Exploring the Principle of Separation of Powers in the European and US Patent Systems

Federica Baldan, “Exploring the Principle of Separation of Powers in the European and US Patent Systems” 

Institutional developments taking place at the European and US patent systems are raising some fundamental questions about the respect of the principle of separation of powers. In the European patent system, decision R 19/12 of the Enlarged Board of Appeal brought to the foreground important issues concerning the lack of independence of the quasi-judicial Boards of Appeal (BoAs) from the administrative branch of the European Patent Office. In the US patent system, the 2011 America Invents Act expanded the role of the Patent Trial and Appeal Board (PTAB), raising concerns about the check and balances between the administrative and judicial powers. The research question of the current research is: to what extent are the BoAs and the PTAB independent from the executive branches that created them?