The EPO Boards of Appeal’s balance sheet for 2023 does indeed sound excellent. “By the end of 2023 the number of pending cases was reduced to below 5,000 and the number of pending cases older than 30 months was decreased to 13.4%,” states the court’s latest annual report.
Following the structural reform of the Boards of Appeal, their president Carl Josefsson formulated objectives to reduce the number of pending cases to below 7,000 and to settle 90% of cases within 30 months. Josefsson and the boards’ judges are proud of having achieved their target.
According to the president, this achievement can be predominantly attributed to the “commitment and engagement of the entire staff”. Between January 2017 and December 2023, the BoA’s productivity increased by 29.7%.
Onwards and upwards for BoA
In view of this success, the president is raising the bar even higher for the coming years. By the end of 2025, 90% of cases should not be older than 24 months. “The boards will gradually start dealing with appeals as soon as they are pending before them,” says the annual report. The adjustments to the BoA’s Rules of Procedure, which came into force on 1 January 2024, should help to achieve this goal.
One important change is that the boards are now able to summon parties to oral hearings at an earlier stage. To this end, the annual report refers to several possibilities for oral hearings: videoconference, in-person and mixed-mode. Of 1,629 oral hearings held in 2023, 57% were conducted via videoconference.
“Ultimately, EPO users want good quality decisions”
Nevertheless, president Josefsson would be well advised not to overemphasise productivity as an absolute key figure. Ultimately, EPO users want good quality decisions on the inventive activity and novelty of the filed patents.
The annual report mentions this hotly debated topic. According to the report, “quality remains of the utmost importance”. The BoA make numerous efforts to maintain high quality through internal training and dialogue with stakeholders.
“The boards also made it a priority to foster the dialogue with the newly established UPC to promote harmonisation of European patent law,” the report states.
Alarm bells
However, the Unified Patent Court will significantly increase the pressure on the EPO courts in the coming years. Not through direct competition – after all, the UPC usually only decides once the EPO or the BoA have granted the patents. But with its short deadlines and quick decisions by highly qualified judges, the UPC could redefine the benchmark in Europe in terms of speed and professional quality.
“The UPC could redefine the benchmark in Europe in terms of speed and quality”
That the BoA are massively reducing their backlog is a pointer in the right direction. Users have long criticised the increasing bottleneck. However, it was not only the productivity of BoA employees that helped reduce this, but also fewer appeals than in previous years. After a peak of 2,740 new cases in 2022, only 2,091 EPO decisions went before the Boards of Appeal in 2023, which is roughly the same as in 2020.
Fewer staff are now handling these cases. In 2023 the BoA employed 180 judges – nine fewer than in the previous year. The total number of employees was 240 in contrast to 252 the year before.
Increasing productivity with fewer employees may ring alarm bells among some users that the quality of decisions is at risk. Most of the users JUVE Patent has spoken to in recent years are still convinced that the BoA judges are predominantly well motivated and their decisions of good quality. At its sister organisation, the EPO, criticism is more pronounced. There is a never-ending debate over quality accompanied by accusations that EPO employees are under significant pressure, face strict guidelines and declining levels of motivation.
Quality starts at the EPO
Criticism of the BoA has not yet reached that stage. And who could judge the BoA management for cutting staff in the face of falling case numbers and a declining backlog? In any case, quality requires the support of the EPO’s management and examiners. Only if the EPO delivers high quality in the examination and granting of patents or opposition rulings, can the Boards of Appeal deliver the same.
But although most users still believe that the BoA’s work is good overall, patent attorneys and in-house counsel repeatedly point out that the speed and quality of the decisions depend heavily on the respective board. They claim that quality can vary depending on the technical field and board. Therefore, measuring the real success of the BoA requires a closer look at the performance of the individual boards.
“Josefsson must ensure the boards do not become a lottery”
In future, BoA president Josefsson must ensure that the differences between the technical fields and boards do not diverge too far. It must not become a lottery for users where each board provides a different service and result. The boards should also avoid basing too many of their decisions on formalities instead of looking at the technology. For years, users have criticised this aspect in what is otherwise a positive overall impression of the BoA.
Ultimately, if the BoA judges no longer examine inventive step, the UPC judges are more than willing to decide not only on patent infringement but also on the validity of the patents. In the long term, too many revoked patents by the UPC would not be good for either the EPO or the Boards of Appeal.
The post “Figures show the EPO Boards of Appeal are highly productive, but it’s only half the story” appeared first on JUVE Patent.