Proposed changes to the epi disciplinary procedures

All European Patent Attorneys (EPAs) are automatically members of the Institute of Professional Representatives before the European Patent Office, known for short as epi (deliberately lowercase, for reasons unknown) and have to abide by its rules and regulations. These include a code of conduct, which sets out how EPAs should behave. Alleged breaches of this code, if they come before the epi via a complaint raised against a member, are judged according to the Regulation on discipline for professional representatives. If a member is found to have not complied with the code of conduct, they can face a warning, a reprimand, a fine or, in extreme cases, deletion from the list of professional representatives. Who gets to decide on this, and how, is the task of the disciplinary system of the epi. At the moment, this is made up of the Disciplinary Committee (DC) and the Disciplinary Board (DB). The diagram below illustrates how this system currently works. The DC is made up of 39 members, one from each of the EPC member states, all of whom are EPAs, and is effectively the first point of call for any complaint that makes it to the epi. Each member of the DC is proposed by the epi Council and is either elected or appointed by the Council. The DC decides on complaints and refers serious cases (which are those that may require a fine or deletion) to the DB, which is made up of external appointments, including some working for the EPO. The DC, which only meets a few times a year, can typically take between around 5 and 15 months to decide on a case, while the DB can take longer (in some cases a lot longer), which can stretch the disciplinary procedure to several years. There have been moves to speed up procedure at the DB level but without changing the basic structure of the system. 

An important point to note is that the number of cases the DC and DB have to deal with is small. A total of 72 cases have been considered by DC between 2012 and 2024, averaging around 5 or 6 per year. Of these, only 21 have been referred to the DB. The vast majority of EPAs will therefore not need to have anything to do with the disciplinary procedure and. If they do, will be first judged by their peers and, in most cases, complaints are either dismissed or only minor action is taken. This does not mean that the profession is simply looking after its own regardless of behaviour but more that the profession is in general well run with the great majority of its members being trustworthy and competent (although there are, of course, exceptions that tend to stand out). Appeals from the DC/DB can be made to the disciplinary board of appeal at the EPO and the overall rules are set and amended by the Administrative Council of the EPO. 

One might think that the current system, although slightly odd in having effectively two first instances, would not need changing. If any changes were being considered, there would presumably be wider consultation among those who would be affected, namely all EPAs. However, based on information I have recently received, it appears that changes to the disciplinary system are about to be pushed through that would alter the system in major ways and possibly without any consultation among EPAs. The proposed changes, which are illustrated in the diagram below, in simple terms involve the removal of the DB and consolidating the first instance into a single DC but with a different composition and with much less input from EPAs. 

The details of the changes are not yet clear (at least to me) but appear to involve the EPO having a much greater role in the composition of the replacement DC (which will probably have a different name) and with epi members having a consequently reduced role and therefore less control. The new DC will not have a member from each country and will become less independent from the EPO through including paid lawyers from the EPO on the new DC (all epi members of the current DC are unpaid for their time, while the EPO lawyers would be). While some changes might be worth doing to make the system more efficient, what is slightly disturbing to me is that the proposed changes are apparently being rushed through at what appears to be an unseemly pace. A meeting of the epi Council in just a few days' time could in theory make a decision on what changes are going to be made, followed a few days later by a meeting of the Administrative Council to implement the changes. While it seems unlikely that such an accelerated process could actually happen, this is what appears to be in the works Is there some kind of coup going on by the EPO and others to take over the process, or will normal epi members be fully informed and consulted before anything changes? We should find out soon enough.