According to documents provided to us, and the EPO's own site, the EPO is planning to separate the Board of Appeals (aka DG3) from the European Patent Office, and turn them into an independent body operating within the European Patent Convention (EPC). This looks like an attempt to move forwards with EPLA, despite a ruling from the European Parliament's legal service that this would be illegal.
The Boards of Appeal (BoA) are part of the European Patent Office, according to EPC art.15. In a 2003 document titled "Organisational autonomy of the Boards of Appeal of the European Patent Office within the European Patent Organisation - convening a diplomatic conference", the EPO explains its plans for giving the Boards of Appeal organisational autonomy.
The document says:
- The Boards of Appeal are to be established as an organ of the European Patent Organisation designated the "European Court of Patent Appeals" (Article 4 EPC).
- A chapter entitled "The European Court of Patent Appeals" is to be inserted into EPC Part I concerning general and institutional provisions (Articles 21-24 EPC).
- The financial provisions are to be harmonised with the proposed new structure of the Organisation (Articles 42 and 46-49 EPC).
- As the patent grant procedure in all its phases is to remain essentially unchanged, the EPC's procedural provisions will largely require only technical amendment to reflect the proposed new structure of the Organisation.
So it's a simple "technical amendment" to the EPC. But why make the BoA independent? We're told that: "The aim of the proposed EPC revision is to make the boards' status as a judicial body clearly and convincingly apparent to the outside world."
Is this plan from 2003 still relevant? Well, we have another internal EPO document from 2007 - 'Strategic renewal - Domain "Governance"' - that says:
Governance has been part of strategic renewal from the outset. It was one of the first priorities in April 2006 and has resulted in the establishment of Terms of Reference for the MAC, an internal code of conduct for MAC members, detailed task descriptions for most MAC members and resolving the detailed delegation of authority in nine key areas."
Within the domain Governance, the following projects have been identified so far:
- Independence of DG3 (will be a priority in the event of a Diplomatic Conference)
So the plan is to use the EPC2000 initiative to set the DG3 free. What would this mean? If the proposed European Court of Patent Appeals (ECPA) would keep the current competences of DG3, then this change is indeed simply administrative. But the proposed ECPA is very convenient for the EPO's plans to create a central EPLA court. 1: separate DG3 into a seperate entity. 2: extend this entity's competence to cover disputes relating to validity and infringement of European patents. 3: profit! We would get a European patent litigation court, outside the Community, and under full control of the European Patent Organisation. Gone with the differences of opinion between national courts and the EPO BoA. Gone with all resistance to software patents.
Patent attorneys like Keith Beresford who complain that the UK is drifting away from the dogma of the EPO must surely be salivating at the prospect of the ECPA and possibilities it offers. Two steps, and software patents become enforceable across all Europe.
But it's not that simple. The European Parliament's legal service has said that the Community has exclusive or at least a mixed competence in the field of patent litigation arrangements, so that the separation of DG3 from the Office will only be possible if the European Community becomes a Contracting Party to the European Patent Convention.
Does the FFII trust the EPO? The answer is unfortunately, "not a lot". The continuing flow of software patents creates immense risk for Europe's IT sector, to the benefit of patent trolls, non-producing entities, and certain monopolists. The refusal of the EPO to even admit that it grants software patents, instead claiming it grants only patents on "CIIs" makes reform very difficult. The attempts to put into place structures like EPLA that would prevent real reform via a Community patent - under control of the European Parliament and European Court of Justice - show that the EPO's interests are hostile to those of the Community.
DG3 should be taken out of the European Patent Office, yes. The EPOffice has no business acting as a court. But neither does the EPOrganisation. DG3 should become part of the Community, and answer to the ECJ.