CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 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. 19589/92                       by the T. Company Limited                       against the Netherlands           The European Commission of Human Rights sitting in private on 15 October 1993, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            J.-C. SOYER            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            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA         Mr.   M. de SALVIA, Deputy 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 27 February 1992 by the T. Company Limited against the Netherlands and registered on 5 March 1992 under file No. 19589/92;         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 applicant, the T. Company Limited, is a company incorporated in the United Kingdom.   It is represented before the Commission by Mr. I.G.F. Cath, a lawyer practising in The Hague.         The facts as submitted by the parties may be summarised as follows:         A.    Particular circumstances of the case         On 14 May 1986, the applicant company filed an application with the Application Division (Aanvraagafdeling) of the Netherlands Patent Office (Octrooiraad) aimed at obtaining a patent for an invention relating to the fabrication of tobacco products.   On 16 December 1986, the application was laid open for inspection.         On 15 May 1987, the Patent Office informed the applicant company's patent attorney of its preliminary findings as to the state of art and technical aspects of the invention and invited the applicant company to file a final patent application.   Subsequently the applicant company filed such an application with split conclusions.         The applicant company was then informed by the Patent Office that it could not grant a patent, especially because it was considered inappropriate to split the patent conclusions.   However, the Patent Office would be prepared to reconsider its position if an acceptable solution could be found to the problem of split conclusions raised by that Office.         On 24 June 1988, the Patent Office indicated that it was willing to publish the application - and thus grant the patent after interested third parties had been given the opportunity to make objections - provided the applicant company would accept a solution proposed by the Patent Office as regards a single patent conclusion.         On 20 September 1988, the applicant company's patent attorney declined this offer.   On 13 October 1988, the Application Division of the Patent Office decided that it would not publish the patent application - and thus not grant the patent - under the split patent conclusions proposed by the applicant company.         On 11 January 1989, the applicant company appealed to the Appeal Division (Afdeling van Beroep) of the Patent Office.   It submitted that the case-law of the Appeal Division shows that split conclusions have already been accepted in the past and that, although its application could be formulated in a single conclusion, a single conclusion would limit the scope of protection afforded by the patent legislation.   The Appeal Division held a hearing on 7 June 1989.   On 29 August 1991, the Appeal Division annulled the decision of the Patent Office on the grounds invoked by the applicant company.   However, in the same decision the Appeal Division decided, ex officio and without any motion to that effect by either the applicant company or the Patent Office, to uphold the decision not to publish the patent application, because it considered that the patent application lacked the required level of "inventive character" (uitvindingshoogte).           B. Relevant domestic law and practice         The grant and enforcement of patents in the Netherlands is governed by the Patent Act of 1910 (Rijksoctrooiwet), as amended by the Act of 13 December 1978 (hereafter "the Patent Act").   A patent is granted for a new product or process if the invention is not an obvious development, given the current state of the art, and is capable of industrial application.         A patent is deemed, subject to the provisions of the Patent Act, to be personal property, assignable and otherwise transferable in full or joint ownership (Article 37).         Subject to the provisions of the Act, a patent confers on its proprietor the sole right, inter alia, to make, use, market, hire out or deliver the patented product or, when applicable, to apply the patented process in aid for his business or to make, use, market, resell, hire out or deliver the product obtained directly from the application of the patented process (Article 30).   The proprietor of a patent may enforce his patent vis-à-vis any person who, without being entitled to do so, performs any of the acts referred to in Article 30 (Article 43).         By Article 33, the right to perform acts prohibited to any other person than the proprietor of the patent may be acquired from the proprietor by means of a licence.         The Patent Office (Octrooiraad) is empowered by the Patent Act to grant patents (Article 13).   It consists of a Central Division, Application Division, Appeal Division and Special Division (Article 14).   Its organisation and procedure are regulated by Order in Council (Article 15).         Pursuant to the Patent Rules of 1921 (Octrooireglement), as amended by Order in Council of 6 January 1979, the Patent Office consists of a maximum of 90 ordinary and deputy members, divided into legally qualified and technically qualified members, and of at least 12 extraordinary members appointed for five year periods.   There are no rules governing the dismissal of ordinary members before completion of their five year period in office, except for the internal departmental guidelines, pursuant to which the Patent Office does not recommend the appointment or reappointment of persons over 67, and the Central Division of the Patent Office does not nominate persons of 69 or over as extraordinary members of Divisions.   Members are appointed by the Crown from the rank of officials of the Industrial Property Office (Bureau voor de Industriële Eigendom).   The ordinary and deputy members are appointed from among the technical and legal staff of the Patent Office.   Their appointments remain valid until retirement.   The extraordinary members are appointed for a five year period, which may be extended for five years at a time.   They are recruited on the basis of expertise in a particular field and, in general, are university professors in one of the technical or applied sciences.   No members may take part in proceedings in which they have a direct or indirect interest or in which they are in any way involved (Rule 3 of the Patent Rules).   On taking up their duties, members are required to take a pledge of diligence, confidentiality and impartiality (Rule 4 of the Patent Rules and Article 14 of the Patent Act).           The Central Division of the Patent Office is responsible for the ad hoc formation of the Divisions (Application Division, Special Division and Appeal Division).   The Central Division comprises five members and five deputy members.   The President of the Patent Office is an ex officio member of the Central Division.   The other members and deputy members are appointed by the Minister of Economic Affairs from among the ordinary members of the Patent Office, on the basis of a wide-ranging knowledge of the various specialist fields.         Pursuant to Rules 6(1) and 7 of the Patent Rules, the Central Division sets up an Application Division drawn from the ordinary, extraordinary and deputy members of the Patent Office.   The Application Division consists of one or three members.   The single member will be a technically qualified member.   If the Application Division consists of three members, two shall be technically qualified members of the Patent Office and one shall be legally qualified.   If in the Central Division's opinion the issue to be decided is mainly of a legal nature, the single member shall be legally qualified and if the Application Division consists of three members, two shall be legally qualified members of the Patent Office and one shall be technically qualified.         If the Application Division refuses to grant a patent, it will decide not to publish the application.   If a patent is granted, the application shall be published (Article 24 para. 1 of the Patent Act).         Appeal lies from the decision of an Application Division to an Appeal Division.   Members involved in the examination of an application or in any of the proceedings of an Application Division, which decides on whether a patent should be granted, are not allowed to take part in proceedings before the Appeal Division (Article 24 A para. 4).         Article 24 A lays down the formal requirements for the appeal procedure:   the parties must be given a hearing, a written reasoned decision must be produced, and the members of the Appeal Division must not have been previously involved in the case.         Pursuant to Rules 6(1) and 8 of the Patent Rules, the Central Division sets up an Appeal Division drawn from the ordinary and extraordinary members of the Patent Office.   The Appeal Division normally has three members, although the number may be extended to five if this is justified by the nature of the issue.   When it is composed of three members, two shall be technically qualified members of the Patent Office and one shall be legally qualified.   When it is composed of five members, three shall be technically qualified members of the Patent Office and two shall be legally qualified.   If in the Central Division's opinion the issue to be decided is mainly of a legal nature, the proportion of technically and legally qualified members shall be reversed (Rule 8 para. 2 of the Patent Rules).   The President of the Patent Office is an ex officio member of the Appeal Division (Rule 8 para. 3 of the Patent Rules) and presides over it.         The Division does not arrive at a decision until the parties have been heard, or at least summoned in the proper manner.   The decision, which is given in writing, sets out the reasons (Article 24 A of the Patent Act).           Patent legislation does not provide for the proceedings before the Patent Office to be open to the public.   At no time has the public been admitted.   The reason for this established practice is that arguments based upon confidential company matters and expertise which must not be made public are often used to convince the Division of a particular point of view.   It is for the same reason that the reports of the sessions held by the Divisions of the Patent Office are not placed among the documents which are open to inspection.         The District Court (Arrondissementsrechtbank) of The Hague has exclusive jurisdiction with regard to all actions for annulment or invalidation of a patent, as well as actions in respect of the fixing of remuneration (Article 54 of the Patent Act).   No appeal is available against decisions of the Appeal Division to grant or refuse a patent. In addition, the Administrative Decisions Appeals Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen) has explicitly excluded decisions of the Appeal Division from administrative review by administrative courts.         Pursuant to the new Article 28 A of the Patent Act, which became effective as from 1 January 1991, access to the case-file has been considerably extended although, inter alia, internal notes and draft decisions have been excluded from this provision.         The new Patent Bill, which is at present before the Lower House, provides that the Patent Office will be abolished and that applications for a patent will be decided by a body of the Industrial Property Bureau.   An appeal against decisions of the Industrial Property Bureau will lie to the civil courts, since, under the new Bill, patents will be granted following an administrative procedure in which only compliance with formal requirements will be examined without an assessment of the substance of the application.     COMPLAINTS   1.     The applicant company complains that it could not appeal to an independent and impartial tribunal, as required by Article 6 para. 1 of the Convention, against the decision of the Application Division of the Patent Office not to publish the patent application.   In its opinion, the Appeal Division of the Patent Office cannot be regarded as independent and impartial, since it is part of the same administrative body as the Application Division, the Patent Office, and is staffed by employees of that Office.   Moreover, an appeal to a court against a decision not to publish a patent application is not possible under Dutch law.   2.     The applicant company also complains of a violation of Article 1 of Protocol No. 1 to the Convention in that the denial of access to an impartial and independent tribunal in the determination of its civil right to a patent means that the applicant is deprived of its possible possessions without any court examination.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 27 February 1992 and registered on 5 March 1992.         On 19 May 1992 the Commission (Second Chamber) 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 30 September 1992.   The applicant company's observations were received on 29 April 1993, following three extensions of the time-limit.         On 30 June 1993 the Second Chamber decided to refer the case to the Plenary Commission.     THE LAW   1.     The applicant company alleges a breach of Article 6 para. 1 (Art. 6-1) of the Convention in that the Appeal Division of the Patent Office is allegedly not an independent and impartial tribunal.   It further complains under Article 1 of Protocol No. 1 (P1-1) that under these circumstances it is deprived of its possible possessions without any court examination.         Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant, as follows:         "1.   In the determination of his civil rights and       obligations ..., everyone is entitled to a fair and public       hearing ... by an independent and impartial tribunal ..."         Article 1 of Protocol No. 1 (P1-1) reads as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of his       possessions except in the public interest and subject to the       conditions provided for by law and by the general principles of       international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."   2.     The respondent Government contend that the applicant company has not exhausted domestic remedies in respect of its complaints since it has failed to seize the civil courts.   They refer in this respect to a decision of the Supreme Court according to which an appeal lies to the civil courts against a decision by the Crown which does not comply with the requirements of Article 6 para. 1 (Art. 6-1) of the (Hoge Raad, 6 February 1986, no. 12860, Administratiefrechtelijke Beslissingen 1987, No. 272).   According to the Government, this finding would be equally applicable to bodies other than the Crown should they not fulfil the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         The Government also refer to a decision of 11 July 1989 of the President of the Regional Court of The Hague in injunction proceedings to the effect that, should the European Commission of Human Rights or the European Court of Human Rights find that the Patent Office is not an independent and impartial tribunal within the meaning of Article 6 (Art. 6) of the Convention, an appeal would lie to the civil courts regarding the question whether the decision to grant a licence was correct (published in Bijblad Industriële Eigendom, 1990, no. 9, p. 246).   The respondent Government finally refer to the Oerlemans judgment (Eur. Court H.R., judgment of 27 November 1991, Series A no. 219, p. 21, para. 53).   They contend that, although that case concerned an administrative appeal, it is relevant to the present application since, according to the case-law of the Supreme Court referred to, the decisive factor is whether the body at issue meets the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         The applicant company submits that the control by the civil courts of administrative appeals to an administrative body is limited to a "marginal discretion" test.   Consequently, the civil courts must accept the final decision in the administrative proceedings as res judicata and declare the appeal inadmissible.   It points out in this respect that Mr. Benthem (cf. Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97) did not seize the civil courts against the decision of the Litigation Division of the Council of State since this appeal would have been declared inadmissible.         The applicant company further argues that the "post Benthem" case-law of the Supreme Court is constituted by specific decisions given in specific cases and cannot be applied by analogy to cases not involving the Litigation Division of the Council of State.   It follows that the Oerlemans judgment is of no relevance to the present case.         The applicant company further submits that the Appeal Division acts as a judicial body in first and last instance in view of its exclusive competence as to techno-economical or legal questions relating to the grant or denial of patent applications, declarations as to earlier use and compulsory licences.   There is no appeal available under Dutch law against a decision of the Appeal Division. In this respect, the applicant company argues that the Government, on whom the burden of proof lies, have failed to prove the existence of relevant remedies pursuant to the requirements established by the European Court of Human Rights in the De Jong, Baljet and Van den Brink judgment (Eur. Court H.R., judgment of 22 May 1984, Series A no. 77). In particular, the Government have not shown what remedies exist in the present case and the decision of the President of the Regional Court of The Hague referred to concerns injunction proceedings.   Moreover, should such a remedy exist, it has not been submitted that it is available, sufficiently certain and that it has the requisite accessibility and effectiveness.           The Commission notes that the present case concerns the right of access to a tribunal.   The question whether or not it was possible to submit the request for a patent to the civil courts is therefore not a question of exhaustion of domestic remedies but a question regarding the substance of the complaint.         In these circumstances, the Commission finds that the application cannot be declared inadmissible, under Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention, for non- exhaustion of domestic remedies.   3.     The Government further submit that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   They argue that the Appeal Division is a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, notwithstanding the fact that it forms part of an administrative body, the Patent Office.   The structure of the Patent Office and its procedure, as laid down in the Patent Act and the Patent Rules, constitute sufficient safeguards for the independent and impartial administration of justice by the Patent Office.         The members of the Patent Office are appointed by the Crown from the rank of officials of the Industrial Property Office.   Their independence is furthermore guaranteed by the oath they have to take when appointed.   This oath must also be taken by the extraordinary members, engineers or experts in applied sciences, who are appointed for a renewable period of five years.   Moreover, Article 3 (Art. 3) of the Patent Rules stipulates that no members may take part in proceedings in which they have a direct or indirect interest or in which they are in any way involved.         With regard to the composition of the Divisions of the Patent Office, the Government point out that the manner of appointment of the members and the duration of their appointment safeguard their independence and impartiality.   In addition, the European Court of Human Rights has found that the presence of technical experts in a judicial body is not at variance with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention provided that legally qualified persons also form part of that body and that the way of appointing the technical experts is impartial (see Eur. Court H.R, Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 58).         The Government further point out that the Dutch legislator excluded the possibility of appealing against decisions of the Appeal Division to the Litigation Division of the Council of State under the Administrative Decisions Appeals Act because the Appeal Division offers sufficient guarantees as to the impartial administration of justice.         The new Patent Bill, which is at present before the Lower House, provides that the Patent Office will be abolished and that applications for a patent will be decided by a body of the Industrial Property Bureau.   An appeal against decisions of the Industrial Property Bureau will lie to the civil courts, since under the new Bill patents will be granted following an administrative procedure in which only compliance with formal requirements will be examined, without an assessment of the substance of the application.           The applicant company submits that it could not appeal to an independent and impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the Convention, against the decision of the Application Division of the Patent Office not to publish the patent application. In its opinion, the Appeal Division of the Patent Office cannot be regarded as independent and impartial, since it is part of the same administrative body, the Patent Office, as the Application Division and is staffed by employees of the Patent Office who work on an interchangeable basis.   Moreover, an appeal to a court against a decision not to publish a patent application is not possible under Dutch law.         Although the members of the Patent Office, except for the substitute members, are appointed by the Crown, there is, the applicant company submits, no guarantee against dismissal or suspension.   Their status is therefore that of civil servants without any specific guarantees as to their personal independence.   The applicant company contends that the oath members of the Patent Office have to take cannot set aside the absence of formal guarantees as to independence and impartiality.         The applicant company further submits that the composition of the Appeal Division is entirely left to the Central Division's discretion without any possibility for third parties to object.         As to the proceedings before the Appeal Division, the applicant company points out that the hearing before the Division is not public and that its decisions are not pronounced in public.   In addition, the parties only have limited access to the case-file.         The applicant company further submits that the Application Division merely objected to the splitting of the patent and at no time expressed any doubts as to the patentability of the invention or as to its level of "inventive character".   The appeal to the Appeal Division was therefore confined to the question whether or not the Application Division's decision that no split claim could be allowed was correct. However, in its final decision the Appeal Division considered that the application lacked "inventive character" and was thus not patentable. This decision shows the Appeal Division's partiality since this point, which was not in dispute between the parties, had not been raised before.         The applicant company concludes that the Appeal Division, both by its structure and by the way it dealt with the applicant company's case, does not meet the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission finds that the first issue to be decided in this case is whether the patent proceedings involved a "determination" of the applicant company'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 the applicant company had, or could have obtained, a fair hearing by an independent and impartial tribunal as required by that provision.           After examination of these issues in the light of the parties' submissions, including the question whether or not it was possible to submit the request for a patent to the civil courts, the Commission considers that they raise questions of fact and law of such complexity that their determination requires an examination on the merits.   This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds of inadmissibility having been established, this complaint should accordingly be declared admissible.   4.     The applicant company also complains of a violation of Article 1 of Protocol No. 1 (P1-1) in that the alleged denial of a determination of its civil right to a patent by an independent and impartial tribunal means that the applicant company is deprived of its possible possessions without any court examination.         The Commission considers that this question is so closely related to the admissible complaint raised under Article 6 para. 1 (Art. 6-1) of the Convention that they cannot be dissociated at this stage.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.     Deputy Secretary to the Commission       President of the Commission          (M. de SALVIA)                           (C.A. NØRGAARD)