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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Virgin Atlantic Airways Ltd v Jet Airways (India) Ltd & Ors  EWCA Civ 1713 (20 December 2013)
Cite as:  RPC 18,  EWCA Civ 1713,  Bus LR 491,  WLR(D) 511
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3113, 3156, 3157, 3158 & 3159
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PATENTS COURT)
The Hon Mr Justice Floyd
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE KITCHIN
| Virgin Atlantic Airways Ltd
|Jet Airways (India) Ltd
Delta Air Lines, Inc.
Zodiac Seats UK Ltd
(formerly Contour Aerospace Ltd)
The Comptroller General of Patents
The Secretary of State for Business, Innovation
Applicants to Intervene
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
appeared for Virgin Atlantic Airways on the patent issues for the 908 and 734 patents
Mr Alan Maclean QC (instructed by DLA Piper UK LLP) appeared for
Virgin Atlantic Airways on the non-designation issue
Mr Benet Brandreth (instructed by Wragge & Co LLP) appeared for
Delta Air Lines, Inc. on patent issues
Mr Adrian Speck QC (instructed by Bird & Bird LLP) appeared for
Air Canada on patent issues
Mr Pushpinder Saini QC (instructed by Wragge & Co and Bird & Bird LLP) appeared for
Air Canada, Delta Air Lines, Inc. and Zodiac Seats UK Ltd on the non-designation issue
Mr Iain Purvis QC and Mr Brian Nicholson (instructed by Wragge & Co LLP)
appeared for Zodiac Seats UK Ltd ('Zodiac') in relation to the patent issues for the 908 and 734 patents
Mr Martin Chamberlain QC and Ms Fiona Clark (instructed by the Treasury Solicitor)
appeared for the Comptroller General of Patents and the Secretary of State for
Business, Innovation and Skills on the non-designation issue
Crown Copyright ©
Lord Justice Patten:
i) Did the judge fall into error in concluding that the patent was not infringed?
ii) If yes, ought he to have concluded the patent was invalid for added matter?
The procedural history
The technical background
The 908 patent - disclosure
i) improved accommodation in business class incorporating a flat sleeping surface of maximal length and preferably maximal width;
ii) an improved passenger accommodation unit adapted to provide self-contained individual seating and sleeping accommodation, particularly for use in business class;
iii) a passenger accommodation unit which can be converted into a bed of maximal length;
iv) a seating system which optimises use of space within the cabin;
v) a seating system which has a substantially uncrowded appearance.
"Each seat unit includes a first passenger supporting element in said space to the rear of the seat, which first passenger supporting element forms part of the said flat bed when the seat unit is formed as a bed."
"Said seat units may be disposed adjacent a side wall of the vehicle and face inwardly. Preferably, said accommodation cabin comprises two opposing side walls, and a column of seat units may be positioned contiguously or closely adjacent to each wall such that each seat faces into the cabin, with an extension surface behind the back-rest of the seat disposed adjacent the wall. The seats may thus have their backs to the vehicle wall giving the cabin as a whole an uncrowded appearance." (emphasis supplied)
"Each seat unit comprises a first, preferably fixed, passenger-supporting element in said space to the rear of the seat, which first passenger-supporting element is disposed substantially coplanarly with said one or more movable elements when said movable elements are configured in the bed mode and is adapted to form part of said flat bed. Said first passenger-supporting element is generally triangular. It will be appreciated that the first passenger-supporting element is only used by a passenger when the seat unit is arranged in the bed configuration, and accordingly the seat unit may be arranged such that the first passenger-supporting element extends into a lateral recess defined by the concave cabin side wall to maximise the use of space in the cabin. The first passenger-supporting element may be fixed in said space to the rear of the seat." (emphasis supplied)
"Advantageously, the seat unit may be oriented at an angle of between 35 and 55o, preferably 40 to 50o, relative to the longitudinal axis of an aircraft cabin such that an extension surface behind the back-rest element extends into a recess defined by a typical concave aircraft cabin interior wall. Whilst the area of the cabin juxtaposed the concave cabin wall is not suitable, and has insufficient headroom, to accommodate the back-rest element in the upright position, it can be used in accordance with the present invention to accommodate the rear extension surface which forms part of the bed surface in the bed configuration."
"As best seen in FIG. 1A, the space 36 to the rear of the seat 71, 72 of each seat unit 40 is thus occupied by the first surface 47 of one seat and the second surface 48 of the other adjacent seat, said first and second surfaces 47, 48 of the one and other seat units 40 respectively being divided from one another by the privacy screen 60 of the one seat unit 40. The space 36 behind each seat 71, 72 is thus used to extend the length of the bed surface 47, 48, 67, 74, 76 provided by the seat unit 40 in the bed configuration rearwardly of the seat 71, 72 into said space 36."
1. A passenger seating system for an aircraft,
2. comprising a plurality of seat units,
3. each seat unit defining only one notional longitudinal seat axis (C-C)
4. and comprising a supporting structure
5. adapted for attaching the seat unit to a floor of an aircraft
6. and means for forming or being configurable for forming a seat
7. comprising a seat-pan
8. and a back-rest,
9. wherein each seat unit further comprises a foot-rest positioned forwardly of the seat,
10. said seat units being arranged to form a column defining a notional longitudinal column axis (B-B),
11. in which column said seat-units are arranged side-by-side in longitudinally offset relation at an acute angle to the notional column axis (B-B),
12. wherein at least some of the seat units are arranged to be disposed adjacent a sidewall of the aircraft
13. and face inwardly thereby
14. to define between the rear of each seat and the sidewall a space when the seat unit is configured as a seat,
15. each seat unit further comprising means for forming or being configurable for forming a substantially flat bed,
16. so that when the seat unit is formed into a bed a major proportion of the bed is disposed forwardly of the position that was occupied by the seat,
17. wherein said seat forming means and said bed forming means comprise one or more movable passenger-bearing elements which are selectively configurable to form, in a seat mode, at least part of the seat for a passenger or, in a bed mode, at least part of said flat bed,
18. and wherein the flat bed in the bed mode is disposed at substantially the same level above an aircraft floor as the seat-pan in the seat mode,
19. and characterised in that the flat-bed extends into said rearward space behind the seat,
20. in that said acute angle is in the range 30 to 60°,
21. and in that a generally triangular passenger support element is disposed in said rearward space substantially coplanarly with said one or more movable elements when said movable elements are configured in the bed mode,
22. and is adapted to form part of said bed.
The 908 patent – construction and infringement
The Solar Eclipse seat
The headrest argument
The rear console argument
"Juxtaposed the front end 51 of the seat unit 40, the supporting structure 42 comprises an ottoman which extends upwardly from the floor 30 and has a substantially flat upper surface 66. Said upper surface 66 is adapted to carry a cushion 67 having a thickness such that the cushion 67 is disposed substantially co-planarly with the first and second surfaces 47, 48. Said ottoman 65 is sufficiently strong to support the weight of a passenger such that the ottoman 67 can be used as an auxiliary seat if desired. Said supporting structure 42 further comprises a relatively small, auxiliary privacy screen 68 around the front end 51 of the seat unit 40."
"Said back-rest 72 comprises a front surface 73 and a rear surface 74. In the upright and reclined positions the front surface 73 of the back-rest cooperates with the seat-pan 71 to form the seat for the passenger. In the bed configuration, as shown in the left-hand seat unit of FIG. 2 the back-rest is rocked forwardly relative to the seat unit and is partly accommodated within the cuboidal recess 44 such that the rear surface 74 of the back-rest 72 is substantially co-planar with the first and second surfaces 47, 48 and with the cushion 67 of the ottoman 65. The rear surface 74 of the back-rest 72 is also substantially continuous with the second surface 48 and cushion 67 in the bed configuration. The seat movement mechanism includes a moveable infill element 76, as shown in FIG. 1A, which is moved from a stowed position to a deployed position when the seat is converted from the seat configuration to the bed configuration. In the bed configuration, the infill element 76 is disposed intermediate and substantially co-planarly and contiguously with the rear surface 74 of the back-rest and said first surface 47. In the bed configuration, the seat unit 40 thus provides an extended bed surface for the passenger, the bed surface being extended rearwardly of the seat by the first surface 47, laterally of the seat by the second surface 48 and forwardly of the seat by the cushion 67 of the ottoman 65."
The headrest and console together
The approach of the TBA
Conclusion on infringement
The 908 patent – added matter
"comprises a first … passenger-supporting element in said space to the rear of the seat, which first passenger-supporting element is disposed substantially coplanarly with said one or more movable elements when said movable elements are configured in the bed mode …".
The 908 patent – conclusion
The 734 patent – disclosure
"…characterised in that the bed extends rearwardly into said space (36) defined between the rear of the seat and the aircraft sidewall (26, 28) when the unit is configured as a bed so as to provide a rearward space for use by a passenger accommodated in the unit (40), which rearward space is defined in part by the adjacent aircraft sidewall."
The 734 patent – obviousness
"171. The claims of 734 are significantly wider than 908. Contour submit that all that is necessary to go from BA First to claim 1 of 734 is to remove the rear shell and adjust the privacy screen. This was the case that was put to Mr Moreno.
172. I did not think that the evidence overall showed that it was obvious to proceed as Contour contends. As I have said, Mr Higgins' evidence was that the shell performed a functional as well as a privacy role. Even if that did not discourage the skilled person from removing the shell, the consequences for the arrangement of space if that step was taken were not fully explored with Mr Moreno. I reject this obviousness attack on 734."
The 734 patent – added matter
The 734 patent – conclusion
The 908 patent: non-designation
(1) Virgin filed the parent application (No. 2004181715.3) on 9 August 2002 which designated all available PCT contracting states. It included a GB national application and an EP (UK) designation through the EPO;
(2) On 23 April 2004 Virgin filed the divisional application which became the 908 patent. It did so using electronic form 1001E containing a pre-checked box 6 which states at 6-1 that:"All states which are contracting states to the EPC at the time of filing of this application are hereby designated".
The same box (at 6-4) also says that:"The applicant currently intends to pay designation fees for the following states".
There then appears a list of more than 20 designated contracting states which in this case did not include the UK;
(3) At the end of the 1001E form Virgin added a "Note (for EPO)" in the following terms:"Re item 6-1: GB is expressly NOT designated in this application. Apart from GB, all other EPC contracting states which were designated in [the parent application] are designated in this application."
(4) The 908 application was published on 12 January 2005 containing a designation of all contracting states including the UK. On 11 July 2005 Virgin paid designation fees for what it referred to in its letter as "each of the designated states". Designation fees were capped at seven designations under the fees regulations so that payment of seven times the amount of the designation fees was deemed to constitute payment of the designation fees for all the contracting states (see Article 2, No 3 Rules relating to Fees) and a pre-checked note to this effect appeared at 6-5 in the application form 1001E;
(5) On 19 October 2005 Virgin wrote to the EPO withdrawing the UK designation in respect of the parent application and on 22 November it informed the Comptroller of what it had done and stated that it would withdraw the UK designation of 908 prior to grant. Because Virgin has made no disclosure about these matters it is not possible to be certain as to its strategy at this time. The notification of its intention to withdraw the UK designation for 908 and its parent application was probably linked to a possible issue of double patenting which had been raised by the UKIPO in August 2004 and later in July 2005 in relation to the prosecution of a UK national patent application (GB 0403260.3);
(6) In the end, however, Virgin took no further steps to withdraw the UK designation of 908 prior to grant. The UK national application was published and granted as GB 2 396 103 and on 8 August 2006 Virgin made a request to the EPO for the accelerated prosecution in accordance with the PACE procedure of the 908 application and two sets of claims; one for all designated states except the UK and one for the UK only;
(7) On 7 May 2007 the EPO informed Virgin of its decision to grant the 908 patent and the grant took place on 30 May 2007 with the inclusion of the UK as one of the designated states;
(8) On 30 May 2007 the UKIPO placed the 908 patent on the register.
"The examining division has noted that after examination of the designation of GB on the basis of the documents on file and their treatment in the course of examination proceedings it has come to the conclusion, that it is not necessary to correct the decision with regard to GB for the following reasons:
• The ambiguity in form 1001 with regard to GB should have been clarified with the applicant. As such there is no explicit, unambiguous withdrawal.
• Designation is by payment, NOT by indication on 1001. The designation fee for GB was paid and afterwards the designation of GB has never been questioned by the applicant. To the contrary: a separate set of claims for GB was filed after the R. 71 (3) communication.
• Even if the withdrawal had been explicit but had been overlooked by the EPO, the Office would have been bound by the principle of good faith, having accepted the designation of GB throughout examination proceedings.
• The division is bound by its decision and cannot correct it to the disadvantage of the patentee."
The European Patent Convention ("EPC")
European law for the grant of patents
A system of law, common to the Contracting States, for the grant of patents for invention is hereby established by this Convention.
(1) Patents granted under 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 this Convention provides otherwise.
European Patent Organisation
(1) A European Patent Organisation, hereinafter referred to as the Organisation, is established by this Convention. It shall have administrative and financial autonomy.
(2) The organs of the Organisation shall be:
(a) the European Patent Office;
(b) the Administrative Council.
(3) The task of the Organisation shall be to grant European patents. This shall be carried out by the European Patent Office supervised by the Administrative Council.
(1) The Organisation shall have legal personality.
Privileges and immunities
The Protocol on Privileges and Immunities annexed to this Convention shall define the conditions under which the Organisation, the members of the Administrative Council, the employees of the European Patent Office, and such other persons specified in that Protocol as take part in the work of the Organisation, shall enjoy, in each Contracting State, the privileges and immunities necessary for the performance of their duties.
(1) The Examining Divisions shall be responsible for the examination of European patent applications.
(1) The Opposition Divisions shall be responsible for the examination of oppositions against any European patent.
Boards of Appeal
(1) The Boards of Appeal shall be responsible for the examination of appeals from decisions of the Receiving Section, the Examining Divisions and Opposition Divisions, and the Legal Division."
Rights conferred by a European patent
(1) A European patent shall, subject to the provisions of paragraph 2, confer on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, 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) If the subject-matter of the European patent is a process, the protection conferred by the patent shall extend to the products directly obtained by such process.
(3) Any infringement of a European patent shall be dealt with by national law.
Effect of revocation or limitation of the European patent
The European patent application and the resulting European patent shall be deemed not to have had, from the outset, the effects specified in Articles 64 and 67, to the extent that the patent has been revoked or limited in opposition, limitation or revocation proceedings."
Designation of Contracting States
(1) The request for the grant of a European patent shall contain the designation of the Contracting State or States in which protection for the invention is desired.
(2) The designation of a contracting state shall be subject to the payment of the designation fee. The designation fees shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report.
(3) The designation of a Contracting State may be withdrawn at any time up to the grant of the European patent. Withdrawal of the designation of all the Contracting States shall be deemed to be a withdrawal of the European patent application. Designation fees shall not be refunded."
"All the Contracting States party to this Convention at the time of filing of the European patent application shall be deemed to be designated in the request for grant of a European patent."
The second and third sentences of Article 79(3) have also been deleted.
(1) Within nine months of the publication of the mention of the grant of the European patent in the European Patent Bulletin, any person may give notice to the European Patent Office of opposition to that patent, in accordance with the Implementing Regulations. Notice of opposition shall not be deemed to have been filed until the opposition fee has been paid.
(2) The opposition shall apply to the European patent in all the Contracting States in which that patent has effect.
(3) Opponents shall be parties to the opposition proceedings as well as the proprietor of the patent.
Grounds for opposition
Opposition may only be filed on the grounds that:
(a) the subject-matter of the European patent is not patentable under Articles 52 to 57;
(b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;
(c) the subject-matter of the European patent extends beyond the content of the application as filed, or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the content of the earlier application as filed."
Revocation of European patents
(1) Subject to Article 139, a European patent may be revoked with effect for a Contracting State only on the grounds that:
(a) the subject-matter of the European patent is not patentable under Articles 52 to 57;
(b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;
(c) the subject-matter of the European patent extends beyond the content of the application as filed or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the content of the earlier application as filed;
(d) the protection conferred by the European patent has been extended; or
(e) the proprietor of the European patent is not entitled under Article 60, paragraph 1.
Persons entitled to appeal and to be parties to appeal proceedings
Any party to proceedings adversely affected by a decision may appeal. Any other parties to the proceedings shall be parties to the appeal proceedings as of right."
The 1977 Patents Act ("the 1977 Act")
"77. Effect of European patent (UK)
(1) Subject to the provisions of this Act, a European patent (UK) shall, as from the publication of the mention of its grant in the European Patent Bulletin, be treated for the purposes of Parts I and III of this Act as if it were a patent under this Act granted in pursuance of an application made under this Act and as if notice of the grant of the patent had, on the date of that publication, been published under section 24 above in the journal; and—
(a) the proprietor of a European patent (UK) shall accordingly as respects the United Kingdom have the same rights and remedies, subject to the same conditions, as the proprietor of a patent under this Act;
(2) Subsection (1) above shall not affect the operation in relation to a European patent (UK) of any provisions of the European Patent Convention relating to the amendment or revocation of such a patent in proceedings before the European Patent Office.
(4A) Where a European patent (UK) is revoked in accordance with the European Patent Convention, the patent shall be treated for the purposes of Parts I and III of this Act as having been revoked under this Act."
"(1)(b) … "European Patent Convention" means the Convention on the Grant of European Patents, "European patent" means a patent granted under that convention, "European patent (UK)" means a European patent designating the United Kingdom, "European Patent Bulletin" means the bulletin of that name published under that convention, and "European Patent Office" means the office of that name established by that convention;
(7) Whereas by a resolution made on the signature of the Community Patent Convention the governments of the member states of the European Economic Community resolved to adjust their laws relating to patents so as (among other things) to bring those laws into conformity with the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty, it is hereby declared that the following provisions of this Act, that is to say, sections 1(1) to (4), 2 to 6, 14(3), (5) and (6), 37(5), 54, 60, 69, 72(1) and (2), 74(4), 82, 83, . . . 100 and 125, are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty have in the territories to which those Conventions apply."
"72. Power to revoke patents on application.
(1) Subject to the following provisions of this Act, the court or the comptroller may on the application of any person by order revoke a patent for an invention on (but only on) any of the following grounds, that is to say—
(a) the invention is not a patentable invention;
(b) that the patent was granted to a person who was not entitled to be granted that patent;
(c) the specification of the patent does not disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the art;
(d) the matter disclosed in the specification of the patent extends beyond that disclosed in the application for the patent, as filed, or, if the patent was granted on a new application filed under section 8(3), 12 or 37(4) above or as mentioned in section 15(4) above, in the earlier application, as filed;
(e) the protection conferred by the patent has been extended by an amendment which should not have been allowed.
74. Proceedings in which validity of patent may be put in issue.
(1) Subject to the following provisions of this section, the validity of a patent may be put in issue—
(a) by way of defence, in proceedings for infringement of the patent under section 61 above or proceedings under section 69 above for infringement of rights conferred by the publication of an application;
(b) in proceedings under section 70 above;
(c) in proceedings in which a declaration in relation to the patent is sought under section 71 above;
(d) in proceedings before the court or the comptroller under section 72 above for the revocation of the patent;
(e) in proceedings under section 58 above.
(2) The validity of a patent may not be put in issue in any other proceedings and, in particular, no proceedings may be instituted (whether under this Act or otherwise) seeking only a declaration as to the validity or invalidity of a patent.
(3) The only grounds on which the validity of a patent may be put in issue (whether in proceedings for revocation under section 72 above or otherwise) are the grounds on which the patent may be revoked under that section."
"11.04. Mr Gratwick submitted, in my judgment rightly, that when looked at as a whole in the foregoing context the 1977 Act provided a complete code dealing with the application for and grant of a patent and thus displaced any residual common law element which previously had been preserved by succeeding statues. In particular the Act provided complete codes dealing with the application and grant of a patent (section 14), the protection of the monopoly against infringement (section 60) and suits for the revocation of a patent (section 72).
11.05. Mr Gratwick submitted that Whitford J was not entitled to import the requirements of section 14(5) which specify the nature of the application into the provisions of section 72(1) so as to entitle him to revoke the patent for a failure to comply with that subsection. In support of this submission Mr Gratwick emphasised that as a pure exercise of construction, where a provision in section 14 is intended to have the dual purpose of permitting the Comptroller to refuse the grant of a patent under section 18 and also to permit third parties to sue under section 72 for revocation of the patent after grant, the particular requirement is mentioned specifically in both sections (see section 14(3) which is found repeated with minor adjustment in section 72(1)(c)). Similarly the restrictions upon the grant of an application for a patent amounting to an amendment of a previous application provided in section 76 are preserved for the benefit of a suitor under section 72(1)(e) if the amendment should not have been made.
11.08. With great respect to Whitford J I am forced to the conclusion that on this aspect of the matter Mr Gratwick's submissions are made out to the extent, if any, that the learned judge purported to import into section 72(1) of the 1977 Act the provisions of section 14(5) as a further ground for revocation of the patent in suit. In this respect the judgment cannot be upheld."
"… the application did not comply with section 14(5)(c), and should have been rejected.
Common sense would suggest that the matter now can and should be put right. Unfortunately this is not so. My Lords have already given the reasons, in terms with which I respectfully agree. The opening words of section 72(1) are simply too strong to enable the court, as guardian of the public interest, to assert an inherent power to revoke a patent on grounds not expressly conferred by the statute. This is a conclusion which I much regret, for it erects an obstacle not only to the trial judge's route, but also to other grounds of objection which, as I shall suggest at a later stage, I also believe to be intellectually sound."
"Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."
"This country has agreed with the other States members of the EPC that the final arbiter of revocation under the new legal system is to be the Board of Appeal of the EPO. Other States would be justly entitled to complain if we in this country were to ignore such a final decision. If Lenzing are right, for example, the commercial freedom of action of Akzo-Nobel, a Dutch company, is impeded in this country. That might well concern Holland, the State. Likewise an attack in Germany (and I am told one has been mounted before the constitutional court), if successful, would or might well have the effect of putting Germany in breach of its international obligations to the other Contracting States. I think the general words of section 77(4A) – "in accordance with the EPC" – no more have the effect of enabling our courts to look into the propriety of the actions of the BoA, than the general words of the Companies Act had in Tin."
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention".
"152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity …
153. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party's "jurisdiction" from scrutiny under the Convention …
154. In reconciling both these positions and thereby establishing the extent to which a State's action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards …. The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention …"
"The Court would point out that the impugned decision thus emanated from an international tribunal outside the jurisdiction of the respondent States, in the context of a labour dispute that lay entirely within the internal legal order of Eurocontrol, an international organisation that has a legal personality separate from that of its member States. At no time did France or Belgium intervene directly or indirectly in the dispute, and no action or omission of those States or their authorities can be considered to engage their responsibility under the Convention. In this respect the instant case is to be distinguished from previous cases where the international responsibility of the respondent States has been in issue, for example that of the United Kingdom in Matthews v. the United Kingdom ([GC], no. 24833/94, ECHR 1999-I – decision not to register the applicant as a voter on the basis of an EC treaty), that of France in Cantoni v. France (15 November 1996, Reports of Judgments and Decisions 1996-V – enforcement against the applicant of a French law implementing an EC directive), that of Germany in Beer and Regan v. Germany and Waite and Kennedy v. Germany ([GC], no. 28934/95, 18 February 1999, and [GC], no. 26083/94, ECHR 1999-I – denial of access to the German courts) or that of Ireland in the above-mentioned Bosphorus case. Unlike those cases, in all of which the State or States concerned had been involved directly or indirectly, in the present case the applicant cannot be said to have been "within the jurisdiction" of the respondent States for the purposes of Article 1 of the Convention.
The Court finds that the alleged violations of the Convention cannot therefore be attributed to France and Belgium. As regards the possible responsibility of Eurocontrol in this connection, the Court points out that since this international organisation is not a party to the Convention its responsibility cannot be engaged under the Convention (compare, among other authorities, Matthews, cited above, § 32, and Behrami and Saramati, cited above, § 144)."
"144. It is therefore the case that the impugned action and inaction are, in principle, attributable to the UN. It is, moreover, clear that the UN has a legal personality separate from that of its Member States (The Reparations case, ICJ Reports 1949) and that that organisation is not a contracting party to the Convention.
145. In its Bosphorus judgment (cited above, paras 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 Art.1 of the Convention for all acts and omissions of its organs, regardless of whether they were a consequence of the necessity to comply with international legal obligations, Art.1 making no distinction as to the rule or measure concerned and not excluding any part of a state's "jurisdiction" from scrutiny under the Convention. The Court went on, however, to hold that 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., paras 155–156).
146. The question arises in the present case whether the Court is competent ratione personae to review the acts of the respondent States carried out on behalf of the UN and, more generally, as to the relationship between the Convention and the UN acting under Ch.VII of its Charter.
150. The applicants argued that the substantive and procedural protection of fundamental rights provided by KFOR was in any event not "equivalent" to that under the Convention within the meaning of the Court's Bosphorus judgment, with the consequence that the presumption of Convention compliance on the part of the respondent States was rebutted.
151. The Court, however, considers that the circumstances of the present cases are essentially different from those with which the Court was concerned in the Bosphorus case. In its judgment in that case, the Court noted that the impugned act (seizure of the applicant's leased aircraft) had been carried out by the respondent State authorities, on its territory and following a decision by one of its Ministers (§ 135 of that judgment). The Court did not therefore consider that any question arose as to its competence, notably ratione personae, vis-à-vis the respondent State despite the fact that the source of the impugned seizure was an EC Council Regulation which, in turn, applied a UNSC Resolution. In the present cases, the impugned acts and omissions of KFOR and UNMIK cannot 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. The present cases are therefore clearly distinguishable from the Bosphorus case in terms both of the responsibility of the respondent States under Art.1 and of the Court's competence ratione personae."
"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."
"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."
"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … before an independent and impartial tribunal established by law".
No one, of course, suggests that Floyd J failed to conduct a fair and public hearing of the issue of justiciability which is now before this Court and, insofar as the current dispute involves a determination of the civil rights of Mr Saini's clients, they accept that Article 6 has been complied with. But the more difficult question is whether the EPO's denial of a remedy for incorrect designation and Floyd J's refusal to allow the issue of designation to be raised in any form of domestic proceedings itself engages Article 6 because it denies them a hearing of a ground of opposition to the 908 patent on non-designation grounds. If this is sufficient both to engage Article 6 and to constitute a prima facie violation of it then the defendants submit that the domestic courts are required to intervene unless the EPO has provided equivalent protection in a judicial form which in this case, they say, it has not.
"Article 6 of the Convention affords to everyone the right to a fair trial for the determination of his civil rights and obligations. This reflects the principle of English law to which Sir Thomas Bingham M.R. gave utterance in his celebrated and much quoted observation that the policy which has first claim on the loyalty of the law is that wrongs should be remedied: see X v. Bedfordshire County Council  2 AC 633, 663.
At first sight this may appear to be inconsistent with a doctrine of comprehensive and unqualified state immunity in those cases where it is applicable. But in fact there is no inconsistency. This is not because the right guaranteed by article 6 is not absolute but subject to limitations, nor is it because the doctrine of state immunity serves a legitimate aim. It is because article 6 forbids a contracting state from denying individuals the benefit of its powers of adjudication; it does not extend the scope of those powers.
Article 6 requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for the determination of their civil rights. It presupposes that the contracting states have the powers of adjudication necessary to resolve the issues in dispute. But it does not confer on contracting states adjudicative powers which they do not possess. State immunity, as I have explained, is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself."
"100. The applicants, and the Commission in its report, relied on Osman (cited above) as indicating that the exclusion of liability in negligence, in that case concerning the acts or omissions of the police in the investigation and prevention of crime, acted as a restriction on access to a court. The Court considers that its reasoning in Osman was based on an understanding of the law of negligence (see, in particular, Osman, cited above, pp. 3166-67, §§ 138-39) which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords. The Court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries plc (cited above) and as recently analysed in the case of Barrett (cited above, loc. cit.) includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity. In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to a court of the kind contemplated in Ashingdane (cited above, loc. cit.).
101. The applicants may not, therefore, claim that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6 § 1 of the Convention (see paragraphs 87-89 above), the applicants could no longer claim any entitlement under Article 6 § 1 to obtain any hearing concerning the facts. As pointed out above, such a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this Court to find that this should have been the outcome of the striking-out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law."
"87. The Court recalls its constant case-law to the effect that "Article 6 § 1 extends only to 'contestations' (disputes) over (civil) 'rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) 'rights and obligations' in the substantive law of the Contracting States" (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, § 80). It will however apply to disputes of a "genuine and serious nature" concerning the actual existence of the right as well as to the scope or manner in which it is exercised (see Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, pp. 14-15, § 32)."
"3. There is much common ground between the approaches of the parties to this question. It is recognised, first, that the expression "civil rights" in article 6 of the Convention is autonomous: König v Federal Republic of Germany (1978) 2 EHRR 170 at 192-193, paragraph 88. This means that the concept of a "civil right" cannot be interpreted solely by reference to the domestic law of the member state. It is the view taken of an alleged right for Convention purposes which matters. But, secondly, the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in any member state: see, for example, Z v United Kingdom (2001) 34 EHRR 97 at 134-135, 137, paragraphs 87, 98. Thus for purposes of article 6 one must take the domestic law as one finds it, and apply to it the autonomous Convention concept of civil rights. It is evident, thirdly, that the Strasbourg jurisprudence has distinguished between provisions of domestic law which altogether preclude the bringing of an effective claim (as in Powell and Rayner v United Kingdom (1990) 12 EHRR 355 and Z v United Kingdom (2001) 34 EHRR 97) and provisions of domestic law which impose a procedural bar on the enforcement of a claim (as in Stubbings v United Kingdom (1996) 23 EHRR 213, Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 and Fogarty v United Kingdom (2001) 34 EHRR 302). The European Court has however recognised the difficulty of tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, acknowledging that it may be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy: see Fayed v United Kingdom (1994) 18 EHRR 393 at 430, paragraph 67. An accurate analysis of a claimant's substantive rights in domestic law is nonetheless the first essential step towards deciding whether he has, for purposes of the autonomous meaning given to the expression by the Convention, a "civil right" such as will engage the guarantee in article 6."
"The Commission recalls that Article 6(1) of the Convention applies only to disputes ("contestations") over rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law. It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of the Contracting States (cf. Eur. Court HR, James and Others v. United Kingdom judgment of 21 February 1986, Series A no. 98, p.46, para. 81; Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). It is also established case-law that Article 6(1) guarantees to everyone who claims that an interference with his "civil rights" is unlawful, the right to submit that claim to a tribunal satisfying the requirements of that provision (Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).
The applicant company pursued its claim for ownership of a patent in the United Kingdom before the High Court but was prevented from having a hearing on the substantive merits of its case by an immunity protecting the EPO from the scrutiny of the national courts of the contracting parties to the EPO.
The Commission recalls that the Convention organs have developed case law in which the question of the limitation on substantive rights has been considered in the context of access to court (see, for example, the discussion of the judicial limitations on the substantive law of negligence in the United Kingdom in Osman v. United Kingdom, No. 23452194, Comm. Report 1.7.97, and the case law referred to there).
The Commission has recently found (No. 37650/97, Dec. 21.5.98, to be published) that it was not necessary to decide whether or not the immunity of British Airways from a negligence suit was an immunity which delimited the content of the substantive law or whether it acted as a limitation on the right to bring proceedings. It referred to the case law outlined in the case of Fayed (Eur. Court HR, Fayed v the United Kingdom judgment of 21 September 1994, Series A no. 294-B) whereby limitations on the right of access to court are permitted provided that they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (para. 65, with further references).
In addition, the Commission recalls that Article 6(1) applies where the subject-matter of an action is "pecuniary" in nature and is founded on an alleged infringement of rights which are likewise pecuniary ...cf. Eur. Court HR, Editions Périscope v France judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40).
The Commission notes that if the applicant company had been able to establish a substantive claim in the United Kingdom courts, its patent claim would have been of a potentially important pecuniary nature in securing a commercial advantage over competitors. Given the pecuniary nature of the alleged infringement and the case law (see above) on whether or not a limitation on access to court raises a substantive or a procedural issue, the Commission finds that Article 6 of the Convention applies to the High Court proceedings. The relevant question for consideration in this connection is therefore whether the refusal of the United Kingdom courts to consider the merits of the applicant company's application for judicial review is compatible with Article 6(1) of the Convention. The refusal was due to the High Court's interpretation of the EPC and the jurisdiction of the United Kingdom courts to scrutinise the acts of the EPO. The judge found that he was unable to review the internal procedure of the EPO because the United Kingdom had delegated its powers in respect of patents to the EPO. The High Court's refusal to review the applicant company's application for judicial review, which was a limitation on the applicant company's right of access to court, will be compatible with Article 6(1) of the Convention only if the limitation pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
"Finally, the Commission notes that the applicant company was able to, and did, put its claims to the civil courts. Those claims were dealt with at considerable length by the domestic courts. The applicant company makes no complaint whatever about, for example, the fairness of the proceedings, and it is apparent from the judgment in the case that the company was given extensive opportunity to put its cases to the courts. The fact that the courts found that the claims fell outside the scope of the substantive law is not relevant in the context of Article 6, which guarantees procedural rights in the determination of civil rights (or whether a case falls outside the scope of a civil right), and not the civil rights themselves.
The Commission considers that, given the procedural guarantees available before the EPO, it cannot be said that the limitation on the applicant company's access to court in the United Kingdom was disproportionate to the aim of ensuring an effective European system of registration of patents."