work at the EPO first-instance departments in January 2018. [39] [40] He was then reportedly transferred from Munich, Germany, to the EPO branch in The Hague, Netherlands, and assigned to a position outside his area of expertise. [41] In the meantime, the Administrative Tribunal of the International Labour Organization (ILO) issued two further decisions, i.e. judgments 3959 and 3961, dismissing Corcoran's complaints relating to the confiscation of his USB memory stick by the EPO Investigative Unit on 3 December 2014, and to his "request that the Administrative Council [of the European Patent Organisation] investigate the alleged unauthorized disclosure of confidential information relating to the ongoing disciplinary procedure against him". [42] [43] [44]
In 2018, it was revealed that Benoît Battistelli, then President of the EPO, and Željko Topić, one of EPO Vice-Presidents, had initiated criminal proceedings against Corcoran before courts in Munich. These proceedings eventually resulted in the Regional Court I of Munich (German : Landgericht München I) declaring in November 2017, on appeal, Corcoran innocent of all charges, including the alleged defamation. [41] [45] [46]
In October 2015, Siegfried Broß, a former judge of the German Federal Constitutional Court and the Patent Division of the Federal Court of Justice, expressed the opinion that the procedure followed by the President and the Administrative Council did not comply with the rule of law and had been conducted in a manner comparable to criminal proceedings, and that confidentiality requirements had not been adhered to. He furthermore criticized the role of EPO's internal investigation unit. [47] EPO Vice-President Raimund Lutz strongly rejected these criticisms, stating that the disciplinary proceedings against the board member were conducted by the EPO and the Administrative Council in accordance with the EPC provisions. [48]
The case has fueled the discussion about the lack of sufficient independence of the Boards of Appeal from the executive branch of the European Patent Office, [35] [39] [41] and the shortcomings of the Administrative Tribunal of the International Labour Organization (ILO) in effectively resolving employment disputes within the EPO. [41] It has also been cited as an example of what can go wrong in supranational organizations. [41]
The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative body. The actual legislative power to revise the European Patent Convention lies with the Contracting States themselves when meeting at a Conference of the Contracting States.
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention (EPC) of 1973. The European Patent Organisation has its seat at Munich, Germany, and has administrative and financial autonomy. The organisation is independent from the European Union, and has as member states all 27 EU member states along with 12 other European states.
The European Patent Convention (EPC), the multilateral treaty instituting the legal system according to which European patents are granted, contains provisions allowing a party to appeal a decision issued by a first instance department of the European Patent Office (EPO). For instance, a decision of an Examining Division refusing to grant a European patent application may be appealed by the applicant. The appeal procedure before the European Patent Office is under the responsibility of its Boards of Appeal, which are institutionally independent within the EPO.
The Administrative Council of the European Patent Organisation is one of the two organs of the European Patent Organisation (EPOrg), the other being the European Patent Office (EPO). The Administrative Council acts as the Organisation's supervisory body as well as, to a limited extent, its legislative body. The actual legislative power to revise the European Patent Convention (EPC) lies with the Contracting States themselves when meeting at a Conference of the Contracting States. In contrast, the EPO acts as executive body of the Organisation.
Article 123 of the European Patent Convention (EPC) relates to the amendments under the EPC, i.e. the amendments to a European patent application or patent, and notably the conditions under which they are allowable. In particular, Article 123(2) EPC prohibits adding subject-matter beyond the content of the application as filed, while Article 123(3) EPC prohibits an extension of the scope of protection by amendment after grant.
Under case number G 3/08, the Enlarged Board of Appeal of the EPO issued on May 12, 2010 an opinion in response to questions referred to it by the President of the European Patent Office (EPO), Alison Brimelow, on October 22, 2008. The questions subject of the referral related to the patentability of programs for computers under the European Patent Convention (EPC) and were, according to the President of the EPO, of fundamental importance as they related to the definition of "the limits of patentability in the field of computing." In a 55-page long opinion, the Enlarged Board of Appeal considered the referral to be inadmissible because no divergent decisions had been identified in the referral.
During the grant procedure before the European Patent Office (EPO), divisional applications can be filed under Article 76 EPC out of pending earlier European patent applications. A divisional application, sometimes called European divisional application, is a new patent application which is separate and independent from the earlier application, unless specific provisions in the European Patent Convention (EPC) require something different. A divisional application, which is divided from an earlier application, cannot be broader than the earlier application, neither in terms of subject-matter nor in terms of geographical cover.
Under the European Patent Convention (EPC), a petition for review is a request to the Enlarged Board of Appeal of the European Patent Office (EPO) to review a decision of a board of appeal. The procedure was introduced in Article 112a EPC when the EPC was revised in 2000, to form the so-called "EPC 2000". A petition for review can essentially only be based on a fundamental procedural defect. Its purpose is not to obtain a reconsideration of the application of substantive law, such as points relating to patentability. The petition is a restricted form of judicial review, limited to examining serious errors of procedure which might have been committed by the Legal or Technical Boards of Appeal, prejudicing the right to a fair hearing of one or more appellants. Before the entry into force of the EPC 2000 in December 2007, it was not possible for a party who did not have his requests granted in an appeal to challenge the final decision of the Legal or Technical Board of Appeal on any grounds.
In case G 1/15, the Enlarged Board of Appeal of the European Patent Office (EPO) affirmed the concept of partial priority. That is, a patent claim in a European patent application or European patent may partially benefit from the priority of an earlier application.
Carl Josefsson is a former Swedish Judge at the Svea Court of Appeal in Stockholm, and currently President of the Boards of Appeal of the European Patent Office (EPO), a new position created within the EPO. He took up his new position on 1 March 2017 for a period of five years. As President of the Boards of Appeal of the EPO, Josefsson also acts as President of the Enlarged Board of Appeal.
R 19/12 is a decision issued on April 25, 2014 by the Enlarged Board of Appeal of the European Patent Office (EPO), in which the Enlarged Board allowed an objection of suspicion of partiality against its Chairman, the Vice-President of Directorate General 3 (DG3), and ordered that he be replaced, because he was also acting as member of the Management Committee of the EPO. In 2014, the effects of the decision were said to be potentially far-reaching.
G 1/19 is a decision issued by the Enlarged Board of Appeal of the European Patent Office (EPO) on 10 March 2021, which deals with the patentability of computer-implemented simulations.
G 2/19 is a decision issued by the Enlarged Board of Appeal of the European Patent Office (EPO) on 16 July 2019, which deals with three legal questions, the third relating to whether oral proceedings before the EPO Boards of Appeal may be held in Haar in the Munich district rather than in Munich per se, when a party objects to the oral proceedings being held in Haar. In July 2019, the Enlarged Board of Appeal decided that oral proceedings before the Boards of Appeal may be held in Haar without infringing Article 113(1) EPC and Article 116(1) EPC.
G 1/21 is a decision issued on 16 July 2021 by the Enlarged Board of Appeal of the European Patent Office (EPO) regarding the legality of holding oral proceedings at the EPO by videoconference without the consent of the parties. Namely, the Enlarged Board of Appeal held that "[d]uring a general emergency impairing the parties' possibilities to attend in-person oral proceedings at the EPO premises, the conduct of oral proceedings before the boards of appeal in the form of a videoconference is compatible with the EPC even if not all of the parties to the proceedings have given their consent to the conduct of oral proceedings in the form of a videoconference." The reasoning in the written decision further indicates that, if a party so requests, oral proceedings must be held in person at the EPO premises, except in absolutely exceptional cases.
G 1/10 is a decision issued on 23 July 2012 by the Enlarged Board of Appeal of the European Patent Office (EPO), holding that Rule 140 EPC cannot be used to request corrections of the text of a European patent.
G 1/11 is a decision issued on 19 March 2014 by the Enlarged Board of Appeal of the European Patent Office (EPO), holding that a Technical Board of Appeal rather than the Legal Board of Appeal is competent for an appeal against a decision of an Examining Division refusing a request for refund of a search fee under Rule 64(2) EPC, which has not been taken together with a decision granting a European patent or refusing a European patent application. In other words, the decision deals with the delimitation of competence between the EPO's Legal Board of Appeal and its Technical Boards of Appeal.
G 1/12 is a decision issued on 30 April 2014 by the Enlarged Board of Appeal of the European Patent Office (EPO), holding that an appellant's identity in a notice of appeal can be corrected under Rule 101(2) EPC, provided the requirements of Rule 101(1) EPC are met. The Enlarged Board of Appeal also held that an appellant's identity can be corrected under Rule 139 EPC, first sentence, under the conditions established by the case law of the Boards of Appeal.
G 1/09 is a decision issued on 27 September 2010 by the Enlarged Board of Appeal of the European Patent Office (EPO), holding that, following refusal of a European patent application, the application remains pending until the expiry of the time limit for filing a notice of appeal, so that a divisional application under Article 76 EPC may be filed even after the refusal of an application. More specifically, the divisional application may be filed until expiry of the time limit of two months for filing a notice of appeal under Article 108 EPC.
Ende 2014 suspendierte er einen Richter und erteilte ihm Hausverbot. In diesem Jahr wurde seine Amtszeit nicht verlängert.