UPC to pore over ‘key’ transparency appeal

Lawyer behind appeal says eagerly-anticipated hearing is “a long time coming” | Critics say UPC’s stance on access has not matched earlier expectations or promises and must be reviewed.

The Unified Patent Court of Appeal (UPC) in Luxembourg will today, March 12, delve into the critical question of which documents in a legal proceeding can be made public, and on what grounds.

The closely-watched appeal stems from an access request filed by Christopher Stothers, partner at Freshfields in Ocado v Autostore, alongside his additional six UPC access requests filed before the end of autumn.

‘A long time coming’

In November, the UPC Nordic-Baltic division granted Stothers access to documents in Ocado, prompting Autostore to immediately appeal.

The Norwegian robotics company decried the decision, pointing to the precedent set by a September ruling in Munich’s central division.

In that case, Judge-rapporteur András Kupecz denied an access request relating to a revocation action filed by Sanofi against an Amgen patent, European patent EP3666797, citing the absence of a “legitimate reason”.

A day later, he rejected a similar application in another case—Astellas Institute for Regenerative Medicine v Healios KK, Riken & Osaka University—on the same grounds.

The appeals court then decided to review the question at the crux of the case—to what extent should the court provide access to court documents and on what grounds.

Commenting on his journey to the hearing, Stothers posted some thoughts on LinkedIn.

“On the way to Luxembourg for tomorrow’s hearing in the UPC Court of Appeal on transparency/access to pleadings. This has been a long time coming.”

As part of his appeal, Stothers sourced eight representatives, each from a different country.

A ‘legitimate reason’

In the Munich decision, Kupecz referred to the UPC’s Rules of Procedure, holding that a “legitimate reason” is required for making written pleadings and evidence available to a member of the public.

Following Stothers’ success in his access bid, London-based Mathys & Squire filed a ‘test’ case in a bid to challenge recent decisions taken by Munich’s local division which denied public access to court evidence.

Mathys argues that the court’s application of Rule 262 contravenes a central tenet of the UPC agreement, and had fallen short of expectations.

This test case was later stayed pending the decision of the Court of Appeal in the case concerning access to the Ocado pleadings.

Contrasts with EPO, USPTO public access

Additionally, the appeals court 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.

Critics of the UPC’s current position on accessibility say that the present system contrasts unfavourably to 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 as well as practices adopted by the US federal courts.