UPC Court of Appeal issues fresh transparency blow

The Court of Appeal of the Unified Patent Court has ruled that members of the public cannot request access to court documents without first appointing a professional representative, in a decision likely to inflame ongoing transparency debates.

In a judgment handed down on Thursday, February 8, the court said it interpreted the Rules of Procedure (RoP) as clarifying that the requirement for a “party” to be represented also extends to members of the public when applying for access to documents.

This applies even when members of the public are not parties to the litigation.

The judgment is part of the ongoing Ocado v Autostore case, in which tensions around transparency continue despite the wider patent infringement dispute having been settled.

According to Judges Rian Kalden, Ingeborg Simonsson and Patricia Rombach, the requirement for members of the public to appoint a representative is not “unnecessarily burdensome”.

The judgment has yet to be published on the court’s website but was made available online by lawyers at Swedish firm Sandart & Partners, which is acting for Ocado alongside UK firm Powell Gilbert. Managing IP has asked the UPC when the ruling will be published.

Anna Bladh Redzic, attorney at Sandart & Partners, said on Linkedin: “A practical consequence of the decision is that members of the public, such as journalists, seeking to get access to documents not published by the UPC need to engage a UPC representative".

Transparency troubles

The judgment adds to debates surrounding who should get access to court documents and how readily available they should be.

Despite the infringement side of the Ocado case having been settled, the online supermarket had appealed against the UPC Nordic-Baltic Regional Division’s decision to grant third-party access to its original patent infringement complaint.

In January, the Court of Appeal ruled that two intellectual property firms that had attempted to intervene in the dispute – Mathys & Squire and Bristows – had failed to establish “a direct and present interest” in the case.

The firms had filed to intervene in the Ocado appeal as they believed the outcome of the case could have affected their own separate and ongoing applications regarding access to court documents.

Nicholas Fox, partner at Mathys & Squire in London, said: “Having to appoint a lawyer to make a document access request significantly increases costs and will bar most of the public from ever making an access request.

“This will reduce the number of access requests and adversely impact transparency. The Court of Appeal may consider that obligatory legal representation is not unnecessarily burdensome, but members of the public who will now have to pay for representation may think otherwise.”