Lexploria

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)

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REBER, REBER SYSTEMATIK GmbH AND KINKEL v. GERMANY

REBER, REBER SYSTEMATIK GmbH AND KINKEL v. GERMANY

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