AS TO THE ADMISSIBILITY OF
Application No. 27410/95
by Hans REBER, REBER SYSTEMATIK GmbH and
Ulrich KINKEL
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 January 1995
by Hans REBER, REBER SYSTEMATIK GmbH and Ulrich KINKEL against Germany
and registered on 25 May 1995 under file No. 27410/95;
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 of the case, as they have been presented by the
applicants, may be summarised as follows.
The first applicant, born in 1938, is a German national and
resident in Reutlingen. He is the manager of the second applicant, a
limited company with seat in Reutlingen. The third applicant, born in
1928, is a German national and resident in Sindelfingen. He is a
patent attorney by profession. In the proceedings before the
Commission they are represented by Mr. P. Kragler, a lawyer practising
in Munich.
On 29 January 1985 the first applicant, represented by the third
applicant, applied to the European Patent Office for the registration
of a patent which concerned a filtering apparatus. The decision of the
European Patent Office to grant the patent, with five claims, was
published on 19 September 1990.
In 1991 opposition was filed against the first applicant's
patent, alleging that the object of the patent did not result from an
invention and that the specification was insufficient.
On 29 April 1992 the Opposition Division of the European Patent
Office, following an oral hearing, revoked the patent in question. In
the reasons of this decision, finalised on 10 June 1992, the Opposition
Division referred to the second applicant (company) as owner of the
patent.
On 21 August 1992 the first applicant, represented by the third
applicant, submitted an application for the reinstatement of the
proceedings against the decision of 29 April 1992 and an appeal against
the said decision. On 5 October 1992 the European Patent Office
granted the first applicant's application to have the proceedings
reinstated.
By letter of 16 December 1992 the first applicant, represented
by the third applicant, again submitted an application for the
reinstatement of the proceedings, namely regarding the time-limit for
filing the reasons for the appeal, and at the same time submitted the
said reasons.
On 22 November 1993 the European Patent Office dismissed the
first applicant's second application to have the proceedings reinstated
and declared his appeal against the decision of 29 April 1992
inadmissible.
In its decision, the European Patent Office found that the first
applicant's application to file the reasons for his appeal out of time
was admissible, i.e. lodged in time, and that he had also meanwhile
filed the said reasons. However, the Office considered that the
application was unfounded as he had failed to show that he had been
hindered from filing the said reasons in time through no fault of his
own. The submissions of his representative, the third applicant, and
the affidavit of his secretary had not clarified the reasons for his
failure to keep the deadline. The appeal was accordingly inadmissible.
On 30 September 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicants' constitutional
complaint (Verfassungsbeschwerde) about the decision of the European
Patent Office of 22 November 1993. The decision was served on
11 October 1994.
On 4 October 1994 the European Patent Office informed
Mr. Kragler, the applicants' representative in the proceedings before
the Commission, that there was no legal basis to have the proceedings
regarding the above case reopened.
COMPLAINTS
1. The applicants complain about the decision of the European Patent
Office of 22 November 1993. They consider that the proceedings before
the European Patent Office were unfair, in particular that the Office
arbitrarily dismissed the second request for a reinstatement of the
proceedings. They also complain about the refusal of the Patent Office
to reopen the proceedings. The first and second applicants state that
the patent was of major importance for their economic situation. The
third applicant adds that the European Patent Office did not duly
consider the general labour market situation and the particularly
strained situation of his office at the relevant time. The third
applicant regards himself affected by the above decisions as he was the
patent attorney responsible in the patent proceedings. They invoke
Article 6 of the Convention and Article 1 of Protocol No. 1.
2. The applicants further complain under Article 6 of the Convention
and Article 1 of Protocol No. 1 that the Federal Constitutional Court,
in its decision of 30 September 1994 refused to admit their
constitutional complaint.
THE LAW
1. The applicants complain under Article 6 (Art. 6) of the
Convention and Article 1 of Protocol No. 1 about the decision of the
European Patent Office of November 1993 not to grant the first
applicant's application to file the reasons of his appeal out of time,
and also about the alleged unfairness of the proceedings concerned.
The Commission must first consider whether it is competent to
examine complaints about the decisions of other European institutions,
whose membership is in whole or in part composed of High Contracting
Parties to the Convention. In this connection, it recalls its case-law
according to which it is not competent ratione personae to examine
proceedings before or decisions of organs of the European Communities,
or of the European Patent Office, which are not a Party to the European
Convention on Human Rights. Their decisions do not involve the
exercise of national jurisdiction within the meaning of Article 1
(Art. 1) of the Convention (cf. No. 13258/87, Dec. 9.2.90, D.R. 64
p. 138; No. 21090/92, Dec. 10.1.94, D.R. 76-A p. 125).
The Commission based its decision in the previous case (No.
21090/92, loc. cit.) on the following considerations:
"The Commission notes that by drawing up the European Patent
Convention the Contracting States who are also High Contracting
Parties to the European Convention on Human Rights created a
system of law common to the Contracting States for the grant of
European patents.
The European patent has, in each of the Contracting States for
which it is granted, the effect of and is subject to the same
conditions as a national patent granted by that State. To this
extent these States have transferred their powers in this area
to the European Patent Office.
It has to be observed in this context that the Convention
does not prohibit a High Contracting Party from transferring
powers to international organisations. Nonetheless, the
Commission recalls that 'if a State contracts treaty obligations
and subsequently concludes another international agreement which
disables it from performing its obligations under the first
treaty it will be answerable for any resulting breach of its
obligations under the earlier treaty' (No. 235/56, Dec. 10.6.58,
Yearbook 2 pp. 256, 300). Thus the transfer of such powers does
not necessarily exclude a State's responsibility under the
Convention with regard to the exercise of those powers. Otherwise
the guarantees of the Convention could wantonly be limited or
excluded and thus be deprived of their peremptory character.
The object and purpose of the Convention as an instrument
for the protection of individual human beings requires that its
provisions be interpreted and applied so as to make its
safeguards practical and effective (see Eur. Court H.R., Soering
judgment of 7 July 1989, Series A no. 161, p. 34, para. 87).
Therefore the transfer of powers to an international organisation
is not incompatible with the Convention provided that within that
organisation fundamental rights will receive an equivalent
protection (see the above-mentioned No. 13258/87, D.R. 64
p. 145).
The Commission notes that the European Patent Convention
contains detailed provisions on substantive patent law covering
patentability, the persons entitled to apply, the term, the
rights and equivalence of a European patent and patent
applications, the application as an item of property, the
procedure for grants, opposition procedures etc..
The Commission also notes various procedural safeguards
contained in the European Patent Convention. For example,
Article 21 of that Convention provides for an appeals procedure.
... "
The Commission finds no reason to depart from this jurisprudence.
In the circumstances of the present case, the Commission, having
considered the arguments forwarded by the applicants, concludes that
it is not competent to examine their complaints under Article 6
(Art. 6) of the Convention and Article 1 of Protocol N° 1 concerning
the appeal proceedings before the European Patent Office in respect of
the revocation of the first applicant's patent.
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention and must be
rejected pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
2. The Commission further finds that, insofar as the applicants'
complaint about the decision of the Federal Constitutional Court of
30 September 1994 has been substantiated and is within its competence,
their submissions do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must also be rejected in
accordance with Article 27 (Art. 27) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy