Art. 23 1/15 (also referred to as G 2301/15), Art. 23 2/15 (also referred to as G 2302/15) and Art. 23 1/16 (also referred to as G 2301/16) are three related cases decided by the Enlarged Board of Appeal of the European Patent Office concerning the removal from office of Patrick Corcoran, a member of the Boards of Appeal, who had been previously suspended by the Administrative Council of the European Patent Organisation. According to , members of the Boards of Appeal may only be removed from office by the Administrative Council on a proposal from the Enlarged Board of Appeal. Two cases were successively initiated by the Administrative Council, but the Enlarged Board eventually dismissed both of them. In the third case initiated by the Administrative Council, the Enlarged Board decided not to propose the removal from office of Corcoran.
Background
The European Patent Convention (EPC) is a multilateral treaty instituting the legal system according to which European patents are granted. It contains provisions allowing a party to appeal a decision issued by a first instance department of the European Patent Office (EPO). The appeal procedure is under the responsibility of its Boards of Appeal, which are institutionally independent within the EPO. According to Robin Jacob, the members of the Boards of Appeal are "judges in all but name".
The members of the Boards of Appeal are appointed by the Administrative Council of the European Patent Organisation on a proposal from the President of the European Patent Office (EPO). The Administrative Council exercises disciplinary authority over the board members and, during their five-year term, the board members may only be removed from office "if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect." The Administrative Council is also the appointing and disciplinary authority for the President of the EPO.
Further, employees of the EPO, no matter whether they are members of the Boards of Appeal, may apply to the Administrative Tribunal of the International Labour Organization (ILO) to resolve employment disputes they may have with the European Patent Organisation.
Precursory events
On 3 December 2014, Patrick Corcoran, an Irish member of Board of Appeal 3.5.05, "was escorted out of the [European Patent] Office by [EPO's] investigation unit," and Benoît Battistelli, president of the EPO, imposed a "house ban" on him. In reaction, a number of members of the Enlarged Board of Appeal, the highest body of the EPO judiciary, wrote to the Administrative Council to express their concerns over this move, regarded as challenging the judicial independence of the Boards of Appeal. Battistelli stated that he acted "in accordance with the rules at all times" and that he was "absolutely committed to the independence of the [EPO's] judiciary".
The Administrative Council of the European Patent Organisation then suspended Corcoran. The decision was taken at the Administrative Council's meeting held on 10 and 11 December 2014 in Munich, Germany. The suspension is unique in the history of the EPO. Corcoran was originally suspended until 31 March 2015, for alleged misconduct "[a]s a precautionary and conservative measure" pending an investigation of the matter. According to the French newspaper Les Échos, Corcoran was accused of having launched a smear campaign against Željko Topić, one of the Vice-Presidents of the EPO. The Irish Times later reported that Corcoran had been suspended for defamatory statements he allegedly made against Battistelli using a pseudonym, and for bringing "weapons and Nazi memorabilia to work".
After the suspension of Corcoran, the Rules of Procedure of the Enlarged Board of Appeal (RPEBA) were amended by decision of 25 March 2015 (CA/D 3/15) to implement a procedure for Article 23(1) proceedings, and to fill a legislative lacuna in that respect. A new Article 12a RPEBA provides for that the Administrative Council or the Vice President of EPO in charge of the Boards of Appeal may request that the Enlarged Board of Appeal make a proposal to the Administrative Council for the removal from office of a board member.
Proceedings and decisions
June–September 2015: first case (Art. 23 1/15) Following an internal investigation, the Administrative Council requested on 25 June 2015 the Enlarged Board of Appeal to make a proposal for the removal from office of Corcoran, pursuant to and Article 12a of the Rules of Procedure of the Enlarged Board of Appeal. This was the first dismissal procedure instituted against a member of the Boards of Appeal in the history of the European Patent Office.