Mathys & Squire files test case to secure public access to evidence in Unified Patent Court

• Recent UPC decisions have prevented public seeing court evidence
• Test case “important for open justice”
• “The way the court has interpreted the Rules of Procedure is wrong.”

Mathys & Squire has brought a test case to try to improve the transparency of the operations of the Unified Patent Court (UPC), following two court decisions which have restricted public access to evidence.

The Unified Patent Court Agreement requires that proceedings before the court are to be open to the public unless the Court decides to make them confidential in the interests of the parties affected persons or in the general interest of justice or public order. Written pleadings and evidence in UPC cases should therefore be accessible to third parties on request, as made clear by the court’s Rules of Procedure.

Two recent decisions of the Central Division of the UPC have interpreted the Rules of Procedure much more restrictively. This means the viewing of evidence is potentially limited to those the Court believes have a “concrete and verifiable, legitimate reason” to access it. In practice, this means most if not all members of the public will be unable to access evidence and pleadings pending before the court.

Mathys & Squire believes that the way the Central Division has interpreted the Rules of Procedure is wrong.

In view of the importance of this matter, Mathys & Squire has filed a test case asking the Central Division to reconsider its restrictive approach. Mathys & Squire has also filed to intervene in an Appeal where a party is seeking to overturn the decision of a judge in the UPC’s Nordic-Baltic division to permit a third party to obtain copies of evidence and pleadings.

Nicholas Fox, Partner at Mathys & Squire, says: “This test case is very important for open justice, for businesses and the public to understand how the Court is making its decisions. UPC evidence was always intended to be public. The court now seems to be backtracking on that principle. That needs to be prevented.”

Alexander Robinson, Partner at Mathys & Squire, says: “It is in the public interest that the public can inform themselves about the strengths and weaknesses of cases pending before the UPC. This allows them to make commercial decisions about the patents which are being sought to be revoked or enforced in the Court. Openness and transparency is also vital for the public to be able to hold the court to account.”

The principles of openness and transparency in Court proceedings and the rights of third parties to access public documents are well-established principles in International and European law. Many European courts provide third parties with free access to pleadings and evidence.

The European Patent Office, which has the power to revoke European and Unitary Patents, is much more open in this respect. All pleadings and written evidence filed there are made available for download from the European patent register. This is subject only to narrowly defined exceptions where confidentiality is required to protect personal or confidential information.

Copies of the pleading Mathys & Squire has submitted to the Central Division can be accessed here.

In the cases being brought, Mathys & Squire is being represented by Nicholas Fox and Alexander Robinson, partners from its London office, and Andreas Wietzke, a partner from its Munich office.

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