UPC judge and Regeneron counsel urge lobbying to improve court's transparency

Judge encourages lawyers and public to make their voices heard over transparency concerns | Awkward access to public hearings ‘causing problems’ says Regeneron counsel | Plea for public virtual hearings as judge notes that requests have been ‘coming in by the dozen’ | Panellists discuss at LSPN Europe.

A  Unified Patent Court (UPC) judge has encouraged “certain stakeholders to lobby for access to be made easier” during a discussion on the court’s transparency. Judge  Edger Brinkman, speaking at  LSPN Europe in London on Tuesday 21, said that as a new court “the UPC needs time to find its way”, but added that pressure from the public and lawyers “might be helpful indeed” to help it make such changes.

Fellow panellist  Laila Beynon, associate director of dispute resolution at  Regeneron, urged legal professionals to lobby the UPC for virtual access to hearings, stressing the importance of inclusivity and environmental considerations. “It should be the de facto that you get access,” insisted Beynon.    Charles Larsen, partner at McDermott, Will & Emery, moderating, engaged panellists in a broader conversation about the usage of the court and considerations related to transparency and access. Beynon expressed her views on accessing documents, pointing out that initially the UPC “wasn’t doing a good job” of making orders and decisions accessible.  While she noted that this has been “somewhat rectified”, she conveyed concerns regarding the availability of other documents to third parties upon a ‘reasonable request’. There is ambiguity surrounding what constitutes a 'reasonable request', which remains a subject of dispute, said Beynon.

“In my view, these documents really should be public access upon request, apart from in really exceptional circumstances, and I think it's very difficult to define a set of reasons that are appropriate and that aren't,” she added.  Responding, Brinkman noted that several countries within the UPC lack public access to legal proceedings. “In that sense, [public access] is completely new for a lot of judges,” he explained.

LSPN delegates heard that while some nations, including the US, have relatively straightforward public access procedures, the broader question of access within the UPC territory remains a subject of discussion.

Awkward public hearings causing ‘a lot of problems’

Beynon also raised concerns about public access to hearings, noting the current limitations and the environmental impact of requiring physical presence to gain UPC access. “There really hasn't been easy public access to hearings,” she added.

Beynon was critical of the late delivery of details outling how to access virtual hearings, and that access involves attending the hearing in person. “That has a lot of problems,” she explained, drawing attention to the carbon footprint involved with having to fly to hearings.

Consequently, hearings favour those who live close by or those who have “deep pockets” who can afford to send individuals to fly, according to Beynon. If the UPC does start publishing hearing information earlier, allowing individuals time to plan, “would it follow a first-come, first-served basis?” she questioned.

In this scenario, she forecast that attendance might be limited to the capacity of a single room, with the risk of being denied entry if someone arrives too late.

Plea for virtual access

Beynon concluded by saying: “This is a plea to everyone in the audience. Could we lobby the UPC to start giving virtual access to members of the public to be able to attend these hearings?” Brinkman agreed, adding: “This is something that we need to move forward with. The Court of Appeal is going to think about this and its decision will come out as soon as possible.

“We're all eagerly awaiting because these requests have been coming in by the dozens,” he added.

LSPN was held on Tuesday, November 21 at  BMA House in London. LSPN North America Spring 2024 will be held on April 10-11, 2024 in Boston, MA.  To register or for more information click here:  https://www.lspnnorthamerica.com/.