The European Patent Office’s (EPO) Boards of Appeal (BoA) are on a mission: slash their case backlog even further. After successfully reducing cases older than 30 months below 10% in early 2024, they promptly set a new, tougher target in their annual report 2024: no more than 10% of pending cases older than 24 months by the end of 2025. This aggressive drive for efficiency has its clear upsides, but it’s a tightrope walk with potential pitfalls.
The “Pro” Column: Why Faster is (Usually) Better
Faster Justice, More Certainty: Long waits for decisions can be a nightmare for businesses and innovators. Getting patent disputes resolved quickly means less commercial uncertainty and a clearer path ahead for technology and investment.
Boosted Confidence: A judicial system that delivers timely decisions inspires public trust and confidence. The BoA’s focus on timeliness aligns with this crucial aspect of a well-functioning legal body.
Operational Efficiency: Less old baggage means the BoA can assign resources more effectively, focusing on new incoming cases and strategic initiatives.
The “Con” Column: The Hidden Risks of Rushing
Quality Under Pressure: This is the big one. Pushing for speed can compromise the thoroughness and quality of decisions. The BoA itself emphasizes “Delivering decisions of the highest quality continues to be a central priority“, hinting at this inherent tension.
The risk? Less comprehensive review, potentially leading to more appeals or perceived errors, which ironically could slow things down in the long run. Public commentary from Juve Patent highlights that “users have often pointed out that the quality of Boards of Appeal decisions varies depending on the technical field and board“. Furthermore, Kluwer IP Law discusses the “Iron Triangle” of project management (time, cost, quality), suggesting that prioritizing speed can inherently lead to lower quality. Juve Patent also stresses that “Quality starts at the EPO,” implying that the BoA’s ability to deliver high-quality decisions is partly dependent on the quality of first-instance examination and opposition rulings.
The “Right to be Heard” Factor: Public commentary often zeroes in on the fear that efficiency drives might curtail a party’s right to fully present their case. The BoA’s own annual report notes that “fundamental violation of the right to be heard” (Article 112a(2)(c) EPC) is the most common reason for review petitions.
This concern is echoed by Kluwer IP Law, which reported 47 amicus curiae briefs in the G 1/21 case, with many arguing that mandatory videoconferencing against a party’s will violates Article 116(1) EPC, the right to oral proceedings. FICPI, while acknowledging the compatibility of videoconferencing, strongly asserted that “a party’s right to an in-person oral hearing is a fundamental principle of any judicial system” and that parties “should always have the right to request… to attend oral proceedings in person”. They cautioned against “judicial legislation” that would “restrict the right to be heard”. Kluwer IP Law also cited concerns from epi and BusinessEurope that the Rules of Procedure of the Boards of Appeal (RPBA) “should not be abused as a vehicle to further shorten the appeal proceedings at the expense of the parties’ right to be heard“. It’s a delicate balance to streamline processes without sacrificing due process.
The Balancing Act
The BoA seems to be aware of these complexities. The annual report 2024 talks about internal quality initiatives, enhanced legal resources like a UPC decisions database, and engagement in constant dialogue with stakeholders and judicial counterparts. Talking about the Unified Patent Court (UPC), Juve Patent suggests that it “could redefine the benchmark in Europe in terms of speed and professional quality,” creating a new competitive pressure for the BoA to keep its standing.
Ultimately, the BoA’s drive to cut backlogs is a necessary step towards a more efficient patent system. But the true measure of their success won’t just be the numbers; it will be their ability to deliver these faster decisions without sacrificing the meticulous quality and fairness that underpin judicial integrity, a balance that the patent community is closely scrutinizing.