08 May 2024

Update on Mathys & Squire test case in support of open justice

Mathys & Squire filed a test case to secure public access to evidence in the Unified Patent Court (UPC) at the end of November 2023. That case was stayed, pending the UPC Court of Appeal’s decision in Ocado v Autostore which we have previously reported on. Mathys & Squire’s test case has now resumed and we have provided our comments to the Munich Central Division so that the Judge-Rapporteur can rule on our request.

The Ocado v Autostore case concerned a request from a member of the public to access pleadings and evidence which had been filed on a case that had concluded before access to the Court file was granted. In relation to the specific facts of the case, the Court of Appeal stated that general interest in scrutiny of the Court should mean that in general, access to written pleadings and evidence should be given to the public after proceedings have come to an end.

The Court of Appeal’s decision still leaves many questions unanswered.

Although opening up court files after a case has finished is to be welcomed, the Ocado v Autostore decision leaves open the question as to when the public will be granted access to court documents whilst a court case is pending. As the Ocado v Autostore case had settled prior to access to the Court file being granted, that question could not be addressed by the Court except by way of brief, limited and non-binding remarks.

The Court of Appeal has stated that when granting access to documents on the court file, a Judge-Rapporteur must weigh the interests of a member of the public requesting access against the interests of protection of confidential information and personal data and the general interest of justice and public order.

Despite the Court of Appeal’s ruling strongly suggesting that public access to written evidence and pleading will now be granted on request whenever a case has been concluded, it is unclear how the Court will balance such interests whilst litigation is ongoing.

The UPC is intended to be a public forum for the settlement of patent disputes. Proceedings before the UPC are stated to be open to the public and the Court of Appeal agrees that it is clear that the written procedure where parties submit written arguments and evidence to the court form part of those public proceedings.

The Court of Appeal has accepted that the public interest in Court proceedings is not limited to cases where the Court issues a final decision. Nor is the public interest solely based on a desire to scrutinise the workings of the court. The validity or otherwise of patents and how patent claims might be construed is of wider interest than merely a dispute between the parties, not least because of the potential that a patent may later be enforced against others. Further, it is desirable that informed reportage on proceedings before the UPC can occur in real time. Such a public interest is not served by delaying access to court documents until after a court case has been concluded.

Of course, in specific cases, there may be good reasons for keeping certain matters confidential pending the resolution of a case. However, we believe that it should be incumbent on parties to substantiate and point out in which specific way their legitimate personal or economic interests are affected.  In our view, making statements concerning a party’s interests in general or merely referencing abstract prejudice to hypothetical personal or economic interests should be insufficient to prevent a third party from accessing the Court file whilst litigation is on-going.

We hope that the Court’s ruling on our test case will clarify these matters. The decision of the Court is expected in a few weeks’ time.