‘The EPO can manage it—I’m baffled why the UPC can’t’: Test case challenges court’s ‘request for access’ rule

As yet another case lands at the Unified Patent Court (UPC) demanding access to legal documents, the clamour for greater transparency at the venue is unlikely to subside anytime soon.

London-based Mathys & Squire filed a ‘test’ case at the court yesterday, November 27, to secure public access to evidence, amid heightened scrutiny of the court’s commitment to open justice.

Prompted by two decisions from the UPC’s Munich local division denying access to documents, the firm’s action argues that the court’s application of Rule 262 contravenes a central tenet of the UPC agreement.

Speaking to WIPR about the decision to throw down the gauntlet to the UPC, partner Nicholas Fox says that the test case is crucially important—both for businesses and the public—to understand how the court is making its decisions.

Backtracking on principles

“UPC evidence was always intended to be public. The court now seems to be backtracking on that principle. That needs to be prevented,” says Fox.

“We have no idea of the arguments presented or discussed in these cases [in Munich] so it may have been entirely reasonable for the judge to come to the conclusion that he did. However, the fact that we can’t know demonstrates what the problem actually is.”

In a further muddying of the waters, the UPC’s Nordic-Baltic Division has handed down a decision in Ocado v Autostore, directly conflicting with Munich’s position by granting access to documents upon request.

As patent attorneys await a hearing on this issue at the UPC Court of Appeal in Luxembourg, UPC judge Edgar Brinkman unexpectedly joined Regeneron counsel Laila Beynon in calling for lawyers to lobby for greater transparency at the forum during a LSPN session held in London last week.

Adding its voice to the mix, Mathys & Squire has made a “reasoned request” for copies of pleadings and evidence under Rule 262 in Astellas Institute for Regenerative Medicine v Healios KK, Riken & Osaka University.

According to Fox, the Munich court critically erred in its interpretation of the Rules of Procedure in its September decisions by denying third-party access to written pleadings and evidence in Astellas and Amgen v Sanofi.

Such restrictive interpretations now mean the viewing of evidence is potentially limited to those the court believes have a “concrete and verifiable, legitimate reason” to access it, he says.

In practice, continues Fox, this means that most, if not all, members of the public will be unable to access evidence and pleadings pending before the court.

Patents affect everyone

This approach, he adds, contrasts unfavourably with that of the European Patent Office (EPO), which has the power to revoke European and unitary patents.

“Everything's open at the EPO, and there's a reason for that. Patents affect everyone—not just the parties involved in the dispute. My understanding was that the original intent was to have a system that was as transparent as possible,” he says.

“And as demonstrated by the EPO—with this particular subject matter—more transparency is possible. If the EPO can manage it  I’m baffled why the UPC can’t.”

“There needs to be confidentiality; it can’t be a free-for-all,” concludes Fox, “but you also need to see whether the judge is doing their job correctly, particularly with a new court.

“I can't see the justification for saying that the UPC rules should be interpreted in a way that prevents third parties from accessing pleadings and arguments.”

According to Mathy’s request, Rule 262 should be interpreted in the light of: the obligations of the court under international and European Union Law; the legislative history of the writing of the rule; and the practices of the EPO, and the national courts of the signatory states of the UPC Agreement.

In essence, this means that written pleadings and evidence should automatically be made available to third parties on request, without any specific justification being required.

A request, adds the firm, should only be rejected where “there are persuasive, specific and concrete reasons which have been provided by a party to the proceedings to make the pleadings and/or evidence confidential”.

Where such reasons do exist, as far as possible, “information which is withheld should be limited specifically to documents or portions of documents for which such reasons apply”.

The problem with ‘reasoned request’

Fox believes that the rules’ convoluted history—which saw it go through no less than 19 drafts—has unfortunately warped their original purpose.

“Up until its very last incarnation, there was no doubt that this information was going to be made public. Of course, there were processes in place, but they were going to be made available.”

This changed in the wake of concerns about the rules’ compliance with general data protection rules following a public consultation.

The intervention, admits Fox, was “completely reasonable, because if there is confidential information then there needs to be a net mechanism [for protecting it]”.

However, confusion took root when the rules were amended so that written pleadings and evidence could only become available to the public upon “reasoned request”.

According to Fox, the question of what is a reasoned request, the clear rationale behind it, and the rationale behind refusing it, remains frustratingly vague.

As the firm’s request notes: “The requirement in final Rule 262 for parties to proceedings to justify why ‘certain’ information contained in their written submissions should not be disclosed is consistent with this continuing intention that disclosure would be the norm, subject only to narrowly-defined exemptions.”

This means, Fox insists, that the intention in the final draft was never to significantly raise the barrier to public access to documents.

In a further bid to boost UPC transparency, Mathys & Squire has filed to intervene in an appeal where Ocado 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.

Holding the UPC accountable

In Fox’s view, the issue comes down to accountability. As he explains, Judge-rapporteur András Kupecz in Munich started from a blank slate—“He was directed to the final draft, and he made his conclusion based on the need for ‘a legitimate concrete reason’”.

But Fox argues, there is no indication that Kupecz had full knowledge of the rules’ history, why that final amendment was made, or that he had all of the information required in relation to national court practices as well as at the EPO.

“That’s why we put our request before the same judge, so that now, he has all the information,” he adds.

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