VAZVAN v. FINLAND
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano
1. The applicant, Mr Behruz Vazvan, is a Finnish national who was born in 1961 and lives in Vantaa. He was represented before the Court by Mr Risto Rouvari, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant made a technical invention, for which he applied for a patent on 28 October 1994. Subsequently, on 14 December 2001, he received a patent for his invention which was, however, later withdrawn. 5. On 1 November 1994 the applicant joined a big telecommunications company in Finland. He told the company early on about his invention and proposed cooperation with the company. The company apparently learned about his patent application on 12 July 1995 but was not interested in cooperation. On 18 October 1995 the applicant’s employment with the company ended. 6. In 2002 the applicant noticed that the company was infringing his patent and informed the company of this. The company initiated civil proceedings against the applicant, claiming ownership of the applicant’s invention. On 9 February 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) rejected the company’s claim to ownership of the applicant’s invention but accepted its alternative claim and confirmed that the applicant had made the invention in question while working for the company. The court also confirmed that the company held a licence for the invention and that it had to pay the applicant reasonable compensation for this patent licence. On 31 January 2008 the Helsinki Appeal Court (hovioikeus, hovrätten) upheld the District Court judgment. This judgment became final. 7. As the applicant and the company could not agree on reasonable compensation for the patent licence, the applicant initiated civil proceedings against the company in the Helsinki District Court on 27 November 2006. He claimed, inter alia, compensation of 924,720,000 euros (EUR) for the use of the patent licence. 8. On 6 October 2010 the Helsinki District Court accepted the applicant’s claims partly and ordered the company to pay him EUR 12,000 in compensation. The applicant was also ordered to pay the company’s costs and expenses before the District Court, which after mitigation amounted to EUR 60,000. The court found that the applicant had not been able to show that the company had actually used the invention for which it held the licence. The invention had thus had no greater value for the company. The fact that the company held the patent licence had not prevented the applicant from patenting the invention or giving further licences to it, as the applicant still held all rights. As there were six separate patents, the court estimated the proper compensation to be EUR 2,000 for each patent and thus EUR 12,000 in total. At the same time as the judgment, the parties also received, for information, a statement drafted by the technical experts appointed by the court and given to the court in the present case. 9. By letter dated 16 December 2010 the applicant appealed to the Helsinki Appeal Court requesting, inter alia, that the company be ordered to pay him EUR 924,720,000 in compensation for the holding of the patent licence and that he be freed from the obligation to pay the company’s costs and expenses. He requested that an oral hearing be held and that the technical experts attend this hearing. Moreover, the applicant complained about the fact that the obligation to pay costs and expenses completely cancelled out his right to compensation and asked to be dispensed from paying. The company lodged a counter appeal, requesting that the compensation be reduced to EUR 2,000 and that the applicant be ordered to pay the company’s costs and expenses. 10. On 17 October 2012 the Helsinki Appeal Court, after having held an oral hearing, accepted the company’s claims and reduced the amount of compensation payable to the applicant to EUR 2,000. It also ordered the applicant to pay the company’s costs and expenses before the District Court and the Appeal Court to a total of EUR 444,471.08 plus interest. The court found that as the compensation concerned just one patent, to which the company held only a licence, EUR 2,000 was proper compensation. As to the costs and expenses, the court found that the different material positions of the applicant and the company spoke for the mitigation of the payment obligation in the applicant’s favour. However, even though the invention had been important to the applicant, he had requested compensation equal to 4% to 8% of the annual turnover of the whole company-group. His claims had, from the outset, been manifestly ill-founded and non-itemised, and no evidence had been presented to support them. The grounds for mitigation were not therefore fulfilled and the applicant was ordered to pay the costs and expenses of the company in full. 11. By letter dated 11 December 2012 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. Moreover, he stressed the fact that the technical experts had not attended the Appeal Court hearing and requested that they be asked to present a further statement on the matter at hand. If that option was not available, he requested that the case be referred back to the Appeal Court for the hearing of the experts. 12. On 30 May 2013 the Supreme Court refused the applicant leave to appeal. 13. According to sections 65 and 66 of the Patents Act (patenttilaki, patentlagen, Act no. 550/1967, as in force at the material time), the Helsinki District Court is competent to hear patent matters. When examining a patent matter, the District Court is to be assisted by two technical experts appointed by the court. The experts are to give their views on the matters submitted to them by the court. Their views are entered in the record and they are entitled to question the parties and witnesses. 14. Section 67 of the Patents Act provides the following: “The District Court shall appoint an appropriate number of experts as referred to in section 66 for each calendar year. Before making the appointments, the Court shall request the opinion of the Technical Research Centre of Finland. Such appointment may not be refused without statutory justification. Before taking up his appointment, an expert shall be required to take the prescribed oath. Experts shall be paid a reasonable fee for each case as laid down by the Court together with compensation for travelling expenses as prescribed by the Government.” 15. It appears from the Government proposal HE 124/2012 vp that the practice at the relevant time was that the experts practically always gave their statement after the conclusion of the oral hearing. The parties to the proceedings were not given a possibility to comment on the experts’ statement. 16. This state of affairs changed when the Patents Act was amended with effect from 1 September 2013 (Act no. 101/2013). According to the new section 66c of the Act, the District Court shall provide the parties a possibility to comment on the statement of the experts before deciding the case. According to the transitional provisions, if such a matter has already become pending in a District Court before the entry into force of the amendment, the previous provision is applicable. 17. Chapter 17, section 46, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, Act no. 571/1948) provides that: “Before an expert witness is appointed, the parties shall be heard on this. If the parties agree on an expert witness, that person shall be used if he or she is deemed to be suitable and there is no impediment to the same. In addition, the court may appoint one expert witness. No one may be appointed an expert witness against his or her will, unless he or she is under the obligation to serve as an expert witness by virtue of public office or function or on the basis of a special provision.” 18. Chapter 17, section 50, of the same Act (as amended by Act no. 1052/1991) further provides that: “An expert shall give a detailed account on the findings in his or her investigation and, on the basis of the account, a substantiated statement on the question put to him or her. The statement shall be compiled in writing, unless the court deems there to be reason to allow for its being given orally. When a person is appointed as an expert witness not on the basis of his or her official position or function, the court shall determine the time within which the statement is to be given. An expert witness who has given a written statement shall be orally heard in court, if a party so requests and the hearing is not evidently irrelevant, or if the court deems the hearing of the expert witness necessary. If there are several expert witnesses, one or several of them may be called to be heard.”