UPC Court of Appeal
UPC_CoA_404/2023
App_584498/2023

ORDER
of the Court of Appeal of the Unified Patent Court
issued on 10 January 2024
concerning applications to intervene

HEADNOTES:
TWO APPLICATIONS TO INTERVENE IN AN APPEAL CONCERNING PUBLIC ACCESS TO THE REGISTER HAVE BEEN
REFUSED AS INADMISSIBLE DUE TO LACK OF LEGAL INTEREST IN THE RESULT OF THE ACTION PENDING BEFORE THE COURT
OF APPEAL

KEYWORDS: PUBLIC ACCESS TO THE REGISTER, APPLICATION TO INTERVENE; ADMISSIBILITY

APPELLANT / CLAIMANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE:
Ocado Innovation Limited
Represented by:
Anna Bladh Redzic Sandart & Partners Advokatbyrå KB
Simon Ayrton Powell Gilbert (Europe) LLP
Thomas Oliver Powell Gilbert (Europe) LLP
Joel Coles Powell Gilbert (Europe) LLP

RESPONDENT:
DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE:
(1) Autostore AS
(2) Autostore Sp. z o.o.
(3) Autostore System AB
(4) Autostore S.A.S.
(5) Autostore System GmbH
(6) Autostore System AT GmbH
(7) Autostore System Srl
(8) Autostore System S.L
Represented by:
Laura Ramsay Dehns
Annabelle Beacham Dehns

APPLICANTS TO INTERVENE:
(1) Mathys & Squire LLP
Represented by:
Nicholas Fox Mathys & Squire LLP
Alexander Robinson Mathys & Squire LLP
Andreas Wietzke Mathys & Squire LLP
(2) Bristows (Ireland) LLP
Represented by:
Gregory Bacon Bristows (Ireland) LLP
PANEL
Second Panel

LANGUAGE OF THE PROCEEDINGS
English

DECIDING JUDGES:
This order has been issued by the panel consisting of
Rian Kalden, presiding judge and legally qualified judge
Ingeborg Simonsson, legally qualified judge and judge-rapporteur
Patricia Rombach, legally qualified judge
after referral by the judge-rapporteur on the basis of Rule 331.2 RoP.

IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE
□ Date: 17 October 2023
□ Order no. 573437/2023/ UPC_CFI_11/2023 of the Nordic-Baltic Regional Division
(Judge Stefan Johansson)

POINT AT ISSUE
Applications to intervene

GROUNDS FOR THE ORDER
The action before the Court of Appeal, the applications to intervene and the views of Ocado and
the Respondent
1. With reference to Rule 262.1(b) RoP on public access to the register, the Nordic-Baltic
Regional Division ordered access for the Respondent to the statement of claim in
ACT_459791/2023, after redaction of personal data within the meaning of Regulation (EU)
2016/679.
2. Ocado has appealed the order.
3. On 22 November 2023, Mathys & Squire LLP lodged an application to intervene, bringing
forward the following grounds as regards the legal interest in the result of the action
before the Court of Appeal. Mathys & Squire LLP has applied to the Munich Section of the
Central Division of the UPC under R.262 RoP, requesting that the Court make available to
Mathys & Squire LLP all written pleadings and evidence filed in relation to ACT_
464985/2023 (UPC_CFI_75/2023). The application raises substantively identical issues to
the issues raised in the present appeal. Interpretation of R.262.1 RoP by the Court will be
determinative of the success or otherwise of the application before the Central Division
(Munich Section). Further, the proceedings in the Central Division in relation to the
application for access to documents in ACT_464985/2023 have been stayed pending the
outcome of the action before the Court of Appeal.
4. On 22 December 2023, Bristows (Ireland) LLP lodged an application to intervene, bringing
forward the following grounds as regards the legal interest in the result of the action
before the Court of Appeal. Bristows (Ireland) LLP has applied in action ACT_549536/2023
under R.262.1(b) RoP for access to the written pleadings and evidence lodged at The Hague
Local Division in that action on the basis that it wishes to understand the proper scope and
validity strength of the patent at issue. Having made such an application, and being aware
of the apparent divergences of approach seen in the decisions concerning R.262.1(b) to
date and that the outcome of the appeal will clearly have an effect on its own application,
Bristows (Ireland) LLP believes it has a legal interest in intervening.
5. Ocado, the Respondent and the Autostore companies have been given the opportunity to
be heard about the admissibility of the applications to intervene (R.314 RoP).
6. Ocado has submitted that Mathys & Squire LLP’s application to intervene should be
refused as being inadmissible. With reference to the legislative background of Part 5,
Chapter 6, Section 5 RoP, Ocado argues that Article 40 of the CJEU Statute has had an
influence on the UPC RoP’s requirements for intervention. Ocado takes the view that there
are good public policy reasons for an approach to interventions which means that a
proposed intervener’s interest in points of law being considered in the proceedings in
which the proposed intervener wishes to intervene, is insufficient to permit intervention
(Order of the Vice-President of the Court of 24 June 2021 in C-220/21 P(I) ratiopharm and
Others v Orion and Commission, EU:C:2021:521, para 18). According to Ocado, courts of
several Contracting Member States, such as the Netherlands and Sweden, require an
intervener to have a direct factual or legal interest in the outcome of the proceedings.

Ocado has expanded its arguments by saying that the ‘result of an action’ means the
operative part of the order, requiring the intervener to have a legal relationship with one
of the parties or the actual subject matter of the dispute of the action (e.g., a patent),
which could be directly affected by the operative part of the order or the enforcement of
the decision. The decision in the action before the Court of Appeal will not directly concern
Mathys & Squire LLP, and similarities in proceedings is an insufficient basis for an
application to intervene. Finally, Ocado has argued that there are very significant
differences between the facts of Mathys & Squire LLP’s application under R.262.1(b) RoP
and the facts of this appeal.
7. Ocado has not reacted to Bristows (Ireland) LLP’s application to intervene.
8. The Respondent has had no objection to the applications to intervene. According to him,
the meaning of the proceedings being open to the public under Article 45 UPCA (the
proceedings under Article 52 consisting of a written, an interim and an oral procedure),
and the interpretation of R.262 RoP on public access to the register, are matters of
importance to a broader public than the parties to these particular proceedings.
9. The Autostore companies have not reacted to any of the applications to intervene.
Reasons for the order
10. Pursuant to R.314 RoP, the judge-rapporteur shall decide on the admissibility of an
application to intervene by way of order. Under application of Rule 331.2 the judge-
rapporteur has referred this order to the panel.
11. While all the formal requirements for the applications to intervene have been met (R.313.2
through 313.4 RoP), the question here is whether the applicants have established a legal
interest in the result of the action before the Court of Appeal (R.313.1 RoP). This is a
substantive test that must be met for an application to intervene to be admissible.
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 whishes 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
similiarity 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.

ORDER
The Applications to intervene are refused as inadmissible.
Issued on 10 January 2024

NAMES AND SIGNATURES
Judges
Presiding judge: Rian Kalden
Legally qualified judge and judge-rapporteur: Ingeborg Simonsson
Legally qualified judge: Patricia Rombach