UPC dismisses attempts by Mathys & Squire and Bristows to intervene in public access appeal

Court rules specialist IP firms lack “legal interest” in transparency test case involving Ocado and Autostore
London- February, 2021: Ocado delivery truck on residential street in west London- a leading British online supermarket

Ocado maintained decision “will not directly concern Mathys & Squire..." Shutterstock; William Barton

The Court of Appeal of the Unified Patent Court (UPC) has dismissed attempts by specialist London-based IP firms Mathys & Squires and Bristows to intervene in a test case on public access to documents filed at the court.

The order of 10 January said the applicants have failed to establish a “legal interest” and the applications to intervene are “inadmissible in substance”.

In October, the UPC’s Nordic-Baltic division permitted a third party to obtain copies of evidence and pleadings in a patent infringement action between Ocado and Autostore.

However, access was stayed after Ocado asked the Court of Appeal to overturn that decision; the UPC’s Central Division requires members of the public to prove a “legitimate reason” for seeing such documents.

In November, Mathys & Squire filed to intervene in this appeal as it is likely to be determinative of a separate application for access to pleadings and evidence concerning two life sciences cases that Mathys & Squire has filed as a test case before the UPC’s Central Division.

Bristows applied to intervene in the Ocado and Autostore documents access appeal in December in view of a pending request Bristows had filed for access to documents at the UPC’s Local Division in The Hague.

Ocado said in the order that the decision “will not directly concern Mathys & Squire LLP, and similarities in proceedings is an insufficient basis for an application to intervene”. It also argued that there are very significant differences between Mathys & Squire’s other case and the facts of this appeal.

The Mathys & Squire and Bristows applications to intervene were rejected on the grounds that an interest in a decision based on “similarity between two cases” was insufficient.

Commenting on the order, Mathys & Squires said that the Court of Appeal interpreted the grounds on which third parties can intervene in an appeal “very narrowly, limiting applications to cases where a third party has a direct interest in the wording of an order which the court might issue”.

Alexander Robinson, a partner at Mathys & Squire, said the firm was “naturally disappointed” and that the Court of Appeal’s order sets an “important precedent”.

He continued: “It means that interventions in proceedings at the UPC will only be allowed in narrowly-defined circumstances, similar to the CJEU’s approach.”

The decision to reject the applications to intervene raises a number of questions regarding the speed and transparency of the Court, added Mathys & Squire. 

It noted that the hearing has now been rescheduled for mid-March and hence any decision by the Court of Appeal is unlikely to issue much before April. This means that it will have taken over six months for the UPC to process what should be an administrative request for access to court documents.

In the meantime, the Munich Section of the Central Division has stayed Mathys & Squire’s application to access for documents in its test case concerning the two life sciences actions, pending the outcome of the Ocado and Autostore appeal.

According to the UPC’s case management system, the law firm says, 13 applications for access to court documents have been filed since the UPC opened in June. Two of those requests have been rejected, leaving 11 still pending. To date, none of the applications have “resulted in members of the public having sight of evidence and pleadings present in the court files”.

Mathys & Squire also said that the order issued by the Court Of Appeal relied on submissions made on behalf of Ocado that were not forwarded to its representatives. Partner Nicholas Fox said: “We assume that this is an oversight, and we are requesting copies from the court. If that request is denied it will send troubling signals about the court’s attitude to transparency.”

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