Court Of Appeal Delivers Key Ruling On Transparency Of Unified Patent Court Proceedings – Trials & Appeals & Compensation

Yesterday, in a highly anticipated ruling,¹
the UPC Court of Appeal (“CoA”) dismissed an appeal
brought by Ocado in its litigation in the UPC against Autostore,
following a decision by the Nordic-Baltic Division to grant third
party access to pleadings filed on the UPC Case Management System
(“CMS”).

The decision is a significant one in the early stages of the
UPC’s operation, and appears to shift the balance towards
permitting third party access to pleadings and evidence filed on
the CMS, although each ‘reasoned request’ (made pursuant to
Rule of Procedure Rule 262.1(b)) will be determined on its
facts.

SUMMARY

In interpreting Rule 262.1(b), the CoA reasoned that:

• A member of the public generally has an interest that pleadings
  and evidence are made available, which helps contribute to
  “trust in the Court by the public at large” (and
  also aligns with Article 45 of the UPC Agreement, which makes clear
  that proceedings shall by default be open to the public).




• A specific, direct interest in the subject matter of the
  proceedings is not required; general interests such as
  “scientific and/or educational interests” are
  legitimate for the purposes of requesting access to pleadings and
  evidence in proceedings.




• A third party’s interest in obtaining access, however, must
  be weighed against various, important interests set out in Article
  45 of the UPC Agreement, such as the protection of confidential
  information and the general interest of justice. The CoA made clear
  that the latter includes the protection of integrity of proceedings
  (namely that “the parties are able to bring forward their
  arguments and evidence and that this is decided upon by the Court
  in an impartial and independent manner“).




• An applicant is still, however, required to specify the purpose
  of a request and state why access to the specified documents is
  necessary for the stated purpose, so to enable the Court to carry
  out this balancing exercise.




• Requesting access while proceedings are pending
  effectively gives rise to a higher bar under Rule 262.1(b), in
  comparison to a case which has since settled where the interest of
  ‘integrity of proceedings’ no longer applies.

In this case, the CoA determined that the balance of interest
weighed in favour of granting the third party (an individual)
access to the pleadings, based on the individual’s general
interest in how the claim was framed.

COMMENTARY

This ruling would appear to mark a conscious shift away from the
more restrictive approach that the wording of the Rules of
Procedure (on a literal interpretation) suggest should be followed.
This decision is particularly interesting when compared to the
stance taken previously by the UPC at first instance in other
pending actions, in which general interests such as
“education and training” were not considered to
constitute a “concrete and verifiable, legitimate
reason” and as such, did not legitimise granting third
party access to parties’ pleadings under Rule
262.1(b).²

This decision will be viewed as a move in the right direction by
those who have openly criticised the lack of transparency of UPC
proceedings and campaigned for unrestricted file access to third
parties, as is provided for in the EPO, and indeed has broadly been
the position in many national courts. The decision is particularly
notable after the CoA’s order (in respect of the same
litigation) earlier this year, which made clear that general
members of the public cannot have access to court documents unless
requested through a professional UPC representative.³
Indeed, the two rulings might even be deemed to give rise to a
degree of inconsistency.

Some may, however, feel the decision does not go far enough,
falling short of permitting default automatic access to pleadings
and evidence on the CMS, such access still being subject to a
formal, reasoned application made to the Court.

We can now expect an increase in third party access requests, in
the expectation that a more relaxed approach will be taken by the
lower instance courts following the CoA’s decision. However, it
is still very much at the discretion of the judge-rapporteur in
each case to reach his or her own decision having carried out the
balancing exercise set out by the CoA – and after consulting with
the parties. The ruling of the CoA still therefore gives plenty of
scope to UPC judges to come to different conclusions on where the
balance of interest lies, depending upon the facts of each
case.

Footnotes

1. UPC_CoA_404/2023 APL_584498/2023

2. ORD_552745/2023 and ORD_55152/2023

3. UPC_CoA_404/2023 App_584498/2023

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