UPC court of appeal's narrow interpretation raises concerns in transparency test case

The Unified Patent Court (UPC) Court of Appeal's recent dismissal of interventions by two law firms in a crucial test case has raised concerns over transparency. The case involves public access to documents filed with the court, particularly in a patent infringement action between Ocado and Autostore.

In October, the UPC's Nordic-Baltic division granted public access to documents, but Ocado appealed to the UPC Court of Appeal, challenging the decision. Two law firms, Mathys & Squire and Bristows, sought to intervene in the appeal. However, the Court of Appeal interpreted the rules on intervention narrowly, limiting it to cases where a third party has a direct interest in the wording of an order the court might issue. Both applications were rejected based on the grounds that an interest in a decision based on "similarity between two cases" was insufficient.

Alexander Robinson, Partner at Mathys & Squire, expressed disappointment but noted the order's significance, setting a precedent for narrowly-defined interventions. This decision prompts questions about the speed and transparency of the court, as the original request for document access was filed in August, and the Court of Appeal's decision is not expected before April.

The delay impacts Mathys & Squire's application to access documents in a separate case pending the outcome of the Ocado and Autostore appeal. Additionally, concerns arise regarding the court's reliance on submissions not forwarded to Mathys & Squire's representatives, raising doubts about the court's commitment to transparency.

Nicholas Fox, Partner at Mathys & Squire, expressed concerns about the court's attitude to transparency, emphasizing the importance of clarifying the oversight. With the final decision expected in Spring 2024, the case highlights challenges in balancing transparency and legal processes within the UPC.