CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 13 May 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         F. ERMACORA                         E. BUSUTTIL                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs   G.H. THUNE                    Sir   Basil HALL                       Mr. H.C. KRÜGER, Secretary to the Commission     Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 25);   Having regard to the application introduced on 26 June 1985 by S.B. against the United Kingdom and registered on 1 July 1985 under file No. 11617/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a United Kingdom citizen, born in 1954 and currently detained at Frankland Prison in Durham.   He is represented before the Commission by Messrs. Baker & Co., Solicitors, of Guildford. He is currently serving a life sentence at Frankland Prison.   The applicant claims to have made a number of inventions, but principally an invention comprising a radar reflecting balloon buoy device, which provides a means for a person lost where a visual sighting is made difficult to be seen at a great distance both on radar and visually when within visual range.   The applicant corresponded with a patent agent until 12 September 1983 and had, indeed, submitted his papers to the Patent Office, a step which gave twelve months' provisional protection for the invention. On 12 September 1983 he was told by the Assistant Governor of the prison at which he was then held that he would no longer be permitted to correspond with the agent because the applicant was "attempting to circumvent the prison rules relating to prisoners' activities".   The applicant petitioned the Home Secretary to permit the agent to be recognised as an approved visitor, with a view to protecting and exploiting the applicant's device.   The next stage of the proceedings is not clear.   The applicant's representatives state that initially no reply was received and the judicial review proceedings were considered in the absence of a reply. The opinion eventually received from counsel, however, refers to the possibility of seeking an order of certiorari to quash the decision of the Home Office.   The applicant's representatives applied for legal aid on 5 March 1984, and on 2 November 1984 emergency legal aid was granted, limited to the taking of counsel's opinion.   Instructions were sent to counsel on 23 November 1984, and a full legal aid certificate, also limited to the obtaining of counsel's opinion, was issued on 27 November 1984. Counsel's advice concluded that orders for declaration and mandamus would not lie, but that there was a possibility of obtaining an order for certiorari to quash the refusal of the Home Office to permit the applicant to communicate with the patent agent on the ground that an application for a patent did not constitute a business activity. Counsel's opinion was dated 20 March 1985.   According to the applicant's representatives, a formal reply to the applicant's petition was received by the applicant on 13 February 1985.   In that note, the applicant was told that visits concerning the preparation and filing of a patent application would be permitted,   but that no attempt to exploit the patent commercially would be permitted.   The note also stated that it was likely that a patent agent would be put on the list of visitors under the approved visitors' scheme.   The applicant was asked if he approved the contents of the opinion of counsel dated 20 March 1985, and he confirmed that he did. The limitation on his legal aid certificate was not lifted, however, and on 8 November 1985 the certificate was discharged.   The applicant alleges that as a result of the time taken to reach a decision in his case, he lost his provisional patent protection and, accordingly, sent all his documentation to the Open University for such charitable use as they saw fit.   COMPLAINTS   The applicant alleges that the initial refusal of the Home Office to permit the patent agent to be put on the applicant's list of approved visitors constituted a violation of Articles 6, 8, 9, 10, and 11 (Art. 6, art. 8, art. 9, art. 10, art. 11) and that the refusal to permit him to correspond with the patent agent while he was at Leeds prison itself constituted a breach of Article 8 of the Convention (Art. 8). The applicant alleges that the refusal to permit him to exploit the patent commercially is contrary to Articles 8, 9, 10 and 11 of the Convention (Art. 8, art. 9, art. 10, art. 11).   The applicant also alleges breaches of Articles 12 and 13 of the Convention (Art. 12, art. 13).   THE LAW   1.       The applicant complains of a violation of Article 6 (Art. 6) in respect of the initial refusal of the Home Office to permit the patent agent to be put on the applicant's list of approved visitors. An interference with the applicant's rights under Article 6 (Art. 6) can only be established in this respect if it can be shown that the refusal of access to a patent agent in some way "determined" the applicant's civil rights.   The Commission recalls that it has already found that the registration of a patent is an essentially administrative matter which falls outside the scope of Article 6 of the Convention (Art. 6) (No. 7830/77, Dec. 13.7.78, D.R. 14 p. 200) even though a patent right, once granted, does fall to be considered as a civil right within the meaning of Article 6 para. 1 of the Convention (Art. 6-1) (cf. ibid. at 201).   It follows that the applicant's complaints in respect of Article 6 (Art. 6) in connection with the registration of his invention at the Patent Office and access to the patent agent must be regarded as incompatible ratione materiae with the provisions of the Convention, and must therefore be rejected under Article 27 para. 2 (Art. 27-2).   2.       The applicant alleges a violation of Article 8 (Art. 8).   (i) As regards the registration of the invention at the Patent Office, the Commission notes that the applicant was eventually allowed to have the patent agent put on his list of approved visitors.   In this respect, the Commission considers that any issues which may arise fall to be discussed in connection with the applicant's right to respect for his correspondence.   It is true that the applicant alleges that as a result of the time taken to reach a decision, his provisional patent protection expired, and he decided to send all his papers relating to the invention to the Open University.     It is not, however, apparent that the applicant made any efforts to have the decision in his case speeded up, nor is it clear that the applicant would not have been able to apply for registration of his invention at the Patent Office if he had retained title to it instead of transferring it to the Open University.   The Commission considers that the applicant's loss of potential patent rights must be regarded as his own responsibility as it appears that he took no steps to accelerate the proceedings (such as further petitions, or letters from his solicitor to the Home Office). Further, he sent the papers relating to the invention to the Open University of his own accord when he could have retained them and re-submitted his application for patent protection at a later date.   It follows that this part of the application must be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention (Art. 27-2).   (ii)   As regards the eventual refusal of permission of access to a patent agent for any exploitation of the invention, the Commission considers that Article 8 (Art. 8) cannot be regarded as giving a right to the commercial exploitation of an invention whilst in prison.   It follows that this part of the application must be regarded as incompatible ratione materiae with the provisions of the Convention, and must therefore be rejected under Article 27 para. 2 (Art. 27-2).   3.       The applicant alleges a violation Article 9 of the Convention (Art. 9), first in that the refusal to permit a patent agent to be put on the applicant's list of approved visitors prevented him from protecting his intellectual property and therefore constituted an attack on his freedom of thought, and secondly, in that he was prevented from exploiting his invention commercially.   Article 9 of the Convention (Art. 9) provides for the freedom of thought, conscience and religion.   It does not purport to guarantee rights of access to the Patent Register, and it is not concerned with the protection of intellectual property.   Accordingly, it does not guarantee a right to exploit commercially a patent registered in accordance with the law.   It follows that this part of the application must be regarded as incompatible ratione materiae   with the provisions of the Convention and must therefore be rejected under Article 27 para. 2 (Art. 27-2).   4.       The applicant alleges a violation of Article 10 of the Convention (Art. 10) first, in that his right to freedom of expression was denied by his inability to communicate with his patent agent, and secondly in that he is unable to exploit his invention commercially.   (i) The Commission recalls that it has previously found that as between Articles 8 and 10 of the Convention (Art. 8, art. 10), matters concerning receipt of information by post fall to be considered under Article 8 (Art. 8) rather than Article 10 (Art. 10) (No. 8383/78, Dec. D.R. 17 p. 227; No. 8317/78, D.R. 20 p. 44 at p. 96).   The same criteria apply in the present case to communications between the applicant and his patent agent.   It follows that this part of the application must be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention (Art. 27-2).   (ii) As to the applicant's inability commercially to exploit his invention, the Commission cannot find anything in Article 10 (Art. 10) which could lead to the conclusion that it guarantees a right for the applicant in the present case to exploit his invention commercially.   It follows that this part of the application must be regarded as incompatible ratione materiae with the provisions of the Convention and must therefore be rejected under Article 27 para. 2 (Art. 27-2).   5.       The applicant alleges a violation of Article 11 of the Convention (Art. 11) in that his patent agent was not initially put on his list of approved visitors, and in that he is now not permitted to exploit his invention commercially.   Article 11 (Art. 11), however, is concerned with the right to form or be affiliated with a group of persons or an organisation pursuing particular aims.   It does not concern the right of prisoners to have access to patent agents.   Nor does it guarantee the possibility to exploit an invention commercially.   It follows that this part of the application must be regarded as incompatible ratione materiae with the provisions of the Convention, and must therefore be rejected under Article 27 para. 2 (Art. 27-2).   6.       The applicant alleges a violation of Article 12 of the Convention (Art. 12).   He states that, although a bachelor, if he were to marry, then funds obtained by exploitation of his invention could assist his rehabilitation.   Article 12 (Art. 12), however, concerns the right to marry.   It cannot be interpreted to give a right to exploit commercially an invention made by a person whilst in prison.   It follows that this part of the application must be regarded as incompatible ratione materiae with the provisions of the Convention, and must therefore be rejected under Article 27 para. 2 (Art. 27-2).   7.       The applicant alleges a violation of Article 13 of the Convention (Art. 13).   (i) To the extent that the applicant's complaints have been rejected as being incompatible ratione materiae with the provisions of the Convention, his complaints under Article 13 of the Convention (Art. 13) also fall to be regarded as incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2).   (ii) As to the remainder of the applicant's complaints, the Commission recalls that in the case of Silver and Others (Eur. Court H.R. Judgment of 25 March 1983), the Court found that to the extent that the norms in question in that case were compatible with the provision of the Convention in question, the aggregate of remedies available satisfied the requirements of Article 13 (Art. 13).   That same aggregate of remedies (comprising, inter alia, complaints to the prison Governor and the Home Secretary, and application to the domestic courts by way of judicial review) was available to the applicant in the present case and the Commission therefore considers sufficient remedies existed for the applicant to be able to secure compliance with the provisions of Article 13 of the Convention (Art. 13).   It follows that this part of the application must be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention (Art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission       (H. C. KRÜGER)                        (C. A. NØRGAARD)