UPC sets hearing date for Ocado 'request for access' appeal

Future of transparency at Unified Patent Court rests upon crucial hearing in Ocado v Autostore | Mathys & Squire’s separate ‘test’ case challenges public access to evidence at the court.

The  Unified Patent Court (UPC) has scheduled a hearing for an appeal, filed by online retailer  Ocado, which could significantly impact the outcome of a ‘test’ case questioning the level of transparency at the court.

Law firm  Mathys & Squire filed the ‘test’ case last month before the Munich Section of the Central Division, in a bid to  challenge recent decisions taken by the UPC Munich local division which denied public access to court evidence.

London-based Mathys argues that the court’s application of Rule 262 contravenes a central tenet of the UPC agreement.

The firm filed its test case, making a “reasoned request” for copies of pleadings and evidence under Rule 262 in Astellas Institute for Regenerative Medicine v Healios KK, Riken & Osaka University, on November 27 (case no. APP_588681/2023).

In the request, Mathys argued that evidence and pleadings filed with the court should be made available to third parties on request by default, with restrictions only when it is necessary to protect confidential or personal information.

Ocado v Autostore

In a separate but intrinsically linked case, a judge presiding over the ( now settled) Ocado v Autostore decided to permit a third party's request to obtain copies of evidence and pleadings (APL_584498/2023) in the case.  Judge Edger Brinkman’s decision directly conflicts with Munich’s position by granting access to documents upon request, argues Mathys.

Ocado appealed, seeking to overturn the Nordic-Baltic division judge's decision to permit the request and the UPC has proposed the appeal for February 15, 2024. Mathys has applied to intervene.

In November, Brinkman joined panellist Laila Beynon, associate director of dispute resolution at  Regeneron, in urging lawyers and the public to  lobby for greater transparency, during a session at  LSPN Europe.

Christopher Stothers, partner at Freshfields and the lawyer behind the 'request for access' that prompted Ocado’s appeal,  told WIPR in an interview why he was compelled to take action.

“When it comes to a court which is judging on behalf of 300 million people in 17 countries, it's really important that people can see and follow what is actually going on,” he said.

Test case stayed

Mathys’ application for access to pleadings and evidence in Astellas has been stayed pending the outcome of Ocado’s appeal.

This appeal has been assigned to the second panel of the Court of Appeal, with  Judge Ingeborg Simonsson as judge-rapporteur.

Judge Simonsson has now set a 15-day deadline for the parties to comment on Mathys’ application to intervene. She will then decide whether or not to accept its application.

Parties will then be given a further 15 days to submit written arguments to the court on the substance of the appeal, before the oral hearing in February.

Nicholas Fox, partner at Mathys & Squire, told WIPR that the test case is crucially important—both for businesses and the public—to understand how the court is making its decisions.

“UPC evidence was always intended to be public. The court now seems to be backtracking on that principle. That needs to be prevented,” said Fox in an  interview with WIPR.

After the hearing date was announced, Fox said in a press release that the firm welcomes Judge Simonsson’s appointment to the case.

“The Swedish Courts have an exceptionally long history of transparency and openness, and the principle of public access is considered an essential principle of Swedish law,” he added.

“Judge Simonsson will be an excellent judge to consider this appeal.”

Alexander Robinson, partner at Mathys & Squire, added: “The decision to stay the proceedings pending the Court of Appeal decision supports our arguments that we have a legal interest in the appeal and should be allowed to intervene.”

Fox and Robinson are joined in these cases by  Andreas Wietzke, a partner from Mathys’ Munich office.

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