AS TO THE ADMISSIBILITY OF
Application No. 12048/86
by the University of Illinois Foundation
against the Netherlands
The European Commission of Human Rights sitting in private
on 2 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER 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 10 May 1985 by
the University of Illinois Foundation against the Netherlands and
registered on 10 March 1986 under file No. 12048/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a corporate body under the law of the State
of Illinois (USA) with a registered office in Urbana, in the same
State. In the proceedings before the Commission it is represented by
Mr. D.J. de Brauw, a lawyer practising in the Hague, the Netherlands.
On 18 January 1967 an application for a Dutch patent was filed,
on behalf of the applicant, with the Dutch Patent Council.
By virtue of Section 22D (1) of the Dutch Patent Act, the
applicant had to pay an annual tax for the maintenance of the
application pending. It appears that, until the patent was eventually
granted on 17 September 1980, the applicant always paid the tax in
time, i.e. before or on 31 January of every year.
On 3 October 1980 the Dutch agents representing the applicant
with the Patent Council informed the applicant's American
representatives that the patent was granted and that the first annuity
for the patent would have to be paid to the Patent Council before
31 January 1981. This tax was based on Section 35 (1) of the Patent
Act. The American representatives of the applicant answered on
7 October 1980 that their computer service would continue to pay the
annual fees. However, the American firm dealing with the annual
payments made an error as a result of the conversion of the patent
application into a patent. The error resulted in non-payment of the
first annuity of the patent tax by 31 January 1981.
Shortly after that date, pursuant to Section 49 (2) of the
Patent Act, the Patent Council reminded the applicant's Dutch agents
with the Patent Council in writing that the time-limit for payment had
elapsed. As the agents did not consider themselves as representatives
of the applicant anymore, they did not inform the applicant of the
Council's letter.
On 1 August 1981, i.e. six months after the deadline for
payment, the applicant's patent lapsed by virtue of Section 49 (1) of
the Patent Act. The lapse of the patent was published in the Dutch
Patent Gazette of September 1981.
On 31 December 1981 the American firm handling the computer
payments sent a tax payment order for the second year's tax to the
Dutch agents. It was only when the Dutch agents returned the payment
order that the American firm learned that the first payment had not
been made and that the patent had lapsed.
On 21 April 1982 the applicant introduced, on the basis of
Section 17A of the Patent Act, a request for restoration of the patent
with the Special Division of the Patent Council. However, on
23 February 1983, the Special Division declared the applicant's
request inadmissible, having found that the possibility of restoration
under Section 17A of the Patent Act only applied to pending
applications for a patent and not to patents that have already been
granted.
The applicant therefore appealed to the Appeal Division of the
Patent Council. The Appeal Division rejected the appeal on 12 November 1984
on the ground that, although the possibility of restoration might,
in special cases, also apply to patents that have been granted,
Section 17A (2) of the Patent Act prevented restoration of the
applicant's patent. This provision states that the possibility to
request restoration does not apply in regard of losses of rights
resulting from late payments, where an extended payment period exists.
COMPLAINTS
The applicant complains that it did not have a public
hearing in respect of its request for restoration of its patent. In
addition, the applicant complains that the decisions of the Patent
Council's Divisions were not pronounced publicly. The applicant
alleges a violation of Article 6 para. 1 of the Convention in these
respects.
Furthermore, the applicant complains that it has been deprived
of its possessions and that this deprivation was not justified by the
public interest since the public interest involved in the lapse of the
applicant's patent was not proportionate to the applicant's interest
in the protection of its fundamental right to peaceful enjoyment of
its possessions. Therefore, the applicant alleges a violation of
Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. The applicant has complained that it has not had a public
hearing in the proceedings concerning its request for restoration of
its patent, and that the Patent Council's decisions were not
pronounced publicly. In this respect the applicant invokes Article 6
para. 1 (Art. 6-1) of the Convention which provides, inter alia:
"In the determination of his civil rights and obligations
.... everyone is entitled to a ... public hearing ... .
Judgment shall be pronounced publicly...".
The first issue which has to be examined is whether the
applicant could claim a "right" within the meaning of Article 6 para. 1
(Art. 6-1).
The Commission recalls that this notion has an autonomous
meaning in the sense that it is not decisive for the purpose of
Article 6 para. 1 (Art. 6-1) that a given privilege or interest which
exists in the domestic legal system is not classified or described as
a "right" by that system (Sporrong and Lönnroth, Comm. Report
8.10.80, para. 150, Eur. Court H.R., Series B no.46, p. 62). However
there is no room for applying the autonomous notion of a "right" in
such a way that the Commission would thereby be creating a new
substantive right which has no legal basis in the Contracting State
concerned (see, inter alia W v. the United Kingdom, Comm. Report
15.10.85, para. 115, Eur. Court H.R., Series A no. 121, p. 48).
The Commission finds that this would be the case in regard to
the present application. The applicant claimed before the two
instances of the Patent Council, a right to request and obtain
restoration of its patent. The Commission notes, however, that
Dutch law neither recognises such a right nor leaves any discretionary
power to the Patent Council in deciding applications for the
restoration of a patent which has lapsed, by mere operation of law, as
a result of non-payment of patent tax. Section 17A (2) of the Dutch
Patent Act, which was the basis for the applicant's request for
restoration, explicitly excludes the possibility of restoration
where the lapse of the patent is due to non-payment of tax after the
six-month time extension.
In fact, the proceedings complained of are to a certain extent
analogous to proceedings for a re-opening of a case after the original
decision has become res judicata, to which, according to the constant
case-law of the Commission, Article 6 (Art. 6) of the Convention is
not applicable (cf. for example No. 7761/77, Dec. of 8.5.78, D.R. 14,
p. 171).
By finding that the applicant could claim a "right" to have
his patent restored, the Commission would in fact be creating a new
substantive right which has no legal basis under Dutch law. Neither
can there be found a legal basis for such a right in the Convention
itself. Article 1 of Protocol No. 1 (P1-1) deals with acquired
rights (Van Marle and Others, Comm. Report 8.5.84, para. 123, Eur.
Court H.R., Series A no. 101, p. 27). A right to restoration of a
patent would essentially entail a right to acquire property, which is
not guaranteed by Article 1 of Protocol No. 1 (P1-1) (cf. mutatis
mutandis Eur. Court H.R., Marckx judgment of 13 June 1979, Series A
no. 31, p. 23, para. 50; Comm. Report 10.12.77, para. 96, Eur. Court
H.R., Series B no. 29, p. 53).
Furthermore, the Commission considers that the impossibility
for the applicant to have his patent restored cannot be described as
arbitrary (cf., in this respect, No. 10475/83, Dec. of 9.10.84, D.R.
39, p. 246).
It is true that most European States appear to provide for,
within limits, the restoration of patents which have lapsed as a
result of non-payment of patent tax.
The Commission notes, however, that the Dutch Patent Act does
provide for a six-months extension of the term of payment after the
deadline for payment. Furthermore, Section 49 (2) read in conjunction
with Section 22D of the Patent Act requires the Patent Council to
remind the patent-holder in writing, within fourteen days after the
date due, of the patent tax to be paid.
In the Commission's view, the Patent Act thus leaves
patent-holders sufficient opportunity to correct errors which may have
led to non-payment of the tax.
The Commission concludes that, in respect of the patent
proceedings, the applicant did not have a "right" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention. It follows
therefore that Article 6 para. 1 (Art. 6-1) is not applicable in the
present case and that this part of the application must be declared
incompatible ratione materiae with the provisions of the Convention,
within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant has also complained that it has been deprived of
its possessions and that the public interest involved in the lapse of
its patent was not proportionate to the applicant's interest.
It is true that Article 1 of Protocol No. 1 (P1-1) of the
Convention secures to everyone the right to the peaceful enjoyment of
his possessions.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law. The mere fact that the applicant has submitted its
case to the various competent organs does not of itself constitute
compliance with this rule. It is also required that the substance of
any complaint made before the Commission should have been raised
during the proceedings concerned. In this respect the Commission
refers to its constant jurisprudence (see e.g. decisions on the
admissibility of application Nos. 263/57, Yearbook 1, pp. 146, 147 and
No. 1103/61, Yearbook 5, pp. 168, 186).
In the present case the applicant did not raise either in form
or in substance, in the proceedings before the Special Division and the
Appeal Division of the Patent Council, the complaint which it now makes
before the Commission. Moreover, an examination of the case does not
disclose the existence of any special circumstances, which might have
absolved the applicant, according to the generally recognised rules of
international law, from raising its complaint in the proceedings
referred to.
If follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and its
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C.Krüger) (C.A. Nørgaard)