The Court of Appeal of the Unified Patent Court has refused as inadmissible applications by law firms Mathys & Squire and Bristows to intervene in an appeal concerning public access to documents filed with the Court.
As is explained in a press release of Mathys & Squire, in October ‘the UPC’s Nordic-Baltic regional division granted a request by a member of the public to access documents filed at the court in a patent infringement action between Ocado and Autostore. However, access was stayed after Ocado asked the UPC Court of Appeal to overturn that decision, which conflicts with a narrower view taken by the UPC’s Central Division requiring members of the public to prove a “legitimate reason” in order to access such documents.
In November Mathys & Squire applied to intervene in the Appeal on the basis that Court of Appeal’s decision was likely to be determinative of a separate application for access to documents that Mathys & Squire has filed before the UPC’s Central Division. Bristows likewise applied to intervene in December in view of a pending request that the firm had filed for access to documents at the UPC’s local division in the Hague.’
As Nicholas Fox, partner of Mathys & Squire explained on this blog: ‘We are looking to clarify the Unified Patent Court’s Rules of Procedure and in particular we are looking to establish a precedent that written pleadings and evidence filed with the court should be available on request unless there are good reasons for keeping such documents confidential.’
Direct and present interest
However, this attempt to improve the transparency of the operations of the Unified Patent Court has failed. In its ruling, the Court of Appeal writes:
’12. An interest in the result of the action within the meaning of R.313.1 RoP means a direct and present interest in the grant by the Court of the order or decision as sought by the party, whom the prospective intervener wishes to support and not an interest in relation to the pleas in law put forward. It is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific request sought by the supported party, and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties. A similarity between two cases is not sufficient.
13. It may be that the outcome of this action before the Court of Appeal has an impact on the legal assessments that are to be made in the cases pending before the Munich Section of the Central Division and the Local Division The Hague. However, if it does, it will be because of the guiding effect of case-law alone. The applicants to intervene therefore are claiming only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties to this case.
14. This means that the applicants have failed to establish a legal interest in the result of the action before the Court of Appeal. The applications to intervene are inadmissible in substance.’
In reaction, Mathys & Squire concludes: ‘The Court of Appeal’s order sets an important precedent. It means that interventions in proceedings at the UPC will only be allowed in narrowly-defined circumstances. In adopting this narrow interpretation, the UPC Court of Appeal has adhered closely to the practice of the CJEU, where possibilities for interventions by third parties are very limited.’
What comes next?
The Munich section of the central division has stayed Mathys & Squire’s application to access for documents pending the outcome of the Ocado and Autostore Appeal. ‘We therefore have to wait for the outcome of the Ocado and Autostore Appeal until our application for access to court documents will proceed further.
If the Court of Appeal delivers a decision which provides wide-ranging guidance on the interpretation of the UPC rules on public access to documents, with reasoning which is applicable to most circumstances, this may resolve our concerns about the Court’s current restrictive approach to public access to pleadings and evidence filed with the Court.’ (…)
But for now, ‘concerns about the transparency of court proceedings at the UPC persist.
The original request for access to the Ocado and Autostore documents was filed by a member of the public in August last year. Although the Court of Appeal was to hold oral proceedings in mid-February, the hearing has now been rescheduled for mid-March and hence any decision by the Court of Appeal is unlikely to issue much before April. This means that it will have taken over 6 months for the UPC to process what should be a simple administrative request for access to court documents.
According to the UPC’s case management system, 13 applications for access to court documents have been filed since the UPC opened in June. Two of those requests have been rejected, leaving 11 still pending. To date, none of the applications have resulted in members of the public having sight of evidence and pleadings filed with the court.’
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This lack of transparency of the UPC should be considered contrary to its first goal (see page 1 of the Agreement): “the establishment of an internal market within the European Union characterised by the free movement of goods and services and the creation of a system ensuring that competition in the internal market is not distorted”.
In fact, the public must immediately know whether a European patent might be revoked, otherwise the “free movement of goods” would be impaired and the internal marked would be “distorted”.
There is absolutely no reason for a patent court (like a patent office) to keep its documents secret.
The lack of transparency of the UPC seems also to be contrary to articles 45 and 52.1 UPCA:
“45. The proceedings shall be open to the public unless the Court decides to make them confidential, to the extent necessary, in the interest of one of the parties or other affected persons, or in the general interest of justice or public order.”
“52.1 The proceedings before the Court shall consist of a written, an interim and an oral procedure,
in accordance with the Rules of Procedure. All procedures shall be organized in a flexible and
balanced manner.”
Therefore, also the written and interim procedures “shall be open to the public”.
Robot, I think that this is not the only instance where the UPC’s Rules clearly contradict the UPC Agreement. Another instance that springs to mind is the requirement in the Rules for an EP application to be published before it can be opted out of the exclusive competence of the UPC … despite the absence of any such limitation in Article 83 UPCA.
Looking at how the UPC has decided matters so far, I think that the court has already developed a worrying tendency to focus more on the Rules than the Agreement (or the UP Regulation, for that matter). If this continues, then there is much to worry about … given how easy it will be for the Rules to be amended in a manner lacking both transparency and, to the extent that any amended rules are (also) ultra vires, democratic legitimacy.
“I think that this is not the only instance where the UPC’s Rules clearly contradict the UPC Agreement”
How to rewrite the Legal Aid ban for small companies in the treaty with the Rules of Procedure:
https://www.stjerna.de/legaid/?lang=en
“However, the secret attempt to retroactively establish conditions compatible with Union law in that regard, by changing the Rules of Procedure is unlikely to work, since the Agreement on a Unified Patent Court still restricts legal aid to natural persons, which the Rules of Procedure, as lower-ranking law, cannot override.”
You sometimes wonder if the unelected “decision makers” behind the Rules of Procedure have a law degree to come to such legal absurdities.
Yes, this is worrying.
It also seems to me that the UPC Court of Appeal does not always respect Art. 9.1 UPC: “Any panel of the Court of Appeal shall sit in a multinational composition of FIVE (5) judges”
Am I missing something?
I am a German patent attorney. There is another transparacy problem with an old German juridical club (1938) which is named GRUR. The GRUR club is active in German Law. Most of the German judges in the range of trademark-, patent- and competition law are secrect GRUR members.
There are three DE-decisions concerning Mr. Grabinski than a German judge. According to them it is correct that the register of all GRUR members should not be disclosed to the public.
(I propose the following shortcuts “@wd” that the mentioned decisions could be found in combination with “keywords” by a search engine.) I filed a law suit to see the register of GRUR members. Here are the three former German decisions concernig Mr. Grabinski, the new UPC President:
1) @ww: Oberlandesgericht (OLG) Munich: + PatA – Z 2/11 – 21.06.2011 + schaafhausen +.
2) @ww: Bundesgerichtshof (BGH) Karlsruhe: + PatAnwZ 3/11 – 23.07.2011 + schaafhausen +
3) @ww: Bundesgerichtshof (BGH) Karlsruhe: + PatAnwZ 3/11 – 14.08.2012 + schaafhausen.
Mr. Schaafhausen is the GRUR vice president. There are new UPC judges who are secret German GRUR members (e.g. Mr. Bornkamm, Mr Meier-Beck – both members Advisor ommittee , and Mr. Zigann UPC judge, Local Dicision Munich). The GRUR club is no Golf club. Some of the parties filing a German law suit are best GRUR club friends of German judges (Erdmann, Ungern-Sternberg, Büscher, Ullmann, Bornkamm …) who are also GRUR members (@ww: BGH I ZR 58/00 – 05.03.2001 + selbstablehnung +). All judges of the first BGH Senat are GRUR members who tried to decide a case “GRUR v. Internet company” – I ZR 58/00.
There results the question whether the new UPC Judges possibly might be secret members of a German GRUR club.
If you become a member of GRUR, they distribute the membership list to their members on a yearly basis:
https://www.grur.org/en/about-us/membership.html
“Benefits for Members
GRUR members receive an annual, detailed, printed list of members containing the addresses, telephone numbers, fax numbers and e-mail addresses of the members”
But I guess you already know that.
Merci for the hint that any GRUR member receives the contact data of judges who are GRUR members. UPC Judge Mr Zigann – Local Division Munich – is a GRUR member (see UPC vita).
I am not a GRUR member because my petition of membership was rejected. Therefore, I filed three law suits to get a GRUR membership register:
a) at GRUR directly,
b) at GRUR member Leutheusser-Schnarrenberger – minister of the German Justice,
c) at the German Patent Bar which is a GRUR member .
I am a member of the Patent Bar. The fee for the Bar GRUR membership is payed with my fee which I have to supply to the Bar every year. I lost the three decisions because GRUR is a private club.
(I use “@ww” which is a hint that a document could be found by a search engine with + keywords +).
GRUR Transparency Register ? The German lobby register shows which association has contact to the German Goverment. GRUR is not mentioned in the lobby register (see my suit “b”) but this is not correct (@ww: + grur + transparency +).
Please note the UPC President Grabinski who has no contact to GRUR (see my suit “c” – PatAwZ 3/11) is the publisher of the new BECK magazine “GRUR Patent 2024” together with GRUR members Ohly, Büscher and other.
When it comes to infringement, there is no objection to keep commercial information away from the public. When it comes to interpretation of claims and/or prior art, the considerations of the parties and of the UPC panel should be public.
As some proponents would like the UPC to become the leading court in Europe, transparency is a must. Anything else is not acceptable.
A further aspect in which the RoP is in contradiction with the UPC is the status of patent attorneys who can assist representatives before the UPC.
According to Art 48(4) UPCA “Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure”.
According to R 292(2) “Such patent attorneys shall be allowed to speak at hearings of the Court at the discretion of the Court and subject to the representative’s responsibility to coordinate the presentation of a party’s case”.
This means that, at best, such patent attorneys will be considered as accompanying persons in the meaning of G 4/95, i.e. they have no procedural right to speak before the UPC.
That representatives of non-EPC countries might not be allowed to speak is acceptable, but that representatives according to Art 134 EPC are only allowed to speak at the discretion of the panel is not. One way to circumvent this Rule would be to qualify such patent attorneys as experts of a party.
The problem is that the RoP can be amendedbat will by the Administrative Committee of the UPC as there is in the UPC no provision comparable to Art 164(2) EPC which gives precedence to the EPC over the Implementing Regulations.
As the RoP have been concocted by a self appointed/coopted group of “experts”, the worse is to be expected. When the UPC was ratified, the RoP were not finalised. The national parliaments were thus coerced into buying a pig in a poke. When the EPC was ratified, the Implementing Rules were know.
Another discrepancy:
Art. 48(1) Parties shall be represented by lawyers authorised to practise before a court of a CONTRACTING
Member State.
Rule 286(1) representative pursuant to Article 48(1) of the Agreement shall lodge at the Registry a certificate that he is a lawyer authorised to practise before a court of a Member State of the European Union.
of course, many practices at the UPC may still seem immature and the future benefits uncertain, but consider that when the European community was founded, the usual sceptics used to write that large corporations would crush small businesses by taking advantage of larger markets and economies, and the same among the member countries, but we know that visionaries are rare while fake idealists abound and like to pose as statesmen