European Patent Office reform is fake

The European Patent Office is reforming. The aim is to make the Technical Boards of Appeal more independent.

Here is what the EPO writes about that:

• "The Organisation would then have the three-way separation of powers typical of a state bound by the rule of law, into legislature, executive and judiciary, the latter being the new judicial body."

http://patlaw-reform.european-patent-office.org/boards_appeal/

Comment by Ante Wessels:

The EPO compares itself with a state, it is a state among the states? Apparently the EPO is oblivious to the fact it is not a nation, nor a state, does not have politically accountable officials, nor a parliament.

It's highest body, the Administrative Council, consists of representatives of the member states. They come from the executive or the patent offices. They do not represent the public at large. Rather, they are "captive", they share the same interests and beliefs.

The EPO is not led by someone who is politically accountable, who answers to a parliament. The EPO has 31 ministers who are all a little bit in charge, by way of proxy. The ministers (or state secretaries) may hardly know what is happening. The parliaments of the Contracting States will be even less informed. If the public would like to change something it would have to address 31 parliaments, which would have to influence 31 ministers. The political power is fragmented, creating a political vacuum. From a democratical point of view, this governance model is a black hole.

The EPO is a treaty organisation. If it resembles anything, it is not a state, it is an executive organisation - having its own internal, not independent, boards of appeal.

A patent office sells rights, a product that doesn´t them cost anything. In fact, the more easy they grant them, the better the business, the more happy the buyers. Such a situation calls for strong external checks and balances. The EPO governance model does not provide these.

The proposed changes have two good points: the members of the boards will be appointed for life, and the appointment will be made on proposal from the President of the Court, not any more on proposal from the President of the European Patent Office.

But, the President of the Court is appointed by the Administrative Council for a renewable term of five years. A real court can appoint its President itself. The chambers will be housed by the executive office. The legally and the technically qualified judges of the Appeal Chambers will be appointed by the Council on a proposal from the President of the Court. A Council which we saw is captive, a President which is appointed for 5 years by that Council.

The EPO makes money granting patents. The more granted, the more powerful it is. There are no external checks and balances. And anyway the case law has already been poisoned in all those years in which the judges were not independent.

The reform does not create an independent court.

It is normal that an executive office has its internal boards. That is no problem, as long as there is an appeal possible at an independent court (a really independent organisation). Forget the reform, the life long appointments, create an appeal at an independent organisation.

Comment by Laura Creighton

It's worse than that. We would like to have judges that are able to demand independent economic surveys to find out what the effect of granting certain patents is likely to be. Also ones who could say that the non-economic grounds are sufficient to reject a patent. Google 'Monsanto Pig Patent'. Ok, the destruction of the profession of 'farmer' strikes me as plenty good enough reason to reject this patent. But we need a judiciary which is more in tune with 'what is good for society' and not 'what is good for the patent office' in order for such things to happen.

Comment by unknown

In the United States, a basic criticism of government agencies pegs them for arrogating to themselves all three functions which are supposed to be separate powers. i.e., the FCC executes its mandate, issues regulations, and judges compliance.