27 November 2023

Mathys & Squire files UPC test case in support of open justice

Mathys & Squire has filed a test case to secure public access to evidence in the Unified Patent Court (UPC). Commentary provided by Mathys & Squire has been featured in Commercial Dispute Resolution, The Global Legal Post, JUVE Patent, Kluwer Patent Blog, Law 360, Managing IP, The Patent Lawyer and World Intellectual Property Review.

An extended version of the press release is available below.

Mathys & Squire has brought a test case to try to improve the transparency of the operations of the UPC.[1]

The Unified Patent Court 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, affected persons or in the general interest of justice or public order.[2]

It was for that purpose that, throughout the drafting process of the Court’s rules of procedure, provision was made that written pleadings and evidence would be accessible by third parties on request.

Two recent decisions[3] of the Central Division of the UPC, have, however, interpreted the Rules of Procedure in a restrictive manner limiting access to third parties who the Court considers can demonstrate that they have a “concrete and verifiable, legitimate reason” to access documents filed with the court. In practice, this means most if not all members of the public will be unable to access evidence and pleadings pending before the court.

We consider that the way that the Central Division has interpreted the Rules of Procedure is wrong.

It is in the public interest that the public can inform themselves about the strengths and weaknesses of cases pending before the UPC so that they can make commercial decisions about the patents which are being sought to be revoked or enforced in the Court. Further we consider that openness and transparency is vital in order for the public to be able to hold the court to account.

The principles of openness and transparency in Court proceedings and the rights of third parties to access public documents are well established principles in International and European law. Many European courts provide third parties with free access to pleadings and evidence filed with their courts.

Indeed, the European Patent Office, which has the power to revoke European and Unitary Patents after grant in opposition proceedings is a paragon of openness in this respect as all pleadings and written evidence filed in such proceedings is made available for download from the European patent register subject only to narrowly defined exceptions where confidentiality is required to protect personal or confidential information.[4]

In view of the importance of this matter, Mathys & Squire have filed a test case asking the Central Division to reconsider its restrictive approach. Mathys & Squire have 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 to permit a third party to obtain copies evidence and pleadings.

Copies of the pleading we have submitted to the Central Division can be accessed here.

In the cases being brought, Mathys & Squire are being represented by Nicholas Fox and Alexander Robinson, partners from our London office, and Andreas Wietzke, a partner from our Munich office.

[1] The case is pending application APP_588681/2023

[2] Article 45 of the Unified Patent Court Agreement

[3] Order no. 550152 in ACTION NUMBER: ACT_459505/2023 issued 20 September 2023 (UPC number UPC_CFI_1/2023) & Order no. 552745 in ACTION NUMBER: ACT_464985/2023 issued on 21 September 2023 (UPC number UPC_CFI_75/2023).

[4] Article 128 EPC and Rules 144-147 EPC.