FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40382/04
by RAMBUS INC.
against Germany
The European Court of Human Rights (Fifth Section), sitting on 16 June 2009 as a Chamber composed of:
Peer Lorenzen, President,Rait Maruste,Karel Jungwiert,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva, judges,
and ,
Having regard to the above application lodged on 13 November 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant company, Rambus Inc., is a company incorporated in the United States of America. It was represented before the Court by Mr V. Henke, a lawyer practising in Hamburg.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the proprietor of a European patent in the area of chip technology. The patent was contested in an opposition proceeding before the European Patent Office (“EPO”). At first instance, on 10 September 2002 the Opposition Division of the EPO maintained the patent in an amended (limited) form, that is, the proprietor added further features to the granted claims of the patent in order to meet the requirements of the European Patent Convention. The decision was appealed against by all parties to the proceedings. The applicant requested that the patent be upheld unamended, or, by way of auxiliary request, that it be maintained in accordance with one of six sets of amended claims filed with the grounds.
On 14 November 2003, the Board of Appeal of the EPO summoned the parties to oral proceedings to commence on 10 February 2004. The Board of Appeal indicated that it “may disregard evidence which is not submitted in good time prior to the oral proceedings.” It added that the same applied to amendments to the patent documents, which “should be filed as early as possible (at least one month before the date set for the oral proceedings).” On 9 January 2004, one day before the expiry of the time-limit, the applicant filed 19 new auxiliary requests. In the course of the oral proceedings the applicant withdrew its previous main request and all but five auxiliary requests. It requested that the decision under appeal be set aside and that the patent be maintained in its amended form on the basis of the five remaining auxiliary requests.
By letter dated 12 January 2004 one of the opponents filed new prior art documents. The opponents requested that the decision under appeal be set aside and the patent revoked.
As to the procedural issues, the opponents further argued that those of the nineteen requests filed on 9 January 2004 which opened up new issues were inadmissible, as they had not been lodged in due time. The applicant argued that the requests were admissible since they had been presented within the time-limit set by the Board of Appeal in the summons to oral proceedings.
At the end of the oral proceedings, on 12 February 2004, the Board of Appeal quashed the decision under appeal and revoked the patent.
It rejected three of the applicant’s (auxiliary) requests as inadmissible. Referring to two previous decisions, not published in the Official Journal of the EPO (“OJ EPO”), and to Article 11 § 6 of the Rules of Procedure of the Boards of Appeal (see relevant law below), the Board considered that requests filed at a point in time just before the minimum period set by the board in a summons to oral proceedings were to be regarded as belated if they raised issues which would require a further written phase in order to be properly dealt with. The Board further noted that, regardless of whether the opponents had been familiar with all the technical issues, they had not accepted that the invention according to the auxiliary requests was patentable. Thus, the divergent features would still have required extensive discussions.
The Board also rejected the applicant’s two remaining requests. In its reasoning it also took into account the documents filed by the opponents on 12 January 2004. With regard to the admissibility of these documents the Board found that their slight lateness had been of no importance and admitted them into the proceedings. It argued that it could always exercise certain discretion to admit documents and that there had been sufficient time left for all parties to study the documents. The written version of the decision was served on the applicant’s representative on 14 May 2004.
On 9 June 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication. Referring to its case‑law establishing the principle that it would refrain from exercising its jurisdiction as long as the protection received within the framework of the European Patent Organisation fundamental rights was in general equivalent to the standard of the German Constitution, it held that the applicant had failed to sufficiently demonstrate that the fundamental rights protection within the European Patent Convention did not meet this standard.
B.  Relevant law
The European Patent Organisation is an intergovernmental organisation that provides for an autonomous protection mechanism for individual inventors and companies seeking uniform patent protection in up to 38 European countries. When the events at issue occurred, the European Patent Convention 1973 was in force. A revised version of the European Patent Convention entered into force on 13 December 2007.
Article 2 of the European Patent Convention 1973 reads as follows:
“(1)  Patents granted by virtue of this Convention shall be called European patents.
(2)  The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless otherwise provided in this Convention.”
Article 64 of the European Patent Convention 1973 provides:
“(1)  A European patent shall, subject to the provisions of paragraph 2, confer on its proprietor from the date of publication of the mention of its grant, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.
(2)  ...
(3)  Any infringement of a European patent shall be dealt with by national law.”

Article 68 of the European Patent Convention 1973 provides:
“The European patent application and the resulting patent shall be deemed not to have had, as from the outset, the effects specified in Articles 64 and 67, to the extent that the patent has been revoked in opposition proceedings.”
The European Patent Convention leaves it open to the Member States to provide for their own national patent protection system. Germany provides for such a protection mechanism with the Patent Act (Patentgesetz) and the German Patent and Trade Mark Office (Deutsches Patent- und Markenamt). Neither the European Patent Convention nor the German Patent Act exclude a patentee from applying under the other protection mechanism. Article 139 of the European Patent Convention 1973 provides:
“(1)  In any designated Contracting State a European patent application and a European patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent.
(2)  A national patent application and a national patent in a Contracting State shall have with regard to a European patent in which that Contracting State is designated the same prior right effect as they have with regard to a national patent.
(3)  Any Contracting State may prescribe whether and on what terms an invention disclosed in both a European patent application or patent and a national application or patent having the same date of filing or, where priority is claimed, the same date of priority, may be protected simultaneously by both applications or patents.”
With regard to appeals to the Enlarged Board of Appeal, Article 112 § 1 of the European Patent Convention 1973 provides as follows:
“(1)  In order to ensure uniform application of the law, or if an important point of law arises:
(a)  the Board of Appeal shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes. If the Board of Appeal rejects the request, it shall give the reasons in its final decision;
(b)  the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.”
Article 11 § 6 of the Rules of Procedure of the Boards of Appeal (OJ EPO 2003, 89) in force at the relevant time provides:
“(6)  The Board shall ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary. Before the oral proceedings are closed, the decision may be announced orally by the Chairman.”
COMPLAINTS
Relying on Article 6 of the Convention and Article 1 of Protocol No. 1, the applicant company complained that it had been denied a fair trial with regard to its patent rights. It submitted that the appeal procedure before the EPO suffered from “serious structural deficiencies” and that, being a contracting State of the European Patent Convention, Germany had transferred powers to the EPO without setting up appropriate procedural safeguards ensuring that the parties’ fundamental rights received protection equivalent to the guarantees of the Convention and its Protocols. These structural deficiencies and the revocation of its European Patent – involving the loss of the German part of the patent – had led to the applicant company being deprived of its property without due process of the law. The applicant company also complained that it had been denied an effective remedy by the Federal Constitutional Court.
THE LAW
1.  The applicant company claimed, firstly, that the Board of Appeal had denied its right to be heard by rejecting its decisive auxiliary requests as having being filed too late. It relied on Article 6 of the Convention, which reads, so far as relevant, 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. ...”
It further invoked Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
According to the applicant company, the appeal procedure before the Boards of Appeal, in particular the discretion to preclude auxiliary requests that were filed late, was incompletely regulated. This had led to inconsistent and contradictory case-law among the various Boards of Appeal which made it impossible to predict in which cases the Boards would allow or reject further auxiliary requests filed during the appeal procedure. In this context, the applicant company stressed that auxiliary requests were the only procedural means by which a patent could be maintained in a limited version, as procedurally it was not possible for the Boards of Appeal to ex officio maintain patents in a limited form.
Secondly, the applicant company complained about the participation of a “technical assistant” in the oral proceeding and the Board of Appeal’s deliberations. The assistant’s participation had not been announced to the parties in writing prior to the oral proceedings and was not mentioned in the minutes of the oral proceedings or in the grounds for the decision. Since the applicant company had been taken by surprise by the participation of the “technical assistant” it had had no real opportunity to decide on its course of action or to object.
Thirdly, the applicant company claimed that there was no appeal as of right to the Enlarged Board of Appeal of the EPO, as it was up to the discretion of each Board of Appeal to decide whether it wanted to submit a legal issue to the Enlarged Board of Appeal.
According to the applicant company these aspects had led to a violation of its right to a fair trial under Article 6 of the Convention and of its property rights under Article 1 of Protocol No. 1.
The Court observes, at the outset, that it might be questioned whether the present application, concerning procedural shortcomings within an international tribunal, falls within its jurisdiction at all. According to the European Patent Convention, a European patent has in each of the Contracting States for which it is granted the effect of a national patent granted by that State. However, beside this international instrument the national protection mechanisms still exist. Both the international and the national mechanisms provide their own system of judicial protection. It is for the patentee to decide to which system he wants to submit. Against this background the Court finds that the question arises whether it is competent at all to examine complaints about an international system of patent protection which the applicant voluntarily submitted to with all its advantages and disadvantages.
With regard to Article 1 of Protocol No. 1, the Court notes that it might be questioned whether the applicant company has exhausted domestic remedies in this respect. Moreover, the applicant gave no explanation why he brought this action exclusively against Germany although he had not opted to apply for a German national patent.
Nevertheless and assuming jurisdiction in this respect, the Court will examine the complaint in the light of the principles established in cases in which it was called upon to answer the question whether the Member States of the Convention could be held responsible under the Convention for acts or omissions following from their membership of an international organisation. These principles have been recalled and developed in particular in the cases of Bosphorus (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland[GC], no. 45036/98, ECHR 2005-VI), Behrami and Behramiand Saramati(see Behrami and Behrami v. Franceand Saramati v. Germany, France and Norway(dec.) [GC], no. 71412/01 and 78166/01, 31 May 2007).
In Bosphorus(cited above, §§ 152-153), the Court held that, while a State was not prohibited by the Convention from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity, the State remained responsible under Article 1 of the Convention for all acts and omissions of its organs. However, where such State action was taken in compliance with international legal obligations flowing from its membership of an international organisation and where the relevant organisation protected fundamental rights in a manner which could be considered at least equivalent to that which the Convention provides, a presumption arose that the State had not departed from the requirements of the Convention. Such presumption could be rebutted, if in the circumstances of a particular case, it was considered that the protection of Convention rights was manifestly deficient: in such a case, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights (ibid., §§ 155-156).
In Behrami and Behramiand Saramatithe Court found that, unlike the situation in Bosphorus(where the impugned act had been carried out by the respondent State authorities), the impugned acts and omissions of an international security force and a subsidiary organ of the United Nations could not be attributed to the respondent States and, moreover, did not take place on the territory of those States or by virtue of a decision of their authorities. Furthermore, there existed, in any event, a fundamental distinction between the nature of the international organisation and of the international cooperation with which the Court was concerned in Bosphorusand those in these cases. Therefore, the Court declared the applications incompatible ratione personaewith the provisions of the Convention (see Behrami and Behramiand Saramati, cited above, §§ 151-152).
The Court has taken up these principles in two recent decisions concerning labour conflicts between international civil servants and the employing international organisations. In these cases the Court held that in reality the complaints of the applicants were directed against the decisions taken by the respective international judicial organs in the context of labour conflicts located solely within the internal legal system of the international organisations involved and that the respondent States had neither directly nor indirectly intervened in the proceedings before these judicial organs (see Boivin v. 34 Member States of the Council of Europe(dec.), no. 73250/01, 9 September 2008; Connolly v. 15 Member States of the European Union(dec.), no. 73274/01, 9 December 2008). Against this background the Court found that there was no action or omission of the respondent States or their organs capable of initiating their responsibility under the Convention and declared the applications incompatible ratione personaewith the provisions of the Convention (see Boivinand Connolly, both cited above; see also, mutatis mutandis, La société Etablissement Biret et CIE S.A. v. 15 Member States of the European Union(dec.), no. 13762/04, 9 December 2008).
In the present case, the Court finds that German authorities have neither intervened in the proceedings before the EPO nor, unlike the situation in Bosphorus, taken any subsequent measures of implementation.
Admittedly, the grant of a European Patent as well as its revocation in opposition proceedings have direct effects within the legal system of Germany as well as of all other Contracting States of the European Patent Convention. However, even assuming therefore the applicability of the Bosphorus case-law to the present case, the applicant did not put forward any arguments to depart from the Federal Constitutional Court’s finding that the protection of fundamental rights within the framework of the European Patent Organisation was in general equivalent to the standard of the German Constitution. The latter was in accordance with the Commission’s finding that the European Patent Convention provides for equivalent protection as regards the Convention (see Lenzing AG v. Germany, no. 39025/97, Commission decision of 9 September 1998, unreported). In the Court’s view, the instant case does not disclose a manifest deficiency in the protection of Convention rights capable of rebutting such a presumption.
It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2.  The applicant company also complained that it had been denied an effective remedy for the breach of its Convention rights as the Federal Constitutional Court had denied further judicial review of the EPO’s decision.
In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President