Undue delay in processing patent applications and replying to request for documents
13.6.2008
Deputy-Ombudsman Jukka Lindstedt has issued two reprimands to the National Board of Patents and Registration (NBPR) for having followed an erroneous and unlawful procedure. In one case, the NBPR's Register of Foundations took about two and a half months to reach a decision on a request by a journalist for documents. Under the relevant Act, replying to a request for a document may take at most one month. In the other case, processing of a person's four patent applications had taken 5 - 8 years in the NBPR's Electrical Office.
Journalist had to wait two and a half months for a reply to his request for documents
The journalist had asked the NBPR for documents relating to the activities of certain foundations. He had been informed that the documents were not public and demanded a reasoned decision on the matter. When seven weeks had elapsed and no decision had arrived, he complained to the Ombudsman. He eventually received a decision over two and a half months after he had first requested the documents.
In his decision, the Deputy-Ombudsman considers it very reprehensible that processing the request for documents took considerably longer than is possible under the Act on the Openness of Government Activities. The Act requires a request concerning the provision of a document to be dealt with without delay, and within no longer than two weeks. If many documents are requested or if they contain parts that are required to be kept secret, the matter must be resolved not later than within one month of the request having been made.
In the view of the NBPR, the decision had been issued within a reasonable time given the Register of Foundations' work backlog. The Deputy-Ombudsman points out that he can not in any way concur with the NBPR's view. In oversight of legality, shortage of resources has not been seen as an acceptable reason for failing to comply with the requirements of the Act.
The NBPH also pointed out that the journalist had been orally informed less than a week after he had requested the documents that they were required to be kept secret. In the view of the Deputy-Ombudsman, this is of no relevance in a legal assessment. A written decision that could have been appealed against should have been issued within the statutory deadline.
The Deputy-Ombudsman also criticises the decision itself for being inadequately reasoned. The facts and investigations that have influenced a decision as well as the legal provisions and regulations applied must be stated in the reasons presented in justification of the decision. In this case, reasoning consisted mainly of quoting regulations.
The Deputy-Ombudsman does not adopt a position on the question of whether or not the documents requested are required to be kept secret or belong in the public domain. The journalist could have referred this to a court for it to decide on. On the other hand, the Deputy-Ombudsman notes that, on the basis of the reports he has received, he finds no grounds to suspect that the NBPR abused its discretionary power in deciding the secrecy status of a document nor neglected its duty to oversee the activities of the foundations in question.
Patent applications took 5 - 8 years to process
In the other case, a complaint was made to the Ombudsman by a person who had made four patent applications to the NBPR in 1999 and 2000. It had taken about seven years and 11 months to deal with the first application and around five years for the second. One application had been pending for seven years and four months when the Deputy-Ombudsman, acting on a complaint, asked the NBPR's electrical office for an explanation, and another for six years and 10 months.
Deputy-Ombudsman Lindstedt points out that processing times of
5 - 8 years in length are in no way acceptable. He takes the view that the NBPR has acted in contravention of the Constitution, which requires that matters be dealt with without delay. The fact that the delay had been repeated in dealing with four applications by the same applicant exacerbates the blameworthiness of the procedure.
A work backlog at the Electrical Office is undoubtedly a contributory factor in prolonging processing times. However, the established view in oversight of legality has been that causes connected with resources and workloads can not be regarded as acceptable reasons for deviating from the standard that good administration presupposes when matters are dealt with. The Deputy-Ombudsman sees it as a positive aspect that additional personnel have since been recruited.
The Deputy-Ombudsman regards the prolonging of application processing as especially problematic because it causes the applicant adverse economic consequences. A patent applicant must pay an application fee and in addition to this an annual fee for every year or part of a year that elapses before a final decision on the application is reached; in other words, the fees that the applicant must pay increase as the processing time lengthens. If the fee for the first three years is ¤170 annually, the total payable can come to over ¤1,000 in eight years. Payment can be deferred, but this does not obviate the liability to pay. Those who are especially disadvantaged with regard to their obligation to pay are applicants whose applications are rejected, because the Patents Act does not provide for the return of annual fees.
Measures
Deputy-Ombudsman Lindstedt has asked the Ministry of Employment and the Economy to inform him by the end of the year of how the NBPR's processing times have developed since additional personnel were allocated at the beginning of 2007 and of any measures taken to bring processing times to a reasonable level.
The Deputy-Ombudsman has also asked the Ministry to adopt a stance on whether there is a need to develop regulation of the annual fees charged for the period that applications are pending, bearing especially in mind situations in which delay in processing applications is due to causes attributable to the NBPR.
Additional information will be provided by Legal Adviser Mikko Sarja,
tel. +358 (0)9 432 3364.
