“The UPC stance on transparency erodes the principle of open justice”

The UPC’s approach to transparency has once again surfaced in discussions over the court’s future conduct. Already beset by issues surrounding access to the CMS, on 8 February a UPC Court of Appeal order clarified that, “a member of the public who is requesting access to the Register pursuant to R.262.1(b) RoP must be represented before the UPC”. Many patent litigators and attorneys are left questioning just how sincere the UPC was in its previous declarations that transparency was top of its agenda.

The decision is the result of a legal tug-of-war between several players, including the UPC Nordic-Baltic division, online supermarket Ocado, and a ‘member of the public’ identified as Freshfields Bruckhaus Deringer partner, Christopher Stothers.

The latter had requested access to the relevant documents in a now-settled litigation case between the aforementioned online retailer and Autostore. But, since Stothers is not a registered ‘official’ UPC representative, he was denied access. In a bid to ease concerns, the court went as far as to say the measures are not “unnecessarily burdensome”. It stated that the measures were to “ensure proper conduct of proceedings”.

Murky waters

What exactly constitutes ‘proper conduct’ of proceedings, however, remains unclear. On the contrary, it could be argued that such proceedings can only be properly conducted when interested parties are given a barrier-free opportunity to access the relevant case documents. Since access to justice is a cornerstone of democracy, the UPC’s current stance is viewed by some as undermining a fundamental process to which its European signatories are committed.

“Proceedings are properly conducted when interested parties have barrier-free access”

As different UPC divisions reach different conclusions regarding third-party acccess to court documents, the ongoing disparity could threaten to disharmonise the court’s attempt to consolidate pan-European patent proceedings. But perhaps it is unsurprising that an entity which is comprised of countries using a variety of jurisprudence should have a disharmonious approach to accessibility.

In Germany, for example, patent court judgments are rarely published publicly; interested observers must contact the court or associated parties directly in order to procure the documents. In Italy, it is even harder to follow cases which take place behind firmly closed doors.

But in Sweden or in the Netherlands, for example, the patent courts freely publish most, if not all, decisions via an online database. In certain jurisdictions, associated documentation can be accessed upon request for a small fee. Another European epicentre of patent, the EPO, maintains a successful and – crucially – easily accessible public database.

Likewise, in the UK, all courts are open to providing requested, non-confidential information on the litigating parties to outsiders, so long as safeguarding issues are not compromised.

What might have been

Comparisons will inevitably arise to common-law jurisdictions such as London. There is an argument that the inclusion of London in the UPC might have influenced, or at least softened, the approach of some UPC divisions which are driven by case law based on countries with more opaque jurisprudence.

Had the UK capital participated in the court system, would the same issues be arising? Probably – after all, the city’s inclusion would not automatically have led to a unified approach. But if the hypothetical London central division and associated judges had weighed in on the transparency case, recent proceedings might have had a different outcome.

“London’s inclusion in the UPC might have influenced, or at least softened, the court’s approach”

On the other hand, adding yet another voice to an already vocal chorus might have further muddied the waters. This is especially considering how interpretation of the Rules of Procedure stems from, to a large extent, the judges themselves. But regardless of their former legal grounding, the judges seemingly wish to err on the side of caution until the court at large defines a clear mandate for accessibility.

András Kupecz, for example, is behind some decisions in which the issue of transparency was raised. This includes Amgen vs. Sanofi at the Munich central division, where a third party applicant unsuccessfully sought to see the pleadings, and another case which resulted in patent attorney firm Mathys & Squire filing a test for access. But Kupecz is a former Dutch, not German, patent lawyer.

Likewise, Rian Kalden – former judge at the Court of Appeal in The Hague – is presiding over the ongoing UPC Court of Appeal case. Experience in national proceedings therefore has no automatic influence on individual judicial approaches at the pan-European level.

Barrier-free justice

While the conclusion on transparency is not yet final, a definitive decision in the affirmative also presents a financial stumbling block for those who must pay a professional representative for an administrative task. This includes journalists, who have a moral obligation to report on – and hold to account – institutions where decisions can have a global influence. It contravenes the notion of ensuring fairness within the democratic process, without financial obstacles.

“Journalists have a moral obligation to report on decisions with a global influence”

In their reasoning, the UPC Court of Appeal judges state that “the rationale… is to protect parties when it comes to the legal consequences of procedural measures”. Their intentions are fair. And a court system involving numerous jurisdictions with varied and individual procedural history will no doubt run into stumbling blocks with regard to creating uniform case law.

But recent developments, alongside engrained issues with the CMS, are calling into question whether the UPC’s values really are grounded in harmonisation and transparency. It must find a clear path to ensuring its users, and those who wish to learn from its output, are not denied access on the grounds of bureaucracy for bureaucracy’s sake.