Mathys & Squire files test case to improve openness and transparency at the UPC

IP firm believe the newly established court is interpreting the public access rules too restrictively, looks to the EPO as a ‘paragon of openness’ in this area

Munich is the home of the Central Division section of the Unified Patent Court, the seat is in Paris Shutterstock

IP law firm Mathys & Squire has filed a test case to allow public access to pleadings and evidence before the recently established Unified Patent Court (UPC).

It was prompted to file the case following two court orders from Judge-Rapporteur Kupecz sitting in the Munich Section of the Central Division of the UPC, which restricted public access to the evidence.

The cases are in the life sciences space, with parties including Sanofi and Amgen ( UPC_CFI_1/2023) and Astellas Institute for Regenerative Medicine (UPC_CFI_75/2023).

Mathys & Squire, which has offices in UK, Europe and China, considered  the way that the Central Division interpreted the Rules of Procedure in these instances was “wrong”.

The firm says the UPC Agreement requires that proceedings before the court are to be open to the public unless the court decides to make them confidential in the interests of the parties or in the general interest of justice or public order. And that written pleadings and evidence would be accessible by third parties on request.

According to Mathys & Squire in the recent decisions, however, the court interpreted the Rules of Procedure in a “restrictive manner”. It limited access to third parties who the court considered could demonstrate that they have a “concrete and verifiable, legitimate reason”, thus blocking public access to evidence and pleadings before the court.

It is calling for default automatic access to pleadings and evidence to third parties on request. Access should only be rejected where there are “persuasive, specific and concrete reasons”.

Mathys & Squire is being represented by partners Nicholas Fox and Alexander Robinson from its London office and Andreas Wietzke from its Munich office.

Fox said: “We were not involved in the two earlier cases. It was the reporting on the two earlier cases which prompted us to prepare and file the test case.”

The European Patent Office, which has the power to revoke European and Unitary Patents, makes all pleadings and evidence available automatically on its website. The firm calls it a “paragon of openness" in this area.

It is in this context that the early decisions of the UPC were particularly disappointing as if they are upheld, UPC proceedings will be significantly less transparent than EPO oppositions, Fox said.

Robinson noted: “It is in the public interest that the public can inform themselves about the strengths and weaknesses of cases pending before the UPC. This allows them to make commercial decisions about the patents which are being sought to be revoked or enforced in the court. Openness and transparency is also vital for the public to be able to hold the court to account.”

Fox added: “This test case is very important for open justice, 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."

Mathys & Squire has also filed to intervene in an appeal where a party is seeking to overturn the decision of a judge in the UPC’s Nordic-Baltic division who permitted a third party to obtain copies of evidence and pleadings. The parties are Ocado and Autostore, who have been in dispute over robotic warehouse technology for some time.

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