16 January 2024

UPC Court of Appeal interprets law narrowly in transparency test case

Commentary by Partners Nicholas Fox and Alexander Robinson has been featured in Kluwer Patent Blog, Law 360, Managing IP, Solicitors Journal and World Intellectual Property Review, giving an insight into the impact of the Court of Appeal’s order on future interventions in proceedings at the UPC.

An extended version of the press release is available below.

The Unified Patent Court (UPC) Court of Appeal has dismissed an attempt by Mathys & Squire to intervene in a critical test case on public access to documents filed with the Court. An attempted intervention by the law firm Bristows was also dismissed.


In October the UPC’s Nordic-Baltic regional division granted a request by a member of the public to access documents filed at the court in a patent infringement action between Ocado and Autostore. However, access was stayed after Ocado asked the UPC Court of Appeal to overturn that decision, which conflicts with a narrower view taken by the UPC’s Central Division requiring members of the public to prove a “legitimate reason” in order to access such documents.

In November, Mathys & Squire applied to intervene in the Appeal on the basis that Court of Appeal’s decision was likely to be determinative of a separate application for access to documents that Mathys & Squire has filed before the UPC’s Central Division. Bristows likewise applied to intervene in December in view of a pending request that the firm had filed for access to documents at the UPC’s local division in the Hague.

The Court of Appeal’s order

In its ruling (see here), 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.

Specifically, the Court held that an intervention requires a “direct and present interest in the grant by the Court of the order or decision as sought by the party, whom the prospective intervener wishes to support and not an interest in relation to the pleas in law put forward.”

Our application to intervene, and that of Bristows, were both rejected on the grounds that an interest in a decision based on an “indirect interest” such as “similarity between two cases” (e.g. similarity between our request for access to documents at the Central Division and the request for access to documents at the Nordic-Baltic division) was insufficient.

The Court of Appeal’s order sets an important precedent. It means that interventions in proceedings at the UPC will only be allowed in narrowly-defined circumstances. In adopting this narrow interpretation, the UPC Court of Appeal has adhered closely to the practice of the CJEU, where possibilities for interventions by third parties are very limited.

Where next for our application at the Central Division?

The Munich Section of the Central Division has stayed Mathys & Squire’s application to access for documents pending the outcome of the Ocado and Autostore Appeal.  We therefore have to wait for the outcome of the Ocado and Autostore Appeal until our application for access to court documents will proceed further.

If the Court of Appeal delivers a decision which provides wide-ranging guidance on the interpretation of the UPC rules on public access to documents, with reasoning which is applicable to most circumstances, this may resolve our concerns about the Court’s current restrictive approach to public access to pleadings and evidence filed with the Court.

It is, however, possible that these issues will not be resolved in the Ocado and Autostore appeal. The circumstances of the access request in the Ocado and Autostore appeal raise specific questions which may cause the Court of Appeal to issue a narrow ruling. We understand that one of the objections that Ocado have raised is that some of the requested pleadings were never properly served and hence do not form part of the court file.

Mathys & Squire have been in contact with the member of the public whose original request for access is the subject of this Appeal. We have provided him with copies of our materials to support his arguments in defence of the public interest in judicial transparency, and wish him the best of luck.

Continuing reservations over speed and transparency at the UPC

Our concerns about the transparency of court proceedings at the UPC persist.

The original request for access to the Ocado and Autostore documents was filed by a member of the public in August last year. Although the Court of Appeal was to hold oral proceedings in mid-February, 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 6 months for the UPC to process what should be a simple administrative request for access to court documents.

According to the UPC’s case management system, 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 filed with the court.

We will await the outcome of the Ocado and Autostore with interest.