The Unified Patent Court (UPC) has granted IP law firm Mathys & Squire access to evidence relating to a life sciences case it had requested as a test case to assess the transparency of the new court.

In November the UK-based firm applied for access to pleadings and evidence concerning the case between pharmaceutical companies Astellas Institute for Regenerative Medicine and Healios at the Munch section of the Central Division (UPC_CFI_75/2023).

In recent decisions the UPC had been restricting the access of third parties to pleadings and evidence that should have been accessible on request, says the firm.

Nicholas Fox, partner at Mathys & Squire, said the firm was “delighted that the Unified Patent Court has finally granted our request to access the pleadings in this case”.

However, he pointed out that it had taken more than eight months for the court to process the request. “The exceptionally slow processing of the request has delayed our access until after the underlying case was settled,” he said.

He added: “The way in which our request has been processed still raises significant concerns about the UPC commitment to transparency and open justice.”

Fox noted that Judge-Rapporteur Andràs Kopeck had previously stated an intent that the access request would be processed “expeditiously” as soon as an appeal relating to another document access request had been concluded. 

He added that those “appeal proceedings concluded on 10 April and yet the court has taken more than four months to process our application and issue a decision granting our access request”.

So far, the UPC has yet to grant access to written pleadings and evidence in a case prior to an underlying matter being concluded.

The court’s approach has prompted a well-publicised debate surrounding third-party access to UPC court documents and the filing of a number of test cases.

The Mathys & Squire team was involved in a similar test case involving Ocado and Autostore in a patent infringement dispute relating to robotic warehouses. A number of parties requested access to documents in these proceedings including representatives from Bristows and Freshfields Bruckhaus Deringer.

In April, the UPC Court of Appeal dismissed Ocado’s appeal, allowing members of the public to obtain pleadings for the purposes of genuine interest or for educational reasonings.

Matthew Naylor, partner and patent attorney at Mewburn Ellis, writing for the Global Legal Post about the Ocado test case, said the UPC’s approach to public access to documents was evolving as it attempts to balance confidentiality and transparency.

He noted: “In the Ocado v Autostore case, since the proceedings had concluded (by settlement), the request for access to the statement of claim was successful. Had the infringement proceedings been ongoing, it seems clear that the court would have decided not to grant access on the basis that the party requesting the documents could not demonstrate a direct legitimate interest.”