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)
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