Rambus Inc. v. Germany (dec.)

Information Note on the Court’s case-law No. 120

June 2009

Rambus Inc. v. Germany (dec.) - 40382/04

Decision 16.6.2009 [Section V]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Dispute falling entirely within internal legal system of an international organisation endowed with its own legal personality separate from that of its members: inadmissible

The applicant company was the proprietor of a European patent that was revoked by the Board of Appeal of the European Patent Office (EPO) following an opposition proceeding. The applicant company lodged a constitutional complaint with the German Federal Constitutional Court, which, however, refused to admit it for adjudication after finding that it had not been sufficiently demonstrated that the fundamental-rights protection afforded within the European Patent Organisation was not in general equivalent to the standard of the German Constitution.

In its complaint to the European Court, the applicant company submitted that the appeal procedure before the EPO suffered from serious structural deficiencies and that, as a party to the European Patent Convention, Germany had engaged its responsibility by transferring powers to the EPO without ensuring that it afforded equivalent protection of fundamental rights to that provided by the European Convention on Human Rights.

Inadmissible: Under the European Patent Convention, a European patent had in each of the Contracting States for which it was granted the effect of a national patent granted by that State. However, the national protection mechanisms continued to exist alongside that international instrument and both the international and national mechanisms provided their own system of judicial protection. It was for the patentee to decide to which system he wanted to submit. The question therefore arose whether the Court was competent to examine complaints about an international system of patent protection to which the applicant company had voluntarily submitted with all its advantages and disadvantages.

The Court noted that in two recent cases (Boivinv. 34 Member States of the Council of Europe (dec.), no. 73250/01, 9 September 2008, ECHR 2008, Information Note no. 111; and Connolly v. 15 Member States of the European Union (dec.), no. 73274/01, 9 December 2008) it had declared the applications incompatible ratione personae with the Convention after finding that the complaints were directed against the decisions of international judicial organs in the context of labour conflicts located solely within the internal legal system of the international organisations involved and that the respondent States had neither directly nor indirectly intervened in the proceedings before those judicial organs.

In the instant case, the German authorities had not intervened in the proceedings before the EPO, an international judicial organ, or, unlike the situation in Bosphorus (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI, Information Note no. 76), taken any subsequent measures of implementation. Further, even assuming that the Bosphorus case-law did apply to the applicant company’s case (owing to the direct effects the grant or revocation of a European Patent had within the domestic legal systems of the States concerned), the applicant company had not established that the protection of Convention rights afforded by the EPO system was manifestly deficient. In particular, it had not put forward any arguments to persuade the Court to depart from the German Federal Constitutional Court’s finding that the protection of fundamental rights within the framework of the EPO was in general equivalent to the standard of the German Constitution. Indeed, the European Commission of Human Rights had found in a 1998 decision (Lenzing AG v. Germany, no. 39025/97, Commission decision of 9 September 1998, unreported) that the European Patent Convention did in fact provide equivalent protection as regards the European Convention on Human Rights. Accordingly, the applicant company had not rebutted the Bosphorus presumption that the respondent State had not departed from the requirements of the latter Convention: manifestly ill-founded.

See also Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), n° 13645/05, 20 January 2009, ECHR 2009, Information Note no. 115; and Gasparini v. Italy and Belgium (dec.), n° 10750/03, 12 May 2009, Information Note no. 119.

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This summary by the Registry does not bind the Court.

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