The Court of Appeal of the Unified Patent Court has ruled broadly in favour of allowing third-party access to court documents, in what was a closely watched dispute with transparency implications.
On April 10, the court dismissed Ocado’s appeal against the UPC’s Nordic-Baltic Regional Division’s decision to grant third-party access to a patent infringement complaint filed against AutoStore.
Both companies license their technology to retailers for online grocery shopping. However, despite the infringement side of the case having settled, the row over transparency and access to documents persisted.
The CoA said the balance of interest was in favour of allowing access. Rian Kalden, Ingeborg Simonsson and Patricia Rombach, who are all legally qualified judges, sat on the panel.
The original access request was filed by Christopher Stothers, a London-based partner at Freshfields Bruckhaus Deringer. Strothers had applied to see the statement of claim.
He cited Rule 262 1(b) of the UPC’s Rules of Procedure, which states that written pleadings and evidence lodged at the court shall be available to the public “upon reasoned request”.
Before the April 10 decision, the CoA ruled that members of the public cannot request access to court documents without first appointing a professional representative.
Stothers then lined up a host of IP firms and practitioners to represent him before the CoA.
They were Lionel Martin, partner at August Debouzy in Paris; Peter Thorniley, partner at Venner Shipley in London; Kristof Neefs, partner at Inteo in Brussels; and Jiri Slavik, an attorney at IP Duo in Prague.
Rutger Kleemans and Stephan Dorn, partners at Freshfields in Amsterdam and Düsseldorf respectively, also acted for Stothers.
Nicolaj Bording, partner at Kromann Reumert in Denmark, and Antonio Andrade, partner at Abreu Advogados in Lisbon also represented Stothers but did not attend the hearing.
Managing IP spoke to Martin at August Debouzy and Neefs at Inteo, as well as Stothers, about how they managed the case.
How did you come to act in this dispute?
Neefs: I like to think that when the CoA ordered Christopher [Stothers] to appoint a representative, he combed through the list of authorised UPC representatives on the case management system (CMS) and decided after careful review that I was one of the best for the job. Jokes aside, clearly there was some serendipity involved. I had been in touch with Christopher about a request for public access I had filed in another case. And when I read the CoA’s order requiring representation, I offered to assist. In fact, each of Christopher’s representatives has been involved in public access requests to the UPC in some capacity.
Martin: The starting point is for all of us to have attempted public access requests, mine succeeded before the Milan Local Division, and we exchanged between a number of representatives on those various experiences. Then, when Christopher received the order forcing him to appoint a representative, I volunteered. My goal was also to focus on the the composition of the panel, which did not include technically qualified judges (TQJs) at the appeal level.
Why is transparency at the UPC an important issue to you?
Neefs: To begin, I will admit that I am a curious cat. If I was not, I probably would not have engaged on public access before the UPC to the extent that I have. But the more important point is that open justice serves many purposes. It will increase confidence in the court, as the CoA has confirmed in its decision. It allows for scrutiny and discussion of the court’s decisions.
Considering that patents by their very nature affect more than just the parties to a particular dispute, transparency of pleadings offers important information on validity and infringement to third parties who may similarly be affected by the patent at issue. I remember counsel for Ocado submitted at the hearing that third parties may have an interest in validity arguments, but that is less so for an infringement action. I strongly disagree with that. In my view, validity and infringement are inextricably linked.
Martin: By training, I was first a European Patent Attorney with a strong opposition practice, and then I moved to more complex litigation with advocacy before the French national courts often involving parallel EPO oppositions. I have always found that register access resulted in fair litigation by not allowing some litigants to hide dust under the carpet depending on the forum used.
I also strongly believe that even before the start of any litigation, a properly working intellectual property environment should allow third parties to rightfully assess the rights of their competitors so that they can determine where further innovations are possible.
How did you prepare for the case?
Neefs: We had several Teams calls to discuss the approach to advocacy. We had a lot of clever brains contributing to the strategy. We decided how to allocate the oral advocacy while making sure everyone’s input was heard and valued to maximise the overall outcome.
Most of us hadn’t worked together before but this process ensured that we collaborated effectively without cutting across one another. Once we determined the key points we wanted to emphasise during the oral hearing, we drafted pleading notes in a shared document that we fine tuned in the week before the hearing. Then, we convened in a hotel close to the court the day before to discuss the final points. I think European patent lawyers and attorneys are used to working in international teams. That surely helps in situations like this one.
Martin: Just to add to Kristof’s very correct comment, while brainstorming and building the strategy within a pan-European team felt like a habit for everyone, I must admit that sharing a timed pleading with leaders from other firms was a very interesting experience for me. It was also very different from dealing with a pleading before the EPO where time is less constrained.
What was the CoA hearing like?
Neefs: Let me just say to everyone struggling with the CMS: the software in no way reflects the organisation of the court. The staff were incredibly punctual and well-organised. I wish I remembered the name of the clerk leading everyone to the hearing room—such a welcoming and friendly professional.
The panel came prepared with questions, so everyone knew what the court expected. I could not spot flaws in Judge Kalden’s management of the hearing. Finally, the opposing counsel did a great job in what I believe Christopher called a “well-fought yet courteous dispute”.
Martin: We all know that UPC judges and staff are experienced professionals and that was clearly visible in this case. The hearing was very smooth and well prepared by the judges. Judge Kalden steered the hearing efficiently while allowing every side room for pleadings. I am looking forward to more such high-quality hearings before the UPC.
What did you make of the ruling, does it give hope for future interested parties?
Neefs: Firstly, results matter. So, I was quite pleased that Ocado’s appeal was rejected. And I personally don’t really care whether it was three or five judges.
On the substance, and I stress that these are my personal views, I think the decision brings clarity, but it does raise new questions.
I am happy that the court essentially confirmed that public access is the rule and that denying access should be the exception. The Ocado decision clearly indicates that, for example, the rather restrictive initial orders by the Munich Central Division, including in the Sanofi v Amgen case, are not the correct approach under Rule 262.
I would have liked the criteria to be even more permissive. For example, is a balance of interests really required if none of the parties have requested confidentiality, considering Rule 262.6 only provides for such a balance once a party has requested information to be sealed? However, another positive point is that the court acknowledged that scientific and educational interests constitute a legitimate interest to request access.
It is interesting that the court has distinguished between proceedings that are still pending and those that have concluded. For the former, the court seems to require a more direct commercial interest in the patent. To me, that raises the question of whether a member of the public with such an interest has any way to request access to pending proceedings anonymously. Because a company concerned by a litigated patent will, for obvious reasons, not want to disclose that concern to the patentee.
All in all, the decision puts proponents of open justice in a better position than before. So yes, it gives hope for future interested parties.
Martin: This decision goes in the right direction, and it gives hope to interested parties. But the next frontier is to secure the right for those third parties to access case files, possibly anonymously, and without having to wait for the end of the case (even if the timing of a first instance ruling before the UPC is as short as one year, this may still be too much for an interested third party).
However, I am personally worried about the part of the decision regarding the composition of the panel without TQJs. There is a lot to digest from it, but the idea that TQJs are only optional judges at the appeal stage appears problematic to me and away from the spirit of the UPC Agreement.
While I concur that the TQJs have more added value on technical questions, I do not agree that they have no added value on legal questions. I strongly believe that having TQJs involved in the largest number of decisions adds quality and authority to the UPC’s appeal decisions. I fear there are only bad reasons to set TQJs aside. The UPC is great because it brings the best of every European litigation tool together, but I think that bringing legally trained and technically trained people together goes in this same direction of diversity, resulting in a better outcome.
How did you set up your team to manage the hearing?
Stothers: I was clear from the start that I wasn’t filing my request as a UPC representative. There is nothing on the face of the rules that says a member of the public needs to be represented when requesting access, but I was always conscious that a court might decide I needed to be represented (as it ultimately happened on appeal). So, I had been looking on the CMS at other requests for access made. Decisions and orders are anonymised under the General Data Protection Regulation, but the identity of those making requests is fully visible on the CMS.
I had therefore been in touch with Kristof, Lionel, and Peter [Thorniley] about their own requests, and with Jiri [Slavik] who had also been monitoring these cases and commenting on them. I also asked two colleagues at Freshfields to help, along with various contacts from other jurisdictions, which led to me adding Rutger [Kleemans], Stephan [Dorn], Nicolaj [Bording] and Antonio [Andrade] to the team.
There was a narrative developing that transparency is a “British” issue. I don’t think it is, so I was very keen to have a multi-jurisdictional team of lawyers and patent attorneys, and I was delighted that they were all able to help.
It was disappointing that I wasn’t able to have a better gender balance in the team in the time available, but I did try and will try harder in the next case.
To read the previous instalment of our ‘Behind the case’ series, in which we spoke to Haseltine Lake Kempner about the Lidl v Tesco trademark dispute at the England and Wales Court of Appeal, click here.
