UPC says public need legal representation to access court files

The UPC Court of Appeal has issued an order decreeing that, for a ‘member of the public’ or third party to request access to court documents, they must instruct a qualified representative (case ID: UPC_CoA_404/2023; App_584498/2023). The decision comes as part of the ongoing debate surrounding accessibility in Ocado vs. Autostore; although the two parties have ended all litigation, the case nevertheless remains a battleground regarding UPC transparency.

Christopher Stothers

Ocado/Autostore raises accessibility issue

A member of the public, which JUVE Patent can identify as London-based Freshfields Bruckhaus Deringer partner Christopher Stothers, had applied to see the statement of claim in Ocado vs. Autostore on the basis of Rule 262 1(b) of the UPC Rules of Procedure.

In October 2023, judge Stefan Johansson of the Nordic-Baltic division ruled that, if a person applies for access to pleadings or evidence under Rule 262.1(b), the UPC shall approve the application unless it is necessary that the court keeps the information confidential.

However, in November, Ocado lodged an appeal against the Nordic-Baltic division’s decision (case ID: UPC_CoA_407/2023 or App_584588/2023) with the UPC Court of Appeal. This stayed the original ruling of the Nordic-Baltic division.

Then, on 8 February 2024, a court order clarified that, “a member of the public who is requesting access to the Register pursuant to R.262.1(b) RoP must be represented before the UPC”. Stothers, as a member of the public in this instance, was therefore denied access to related documents. In a development from its previous approach, the court has equated the status of ‘member of the public’ as being a ‘third party.’

Multiple interventions on transparency

Other parties had also requested intervention in proceedings, including UK patent attorney firm Mathys & Squire in December 2023 (case ID for intervention: APL_584498/2023). In November 2023, the firm had already argued that the public should have access to evidence and pleadings by default.

However, with the recent developments, the court threw out the firm’s intervention in Ocado vs. Autostore. A separate test case remains pending in Munich.

The original Ocado vs. Autostore dispute, which was global in scope, had concerned robot-assisted automation systems for warehouses (case ID: UPC_ CFI_11/2023). However, the parties settled in July 2023, early on in the UPC’s tenure. The most recent order is public, but it is not yet available on the UPC website or CMS.

Representative necessary from get-go

Another potential issue is whether Stothers’ original application is definitely valid, since no official legal UPC professional has represented him at any point throughout the case. According to the court, “the respondent should have been represented before the Court of First Instance and must also be represented before the Court of Appeal”. But, speaking to JUVE Patent, Stothers intends to retroactively appoint representation.

“I expect to line up a representative so the appeal can go ahead,” he says. “We are all – judges, representatives, parties and members of the public – learning how to make the new system work. The UPC Court of Appeal has now clarified that members of the public are ‘parties’ who need representation when asking to see pleadings or evidence. That increases the cost, and potential adverse cost risk, to journalists and academics.”

Stothers continues, “However, it is liable to reduce costs to substantive parties in dealing with requests and any redaction needed to protect genuinely confidential information. It’s a different policy decision to other court systems, but one which is for the court to make. Who knows – it may revisit it in the future.”

UPC divisions face disharmony

But while the Court of Appeal is beginning to secure its position in terms of case document access, not all UPC divisions take the same approach to transparency.

For example, in a decision issued by the Milan local UPC division in December 2023, presiding judge Pierluigi Pierotti granted an observer, albeit one who is a UPC representative, access to a copy of the case application for preserving evidence and the corresponding order (case ID: UPC CFI n. 287/2023 – Application n. 584786/2023).

This decision, which was based on R.262.1(b) RoP, followed consultation with both parties. Contrary to this, in late September 2023, the Munich central division under judge András Kupecz ruled on a similar issue in the dispute between Astellas Pharma and Healios, Riken and Osaka University. The case concerns EP 3 056 563. Here, the judge denied third-party access to documents from the written proceedings (case ID: UPC_CFI_75/2023).

Another intervention

Following Kupecz’s decision, Mathys & Squire filed a request for documents under Rule 262.1 (b) RoP (case ID: ACT_464985/2023). The firm had called on the Munich central division, where the case is pending, to make available all written pleadings and evidence filed in relation to this case (case ID: APP_588681/2023).

In its pleadings, the firm cites multiple treaties and examples which influence how jurisdictions present court documents and ensure transparency for the public. This includes what it describes as the “exemplary practice of the European Patent Office”, the “right to access to information under Article 19 of the Universal Declaration of Human Rights”, and the “rights under the Tromsø Convention on access to official documents”.

Nevertheless, the UPC has stayed the test case pending the outcome of the Ocado vs. Autostore appeal. The UPC has not yet had its final word on transparency and accessibility.

Unified Patent Court, Court of Appeal, Luxembourg
Rian Kalden (presiding judge), Ingeborg Simonsson (legally qualified judge and judge-rapporteur), Patricia Rombach (legally qualified judge)