Lexploria

The European Commission of Human Rights sitting in private on

13 May 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 26 June 1985 by

S.B. against the United Kingdom and registered on 1 July 1985

under file No. 11617/85;

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 United Kingdom citizen, born in 1954 and currently

detained at Frankland Prison in Durham. He is represented before the

Commission by Messrs. Baker & Co., Solicitors, of Guildford. He is

currently serving a life sentence at Frankland Prison.

The applicant claims to have made a number of inventions, but

principally an invention comprising a radar reflecting balloon buoy

device, which provides a means for a person lost where a visual

sighting is made difficult to be seen at a great distance both on

radar and visually when within visual range. The applicant

corresponded with a patent agent until 12 September 1983 and had,

indeed, submitted his papers to the Patent Office, a step which gave

twelve months' provisional protection for the invention.

On 12 September 1983 he was told by the Assistant Governor of the

prison at which he was then held that he would no longer be permitted

to correspond with the agent because the applicant was "attempting to

circumvent the prison rules relating to prisoners' activities". The

applicant petitioned the Home Secretary to permit the agent to be

recognised as an approved visitor, with a view to protecting and

exploiting the applicant's device.

The next stage of the proceedings is not clear. The applicant's

representatives state that initially no reply was received and the

judicial review proceedings were considered in the absence of a reply.

The opinion eventually received from counsel, however, refers to the

possibility of seeking an order of certiorari to quash the decision of

the Home Office.

The applicant's representatives applied for legal aid on 5 March 1984,

and on 2 November 1984 emergency legal aid was granted, limited to the

taking of counsel's opinion. Instructions were sent to counsel on

23 November 1984, and a full legal aid certificate, also limited to

the obtaining of counsel's opinion, was issued on 27 November 1984.

Counsel's advice concluded that orders for declaration and mandamus

would not lie, but that there was a possibility of obtaining an order

for certiorari to quash the refusal of the Home Office to permit the

applicant to communicate with the patent agent on the ground that an

application for a patent did not constitute a business activity.

Counsel's opinion was dated 20 March 1985. According to the

applicant's representatives, a formal reply to the applicant's

petition was received by the applicant on 13 February 1985. In that

note, the applicant was told that visits concerning the preparation

and filing of a patent application would be permitted, but that no

attempt to exploit the patent commercially would be permitted. The

note also stated that it was likely that a patent agent would be put

on the list of visitors under the approved visitors' scheme.

The applicant was asked if he approved the contents of the opinion of

counsel dated 20 March 1985, and he confirmed that he did. The

limitation on his legal aid certificate was not lifted, however, and

on 8 November 1985 the certificate was discharged.

The applicant alleges that as a result of the time taken to reach a

decision in his case, he lost his provisional patent protection and,

accordingly, sent all his documentation to the Open University for

such charitable use as they saw fit.

COMPLAINTS

The applicant alleges that the initial refusal of the Home Office to

permit the patent agent to be put on the applicant's list of approved

visitors constituted a violation of Articles 6, 8, 9, 10, and 11

(Art. 6, art. 8, art. 9, art. 10, art. 11) and that the refusal to

permit him to correspond with the patent agent while he was at Leeds

prison itself constituted a breach of Article 8 of the Convention

(Art. 8). The applicant alleges that the refusal to permit him to

exploit the patent commercially is contrary to Articles 8, 9, 10 and

11 of the Convention (Art. 8, art. 9, art. 10, art. 11). The

applicant also alleges breaches of Articles 12 and 13 of the

Convention (Art. 12, art. 13).

THE LAW

1. The applicant complains of a violation of Article 6 (Art. 6)

in respect of the initial refusal of the Home Office to permit the

patent agent to be put on the applicant's list of approved visitors.

An interference with the applicant's rights under Article 6 (Art. 6)

can only be established in this respect if it can be shown that the

refusal of access to a patent agent in some way "determined" the

applicant's civil rights.

The Commission recalls that it has already found that the registration

of a patent is an essentially administrative matter which falls

outside the scope of Article 6 of the Convention (Art. 6)

(No. 7830/77, Dec. 13.7.78, D.R. 14 p. 200) even though a patent

right, once granted, does fall to be considered as a civil right

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

(cf. ibid. at 201).

It follows that the applicant's complaints in respect of Article 6

(Art. 6) in connection with the registration of his invention at the

Patent Office and access to the patent agent must be regarded as

incompatible ratione materiae with the provisions of the Convention,

and must therefore be rejected under Article 27 para. 2 (Art. 27-2).

2. The applicant alleges a violation of Article 8 (Art. 8).

(i) As regards the registration of the invention at the Patent Office,

the Commission notes that the applicant was eventually allowed to have

the patent agent put on his list of approved visitors. In this

respect, the Commission considers that any issues which may arise fall

to be discussed in connection with the applicant's right to respect

for his correspondence. It is true that the applicant alleges that as

a result of the time taken to reach a decision, his provisional patent

protection expired, and he decided to send all his papers relating to

the invention to the Open University. It is not, however, apparent

that the applicant made any efforts to have the decision in his case

speeded up, nor is it clear that the applicant would not have been

able to apply for registration of his invention at the Patent Office

if he had retained title to it instead of transferring it to the Open

University.

The Commission considers that the applicant's loss of potential patent

rights must be regarded as his own responsibility as it appears that

he took no steps to accelerate the proceedings (such as further

petitions, or letters from his solicitor to the Home Office).

Further, he sent the papers relating to the invention to the Open

University of his own accord when he could have retained them and

re-submitted his application for patent protection at a later date.

It follows that this part of the application must be regarded as

manifestly ill-founded within the meaning of Article 27 para. 2 of the

Convention (Art. 27-2).

(ii) As regards the eventual refusal of permission of access to a

patent agent for any exploitation of the invention, the Commission

considers that Article 8 (Art. 8) cannot be regarded as giving a right

to the commercial exploitation of an invention whilst in prison.

It follows that this part of the application must be regarded as

incompatible ratione materiae with the provisions of the Convention,

and must therefore be rejected under Article 27 para. 2 (Art. 27-2).

3. The applicant alleges a violation Article 9 of the Convention

(Art. 9), first in that the refusal to permit a patent agent to be put

on the applicant's list of approved visitors prevented him from

protecting his intellectual property and therefore constituted an

attack on his freedom of thought, and secondly, in that he was

prevented from exploiting his invention commercially.

Article 9 of the Convention (Art. 9) provides for the freedom of

thought, conscience and religion. It does not purport to guarantee

rights of access to the Patent Register, and it is not concerned with

the protection of intellectual property. Accordingly, it does not

guarantee a right to exploit commercially a patent registered in

accordance with the law.

It follows that this part of the application must be regarded as

incompatible ratione materiae with the provisions of the Convention

and must therefore be rejected under Article 27 para. 2 (Art. 27-2).

4. The applicant alleges a violation of Article 10 of the

Convention (Art. 10) first, in that his right to freedom of expression

was denied by his inability to communicate with his patent agent, and

secondly in that he is unable to exploit his invention commercially.

(i) The Commission recalls that it has previously found that as

between Articles 8 and 10 of the Convention (Art. 8, art. 10), matters

concerning receipt of information by post fall to be considered under

Article 8 (Art. 8) rather than Article 10 (Art. 10) (No. 8383/78,

Dec. D.R. 17 p. 227; No. 8317/78, D.R. 20 p. 44 at p. 96). The same

criteria apply in the present case to communications between the

applicant and his patent agent.

It follows that this part of the application must be regarded as

manifestly ill-founded within the meaning of Article 27 para. 2 of the

Convention (Art. 27-2).

(ii) As to the applicant's inability commercially to exploit his

invention, the Commission cannot find anything in Article 10 (Art. 10)

which could lead to the conclusion that it guarantees a right for the

applicant in the present case to exploit his invention commercially.

It follows that this part of the application must be regarded as

incompatible ratione materiae with the provisions of the Convention

and must therefore be rejected under Article 27 para. 2 (Art. 27-2).

5. The applicant alleges a violation of Article 11 of the

Convention (Art. 11) in that his patent agent was not initially put on

his list of approved visitors, and in that he is now not permitted to

exploit his invention commercially.

Article 11 (Art. 11), however, is concerned with the right to form or

be affiliated with a group of persons or an organisation pursuing

particular aims. It does not concern the right of prisoners to have

access to patent agents. Nor does it guarantee the possibility to

exploit an invention commercially.

It follows that this part of the application must be regarded as

incompatible ratione materiae with the provisions of the Convention,

and must therefore be rejected under Article 27 para. 2 (Art. 27-2).

6. The applicant alleges a violation of Article 12 of the

Convention (Art. 12). He states that, although a bachelor, if he were

to marry, then funds obtained by exploitation of his invention could

assist his rehabilitation.

Article 12 (Art. 12), however, concerns the right to marry. It cannot

be interpreted to give a right to exploit commercially an invention

made by a person whilst in prison.

It follows that this part of the application must be regarded as

incompatible ratione materiae with the provisions of the Convention,

and must therefore be rejected under Article 27 para. 2 (Art. 27-2).

7. The applicant alleges a violation of Article 13 of the

Convention (Art. 13).

(i) To the extent that the applicant's complaints have been rejected

as being incompatible ratione materiae with the provisions of the

Convention, his complaints under Article 13 of the Convention

(Art. 13) also fall to be regarded as incompatible ratione materiae

with the provisions of the Convention, within the meaning of

Article 27 para. 2 (Art. 27-2).

(ii) As to the remainder of the applicant's complaints, the Commission

recalls that in the case of Silver and Others (Eur. Court H.R.

Judgment of 25 March 1983), the Court found that to the extent that

the norms in question in that case were compatible with the provision

of the Convention in question, the aggregate of remedies available

satisfied the requirements of Article 13 (Art. 13). That same

aggregate of remedies (comprising, inter alia, complaints to the

prison Governor and the Home Secretary, and application to the

domestic courts by way of judicial review) was available to the

applicant in the present case and the Commission therefore considers

sufficient remedies existed for the applicant to be able to secure

compliance with the provisions of Article 13 of the Convention

(Art. 13).

It follows that this part of the application must be regarded as

manifestly ill-founded within the meaning of Article 27 para. 2 of the

Convention (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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B. v. THE UNITED KINGDOM

B. v. THE UNITED KINGDOM

LEXI