13 February 2024

A further blow to transparency at the UPC?

Commentary by Partner Nicholas Fox has been featured in Managing IP, giving an insight into the implications of the UPC Court of Appeal’s ruling that members of the public cannot have access to court documents without using a professional representative. This story has also been covered in JUVE Patent which also discusses the test case which Mathys & Squire have launched in this area, more details of which are discussed here.

Read more on the subject of the ruling by Partners Nicholas Fox and Alexander Robinson below.

The Court of Appeal of the Unified Patent Court (UPC) has decided that members of the public cannot have access to court documents without going through a professional representative. This will act as a further barrier to public access by imposing additional costs, and compares unfavourably to the practice of other courts. It also raises the prospect that the Court of Appeal could dismiss a pending case on access to court documents without giving a ruling on the core issue of how far the Court’s obligation of public access extends.

This is the upshot of the latest procedural order in the protracted dispute over public access to documents in the Ocado v Autostore litigation at the UPC. In an order dated 8 February 2024 the Court of Appeal interpreted its Rules of Procedure so that the requirement for a “party” to be represented also extends to members of the public when applying for access to documents lodged with the Court, even though such members of the public are not parties to the litigation.

The Court of Appeal had requested submissions on whether the member of the public who made a request to access documents filed in the Ocado v Autostore case needed professional representation. Both Ocado and the member of the public who had made the request submitted that representation was not needed, because a member of the public is not a “party” and so the rules requiring “parties” to be represented did not apply to him.

The Court of Appeal has now taken a decision which diverges from the views of both Ocado and the member of the public. Although the Court states that it “does not consider this requirement [for representation] to be unnecessarily burdensome” it has the undesirable effect of making public access more complex than it needs to be. Members of the public will now need to go to the additional expense of appointing a professional representative just to take care of what should be a simple administrative process.

This compares unfavourably with the practice of the European Patent Office (EPO), where any member of the public can access virtually any document filed with the Office simply by consulting the online register. It also compares unfavourably with the practice of the federal courts in the United States, where all pleadings, motions, memoranda and associated documents are available to anyone via the electronic PACER system. Similarly, public access is available in various European countries such as in England and Wales, where statements of case are available to anyone subject to payment of a small fee, and Sweden, where documents held by the court can be requested by email or post subject to payment of a small fee for large numbers of documents or pages.

The ruling raises an important question in relation to the outcome of the appeal. Ocado had previously raised no objections that a member of the public could request access without having to engage legal representation.  However, now that the Court has ruled otherwise, it raises the question of whether the original request for access by the unrepresented applicant should be ruled void. Notably, in the context of the appeal, the Court has ordered that previous submissions by the unrepresented applicant should be disregarded as they were not lodged through a representative. It is not clear why the same logic should not also apply to the applicant’s original request, particularly as the Court of Appeal expressly states that the obligation for legal representation applies equally at first instance and during the appeal process.

Previously, Ocado, who are objecting to the release of documents, have not pursued this point as their stated position was that the obligations for legal representation did not apply to access requests. However, now it is to be expected that the validity or otherwise of the initial application will be brought into question.

The Court of Appeal has granted the member of the public 14 days to appoint a representative and has scheduled a hearing on the substance of the appeal to be held on 12 March 2024.

The Court’s order is not yet available on the UPC website, but its contents have been reported here.