Mathys & Squire fight for access to evidence at UPC

In the UPC proceedings between Astellas and Healios, Riken and Osaka University (case ID: UPC_CFI_75/2023  and ACT_464985/2023) the UK firm Mathys & Squire has filed a request for documents under rule 262.1 (b) of the UPC Rules of Procedure. The firm is calling on the central division in Munich, where the case is pending, to make available all written pleadings and evidence filed in relation to this case (APP_588681/2023).

Nicholas Fox, partner at Mathys & Squire, says, “The aim of our test claim is to establish a principle for the right of access to third parties for the future.” The patent litigator, who joined Mathys & Squire only recently, is leading the test case together with patent attorneys Alexander Robinson and Andreas Wietzke. The action is not based on a specific instruction.

Paving the way

Mathys & Squire is not the first to demand access to documents in this case. The first attempt by another third party in the Astellas dispute failed. As did the request for access under rule 262.1 (b) in the dispute Amgen vs. Sanofi (case ID: UPC_CFI_1/2023).

Nicholas Fox

In both cases, the respective claimants had raised concerns about third parties having access to court documents, which is why judge rapporteur András Kupecz dismissed the applications.

Restrictive approach

The central division in Munich restricted access to third parties who can demonstrate that they have a “concrete and verifiable, legitimate reason” to access the documents. However, Mathys & Squire views this as too restrictive.

In a press release the firm states that most, if not all, members of the public will thus not have access to evidence and pleadings. The firm argues, “It is in the public interest that the public can inform themselves about the strengths and weaknesses of cases pending before the UPC, so that they can make commercial decisions about the patents which are being sought to be revoked or enforced in the court. Further, we consider that openness and transparency is vital in order for the public to be able to hold the court to account.”

Alex Robinson

Moreover, says Mathys & Squire, many European courts as well as the EPO provide third parties with free access to pleadings and evidence filed at their courts or in EPO opposition proceedings.

Nordic path

The Nordic-Baltic division’s decision in the dispute between Ocado against AutoStore shows that there is an alternative path (case ID: UPC_CoA_407/2023 or App_543819/2023). The regional division in Stockholm granted a third-party applicant access to the statement of claim. Ocado appealed. While the original dispute has now been settled, the proceedings regarding access to documents are pending at the Court of Appeal in Luxembourg. Mathys & Squire also filed to intervene in this appeal.

In order to ensure full transparency with regard to its lawsuit, the law firm is publishing a copy of the pleadings on its website. According to Nicholas Fox, documents will also be available on the website in the future so that interested parties can follow the progress of the lawsuit.

Andreas Wietzke

Nicholas Fox told JUVE Patent, “Our intention is to be as open as possible with developments regarding the case so that everyone can follow the case as it develops. Our reasoned request is available on our website and we will make other documents available in due course as the case progresses.”