The recent decision by the UPC Court of Appeal in the Ocado v Autostore case seems unlikely to be the final word in the debate about the delicate balance between public access to court documents and the privacy of litigants within the UPC system. This case, coming after conflicting first instance court rulings on the same issue, involved a member of the public seeking access to the statement of claim. Their argument hinged on the importance of public scrutiny for ensuring the proper functioning of the UPC.

Breaking down the decision

Currently, the UPC rules of procedure requires any member of the public seeking access to court documents to file a reasoned request.

These rules differ from the original draft rules of procedure, which allowed public access to court file documents unless there were specific reasons for maintaining confidentiality, and were changed in part due to a concern over the effects of data protection law (GDPR).

The decision of the UPC Court of Appeal steers a nuanced course, navigating a path between full and real-time transparency of court proceedings and total privacy for the litigating parties. While the court acknowledges the principle of open court proceedings, including written pleadings and evidence, it weighs this against competing interests, specifically:

• Safeguarding confidentiality: The UPC has established procedures to ensure that confidential information within court documents remains protected.
• Protecting the integrity of proceedings: The court expresses a significant concern that completely free public access during ongoing litigation could compromise the court’s impartiality due to the potential for external pressure.
• Public order: This broader concept encompasses societal interests that could be impacted by unfettered open access. The court suggested that abusive requests or security interests may fall under this heading.

The court decided that the reasoned request to be submitted by the person seeking access to the documents must explain the purpose of the request and why access to the documents is necessary for that purpose.

The court considered that public access to the court documents should usually be different for ongoing proceedings compared with concluded proceedings:

• Concluded proceedings: Access is generally granted, even when the sole reason is a general public interest in scrutinising the UPC’s processes. This applies even to settled cases and to the first instance file for decisions, which are under ongoing appeal.
• Ongoing proceedings: Here, the threshold for access is considerably higher. A party seeking access must demonstrate a “direct legitimate interest”, such as being a competitor concerned about the patent’s validity or facing similar infringement issues themselves. Even when access is granted, the court might impose confidentiality restrictions on how the information can be used.

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.

The balancing act and lingering questions

It is clear that the timing of the request for access is crucial. Accessing documents during ongoing proceedings may prove challenging. We also face the potential incongruity of UPC trials that are themselves open to the public but with restricted public access to the documents setting out the core arguments and evidence underpinning the case.

A competitor seeking access to court documents for ongoing proceedings based merely on a generic interest in patent validity or the scope of protection of a patent is unlikely to succeed without revealing potentially commercially sensitive reasoning. However, a party with a demonstrably direct and legitimate interest, such as one who previously opposed the patent at the European Patent Office (EPO), might have a stronger case for access.

That said, access becomes more straightforward once the relevant UPC court has issued a decision on the merits of the case.

While the Court of Appeal’s decision offers a nuanced and pragmatic approach, there is now a clear restriction on the transparency of ongoing UPC proceedings compared to some national courts or the EPO.

The court’s apparent concern lies in the potential for open access to pleadings and evidence to invite external influence or interference during ongoing litigation. However, such concerns do not cause obvious problems in other jurisdictions with open access policies. This approach might be a temporary measure intended to safeguard the UPC during its early stages of development.

Moving forward: practical considerations and international comparisons

While the immediate reactions to the court’s decision have been broadly positive, they are tempered by the national traditions of commentators. There is a recognition that the amendment to the rules of procedure requiring a “reasoned request” is not the court’s fault, and they are tasked with finding a workable way to implement these rules. We can expect future cases to explore further the bar for accessing documents at an early stage of UPC proceedings. These cases will have a significant impact on shaping the transparency landscape within the UPC system, and it seems likely that the Court of Appeal will revisit this issue in due course.

It is noticeable that in their published orders and decisions on ongoing cases, the various divisions of the UPC try to set out in detail the relevant background of the case, including a summary of the arguments and evidence set out by the opposing parties. This is helping to provide a clearer view of the evolving procedure of the UPC and details of the specific cases, even without access to the other court documents.

The UPC’s approach to public access to court documents needs to be considered within the broader context of international intellectual property litigation. There are concerns that the UPC’s current approach may mean that parties prefer to use national courts for litigating their European patent disputes, opting for a devil-you-know approach.

However, as the jurisprudence of the UPC develops and matures, we are hopeful that the court will have increasing self-confidence in its impartiality and quality of decision-making that public access to court documents can become more routine at earlier stages of UPC proceedings.

Matthew Naylor is a partner and patent attorney at Mewburn Ellis.