Test case on public access to evidence in Unified Patent Court to be heard in February 2024

• Recent UPC decisions have prevented the public from seeing court evidence
• The outcome of a test case challenging these decisions is expected in early 2024.

The Unified Patent Court (UPC) has scheduled a hearing in a key test case on public access to evidence for February 2024. 

Two weeks ago, Mathys & Squire brought a case before the Munich Section of the Central Division of the UPC. They argued that evidence and pleadings filed with the court should be made available to third parties on request by default. This would mean that access would only be restricted when it is necessary to protect confidential or personal information.

Mathys & Squire also applied 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.

The UPC is Europe’s new system for patent enforcement, launched in June 2023 after being in planning for many years. The UPC is intended to introduce a uniform and more efficient patent litigation framework across the European Union and significantly reduce the cost and complexity involved in IP proceedings.

The appeal pending before the UPC Court of Appeal has now been assigned to the second panel of the Court of Appeal with Judge Ingeborg Simonsson being appointed as the judge-rapporteur for the appeal. Judge Simonsson has been a full-time judge in the Swedish courts since 2008 and, in 2020, was appointed Judge in the Svea Court of Appeal and the Patent and Market Court of Appeal.

Judge Simonsson has now set a 15-day deadline for the parties to comment on Mathys & Squire’s application to intervene. She will then decide as to whether or not to accept Mathys & Squire’s application. Parties will then be given a further 15 days to submit written arguments to the court on the substance of the appeal before an oral hearing on 15 February 2024.

Nicholas Fox, Partner at Mathys & Squire, says: “We welcome the appointment of Judge Simonsson as judge-rapporteur in the appeal. The Swedish Courts have an exceptionally long history of transparency and openness, and the principle of public access is considered an essential principle of Swedish law. Judge Simonsson will be an excellent judge to consider this appeal.”

The case pending before the Munich Section of the Central Division has been stayed pending the outcome of the appeal. 

Alexander Robinson, Partner at Mathys & Squire, says: “The decision to stay the proceedings pending the Court of Appeal decision supports our arguments that we have a legal interest in the appeal and should be allowed to intervene.”

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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