M. Névant (FR), Editorial CommitteeM. Névant (FR), Editorial Committee

Un air de déja vu?

As this issue of epi Information goes to press, the Covid-19 pandemic will have entered Year 2, and there is little progress in the vaccination rate across the European Union. Some observers (or ill-advised politicians) regrettably blame pharmaceutical companies for not wanting to give away their IP rights on vaccines, and, instead, urge for compulsory licenses as a remedy to all deficiencies. Whereas the failure of the European Union to protect its citizens appears to result from a lack of investment in manufacturing facilities over (at least) the last 20 years…

Another paramount event will also have taken place, namely the first ever pre-eEQE/eEQE. When the EQE Supervisory Board cancelled the EQE last year, there was no guarantee that a (pre-)EQE could be held in 2021. We are proud that epi pushed for the examination to take place, and express our thanks to all epi members who made this possible. We also congratulate all the candidates who had to sit an on-line examination  in addition to mastering the platform and browser selected for  the examination. We hope the EQE Examination Committees and Board will keep this in mind when marking the papers and deciding on the grades allotted to candidates.

The end of last year marked another milestone in the non-cooperation between the Boards of Appeal and users of the system. It was genuinely thought that the consultation on the proposed amendment of the Rules of Procedure of the Boards of Appeal would be the occasion for a true exchange of views. epi and Business Europe voiced their concern about the proposed wording of Article 15a RPBA, epi suggesting that this article should only remain in force during the pandemic and should subsequently be removed from the RPBA. Alas, the Board of Appeal Committee adopted the amendment of the RPBA with only minor changes to the initial wording of Article 15a, essentially ignoring  the comments from two major stakeholders of the patent system in Europe. It is obvious that the decision had already been made, and that the consultation was nothing more than window dressing. The amendment has, of course, to be adopted by the Administrative Council of the EPOrg (AC) - as required by the Decision of the AC dated 30 June 2016 (CA/D 7/16) – but this will likely be a mere formality.

Interestingly, a Board of Appeal has recently referred to the Enlarged Board of Appeal (EBA) the question (derived from Case T1807/15) of whether the conduct or oral proceedings as a videoconference without the consent of all parties is compatible with Article 116(1) EPC. Could this mean that there is no consensus within the Boards of Appeal as to the legitimacy of Article 15a RPBA? Or else that the Board of Appeal wants the practice of mandatory appeal hearings via video conference be set in stone? [Note from the Editor: as we go to press it seems that the that the composition of the EBA in this case includes members involved in drafting Article 15a RPBA, casting doubt on a fair and transparent outcome.]

From a general perspective, it is hardly understandable why the highest judicial body of the EPO (the EBA) is not comprised of independent members, i.e. members who do not handle a single appeal case and whose only task should be to review potential flaws in a decision under appeal. I believe that it is  time for the AC to comprehensibly address this issue so that the word "independence" can truly be regarded as the hallmark of the Boards of Appeal.

I incidentally note that it is still common practice for the composition of an Opposition Division to include the first member of the Examining Division responsible for granting the opposed patent. I do not believe that there is a single European country in which the same matter is decided at two different levels by the same judges. Why should that be the case in opposition proceedings?

From an internal perspective, you may already know (see here), that the position of Executive Director (created by a decision from Council, see e.g. the report of C87 in epi Information 4/2019) has been filled since February 1, 2021. On behalf of the Editorial Committee, I congratulate Ms. Tatjana Lissak for her appointment and wish her every success in her new role.

You will also note from the next pages that the Editorial Committee, with the support of the Presidium, is working this year with a communication agency to strengthen epi’s capacity to deliver information to its members. This will include developing the use of social media and reorganizing the content platform of the website. We are hopeful that the first results will be visible by summer time.