The new Business Distribution Schemes for the Boards of Appeal for the second half of 2015 have been published on the EPO’s website, following the re-appointment of members in the Administrative Council’s meeting in the preceding week. The schemes show the following vacancies:
Chairmen Technical Boards of Appeal: 3 of 28 available posts
Technically qualified members: 8 of 111 available posts
Legally qualified members: 7 of 33 available posts
This means an overall vacancy rate of over 10%, and a vacancy rate for legally qualified members of over 20%. Such vacancies are without precedent in the past and result from the fact that the President of the EPO has not made use of his right to propose appointments of new Board members to the Administrative Council since the Enlarged Board of Appeal rendered its decision R 19/12 of April 25, 2014 (see post dated 05/05/2014).
Comments in the blogs report that the selection and appointment proceedings pending at the time were stopped and no new selection proceedings were allowed to start and that even the re-appointments were delayed, sometimes until the last minute. In addition, no requests for prolongation of service of Board members from 65 years to 68 years, as foreseen in the Service Regulations, were allowed.
The situation will quickly deteriorate and have long lasting consequences. In the course of this year, a further Chairman will retire and the published schemes do not yet include the members retiring at the end of the year. Even if a quick decision were taken to restart replacing retired members, the appointment of new members needs its time. In order to balance the losses, it will become necessary at some time in the future to recruit a higher number of members which reduces the expectation of finding enough highly qualified candidates. Since at that time many experienced members will have left the Boards, the appropriate balance between experienced and younger members will be disturbed.
Particularly worrying is the situation in respect of Boards without an appointed Chairman who is expected to care about continuity and consistency of the case law on the basis of his experience and his role as primus inter pares. As far as the legal members are concerned, the increase of oral proceedings per member means that the time necessary for an appropriate preparation of the case before oral proceedings is substantially reduced.
Whatever the reason for this course of (non-) action may be, it shows the existing dependency of the Boards of Appeal from the President of the EPO and his undiminished influence on the Administrative Council. Perhaps the management of the EPO and the Administrative Council are waiting for the magic formula how quality of the decisions and efficiency of the proceedings can be improved at the same time. The questions asked in the consultation on the reform of the structure of the Boards of Appeal point in this direction.
It may be possible to improve machine production in respect of quantity and quality at the same time. However, when human intellectual work is at stake, experience shows that speed can only be achieved at the cost of thoroughness. In 2014, the Boards succeeded for the first time after a long period to settle almost as many cases as were received, with work for almost four years remaining as backlog. How the Boards can more efficiently handle this workload with a weakened membership remains a mystery. At the end, the users will have to pay the bill for the reduction in staffing of the Boards of Appeal, be it in respect of further prolonged pendency times, or be it being faced with even less flexibility in procedural and formal questions (see Anetsberger, Wegner, Ann et al. in epi Information 2/2015).
The Business Distribution Schemes may be found here.