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Background
11 April 2024

Transparency at the UPC: Court of Appeal issues highly anticipated decision

The Court of Appeal of the Unified Patent Court (UPC) has dismissed the Appeal by Ocado (ORD_19369/2024) against the Nordic-Baltic Regional Division order to give a member of the public access to Ocado’s statement of claim in the now-settled Ocado v Autostore (UPC_CFI_11/2023).

Venner Shipley are pleased to have acted as representatives on this case, which should ensure openness of the court’s proceedings in the long run.

Background

Since the UPC started operations in June 2023, a key question has been the level of transparency that will apply to the Court’s operations. The UPC Agreement itself implies a bias towards openness, and early drafts of the Rules of Procedure had suggested that the UPC Register would be open to the public by default. However, as the final version of the Rules were finalised, concerns were raised about the Court’s obligation to maintain privacy of personal data, for example. As a result, documents submitted to the court are now open to public inspection only after a “reasoned request”, which allows the registry time to make any necessary redactions.

The Administrative Committee had reassured users at the time of introducing these provisions that the commitment to transparency remained. However, some early decisions had implied that a “reasoned request” was a relatively high bar to cross. Consequently, concerns had arisen that the Court’s operations may be unnecessarily obfuscated, which could negatively impact perceptions of the court and act as a barrier to consistency and spread of best practice.

The decision of the Nordic-Baltic regional division to allow access to documents in the present case on the basis of a general interest stood in contrast to some of these more restrictive decisions. With this apparent divergence at first instance, the Court of Appeal’s decision will have a significant impact in the future.

Decision

In its decision, the Court of Appeal emphasised that there is a general principle in favour of allowing public access.  The UPC rules of Procedure allow a party to claim confidentiality in data they have a particular interest in (for example, where information is commercially sensitive) but the Court of Appeal suggested that there may be other reasons a request for access might not be granted. In particular, requests might be denied which are against the general interests of justice, such as protection of the integrity of the proceedings, and public order, such as protecting against abusive requests or requests prejudicial to security interests, must also be taken into account.

The Court of Appeal distinguished between cases which have been resolved (whether through final decision or through being withdrawn/settled) and those which are ongoing. In the former case, a request for access should usually be granted on the basis of a “general interest” of the requesting party – this could be for education purposes etc. For pending cases, it might be necessary to weigh more heavily the potential impact on the integrity of proceedings, but where a party has a “direct interest” (for example, where the party is a potential competitor or licensee affected by the patent at issue) the tendency should also be to openness (although in these cases, it might be incumbent on the receiving party not to share the information further).

In the case at hand, it was held that, although the purpose of the request was of a general nature, since the proceedings had come to an end the balance of interest was in favour of allowing access.

Consequences

While the Court of Appeal was careful to ensure first instance judges have discretion to avoid genuinely abusive requests for documents, or requests which would in some other way affect the integrity of proceedings, there is a clear push towards transparency, particularly where proceedings have finished. Thus, with a little patience those studying the law will generally be able to access materials that are of interest. Moreover, parties with an urgent commercial interest in a particular case should also be provided with access without having to wait for the completion of proceedings.

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