How the UPC’s new rule breaks its transparency promise

As the UPC Court of Appeal confirms that legal representation is required to request access to court documents, Nicholas Fox and Alex Robinson of Mathys & Squire explain why the court’s actions have not met expectations.

It was all meant to be so different. When the Unified Patent Court (UPC) rules committee started drafting the rules for public access to court documents before the UPC, the system they envisioned was meant to be simple.

The initial rules could not have been clearer: “Written pleadings and written evidence lodged at the court and recorded by the registry shall be available to the public for on-line consultation, unless a party requests that certain information be kept confidential and the court makes such an order.”

The object of transparency remained clear for the next ten iterations of the court rules. By default, members of the public would have access to written pleadings and evidence lodged with the court. The only question was how to provide a mechanism to enable parties to protect sensitive and confidential information which might be contained in those documents.

The final solution hit upon by the rules committee was to provide litigating parties before the court with an opportunity to comment on a request for public access to written evidence and pleadings lodged with the court. The judge-rapporteur would then make a decision on access having considered the parties comments. Requested information would be provided after the redaction of personal and confidential information.

A bureaucratic nightmare

However, what was meant to be a simple administrative process was accidentally rendered into a bureaucratic nightmare by labelling the request that a member of the public needed to make as a “reasoned request”.

On the face of it, this should not have been controversial. After all, the term “reasoned request” already appeared in the UPC’s rules of procedure multiple times. However, this particular drafting choice has had multiple repercussions.

First of all, when considering some of the first public access requests filed, the Munich Section of the Central Division of the UPC interpreted the term “reasoned request” restrictively as obliging applicants to put forward “a concrete and verifiable, legitimate reason for making available written pleadings and evidence”.

Applications requesting access to court documents based on a wish to form an opinion on the validity of a patent being litigated before the court or for the purposes of education and training were refused.

The Nordic-Baltic Regional division took a different view and granted a request for access to the pleadings and evidence in the now settled Ocado v Autostore dispute. However, these early decisions of the Munich Section of the Central Division then formed the basis of an appeal on behalf of Ocado to block a member of the public from accessing those documents.

The latest development in that appeal is that the Court of Appeal has concluded that the requirement to make a “reasoned request”—and the fact that there is no explicit exemption in the court rules for members of the public to file access requests themselves—means that legal representation is required in order to make a request to access documents on the court file.

In its decision, the Court of Appeal stated that it considered obligatory legal representation not to be “unnecessarily burdensome”. However, it is clear that having to appoint a lawyer to make a document access request will significantly increase costs and will bar most of the public from ever making a request.

Doubts over Ocado appeal

The decision also raises significant doubts as to whether the appeal—which is pending before the court— will settle the debate about the standard required for a legitimate access request. In contrast to the restrictive view of the Munich Section of the Central Division, the Nordic-Baltic Regional Division considered that applicants for access to public documents merely had to demonstrate a “credible explanation for why he/she wants access” in order to be permitted access to the court file.

The initial access request to the Nordic-Baltic Division, the subject of the appeal pending before the Court of Appeal, was made by an unrepresented applicant. As the Court of Appeal has now ruled that legal representation is required in order to file a “reasoned request” for public access, there is a significant chance that the Court of Appeal will now proceed to rule that the unrepresented applicant’s initial request to the Nordic-Baltic Division was a nullity and will duck the question of the standard required for a valid access request.

A high public interest

Journalists and the public at large need to be able to access court documents in order to understand the controversies pending before a court. Access is also required in order to be able to hold judges and courts to account. The public’s interest in patent cases is particularly high given that a patent grants rights against the public at large. Unlike many private legal disputes the validity or otherwise of a patent can have a direct impact on third parties. Equally, third parties wanting to avoid litigation want to know how broadly a patent proprietor interprets the scope of their patents.

In November, Mathys & Squire filed a test case to challenge the Munich Section of the Central Division’s restrictive requirements for a valid public access request. Our position is that requests by third parties for access to pleadings and evidence should only be rejected where there are specific and concrete reasons which justify making the pleadings and/or evidence confidential. Even when such reasons do exist, as far as possible, information which is withheld should be limited specifically to documents or portions of documents for which such reasons apply.

Unfavourable comparisons

This test case has been stayed pending the decision of the Court of Appeal in the case concerning access to the Ocado v Autostore pleadings, a case which may not actually rule on the central question which we have raised.

Access to court files before the UPC compares unfavourably with the practice of the European Patent Office, where any member of the public can access virtually any document filed with the office at the click of a button. It also compares unfavourably with the practice of the US federal courts, where all pleadings, motions, memoranda and associated documents are accessible through the on-line PACER system.

Similarly, anyone interested in 'statements of case' filed with the English courts can request access via the courts’ website and statements will be sent to you by email later that day. Other European courts, such as the courts in Sweden, have a similar commitment to public access where documents held by the court can be requested by email or post.

The contrast with the UPC is unfortunately stark. The access request, currently under consideration by the Court of Appeal was filed in August and six months later, none of the requested evidence or pleadings has been turned over to the individual making the request.

For a new court, which was launched on a promise of openness and transparency, the actions of the court have not matched expectations.

The UPC Court of Appeal has scheduled a hearing for March 12, in order to hear substantive arguments on the access to documents appeal. We can only hope that the Court of Appeal will take that opportunity to address the worrying lack of transparency with which the court has operated to date.

Nicholas Fox and Alex Robinson are partners at Mathys & Squire.