The EPO Boards of Appeal has published its Annual Report 2020, which shows a reduction in its case backlog. This is despite a shift to remote working and a forced break in spring. Despite the pandemic, the Boards of Appeal is on track to realise the objectives set out following its structural reform in 2017.
15 April 2021 by Amy Sandys
The European Patent Office Boards of Appeal has published its annual report 2020. It was a year which both helped and hindered the organisation’s ability to implement its five-year strategy.
The Boards of Appeal, which is the first and final judicial instance before the EPO, is bound only by the European Patent Convention. As such, it acts – and is situated – almost independently of the EPO in Munich. Over the past year, the coronavirus pandemic has necessitated organisational and structural changes to its running, as well as to its long-term strategy.
Despite the global pandemic, the Boards of Appeal has decreased its backlog of pending cases by 10.3%, from 9,234 technical appeals in 2019 to 8,280 in 2020. Technical appeals constitute the vast majority of Boards of Appeal cases, with the organisation thus using them as a yardstick for the development of work.
The EPO Boards of Appeal is also taking steps to ensure that, by tackling the backlog, it is not compromising its quality in decision-making.
A new remote-working policy, including a shift to hearing many oral proceedings via video, has in some ways negatively impacted the organisation’s productivity. In terms of technical cases heard, the Technical boards of appeal dealt with 3,013 technical appeal cases in 2020, compared to 3,254 in 2019. This is a percentage decrease of 7.4%. Furthermore, in 2020, parties filed just 2,059 new technical appeal cases at the Technical boards of appeal, compared to 3,292. This corresponds to a percentage decrease of 37.5.
On one hand, this development could be due to a lower number of opposition division decisions, but also due to less willingness by companies to challenge the decisions in the current pandemic crisis.
On the other hand, such a low percentage decrease in the number of technical cases heard by the judges is notable. The Boards of Appeal had to contend with the challenges posed by a disparate workforce and implementing an organisational-wide shift to video proceedings. It also experienced an enforced break over April 2020 which means that the Boards had to fit all technical proceedings into the remaining eleven months of the year.
Indeed, since 2017, the Boards of Appeal judges productivity has increased by over 35%. This fits in-line with the Boards’ five-year plan, and points to a concerted shift in efficiency and approach by the current EPO Boards of Appeal administration.
Furthermore, the Boards of Appeal has reduced the time pending between cases being heard and being settled. In 2019, the average amount of time was 65 months, which dropped to 60 months in 2020. But this is still well-below the Boards of Appeal target to conclude 90% of the cases heard within 30 months, as set out in its five-year plan. As some form of normality begins to return to the conduct and organisation of patent cases, the Boards must make a concerted effort to halve the amount of time take to finalise its cases.
However, Boards of Appeal chairman Carl Josefsson notes that the shift to oral proceedings and temporary hiatus of all proceedings in April 2020 negatively impacted the Boards’ productivity. Over 2020, the percentage of pending cases with a backlog of over 30 months increased from 33.2% in 2019, to 36.7%.
The Boards of Appeal calculates productivity on the basis of cases settled with action, which is generally following oral proceedings. During 2020, the Boards heard a total of 188 oral proceedings via video. Of these, 173 proceedings were solely via video, with 15 held via a hybrid method.
Another interesting statistic is the decline in disciplinary appeal hearings. The Disciplinary Board of Appeal experienced a dramatic decrease in the number of new appeals in disciplinary cases, hearing 19 in 2019 compared with just three in 2020. In 2017, the number of new disciplinary appeal hearings reached a peak at 26.
Of course, observers can pin this on a change in management structure and a new approach to dealing with disciplinary issues. Furthermore, the pandemic could have impacted the willingness of parties to pursue disciplinary appeals, given future uncertainty and necessity for stability.
According to an EPO spokesperson, “The decline of EQE cases is the result of the cancellation of the EQE 2020. In view of the COVID-19 pandemic, the Supervisory Board of the European Qualifying Examination (EQE) decided that no EQE exams would be held in 2020.”
“Therefore, no appealable decisions by the Examination Board of the EQE have been issued in 2020, which explains why no appeals against such decisions have been filed.”
Elsewhere, the annual report deals with issues of quality, and quality-focused decision making. As the report states, “Users, and the public in general, rightfully expect the highest quality from a judicial authority whose decisions are final.” But a reduction in case backlog means questions regarding the quality of the Boards’ decision-making could arise.
Some patent attorneys question if the Boards is able to maintain a high standard of decision-making given faster decisions, and the shift to online video hearings.
According to the annual report 2020, the Boards of Appeal has mandated a working group “to provide a definition of quality as well as practical working aids for BoA members with regard to workflow in appeal proceedings and decision.” A document drafted by the working group clarifies the steps that parties should take leading up to a decision, and in publishing the decision itself. In pursuing these values, for example transparency, timeliness and clear reasoning, the Boards are looking to ensure any gains in efficiency do not compromise the quality of decision-making.
The report indicates that the Boards of Appeal is equipped to deal with future challenges posed by the pandemic. With new structures in place, and a hopefully brighter year or two ahead, the Boards are more likely to achieve their five-year objective to reduce the number of pending cases to below 7,000 by 2023. (Co-author: Mathieu Klos)