UPC Update

The UPC Court of Appeal has handed down a major ruling that decides on two important procedural questions for the new Court:
1. Access by third parties to documents.
2. Composition of the Court of Appeal.
Simon Ayrton, Tom Oliver and Joel Coles, partners at Powell Gilbert (Europe) LLP, were pleased to represent our client Ocado in the case before the Court.
Read their analysis of the decision here:
Access to documents
The Court of Appeal’s decision is a welcome clarification of previous conflicting first instance decisions.
As the Court of Appeal notes, Ocado’s position had been in favour of public access to documents where a case had been the subject of a judgment or order, or there was some private interest in the pleadings before any judgment or order. The Court of Appeal adopted these submissions, but went one step further and stated that public access to pleadings in settled proceedings, which had not even been the subject of any decision or order, is also permitted.
The approach of the Court of Appeal is also notable for taking an approach which does not neatly align with any of the member state’s national approaches, and therefore reflects the Court of Appeal’s independent approach to important issues.
However, the decision would not seem to open the door to wide ranging requests for access to documents whilst the proceedings are ongoing, unless there is some special interest in the documents being made publicly available.
Composition of the Court of Appeal
The Court of Appeal agreed with Ocado that for appeals concerning purely legal matters, it is not necessary for the panel to contain two technical judges. The Court of Appeal rejected the respondent’s arguments that the failure to appoint technical judges would amount to a breach of Art. 6 of the European Convention on Human Rights (right to a fair trial). As a sign of the international nature of the UPC, the Court of Appeal had regard to the practice of the national courts of several contracting states, including Denmark, Sweden, Finland and German. The Court of Appeal’s decision demonstrates a pragmatic approach to the application of the UPC Agreement.
Special thanks to our local counsel partners Anna Bladh Redzic of Sandart & Partners Advokatbyrå KB, and Anne Marie Verschuur and Bertrand ter Woort of De Brauw Blackstone Westbroek N.V.

Find out more about our patent litigation work before the UPC, here.