University of Illinois Foundation v. the Netherlands



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)