ABSTRACT
Even if the proceedings before the Appeals Division of the Patent Office were considered not to comply with A 6 (1), no violation of the Convention could be found if there was available to the applicant company a remedy ensuring the determination of their asserted civil right by an independent judicial body that did have sufficient jurisdiction and did itself provide the safeguards required by A 6(1). Although no Netherlands civil court had ever held itself competent to review decisions of any Division of the Patent Office regarding patent applications, that did not mean that the remedy offered by civil proceedings must for that reason be regarded as ‘ineffective’; it was equally true that no civil proceedings directed against a decision of the Appeals Division of the Patent Office had ever resulted in a ruling that the Appeals Division in fact offered sufficient procedural safeguards. The Court reviewed its previous case-law. It had found that ‘where an administrative appeal to a higher authority [was] not considered to offer sufficient guarantees as to a fair procedure it [was] possible to have recourse to the civil courts for a full review of the lawfulness of the administrative decision’. The applicant company could have submitted its claim to the civil courts for examination; it chose, for whatever reason, not to do so. In those circumstances the Court could not find in the abstract that the remedies available to the applicant company under Netherlands law for vindicating their asserted right to a patent did not meet the requirements of A 6(1). Accordingly, there had been no violation of A 6(1). The Court did not consider it necessary to rule on A 13. The applicant company had not adduced any argument to the effect that a violation of A 13 might be found even in the absence of a finding of a violation of A 6(1). In any event, the requirements of A 13 were less strict than, and were here absorbed by, those of A 6(1). The complaint under P1A1, namely the denial of a judicial remedy, was in substance identical to that already examined and rejected in the context of A 6(1). No separate issue arose under P1A1 in relation to the matters complained of. Cited: Air Canada v UK (5.5.1995), Benthem v NL (23.10.1985), Campbell and Fell v UK (28.6.1984), Fischer v A (26.4.1995), Hentrich v F (22.9.1994), McMichael v UK (24.2.1995) Oerlemans v NL (27.22.1991), Van de Hurk v NL (19.4.1994).
