Are written proceedings before the UPC truly public? A tale of three access requests

The fates of three requests for access to pleadings and evidence filed with the Unified Patent Court (UPC) demonstrate how the judges of the UPC are still struggling with the court’s commitment to transparency and open justice.

Rule 262.1(b) of the UPC Rules of Procedure provides that: “written pleadings and evidence, lodged at the Court and recorded in the Registry, shall be available to the public upon reasoned request.” Although this would appear to demonstrate a strong commitment to transparent public justice, the speed with which access requests are being processed raises questions as to whether pleadings and evidence will ever be made available to the public in advance of a final decision on a matter.

Orders issued in the last few days by the Paris Section of the Central Division, the Local Division in The Hague, and the Munich Section of the Central Division illustrate these problems.

Success in Paris

The Paris Section of the Central Division of the UPC has granted Mathys & Squire access to the pleadings and evidence filed by the parties in the BITZER Electronics v Carrier Corporation dispute regarding the revocation of European patent number EP 3414708. The order granting access has not been published by the UPC but we have made a copy available here.

We filed our request while proceedings were ongoing, primarily because the evidence on the Court’s Case Management System (CMS) appeared to indicate that Carrier Corporation had lodged a request to opt EP 3414708 out of the jurisdiction of the UPC two weeks before BITZER Electronics filed their revocation action on 27 July 2023. This raised interesting questions. Was the Central Division hearing a revocation action on an apparently opted-out patent? Was there something about Carrier’s opt-out request which rendered it invalid? Would that error apply to other opt-out requests placing the validity of those opt-outs in doubt?

Adding to the mystery, an earlier order  in the same case (which had denied access to a third party seeking certain other documents) referred to the opt-out request as an “intermediate opt-out”. The summary of facts in that order and the names of certain documents in the CMS suggested that the opt-out had been filed in between an earlier version of the revocation action which was deficient in some way, and a later version which had been corrected.

The actual answer was far more prosaic. Having been granted access to the pleadings filed with the Court, it is now apparent that the date when BITZER’s revocation action had been filed has been incorrectly recorded in the CMS. BITZER’s revocation action had in fact been filed on 28 June 2023 and corrected on 7 July 2023, both of these dates being before Carrier had applied to opt EP 3414708 out of the jurisdiction of the UPC and not after. The opt-out request had simply been filed too late. The origin of the incorrect dates in the CMS remains an enigma.

Our access request, which raised no objections from the parties to the underlying litigation, took 54 days or just under 2 months to process from filing on 5 June 2024 to a final decision on 29 July.

Meanwhile in The Hague

The day before the Paris Section granted Mathys & Squire instant access to the BITZER v Carrier pleadings, the Local Division in The Hague ruled  on a request for access to pleadings in the pending dispute between Abbott Diabetes Care and Sibio Technology.

In that case, the Judge-Rapporteur granted a member of the public access to selected pleadings relating to an earlier Preliminary Injunction application in the pending Abbott v Sibio case. Such access was granted over objections raised by the parties to the underlying proceedings. Access was delayed for 15 days from the date of the order to give the parties the opportunity to appeal the decision.

The Hague Local Division processed the access request in the Abbott v Sibio case far faster than the Paris Section.

The request filed before the Local Division in The Hague was filed on 3 July 2024, meaning that The Hague Local Division has ruled on this request in 26 days, which included the time to provide the parties to the litigation the opportunity to comment on the request.

The wheels of justice

The relative speed with which the court decisions in The Hague and in Paris issued is in contrast with the speed, or rather lack thereof, with which the Munich Section of the Central Division is processing another access request that Mathys & Squire filed with the Court. That request, which is still pending, was filed over 8 months ago on 21 November 2023.

Although much of that delay was due to the Munich Section’s decision to stay the application pending the decision of the UPC Court of Appeal in Ocado v Autostore, compared with The Hague Local Division and Paris Section of the Central Division the processing of the request by the Munich Section since the Ocado decision appears positively glacial.

The UPC Court of Appeal issued its decision in Ocado v Autostore on 10 April 2024 and we provided our comments on the Ocado v Autostore appeal to the Court at the beginning of May. The Munich Section then set a deadline of 5 June for the parties to the litigation where we were requesting access to provide comments. Another 7 weeks would then pass before the Munich Section wrote to inform us that the parties had settled the litigation, asking whether this would cause us to withdraw our access request. We promptly responded to inform the court that it did not. However, access still has not been granted as the Court has provided the parties until mid-August to file yet further comments and request redaction of documents before issuing a ruling on our request.

Hence, despite the Munich Section having stated an intent that our access request would be processed “expeditiously” once the outcome of the Ocado v Autostore appeal was known, any substantive decision on the request will not be issued until more than 4 months after the outcome of the appeal was published, within which time the parties to the underlying action have settled their dispute.

How public is “public access”?

The Court’s handling of these requests raises questions about its commitment to open justice. Hearings before the Court are public and yet the Court of Appeal’s reasoning in Ocado suggests that access to the written pleadings forming the basis for those hearings may be restricted while proceedings are ongoing. While the Court left that question open to some extent, if this approach is followed it will leave the public in the unsatisfactory position of being able to attend oral hearings before the UPC, but not to know the details of the case in advance or to have access to documents which would help them to understand the arguments made at the hearing.

Our requests in the Paris and Munich Sections of the Central Division were filed during ongoing proceedings. However, the issuance of a decision concluding the BITZER Electronics v Carrier Corporation proceedings on the same day that we were granted access to the pleadings meant that the Paris Section did not have to address the questions left open by the Court of Appeal regarding access to pleadings during on-going litigation.  Nor will the Munich Section have to address that question in their final ruling on the pending access request as the parties to that case settled their dispute during the lengthy time period the Munich Section has taken to process our application.

Although the processing of a request by The Hague Division in less than a month is encouraging, the longer timescales observed in other divisions of the UPC have effectively amounted to a de facto bar on public access to pleadings until after the conclusion of those cases without the Courts ever needing to make  a formal ruling on this question.

However, even in The Hague, access to the pleadings prior to the conclusion of an underlying case is not certain as the decision of The Hague Local Division is still subject to the possibility of an appeal which, if filed, would further delay the release of the pleadings in that case. Nor will The Hague decision provide a third party with access to the written pleadings and evidence relating to the substantive dispute between Abbott and Sibio as the third party has limited their request to pleadings concerning the concluded preliminary injunction application in that case.

The chance to see whether the Court will ever grant access to the written pleadings and evidence forming the basis for a dispute pending before the court will have to wait for another day.