Kristiansen and Tyvik AS v. Norway

Information Note on the Court’s case-law No. 163

May 2013

Kristiansen and Tyvik AS v. Norway - 25498/08

Judgment 2.5.2013 [Section I]

Article 6

Civil proceedings

Article 6-1

Access to court

Lengthy delays in examination of patent application rendering right of appeal to a court meaningless: violation

Facts – The applicants jointly owned a patent application that was lodged with the Norwegian Industrial Property Office (NIPO) in 1990. The application was ultimately refused by the NIPO in a decision that was upheld by the Board of Appeals (an internal patents appeal body) in September 2008. By then the twenty-year period of protection that would have applied had the patent been granted was due to expire just two years later. The applicants do not appear to have challenged the Board of Appeals’ decision in the domestic courts.

In their application to the European Court, the applicants alleged that, as a result of the excessive length of the proceedings before the national patent authorities and the twenty years’ limitation on patent protection under the Patents Act, their right of access to a court had become illusory, in breach of Article 6 § 1 of the Convention.

Law – Article 6 § 1: The Court reiterated that in civil length-of-proceedings cases examined under Article 6 § 1 the period to be taken into consideration did not necessarily start when the competent tribunal was seized but could also encompass the prior administrative phase. In the instant case, there could be little doubt that the length of the administrative proceedings had been excessive. Due to the considerable lapse of time and the twenty years’ limitation on the protection offered by the Patents Act, the applicants’ exercise of their right of access to a court had become illusory. That state of affairs had resulted in a limitation on the applicants’ right of access to a court, which limitation was not only arbitrary for the purposes of the Article 6 § 1 guarantee but had also impaired the very essence of that right.

Conclusion: violation (unanimously).

Article 41: EUR 15,000 to the first applicant in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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