Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14943/89

by Martin DENEV

against Sweden

The European Commission of Human Rights sitting in private on

11 October 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

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 14 April 1989 by

Martin DENEV against Sweden and registered on 26 April 1989 under file

No. 14943/89;

Having regard to the observations submitted by the respondent

Government on 25 May 1993 and the observations in reply submitted by

the applicant on 16 July 1993;

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, as submitted by the parties, may be summarised as

follows.

The applicant is a Swedish citizen, of Bulgarian origin, born in

1938. He resides at Semmering, Austria. The application concerns

different sets of proceedings throughout which the applicant tried to

obtain the registration of different patents.

A. The particular facts of the cases

I (case No. 800014 - 4)

On 2 January 1980 the applicant applied to the Patent and

Registration Office (patent- och registreringsverket), hereinafter

called the PRO, for the registration of a patent which concerned a

construction to be used in connection with the exploitation of wind

power. Certain correspondence between the PRO and the applicant

followed. In particular the PRO requested observations from the

applicant on 29 January and 22 October 1980, 22 April 1981 and 26 May

1982. On 18 September 1985 the PRO rejected the applicant's application

referring to the fact that a similar invention was already registered

under another patent number.

The applicant appealed against this decision to the Court of

Patent Appeals (patentbesvärsrätten) on 15 November 1985 but withdrew

his appeal on 29 December 1988 since he had obtained a European patent

from the European Patent Office on 2 November 1988. Accordingly, the

Court of Patent Appeals struck the case off its list of cases on

12 January 1989.

II (case No. 8105868 - 7)

On 1 October 1981 the applicant applied to the PRO for the

registration of a patent which concerned the exploitation of wind power

in connection with a construction which could be used as both an

aircraft and a boat. Certain correspondence between the PRO and the

applicant followed. In particular the PRO requested observations from

the applicant on 10 November 1981, 26 May 1982 and 27 February 1985.

The PRO rejected the application on 18 September 1985 as it did

not, in its opinion, contain anything which could be patented.

The applicant appealed against this decision to the Court of

Patent Appeals on 18 November 1985 but withdrew the application on

29 December 1988 since he had obtained a European patent from the

European Patent Office on 2 November 1988. Accordingly, the Court of

Patent Appeals struck the case of its list of cases on 12 January 1989.

III (case No. 8205683 - 9)

On 5 October 1982 the applicant applied to the PRO for the

registration of a patent which concerned a construction lighter than

air, to be used in connection with wind power stations, roofs and solar

collectors, as well as for the protection of plants and for transports.

It appears that further submissions were made upon the PRO's request

of 18 May 1983.

The PRO rejected the application on 27 February 1985 referring

to a US patent and to the fact that what was not covered by the US

patent did not disclose anything which could be patented.

The applicant appealed against this decision to the Court of

Patent Appeals on 26 April 1985 but withdrew the appeal on 29 December

1988 since he had obtained a European patent from the European Patent

Office on 2 November 1988. Accordingly, the Court of Patent Appeals

struck the case off its list of cases on 12 January 1989.

IV (case Nos. 8201706 - 2, 8205514 - 6, 8203706 - 0 and

8405945 - 0)

Between March 1982 and November 1984 the applicant applied for

the registration of four other patents. These applications were

rejected by the competent authorities between October 1988 and November

1992.B. Domestic law and practice

The provisions regarding the handling of patents are found in the

Patents Act of 1967. The 1967 Patents Ordinance contains provisions

of a more detailed nature. Furthermore, the Patent and Registration

Office (the PRO) has issued supplementary regulations in accordance

with the Ordinance. The 1988 Instructions for the Patent and

Registration Office contain additional provisions concerning the

handling of patent applications. The appeal proceedings are regulated

by the 1977 Act on the Court of Patent Appeals.

In Swedish law, a patent is granted to a person who has made an

invention, which is susceptible of industrial application. It is also

granted to a person who has succeeded the inventor in title. Patents

may, however, only be granted in respect of inventions which are new

in relation to what was known before the filing date of the patent

application and which also differ essentially from what was known at

that time. The legal effect of a patent is that the patent holder

obtains an exclusive right to exploit the invention commercially. This

right to the exploitation of an invention is limited in time. A patent

may thus only be maintained for twenty years, the starting-point being

the day when the patent application was filed. The right is also

geographically limited in the sense that a patent granted by the PRO

is only valid in Sweden.

Sweden applies the method of substantive examination when dealing

with a patent application. This means that the examination which leads

to the granting of a patent includes an examination of whether both the

formal and the substantive prerequisites for a patent are fulfilled.

The substantive examination serves the purpose of ensuring that invalid

patents are not granted to the detriment of the economy.

A Swedish patent may only be granted following an application.

When handling a patent application, the PRO thus examines whether there

are formal and substantive grounds for the granting of an exclusive

right to the exploitation of an invention. Such a right is constituted

by the decision of the PRO to grant a patent.

According to Section 8 of the Patent Act, a patent application

shall contain, inter alia, a description of the invention and a

distinct statement in respect of what is sought to be protected by the

patent, so-called patent claims. The application shall also contain a

summary of the description and the patent claims.

The statement concerning patent claims is of vital importance due

to the fact that the extent of patent protection is determined by those

claims.

Swedish patent legislation is based on the so-called absolute

novelty requirement. Any circumstance which results in the invention

being publicly known will therefore prevent it from being patented.

Following the investigation as to the novelty of the invention,

the application concerning such an invention which may be patented will

be approved by the PRO for public inspection. When a time-limit, three

months, for filing an opposition has elapsed, the PRO has to make a new

assessment as to whether there are any obstacles to the granting of a

patent irrespective of whether the application has been opposed or not.

If there are no such obstacles, the PRO shall grant the application for

a patent. The full legal effects of such a decision occur when it has

gained legal force. At that point an official notification of the

decision is issued by the PRO, which also issues a patent letter. The

patent is furthermore registered in the patents register, which is kept

by the PRO. A patent may never be granted unless its content has been

agreed to by the person who applies for it.

The PRO may be of the opinion that obstacles remain to the

granting of a patent and decide not to allow the application to be

publicly inspected. In that case the application, as it stands, is

considered on its merits. If the applicant has already been given the

opportunity to submit observations concerning the obstacles in

question, the application shall be rejected by the PRO unless further

observations are necessary.

An appeal against the decision of the PRO not to grant a patent

may be lodged with the Court of Patent Appeals. The judgment of that

Court may, with leave, be appealed against to the Supreme

Administrative Court (Regeringsrätten).

COMPLAINTS

The applicant complains that in all of the above patent

proceedings the requests for the registration of the patents were not

determined within a reasonable time.

He also maintains that the requests were rejected on the basis

of false and wrong arguments and due to his Bulgarian origin. He

invokes Article 6 para. 1 and Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 April 1989 and registered

on 26 April 1989.

On 2 September 1991 the Commission decided to adjourn the

examination of the application and to obtain from the applicant further

information and documents.

The applicant submitted the information and documents requested

on 7 November 1991, 19 March, 18 August, 5 and 18 November 1992.

On 9 February 1993 the Commission 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 25 May 1993.

On 16 July 1993 the applicant submitted his observations in

reply. Furthermore, he requested the Commission to continue its

examination of the application only in respect of three of the seven

sets of patent proceedings contained in his initial application of 14

April 1989.

THE LAW

1. The applicant complains of certain violations of Articles 6 and

14 (Art. 6, 14) of the Convention in respect of a number of different

proceedings in which he applied for the registration of different

patents.

a) Before considering the admissibility of these matters the

Commission notes that the applicant does not intend to pursue his

petition in so far as it concerns the proceedings referred to in Sweden

as Nos. 8201706 - 2, 8205514 - 6, 8203706 - 0 and 8405945 - 0. Having

regard to Article 30 para.1 (a) (Art. 30-1-a) of the Convention, the

Commission furthermore finds no special circumstances regarding respect

for human rights as defined in the Convention which require the

continuation of the examination of this part of the application for

which reason it may be struck out of the Commission's list of cases in

so far as these proceedings are concerned.

b) The applicant complains in respect of the remaining three sets

of domestic proceedings that these concerned his civil rights within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that

they were not determined within a reasonable time.

Article 6 para. 1 (Art. 6-1), first sentence of the Convention

reads as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government submit that the proceedings complained of

concerned the question of whether the conditions for the registration

of a patent were fulfilled and they maintain this falls outside the

scope of Article 6 (Art. 6) of the Convention. In the alternative they

consider that the complaints concerning the length of the proceedings

are manifestly ill-founded.

The Commission finds that the first issue to be decided in this

case is whether the patent proceedings involved a "determination" of

the applicant'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 they were determined within a reasonable time.

The Commission has taken cognizance of both parties' submissions.

After a preliminary examination of the case on the basis thereof, the

Commission has reached the conclusion that it raises serious issues as

to the application and interpretation of Article 6 (Art. 6) of the

Convention and that these issues can only be determined after a full

examination of their merits. It follows that this part of the

application cannot be regarded as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring it inadmissible has been established.

c) Finally, the applicant complains that the decisions taken in

respect of his patent request were based on false and wrong arguments

and were due to his Bulgarian origin. He invokes in this respect

Article 6 and Article 14 (Art. 6, 14) of the Convention.

As regards this part of the application the Commission considers

that it can be left open whether Article 6 (Art. 6) applies to the

proceedings in question. Even if this were the case the Commission

finds that the applicant's submissions do not disclose any appearance

of a violation of the Convention. It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES in so far

as it concerns the domestic patent proceedings Nos. 8201706-2,

8205514-6, 8203706-0 and 8405945-0 ;

DECLARES ADMISSIBLE, without prejudging the merits, the complaint

that the other domestic patent proceedings were not determined

within a reasonable time,

and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DENEV v. SWEDEN

DENEV v. SWEDEN

LEXI