UPC’s Court of Appeal Paves the Way for More Transparency

Court of Appeal Clarifies Requirements for File Inspection

In the appeal proceedings against the decision of the Nordic-Baltic Regional Division regarding access to written pleadings and evidence of the Ocado vs. AutoStore case[1] by a member of the public, the Unified Patent Court’s (UPC) Court of Appeal held on April 10, 2024 (UPC_CoA_404/2023) that a fair balancing of interests is required to decide on such requests. The interests of the parties, of the applicant and the public need to be considered. Also, the stage of the proceedings is to be considered:

• Specific interest required during pending proceedings

During pending proceedings access to the files may be granted immediately if the applicant has a specific interest in the subject-matter of the proceeding such as the validity of a patent (e.g., if the applicant is also concerned with it), or in case of alleged patent infringement. To protect the parties’ interests, access can be made subject to protective orders.

• Public interest may suffice after decision ended a case

Once a case is decided, the integrity of the proceedings does not weigh in anymore. It usually only plays a role during proceedings, meaning that the parties must be able to bring their arguments and evidence to be decided upon without interference from parties in the public domain. On the other hand, a general interest of a member of the public usually arises after a decision was rendered. That means access to the UPC’s court files will be much easier to obtain once a case has come to an end.

• Legitimate interests required if proceedings terminated without a decision

If proceedings have been terminated without a decision access to the files may be granted in case of overweighing legitimate public interests, which may be for example of scientific or educational nature.

Non-Technical Issues can be Decided without Technical Judges

Interestingly, the Court of Appeal also found that it may decide a case with three legally qualified judges only, provided that the subject matter is of a non-technical nature only, and no technical issues are at stake. This practice deviates from the explicit wording of Art. 9 (1) UPC-Agreement (UPCA), which provides for a Court of Appeal panel to consist of five international judges including two technically qualified individuals.

However, the judges considered Art. 9 (1) UPCA not being conclusive. They inferred this not only from various Rules of Procedure that allow for other panel compositions, but also from the general principles outlined in Art. 41 (3) UPCA, such as efficiency and cost-effectiveness, as well as a comparison with the practices in the participating Member States.

Comment

All in all, this decision is positive. On one hand it paves the way for more transparency of the UPC’s court proceedings. This allows scrutiny of the new court, which is very important for the public and potential litigants to build trust in this new venue.

On the other hand, the decision that purely legal questions may be decided by legally qualified judges of a panel only, enables the court to be very efficient in light of the raising number of UPC proceedings.

Endnotes

[1] UPC_ CFI_11/2023, dec. of Oct. 17, 2023 – Ocado v. Autostore.