CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 novembre 1995

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margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s5CB67CBD { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s71833996 { width:42.55pt; display:inline-block } .sE33ECD65 { width:298.66pt; display:inline-block } .sE2D0101A { width:275.3pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       COURT (CHAMBER)             CASE OF BRITISH-AMERICAN TOBACCO COMPANY LTD v. THE NETHERLANDS   (Application no. 19589/92)             JUDGMENT       STRASBOURG   20 November 1995 In the case of British-American Tobacco Company Ltd v. the Netherlands [1] ,   The European Court of Human Rights, sitting, in accordance with Article   43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A [2] , as a Chamber composed of the following judges:     Mr   R. Ryssdal , President ,   Mr   F. Gölcüklü ,   Mr   A. Spielmann ,   Mr   N. Valticos ,   Mr   S.K. Martens ,   Mr   I. Foighel ,   Sir   John Freeland ,   Mr   D. Gotchev ,   Mr   P. Jambrek , and also of Mr H. Petzold , Registrar ,   Having deliberated in private on 26 June and 23 October 1995,   Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE   1.    The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 9 September 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art.   47) of the Convention.   It originated in an application (no. 19589/92) against the Kingdom of the Netherlands lodged with the Commission on 27   February 1992 under Article 25 (art. 25) by a limited liability company established under the law of the United Kingdom, the British-American Tobacco Company Ltd.   The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).   The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 (art. 6-1, P1-1).   2.    In response to the enquiry made in accordance with Rule 33 para.   3   (d) of Rules of Court A, the applicant company stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30).   The Government of the United Kingdom, having been informed by the Registrar of their right to intervene (Article 48 (b) (art. 48-b) of the Convention and Rule 33 para. 3 (b)), indicated that they did not intend to do so.   3.    The Chamber to be constituted included ex officio Mr S.K. Martens, the elected judge of Netherlands nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).   On 24 September 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr   A.   Spielmann, Mr N. Valticos, Mr I. Foighel, Mr A.N. Loizou, Sir John Freeland, Mr D. Gotchev and Mr P. Jambrek (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).   Subsequently Mr F. Gölcüklü, substitute judge, replaced Mr Loizou, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).   4.    As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Netherlands Government ("the Government"), the applicant company's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).   Pursuant to the order made in consequence, the Registrar received the Government's memorial on 27 February 1995 and the applicant company's memorial on 3 March.   The Delegate of the Commission did not submit any observations in writing.   5.    On 15 February 1995 the Commission produced certain documents from the file on the proceedings before it, as requested by the Registrar on the President's instructions.   6.    In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 June 1995.   The Court had held a preparatory meeting beforehand.   There appeared before the Court:   (a) for the Government       Mr K. de Vey Mestdagh , Ministry of Foreign Affairs,   Agent ,     Mr I.W. van der Eyk , Ministry of Economic Affairs,   Adviser ; (b) for the Commission       Mr E. Konstantinov ,   Delegate ; (c) for the applicant       Mr I.G.F. Cath , advocaat en procureur,   Counsel ,     Mr P. Clarke ,     Mr K.J.H. MacLean ,     Mr E.E. de Vries , patent attorney,   Advisers . The Court heard addresses by Mr Konstantinov, Mr Cath and Mr de Vey Mestdagh, and also replies to its questions.   AS TO THE FACTS   I.   PARTICULAR CIRCUMSTANCES OF THE CASE   7.    The applicant company are a limited liability company established under the law of the United Kingdom.   Their business includes the manufacture and sale of tobacco products.   8.    On 14 May 1986 the applicant company, acting through a Netherlands patent agent, filed a patent application with the Netherlands Patent Office (Octrooiraad).   They claimed priority as from 24 May 1985 on the basis of a patent application filed in the United Kingdom (Article 4 of the 1883 Paris Convention for the protection of industrial property, as revised ("the Paris Convention") - see paragraph 18 below).   The application, which concerned a cigarette, comprised nine claims (conclusies).   It was laid open to public inspection (terinzagelegging; section 22C of the Patent Act (Rijksoctrooiwet) - see paragraph 34 below) on 16 December 1988.   9.    On 15 May 1987, following a request to that effect by the applicant company (section 22I of the Patent Act - see paragraph 35 below), the Patent Office sent the applicant company a search report listing four patent publications as background to the state of the art. Two of these publications had been published after the date from which priority was claimed but before the filing date in the Netherlands.   10.    Following a request (section 22J of the Patent Act - see paragraph 36 below) by the applicant company for a decision as to the grant of a patent, an Examination Division (Aanvraagafdeling) consisting of one technically qualified member of the Patent Office stated in a letter dated May 1988 that in its opinion the patent claims described no patentable invention and in the same letter offered the applicant company the opportunity to refute its objections.   The letter noted, inter alia, that one of the measures described in the main claim did not appear in the corresponding application filed in the United Kingdom.   11.    By letter of 24 June 1988 the Examination Division agreed to publish the application for opposition purposes (openbaarmaking; section 25 of the Patent Act - see paragraph 39 below) provided certain changes were made.   These changes included defining the scope of the protection claimed in a single patent claim, the wording of which was to conform to a suggestion made by the Examination Division itself. However, the Examination Division refused to recognise the priority claimed.   12.    By letter of 20 September 1988 the applicant company submitted two new and independent claims, requesting recognition of the priority originally invoked only in respect of the first of these.   13.    On 13 October 1988 the Examination Division gave a final decision (eindbeschikking) stating that the invention might equally well be described in a single claim without loss of clarity.   It considered that the use of two independent claims for the sole purpose of resolving problems relating to the recognition of the priority invoked ran counter to the requirements of fair procedure (goede procesorde) and could therefore not be allowed.   It therefore refused to publish the application for opposition purposes.   14.    On 11 January 1989 the applicant company lodged an appeal with the Appeals Division (Afdeling van Beroep) of the Patent Office.   In their statement of grounds of appeal (memorie van grieven), they pointed to a number of published decisions of the Appeals Division from which it appeared, in their submission, that allowing more than one independent claim in a single patent application was not unacceptable.   They also expressed doubts as to how the use of two independent claims for the sole purpose of resolving problems relating to the recognition of priority could run counter to the requirements of fair procedure.   While they admitted that the invention might well be covered by a single claim, they pointed out that the scope of the protection offered by the patent would thereby be limited.   They requested the Appeals Division to overrule the decision of the Examination Division and order the publication of the application for opposition purposes with the two independent claims put forward by them but with a recognition of priority only in respect of the first claim.   In the alternative, they requested the publication of the application for opposition purposes with the single claim proposed by the Examination Division, the scope of which they agreed to limit further, together with recognition of the priority invoked.   15.    The Appeals Division, composed of two technically qualified members and one legally qualified member, held a hearing on 7 June 1989.   On 15 January 1990 it sent the applicant company a letter stating that for the time being it was of the opinion that neither the two independent claims nor the single claim proposed as an alternative described any patentable invention and setting out its reasons for that view.   The Appeals Division offered the applicant company the opportunity to put forward a defence against the objections thereby raised ex officio.   The applicant company replied by a letter of 15 June 1990, giving arguments to the contrary.   After the Appeals Division had made it clear that it was not convinced by these arguments, a second hearing was held on 23 January 1991 which was attended by the applicant company's Netherlands and British patent agents.   The applicant company submitted fresh claims on 28 January.   16.    The Appeals Division gave a final decision on 29 August 1991.   In the view of the Appeals Division, it did not necessarily run counter to any rule of fair procedure to use two independent claims to circumvent problems relating to the recognition of priority.   Since the applicant company's original appeal had been limited to this issue, it was therefore declared well-founded.   Nonetheless, the Appeals Division considered that the subject-matter of the application was not patentable since it did not involve an inventive step and refused on that ground to publish the application for opposition purposes.   II.    RELEVANT DOMESTIC AND TREATY LAW AND PRACTICE   A. The Paris Convention for the protection of industrial property   17.    The Paris Convention of 20 March 1883 for the protection of industrial property, as subsequently revised on numerous occasions (most recently in Stockholm on 14 July 1967, [1972] 828 United Nations Treaty Series, pp. 305 et seq.), sets up a Union for the protection of industrial property.   The expression "industrial property" covers patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin and the repression of unfair competition (Article 1) but not copyright.   The Paris Convention is intended to prevent discrimination against non-nationals and lays down a number of very general standards as regards procedural and substantive industrial property law.   18.    Article 4 of the Paris Convention, in so far as relevant, provides:   "A. (1)   Any person who has duly filed an application for a patent ... in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority for the periods hereinafter fixed.   ...   B. Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, the publication or exploitation of the invention ... and such acts cannot give rise to any third-party right or any right of personal possession ...   C.    (1)   The [period] of priority shall be twelve months for patents ...   ..."   19.    Article 12, in so far as relevant, reads:   "(1) Each country of the Union undertakes to establish a special industrial property service and a central office for the communication to the public of patents, utility models, industrial designs, and trademarks.   ..."   B. Netherlands patent law   20.    Patent law, both substantive and procedural, is governed by the Patent Act (Act of 7 November 1910, Official Gazette (Staatsblad) 1910, no. 313, as subsequently amended).   Certain procedural details are dealt with in delegated legislation made by the Minister for Economic Affairs under the Patent Act.   1. Substantive patent law (a) Substantive requirements   21.    Section 1A of the Patent Act provides as follows:   "A patent shall be granted, on his application, to a person who has invented a novel product or method."   A patent must be granted unless the invention is either already known or an obvious development, given the current state of the art (sections 2-2A).   To be patentable, the invention must lead to a result in the field of industry or agriculture (section 3 (1)).   However, no patent may be granted for new varieties of plants or animals, or for essentially biological processes for producing plants or animals, except for processes involving micro-organisms (section 3 (2)).   A patent application may only relate to a single invention or to a group of inventions based on a single inventive idea (section 5A). (b) Rights under a patent   22.    A patent remains valid for twenty years from the filing date of the originating application, subject to payment of an annual fee (sections 47 and 35 (1) of the Patent Act).   23.    Subject to the provisions of the Patent Act, a patent confers on the patentee the exclusive right, inter alia, to make, use, market, resell, hire out, deliver, import or stock the patented product or, when applicable, to apply the patented process commercially or to make, use, market, resell, hire out, deliver, import or stock the product obtained directly from the application of the patented process (section 30 of the Patent Act).   The patentee may enforce his exclusive rights against any person (section   43); this may involve, for instance, obtaining an injunction or (if an infringement is knowingly committed (desbewust)) damages through the civil courts.   Until the application matures into a patent, the applicant whose application has been published for opposition purposes in accordance with section 25 (see paragraph 39 below) has an inchoate right: he may only take measures to facilitate the eventual exercise of the right he hopes to obtain.   Once the patent is granted, however, the patentee may enforce his rights retrospectively with regard to actions committed between the date of publication for opposition purposes and the date on which the application matured into a patent; such actions become retrospectively unlawful (section 44).   Actions prior to publication for opposition purposes remain lawful in principle, although the patentee is entitled to reasonable remuneration on a royalty basis if such actions were committed by a person who was aware that they were covered by the patent application (section 43A).   24.    Pursuant to section 33, the right to perform acts prohibited to any person other than the patentee may be acquired from the patentee by means of a licence.   25.    Both a patent and the entitlement to a patent pursuant to sections 1 and following of the Patent Act are assignable and otherwise transferable in whole or in part (section 37 of the Patent Act).   26.    A patent may be declared null and void (nietig) ab initio if it does not conform to the substantive requirements laid down by the Patent Act (section 51).   It may also be claimed (opeising) by any person who alleges that he, not the patentee, is entitled to it (section 53).   27.    A compulsory licence under a patent may be claimed either by the holder of a patent based on a subsequent patent application if he requires it to make proper use of his own patent (section 34 (4) of the Patent Act) or by the Minister for Economic Affairs together with any Minister directly concerned if the interests of the State so require (section 34A).   In either case, the patentee is entitled to a reasonable remuneration.   2. Procedural patent law   28.    Patent applications must be filed with, and patents are granted by, the Patent Office (section 13 of the Patent Act).   29.    It appears from the explanatory memorandum to the bill which eventually became the Patent Act (Annex to Parliamentary Documents, Lower Chamber of Parliament, 1904-1905 197, no. 3, p. 16) that the intention was to prevent as far as possible the granting of patents "for which no good reasons exist[ed]".   It was therefore decided to establish a system involving an examination of patent applications by a State agency which was "entitled, though not obliged," to extend its examination to "all points which [might] be of relevance to the validity of the patent", and in which "during the examination the opportunity [should] be offered for entering objections".   An expert body was created for this purpose, the Patent Office.   It was observed that only by creating such a body "[could] the technical experts, who [were] quite indispensable, obtain an independence befitting them" and "[could] the required guarantee be provided for the quality of the decisions which, although they [might] not quite be judicial decisions in the strict sense of the word, [came] very close to being so".   30.    The legal provisions governing the procedure before the Patent Office are very summary, so that over the years the Patent Office has had to develop a number of procedural rules through its case-law to fill in gaps.   For present purposes it is of interest to note that, in accordance with the aims recorded in the drafting history of the Patent Act adverted to above, the Patent Office does not consider itself bound by the facts as submitted to it by parties and by what is requested by applicants, but establishes the facts itself, of its own motion if need be.   The following is a summary rendering of the principal rules of patent application procedure. (a) Patent applications   31.    Formal requirements relating to patent applications are to be found in the Patent Act itself and in delegated legislation known as the Patent Rules (Octrooireglement).   32.    A patent application must comprise, inter alia, a general description of the invention, and the scope of the exclusive rights desired must be set forth in one or more claims appended to the description (section 22A (1) (e) of the Patent Act).   The description (which may include drawings or graphs) must be such as to enable the person skilled in the art to understand and apply the invention, and the claims must be detailed (section 22B (1)).   The claims must enumerate separately and in detail the novel features of the invention for which exclusive rights are claimed (Rule 24 para. 2 of the Patent Rules).   In practice the first claim generally describes the main inventive idea and other claims, dependent thereon, describe particular embodiments of the invention.   33.    The priority right created by Article 4 of the Paris Convention (see paragraph 18 above) must be expressly invoked (section 7). (b) Patent application procedure   34.    As soon as possible after eighteen months have passed from the date of filing, or after the date from which priority is claimed if that is earlier, the application is laid open to public inspection (section 22C (1) of the Patent Act).   It then becomes part of the state of the art, to be considered in relation to subsequent applications as regards the requirement of novelty (section 2 (3)).   35.    The applicant, or - after the application has been laid open to public inspection - any other person, may ask the Patent Office for a search report listing published documents which it considers relevant as descriptions of the state of the art (section 22I (1) of the Patent Act).   In practice these search reports are prepared not by the Netherlands Patent Office itself but by the European Patent Office (pursuant to section 22 (8)).   Documents mentioned in the search report are usually other patent applications filed in the Netherlands and in other countries.   36.    After the search report has been issued, the applicant or any other person may request a decision as to the grant of a patent (section 22J (1) of the Patent Act).   At this point the Patent Office makes known any objections which it may have to the grant of a patent.   In response to these the applicant may then file arguments in writing or amend the application (section 23 (2)).   The application is then placed in the hands of the Examination Division (see paragraph 58 below) (section 23 (3)).   The Examination Division must offer the applicant the opportunity to be heard and give a decision as soon as possible thereafter (section 23 (4)).   37.    Section 24 (1) of the Patent Act provides as follows:   "If the Examination Division finds that no patent should be granted for all or part of the matter covered by the application, it shall give a decision not to publish the application for opposition purposes; if it finds the opposite, it shall give a decision to publish the application [or the part which it considers patentable] for opposition purposes."   38.    The applicant may appeal to the Appeals Division, within three months, against a decision not to publish the application for opposition purposes, or to publish it only in part.   This is done by filing a written statement of grounds of appeal (section 24A (1) of the Patent Act).   Like the proceedings before the Examination Division, those before the Appeals Division are not adversarial.   The Appeals Division must hear only the applicant, or at least offer him the opportunity to be heard.   It may order a supplementary search report (section 24A (3)).   The decision of the Appeals Division is reasoned (section 24A (5)).   39.    If the application is considered patentable in whole or in part, either in the initial stage by the Examination Division or on appeal by the Appeals Division, the application is published for opposition purposes (section 25 (1) of the Patent Act).   40.    Within four months following publication of the application for opposition purposes, any person may oppose the grant of a patent (section 25 (3) of the Patent Act).   If no opposition is filed within that time, or if the opposition is held to be unfounded, the application becomes a patent and the exclusive rights of the patentee are established (section 28 (1) of the Patent Act).   41.    Oppositions are heard by the Examination Division which decided on the publication of the application for opposition purposes (section 26 (1)).   If the original Examination Division consisted of only one member, its membership is extended to three.   Opposition proceedings are fully adversarial: both the opposing party and the applicant are heard (or offered the opportunity to be heard) (section 26 (1)).   The Examination Division must give a reasoned decision (section 26 (1)).   Either party may appeal to the Appeals Division against the outcome of the opposition proceedings.   Except for the fact that the appeal proceedings are also adversarial, the same rules apply to these appeals as to appeals against the decision of the Examination Division not to publish the application for opposition purposes (section 27).   42.    Hearings of the Patent Office are not open to the public, nor are its decisions delivered in public.   43.    Until 1 January 1991, various provisions in the Patent Act specified the documents to which the applicant for a patent and other interested parties were to be given access (objections (bezwaarschriften), requests and statements of grounds of appeal concerning them).   Some, but not all, of these documents were also required to be made available to the public once the patent application had been laid open to public inspection.   On 1 January 1991, a new provision (section 28A of the Patent Act) entered into force which provides that once the patent application has been laid open to public inspection (or published for opposition purposes, whichever is the sooner), any person may inspect all documents relating to the patent application which have been received by the Patent Office or which the Patent Office has sent to the applicant for a patent or to third parties pursuant to the provisions of the Patent Act.   As long as the patent application has not been laid open to public inspection, these documents may be inspected by third parties only with the permission of the applicant for a patent unless the third party concerned proves that the applicant for a patent has invoked the patent application against him.   C. Competent authorities in contentious matters   44.    Proceedings relating to the enforcement of a patent, for the revocation of a patent (nietigverklaring) and for challenging the entitlement of the patentee (opeisen) are brought before an ordinary civil court, the Regional Court (arrondissementsrechtbank) of The Hague (section 54 of the Patent Act), whose competence in such matters is exclusive.   An appeal lies to the Hague Court of Appeal (gerechtshof) and a further appeal on points of law (cassatie) to the Supreme Court.   45.    Proceedings for claiming a compulsory licence are brought before the Patent Office if the claimant is a private person (section 34 (6) of the Patent Act); the granting of a compulsory licence in the interests of the State may simply be ordered by the Ministers concerned (see paragraph 27 above).   The remuneration in such cases is set by the Patent Office, if both parties agree to make a request to that effect; if the parties cannot agree either on the amount of the remuneration or to submit the matter to the Patent Office, the patentee may file a claim before the Hague Regional Court (section 34 (9)).   46.    There is no statutory provision which either allows or expressly bars access to the civil courts to challenge a decision of the Appeals Division of the Patent Office.   It appears, however, that the legislature intended the competence of the Appeals Division to be an exclusive one.   The explanatory memorandum to the bill which eventually became the Patent Act states (Annex to Parliamentary Documents, Lower Chamber of Parliament, 1904-1905 197, no. 3, p. 25):   "The decision of the Patent Office taken at final instance that an application [for a patent] should not be granted ought not to be subject to appeal.   It should be assumed that when the Patent Office, which is the expert body par excellence, considers that the law does not allow it the freedom to grant the patent applied for, that opinion is based on solid ground.   In any case, the wording of a patent could hardly be left to any other body than the Patent Office, which has the required expert knowledge."   The competence of the administrative tribunals is expressly excluded by statute (at the material time, section 1 (f) of the Act concerning administrative jurisdiction as to decisions of the administration (Wet administratieve rechtspraak overheidsbeschikkingen - "AROB Act")).   D. The Patent Office   1. Position of the President and members of the Patent Office   47.    In the Netherlands, the industrial property service referred to in Article 12 of the Paris Convention is the Industrial Property Bureau (Bureau voor de Industriële Eigendom).   The Patent Office is part of the Industrial Property Bureau (section 14 of the Patent Act; Article 1 of the Industrial Property Bureau Ordinance (Besluit Bureau industriële eigendom)).   48.    The President of the Patent Office is also Director of the Industrial Property Bureau (Article 2 para. 2 of the Industrial Property Bureau Ordinance).   All officials and other staff - an expression which includes the members of the Patent Office - are subordinate to him; he may, acting on the instructions of the Minister for Economic Affairs, lay down regulations for the day-to-day running of the Bureau; these are, however, subject to the Minister's approval (Article 5 of the Industrial Property Bureau Ordinance).   The Director must submit an annual report on the Bureau's activities to the Minister for Economic Affairs (Article 8 of the Industrial Property Bureau Ordinance).   49.    In taking its decisions the Patent Office is not bound by instructions from any other administrative authority.   50.    Officials and other staff of the Bureau may not have any other remunerated position without the permission of the Minister for Economic Affairs.   They may not be practising lawyers or patent attorneys, nor may they be involved even in an advisory capacity in an enterprise involving the filing of patent applications or the registering of trademarks, designs or semiconductor masks.   They are forbidden to apply for a patent themselves (Article 3 of the Industrial Property Bureau Ordinance).   51.    The Patent Office consists of up to ninety ordinary members and substitute members, divided into legally qualified and technically qualified members, and of at least twelve extraordinary members (Rule 2 of the Patent Rules).   52.    The President and all members of the Patent Office are appointed, and may be dismissed, by the Crown (that is the Monarch together with the responsible Minister) (section 14 (3) of the Patent Act).   Before taking up their duties they must take a pledge worded as follows (section 14 (3) of the Patent Act and Rule 4 of the Patent Rules):   "I promise that I will diligently, meticulously and impartially discharge the duties required by the office of President [or Vice-President, ordinary member, extraordinary member or substitute member] of the Patent Office, and especially that I will participate in the decisions to be taken by the Divisions according to my own convictions and keep secret that which is known to me through my duties regarding patent applications in so far as these have not been laid open to public inspection or published for opposition purposes and that I will help to implement with precision the appropriate acts and ordinances (algemene maatregelen van bestuur) and that I will not accept any promise or any gift, whether directly or indirectly, to do or omit anything in the discharge of my duties ..."   53.    No member of the Patent Office may take part in proceedings in which he has a direct or indirect interest or in which he is in any way involved (Rule 3 of the Patent Rules).   54.    The appointment of the President and ordinary members remains valid until their retirement.   The extraordinary members are appointed for a five-year period, which may be extended for five years at a time (Rule 2 para. 2 of the Patent Rules).   They are recruited on the basis of expertise in a particular technical field and, in general, are university professors in one of the technical or applied sciences.   There are no specific rules protecting the President or members of the Patent Office against dismissal.   They enjoy the same protection as other permanently appointed civil servants, who may be dismissed involuntarily only on certain limited grounds laid down by law and may contest their dismissal before the Civil Service Tribunal (ambtenarenrechter).   55.    There is one case on record of dismissal of a member of the Patent Office.   That case concerned a member of the Patent Office who had refused an order by the President to carry out preparatory work on patent applications consisting of checking them for compliance with formal requirements.   This was work normally done by lower-ranking civil servants but occasionally by members of the Patent Office on a voluntary basis; the assistance of the members of the Patent Office had become necessary due to a growing backlog of work.   When the member concerned refused to give his assistance voluntarily even after consultation, he was officially ordered to do so by the President.   The member refused to obey and was dismissed on that ground.   He unsuccessfully contested his dismissal before both the Civil Service Tribunal and on appeal before the Central Appeals Tribunal (Centrale Raad van Beroep).   The member had not contested the order itself.   For that reason the tribunals had to assume that he could only have been dismissed without justification if the order had manifestly been given without proper authority.   In the particular case, the order was capable of being based on Rule 11A of the Industrial Property Rules (Reglement Industriële Eigendom), a provision introduced in 1957, according to which duties incumbent on the Patent Office but not assigned specifically to any Division were to be carried out by the President, who was empowered to delegate them to ordinary members of the Patent Office.   The Central Appeals Tribunal quoted the explanatory memorandum to the Order of 1957 introducing the above Rule 11A, from which it appeared that the competent Minister had assumed that members of the Patent Office were subordinate to the President except in relation to decisions relating to patent applications.   With regard to such decisions they could act only in accordance with their own convictions (see the judgment of the Central Appeals Tribunal of 17 February 1971, no. 1970/B 12, unpublished).   2. Organisation of the Patent Office   56.    The Patent Office comprises one Central Division as well as Examination Divisions, Appeals Divisions and Special Divisions (section 14 (2) of the Patent Act).   57.    The Central Division has five members.   It is presided over ex officio by the President of the Patent Office; the other four members are appointed by the Minister for Economic Affairs (Rule 5 of the Patent Rules).   The Central Division decides on the composition of the other Divisions.   58.    Examination Divisions, Appeals Divisions and Special Divisions are set up for each individual case as necessary.   Examination Divisions, consisting of either one member (who must then be technically qualified) or three members (one or two of whom must be legally qualified), decide whether a patent application may be published for opposition purposes and hear oppositions (see paragraphs 39 and 41 above) (Rules 6 para. 1 and 7 of the Patent Rules).   Examination Divisions which hear oppositions are always made up of three Members, even if the application itself was dealt with by an Examination Division consisting of a single member (section 26 (1) of the Patent Act).   Special Divisions, consisting of either one member (who must then be legally qualified) or three members (one or two of whom must be legally qualified), deal at first instance with all other matters coming within the jurisdiction of the Patent Office (Rules 6 para. 2 and 9 of the Patent Rules).   Appeals Divisions, consisting of either three members (one or two of whom must be legally qualified) or five members (two or three of whom must be legally qualified) depending on the nature and complexity of the case, hear appeals against decisions of other Divisions (Rules 6 para. 1 and 8 of the Patent Rules).   The President of the Patent Office presides over Appeals Divisions ex officio but he may be replaced in his absence by a Vice-President (Rules 8 para. 3 and 12 of the Patent Rules).   An Appeals Division may not include members who have been involved in drafting the search report or who have taken part in the decision appealed against as members of an Examination Division (section 24A (4) of the Patent Act).   There are no statutory provisions allowing applicants to challenge either individual members of a Division or an entire Division.   E. Domestic case-law relating to Article 6 para. 1 (art. 6-1) of the Convention   59.    Article 112 of the Netherlands Constitution provides as follows:   "The judiciary shall judge all disputes relating to civil rights and claims for payment."   According to the settled case-law of the Supreme Court, this provision should be interpreted so as to encompass practically all disputes between individuals and government authorities.   The civil courts are thus said to constitute a "safety net" as regards the protection of the individual against actions by the authorities.   This means that although the civil courts must decide for themselves when to exercise their jurisdiction, they must declare an action inadmissible if they find that another legal remedy exists which offers sufficient procedural guarantees.   On the other hand, if they find that no such remedy exists or that the existing remedy offers insufficient guarantees, they must deal with the merits of the case.   As regards actions brought by individuals against government authorities it is the established case-law of the Supreme Court since the European Court's Benthem v. the Netherlands judgment of 23 October 1985 (Series A no. 97) that the civil courts must take into account the requirements of Article 6 (art. 6) of the Convention.   (For a detailed discussion of the relevant legal developments and of the influence of the Benthem judgment, see the Court's Oerlemans v. the Netherlands judgment of 27 November 1991, Series A no. 219.)   60.    The question whether proceedings before the Patent Office offer sufficient guarantees has only twice been submitted to the civil courts.   On neither occasion was it answered conclusively.   The first time the issue was raised before a civil jurisdiction was in summary proceedings (kort geding) before the President of the Regional Court of The Hague (judgment of 11 July 1989, Bijblad bij De Industriële Eigendom (Industrial Property Law Review, BIE) 1990, p. 246).   In that case the plaintiff, against whom an injunction had been issued in earlier summary proceedings restraining it from infringing a patent owned by the defendant, asked for a declaration that this injunction applied only to the period between the issuing of the injunction and the date on which the plaintiff had requested the Patent Office to grant a compulsory licence under the patent.   The defendant pleaded that the proceedings relating to compulsory licences were not binding on it as the Patent Office, in deciding on compulsory licences (which in the defendant's view amounted to the determination of civil rights and obligations as understood by Article 6 (art.   6) of the Convention), was not an "independent and impartial tribunal".   The President of the Regional Court declined to give a ruling on this issue.   Even if its assumption were correct, the defendant could, after the grant of the compulsory licence, address itself to the civil courts, which would then decide whether the compulsory licence had been properly granted.   The defendant's objection to the arrangement for the grant of a compulsory licence could therefore in no way warrant the conclusion that such a licence should never be granted to the plaintiff, which had been the thinking underlying the defence plea.   The President of the Regional Court commented, as an obiter dictum, that as matters stood - given the way in which the duties of the Patent Office were stipulated by law and given the way in which the legal provisions governing proceedings relating to compulsory licences were stipulated and implemented in practice - the likelihood that in full civil proceedings (bodemprocedure) the Netherlands civil courts, or alternatively the European Commission or Court of Human Rights, would hold the Patent Office or the procedure relating to compulsory licences to fall foul of Article 6 (art. 6) of the Convention was not sufficiently strong for him to base his decision in summary proceedings on such a hypothesis.   According to information provided by the Government, the issue was raised a second time in 1990, when a company brought a case against the State before the Regional Court of The Hague also based on a complaint about the grant of a compulsory licence under a patent which it owned.   The court was asked to declare the decision of the Appeals Division unlawful, one of the reasons given being that the Patent Office allegedly did not meet the standards of Article 6 (art. 6) of the Convention.   The Government has stated before this Court that they did not raise any objection as to the admissibility of these allegations but, on the contrary, put forward defences on the merits of the question.