CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1993

.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. 14943/89                       by Martin DENEV                       against Sweden         The European Commission of Human Rights sitting in private on 11 October 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA              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 14 April 1989 by Martin DENEV against Sweden and registered on 26 April 1989 under file No. 14943/89;         Having regard to the observations submitted by the respondent Government on 25 May 1993 and the observations in reply submitted by the applicant on 16 July 1993;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts, as submitted by the parties, may be summarised as follows.         The applicant is a Swedish citizen, of Bulgarian origin, born in 1938.   He resides at Semmering, Austria.   The application concerns different sets of proceedings throughout which the applicant tried to obtain the registration of different patents.     A.     The particular facts of the cases         I     (case No. 800014 - 4)         On 2 January 1980 the applicant applied to the Patent and Registration Office (patent- och registreringsverket), hereinafter called the PRO, for the registration of a patent which concerned a construction to be used in connection with the exploitation of wind power.   Certain correspondence between the PRO and the applicant followed.   In particular the PRO requested observations from the applicant on 29 January and 22 October 1980, 22 April 1981 and 26 May 1982.         On 18 September 1985 the PRO rejected the applicant's application referring to the fact that a similar invention was already registered under another patent number.         The applicant appealed against this decision to the Court of Patent Appeals (patentbesvärsrätten) on 15 November 1985 but withdrew his appeal on 29 December 1988 since he had obtained a European patent from the European Patent Office on 2 November 1988.   Accordingly, the Court of Patent Appeals struck the case off its list of cases on 12 January 1989.           II    (case No. 8105868 - 7)         On 1 October 1981 the applicant applied to the PRO for the registration of a patent which concerned the exploitation of wind power in connection with a construction which could be used as both an aircraft and a boat.   Certain correspondence between the PRO and the applicant followed.   In particular the PRO requested observations from the applicant on 10 November 1981, 26 May 1982 and 27 February 1985.         The PRO rejected the application on 18 September 1985 as it did not, in its opinion, contain anything which could be patented.         The applicant appealed against this decision to the Court of Patent Appeals on 18 November 1985 but withdrew the application on 29 December 1988 since he had obtained a European patent from the European Patent Office on 2 November 1988.   Accordingly, the Court of Patent Appeals struck the case of its list of cases on 12 January 1989.           III   (case No. 8205683 - 9)         On 5 October 1982 the applicant applied to the PRO for the registration of a patent which concerned a construction lighter than air, to be used in connection with wind power stations, roofs and solar collectors, as well as for the protection of plants and for transports. It appears that further submissions were made upon the PRO's request of 18 May 1983.         The PRO rejected the application on 27 February 1985 referring to a US patent and to the fact that what was not covered by the US patent did not disclose anything which could be patented.         The applicant appealed against this decision to the Court of Patent Appeals on 26 April 1985 but withdrew the appeal on 29 December 1988 since he had obtained a European patent from the European Patent Office on 2 November 1988.   Accordingly, the Court of Patent Appeals struck the case off its list of cases on 12 January 1989.           IV    (case Nos. 8201706 - 2, 8205514 - 6, 8203706 - 0   and            8405945 - 0)         Between March 1982 and November 1984 the applicant applied for the registration of four other patents.   These applications were rejected by the competent authorities between October 1988 and November 1992.     B.     Domestic law and practice         The provisions regarding the handling of patents are found in the Patents Act of 1967.   The 1967 Patents Ordinance contains provisions of a more detailed nature.   Furthermore, the Patent and Registration Office (the PRO) has issued supplementary regulations in accordance with the Ordinance.   The 1988 Instructions for the Patent and Registration Office contain additional provisions concerning the handling of patent applications.   The appeal proceedings are regulated by the 1977 Act on the Court of Patent Appeals.         In Swedish law, a patent is granted to a person who has made an invention, which is susceptible of industrial application.   It is also granted to a person who has succeeded the inventor in title.   Patents may, however, only be granted in respect of inventions which are new in relation to what was known before the filing date of the patent application and which also differ essentially from what was known at that time.   The legal effect of a patent is that the patent holder obtains an exclusive right to exploit the invention commercially.   This right to the exploitation of an invention is limited in time.   A patent may thus only be maintained for twenty years, the starting-point being the day when the patent application was filed.   The right is also geographically limited in the sense that a patent granted by the PRO is only valid in Sweden.         Sweden applies the method of substantive examination when dealing with a patent application.   This means that the examination which leads to the granting of a patent includes an examination of whether both the formal and the substantive prerequisites for a patent are fulfilled. The substantive examination serves the purpose of ensuring that invalid patents are not granted to the detriment of the economy.         A Swedish patent may only be granted following an application. When handling a patent application, the PRO thus examines whether there are formal and substantive grounds for the granting of an exclusive right to the exploitation of an invention.   Such a right is constituted by the decision of the PRO to grant a patent.         According to Section 8 of the Patent Act, a patent application shall contain, inter alia, a description of the invention and a distinct statement in respect of what is sought to be protected by the patent, so-called patent claims. The application shall also contain a summary of the description and the patent claims.         The statement concerning patent claims is of vital importance due to the fact that the extent of patent protection is determined by those claims.         Swedish patent legislation is based on the so-called absolute novelty requirement.   Any circumstance which results in the invention being publicly known will therefore prevent it from being patented.         Following the investigation as to the novelty of the invention, the application concerning such an invention which may be patented will be approved by the PRO for public inspection.   When a time-limit, three months, for filing an opposition has elapsed, the PRO has to make a new assessment as to whether there are any obstacles to the granting of a patent irrespective of whether the application has been opposed or not. If there are no such obstacles, the PRO shall grant the application for a patent.   The full legal effects of such a decision occur when it has gained legal force.   At that point an official notification of the decision is issued by the PRO, which also issues a patent letter.   The patent is furthermore registered in the patents register, which is kept by the PRO.   A patent may never be granted unless its content has been agreed to by the person who applies for it.         The PRO may be of the opinion that obstacles remain to the granting of a patent and decide not to allow the application to be publicly inspected.   In that case the application, as it stands, is considered on its merits.   If the applicant has already been given the opportunity to submit observations concerning the obstacles in question, the application shall be rejected by the PRO unless further observations are necessary.         An appeal against the decision of the PRO not to grant a patent may be lodged with the Court of Patent Appeals.   The judgment of that Court may, with leave, be appealed against to the Supreme Administrative Court (Regeringsrätten).     COMPLAINTS         The applicant complains that in all of the above patent proceedings the requests for the registration of the patents were not determined within a reasonable time.         He also maintains that the requests were rejected on the basis of false and wrong arguments and due to his Bulgarian origin.   He invokes Article 6 para. 1 and Article 14 of the Convention.       PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 April 1989 and registered on 26 April 1989.         On 2 September 1991 the Commission decided to adjourn the examination of the application and to obtain from the applicant further information and documents.         The applicant submitted the information and documents requested on 7 November 1991, 19 March, 18 August, 5 and 18 November 1992.         On 9 February 1993 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the case.         After an extension of the time-limit the Government submitted their observations on 25 May 1993.         On 16 July 1993 the applicant submitted his observations in reply.   Furthermore, he requested the Commission to continue its examination of the application only in respect of three of the seven sets of patent proceedings contained in his initial application of 14 April 1989.     THE LAW   1.     The applicant complains of certain violations of Articles 6 and 14 (Art. 6, 14) of the Convention in respect of a number of different proceedings in which he applied for the registration of different patents.   a)   Before considering the admissibility of these matters the Commission notes that the applicant does not intend to pursue his petition in so far as it concerns the proceedings referred to in Sweden as Nos. 8201706 - 2, 8205514 - 6, 8203706 - 0 and 8405945 - 0.   Having regard to Article 30 para.1 (a) (Art. 30-1-a) of the Convention, the Commission furthermore finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of this part of the application for which reason it may be struck out of the Commission's list of cases in so far as these proceedings are concerned.   b)     The applicant complains in respect of the remaining three sets of domestic proceedings that these concerned his civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that they were not determined within a reasonable time.         Article 6 para. 1 (Art. 6-1), first sentence of the Convention reads as follows:              "In the determination of his civil rights and obligations            or of any criminal charge against him, everyone is entitled            to a fair and public hearing within a reasonable time by an            independent and impartial tribunal established by law."         The Government submit that the proceedings complained of concerned the question of whether the conditions for the registration of a patent were fulfilled and they maintain this falls outside the scope of Article 6 (Art. 6) of the Convention.   In the alternative they consider that the complaints concerning the length of the proceedings are manifestly ill-founded.         The Commission finds that the first issue to be decided in this case is whether the patent proceedings involved a "determination" of the applicant's "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   If this were so, the question arises whether they were determined within a reasonable time.         The Commission has taken cognizance of both parties' submissions. After a preliminary examination of the case on the basis thereof, the Commission has reached the conclusion that it raises serious issues as to the application and interpretation of Article 6 (Art. 6) of the Convention and that these issues can only be determined after a full examination of their merits.   It follows that this part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.   c)     Finally, the applicant complains that the decisions taken in respect of his patent request were based on false and wrong arguments and were due to his Bulgarian origin.   He invokes in this respect Article 6 and Article 14 (Art. 6, 14) of the Convention.         As regards this part of the application the Commission considers that it can be left open whether Article 6 (Art. 6) applies to the proceedings in question.   Even if this were the case the Commission finds that the applicant's submissions do not disclose any appearance of a violation of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority           DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES in so far       as it concerns the domestic patent proceedings Nos. 8201706-2,       8205514-6, 8203706-0 and 8405945-0 ;           DECLARES ADMISSIBLE, without prejudging the merits, the complaint       that the other domestic patent proceedings were not determined       within a reasonable time,         and         DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                 (C.A. NØRGAARD)