CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 mai 1988

.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 }                            AS TO THE ADMISSIBILITY OF                         Application No. 12048/86                       by the University of Illinois Foundation                       against the Netherlands             The European Commission of Human Rights sitting in private on 2 May 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 10 May 1985 by the University of Illinois Foundation against the Netherlands and registered on 10 March 1986 under file No. 12048/86;           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 corporate body under the law of the State of Illinois (USA) with a registered office in Urbana, in the same State.   In the proceedings before the Commission it is represented by Mr.   D.J. de Brauw, a lawyer practising in the Hague, the Netherlands.           On 18 January 1967 an application for a Dutch patent was filed, on behalf of the applicant, with the Dutch Patent Council.           By virtue of Section 22D (1) of the Dutch Patent Act, the applicant had to pay an annual tax for the maintenance of the application pending.   It appears that, until the patent was eventually granted on 17 September 1980, the applicant always paid the tax in time, i.e. before or on 31 January of every year.           On 3 October 1980 the Dutch agents representing the applicant with the Patent Council informed the applicant's American representatives that the patent was granted and that the first annuity for the patent would have to be paid to the Patent Council before 31 January 1981.   This tax was based on Section 35 (1) of the Patent Act.   The American representatives of the applicant answered on 7 October 1980 that their computer service would continue to pay the annual fees.   However, the American firm dealing with the annual payments made an error as a result of the conversion of the patent application into a patent.   The error resulted in non-payment of the first annuity of the patent tax by 31 January 1981.           Shortly after that date, pursuant to Section 49 (2) of the Patent Act, the Patent Council reminded the applicant's Dutch agents with the Patent Council in writing that the time-limit for payment had elapsed.   As the agents did not consider themselves as representatives of the applicant anymore, they did not inform the applicant of the Council's letter.           On 1 August 1981, i.e. six months after the deadline for payment, the applicant's patent lapsed by virtue of Section 49 (1) of the Patent Act.   The lapse of the patent was published in the Dutch Patent Gazette of September 1981.           On 31 December 1981 the American firm handling the computer payments sent a tax payment order for the second year's tax to the Dutch agents.   It was only when the Dutch agents returned the payment order that the American firm learned that the first payment had not been made and that the patent had lapsed.           On 21 April 1982 the applicant introduced, on the basis of Section 17A of the Patent Act, a request for restoration of the patent with the Special Division of the Patent Council.   However, on 23 February 1983, the Special Division declared the applicant's request inadmissible, having found that the possibility of restoration under Section 17A of the Patent Act only applied to pending applications for a patent and not to patents that have already been granted.           The applicant therefore appealed to the Appeal Division of the Patent Council.   The Appeal Division rejected the appeal on 12 November 1984 on the ground that, although the possibility of restoration might, in special cases, also apply to patents that have been granted, Section 17A (2) of the Patent Act prevented restoration of the applicant's patent.   This provision states that the possibility to request restoration does not apply in regard of losses of rights resulting from late payments, where an extended payment period exists.   COMPLAINTS           The applicant complains that it did not have a public hearing in respect of its request for restoration of its patent.   In addition, the applicant complains that the decisions of the Patent Council's Divisions were not pronounced publicly.   The applicant alleges a violation of Article 6 para. 1 of the Convention in these respects.           Furthermore, the applicant complains that it has been deprived of its possessions and that this deprivation was not justified by the public interest since the public interest involved in the lapse of the applicant's patent was not proportionate to the applicant's interest in the protection of its fundamental right to peaceful enjoyment of its possessions.   Therefore, the applicant alleges a violation of Article 1 of Protocol No. 1 to the Convention.   THE LAW   1.       The applicant has complained that it has not had a public hearing in the proceedings concerning its request for restoration of its patent, and that the Patent Council's decisions were not pronounced publicly.   In this respect the applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention which provides, inter alia:           "In the determination of his civil rights and obligations         .... everyone is entitled to a ... public hearing ... .         Judgment shall be pronounced publicly...".           The first issue which has to be examined is whether the applicant could claim a "right" within the meaning of Article 6 para. 1 (Art. 6-1).           The Commission recalls that this notion has an autonomous meaning in the sense that it is not decisive for the purpose of Article 6 para. 1 (Art. 6-1) that a given privilege or interest which exists in the domestic legal system is not classified or described as a "right" by that system (Sporrong and Lönnroth, Comm.   Report 8.10.80, para. 150, Eur.   Court H.R., Series B no.46, p. 62).   However there is no room for applying the autonomous notion of a "right" in such a way that the Commission would thereby be creating a new substantive right which has no legal basis in the Contracting State concerned (see, inter alia W v. the United Kingdom, Comm.   Report 15.10.85, para. 115, Eur.   Court H.R., Series A no. 121, p. 48).           The Commission finds that this would be the case in regard to the present application.   The applicant claimed before the two instances of the Patent Council, a right to request and obtain restoration of its patent.   The Commission notes, however, that Dutch law neither recognises such a right nor leaves any discretionary power to the Patent Council in deciding applications for the restoration of a patent which has lapsed, by mere operation of law, as a result of non-payment of patent tax.   Section 17A (2) of the Dutch Patent Act, which was the basis for the applicant's request for restoration, explicitly excludes the possibility of restoration where the lapse of the patent is due to non-payment of tax after the six-month time extension.           In fact, the proceedings complained of are to a certain extent analogous to proceedings for a re-opening of a case after the original decision has become res judicata, to which, according to the constant case-law of the Commission, Article 6 (Art. 6) of the Convention is not applicable (cf. for example No. 7761/77, Dec. of 8.5.78, D.R. 14, p. 171).           By finding that the applicant could claim a "right" to have his patent restored, the Commission would in fact be creating a new substantive right which has no legal basis under Dutch law.   Neither can there be found a legal basis for such a right in the Convention itself.   Article 1 of Protocol No. 1 (P1-1) deals with acquired rights (Van Marle and Others, Comm.   Report 8.5.84, para. 123, Eur. Court H.R., Series A no. 101, p. 27).   A right to restoration of a patent would essentially entail a right to acquire property, which is not guaranteed by Article 1 of Protocol No. 1 (P1-1) (cf. mutatis mutandis Eur.   Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, p. 23, para. 50;   Comm.   Report 10.12.77, para. 96, Eur. Court H.R., Series B no. 29, p. 53).           Furthermore, the Commission considers that the impossibility for the applicant to have his patent restored cannot be described as arbitrary (cf., in this respect, No. 10475/83, Dec. of 9.10.84, D.R. 39, p. 246).           It is true that most European States appear to provide for, within limits, the restoration of patents which have lapsed as a result of non-payment of patent tax.           The Commission notes, however, that the Dutch Patent Act does provide for a six-months extension of the term of payment after the deadline for payment.   Furthermore, Section 49 (2) read in conjunction with Section 22D of the Patent Act requires the Patent Council to remind the patent-holder in writing, within fourteen days after the date due, of the patent tax to be paid.           In the Commission's view, the Patent Act thus leaves patent-holders sufficient opportunity to correct errors which may have led to non-payment of the tax.           The Commission concludes that, in respect of the patent proceedings, the applicant did not have a "right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   It follows therefore that Article 6 para. 1 (Art. 6-1) is not applicable in the present case and that this part of the application must be declared incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2).   2.       The applicant has also complained that it has been deprived of its possessions and that the public interest involved in the lapse of its patent was not proportionate to the applicant's interest.           It is true that Article 1 of Protocol No. 1 (P1-1) of the Convention secures to everyone the right to the peaceful enjoyment of his possessions.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   The mere fact that the applicant has submitted its case to the various competent organs does not of itself constitute compliance with this rule.   It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned.   In this respect the Commission refers to its constant jurisprudence (see e.g. decisions on the admissibility of application Nos. 263/57, Yearbook 1, pp. 146, 147 and No. 1103/61, Yearbook 5, pp. 168, 186).           In the present case the applicant did not raise either in form or in substance, in the proceedings before the Special Division and the Appeal Division of the Patent Council, the complaint which it now makes before the Commission.   Moreover, an examination of the case does not disclose the existence of any special circumstances, which might have absolved the applicant, according to the generally recognised rules of international law, from raising its complaint in the proceedings referred to.           If follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and its application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission              President of the Commission         (H.C.Krüger)                                 (C.A. Nørgaard)