Currently, written pleadings and evidence filed by the parties in UPC actions are not published. Only the decisions and orders issued by the UPC itself are published by default.

However, Article 45 of the UPC Agreement (UPCA) sets an overarching principle for the open conduct of proceedings, and Rule 262.1(b) of the Rules of Procedure (RoP) provides a mechanism by which written pleadings and evidence may be requested:

Article 45 UPCA: “(t)he 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”.

Rule 262.1(b) RoP: “written pleadings and evidence, lodged at the Court and recorded by the Registry shall be available to the public upon reasoned request to the Registry”.

These provisions may be applied flexibly, and do not expressly stipulate what factors may be relevant to establishing a “reasoned request”. The standard for access to pleadings varies markedly across the national courts of the 17 UPC jurisdictions, and the UPC judges come from different backgrounds: this has led to divergent approaches to public access in first instance decisions.

On 10th April 2024, the UPC Court of Appeal (CoA) in UPC_CoA_404/2023 upheld the Nordic–Baltic Regional Division’s (RD’s) order to grant a request for public access to written pleadings and evidence from the Ocado v Autostore proceedings (UPC_CFI_11/2023). This CoA decision set the standard for increased transparency at the UPC and has taken a step towards settling the divergent approaches towards public access in prior UPC cases.

To understand the teachings of this CoA decision, we shall consider the order of the Nordic–Baltic RD and four further orders issued by other Divisions of the Court of First Instance (CFI):

1. On 20th September 2023, the Munich Central Division (CD) rejected a request for public access to written pleadings and evidence relating to the revocation proceedings between Sanofi v Amgen (UPC_CFI_1/2023).
2. On 21st September 2023, the Munich CD rejected a further request, in relation to the revocation proceedings between Astellas v Healios (UPC_CFI_75/2023).
3. On 17th October 2023, the Nordic–Baltic RD granted a request for public access in Ocado v Autostore, which was later the subject of the CoA decision (see links above).
4. On 1st December 2023, the Milan Local Division (LD) granted access to documents concerning ex-parte proceedings in Progress v AWN (UPC_CFI_287/2023).
5. Lastly, on 24th April 2024 the Paris CD granted access to written pleadings and evidence in relation to the revocation proceedings between NJOY v Juul (UPC_CFI_316/2023), after the CoA decision was issued.

In determining whether access to pleadings should be granted, the Court might consider: who is making the request, why is access being requested, what is being requested, and when can access be given?

Who is making the request?

The identity of the applicant has generally not been considered relevant when submitting a Rule 262.1(b) request, and indeed most of the applicants thus far have been anonymous.

The applicants of the rejected requests pursuant to Rule 262.1(b) in the earlier Sanofi v Amgen and Astellas v Healios proceedings at the Munich CD were anonymous. In these instances, when both parties were consulted, the claimant in each case raised an objection.

However, the applicants requesting access to documents under Rule 262.1(b) in the subsequent Ocado v Autostore and Progress v AWN cases were also anonymous, and in both of these cases, access was granted. The decision to grant access in Ocado v Autostore was upheld in the CoA decision.

Despite anonymous applicants being granted access under Rule 262.1(b), the CoA nevertheless indicated that the reason behind and the timing of a request – the ‘why’ and ‘when’ factors – can make the identity of the party relevant. For example, if the applicant is party to related proceedings, then their identity would be relevant to explain why they require access, and this may weigh in a party’s favour when the Court considers the request. In Oerlikon v Himson (UPC_CFI_240/2023), somewhat unusually, a representative of the defendant in the proceedings requested access under Rule 262.1(b). This was rejected as the applicant was not a “third party”.

Why is access being requested?

Early orders regarding access to documents did not set uniform criteria for assessing whether the reasons behind a request – the ‘why’ – were adequate.

In Sanofi v Amgen, the Rule 262.1(b) applicant requested access to all written evidence and pleadings because they “wish(ed) to form an opinion on the validity of the patent under consideration” (page 6, 2nd paragraph under “No legitimate reason in present case”). The Munich CD concluded that “(t)he mere ‘wish’ from a natural person to form ‘an opinion’ on the validity of a patent out of a ‘personal and a professional interest’ cannot be accepted as a sufficiently concrete, legitimate reason to make available all pleadings and evidence in this case” (page 6, 3rd paragraph under “No legitimate reason in present case”, of the English version of the order).

The Munich CD reaffirmed its position on the meaning of a reasoned request when they rejected the request for access to the statement for revocation and the letter for service on the patent proprietor in Astellas v Healios. The applicant had requested access for the “purposes of education and training” (page 3, 2nd point under “Summary of the facts”). The Munich CD stated that “Rule 262.1(b) RoP requires a concrete and verifiable, legitimate reason for making available written pleadings and evidence upon a request by a member of the public. To be informed of the proceedings before the Unified Patent Court for the purposes of education and training is not a legitimate reason as required by Rule 262.1(b) RoP. It is also insufficiently concrete and verifiable” (see headnotes of the English version of the order).

The Ocado v Autostore infringement action was brought to the Nordic–Baltic RD alongside parallel proceedings at other Divisions. The applicant requested access to documents as they were “interested to see how the claim filed in the Nordic–Baltic division was framed, particularly since it was filed in parallel with cases in other divisions, and [believed] there is broader public interest in this information being made available for public scrutiny and discussion as the new court system launches and develops” (page 3, 3rd paragraph under “Summary of the facts” of the English version of the order). The claimant (Ocado) raised an objection to this request, citing the two orders of the Munich CD discussed above in support. However, the Nordic–Baltic division concluded that a “reasoned request” meant that “the applicant needs to provide a credible explanation for why he/she wants access to the pleadings or evidence” (page 4, paragraph 4 under “Legal framework”). The Nordic–Baltic RD found the reason submitted by the applicant to meet the “credible explanation” standard and granted the request. Ocado then appealed this order.

In its decision, the CoA concluded that a reasoned request “means a request that not only states which written pleadings and evidence the applicant wishes to obtain, but also specifies the purpose of the request and explains why access to the specified documents is necessary for that purpose, thus providing all the information that is necessary for the judge-rapporteur to make the required balance of interests mentioned in Art. 45 UPCA” (point 44).

This view was applied by the Paris CD in its order relating to the NJOY v Juul proceedings. In this case, Nicoventures Trading Limited requested access to documents because the patent at suit in these UPC proceedings was the subject of parallel proceedings at the EPO and the claimant’s arguments at the UPC would affect the applicant’s position in the EPO proceedings. Citing the CoA decision, the Paris CD granted this request pursuant to Rule 262.1(b), concluding that the applicant had put forth a sufficiently reasoned request, at least for some of the documents requested.

What is being requested?

The mechanism for requesting public access provided by Rule 262.1(b) RoP has been deemed to apply to written pleadings and evidence only.

The Rule 262.1(b) applicant in the Astellas v Healios proceedings at the Munich CD sought access to the Statement for revocation and the Letter for Service on the Patent Proprietor. The Munich CD decided that, in addition to a lack of legitimate reason, there was also no legal basis for access to the Letter for Service as it was neither “pleadings” nor “written evidence”.

The Rule 262.1(b) applicant in the NJOY v Juul proceedings at the Paris CD requested access to all written pleadings and evidence as submitted by both sides, court-generated documents, and all future materials submitted in relation to the ongoing revocation action. Citing the well-reasoned request of the applicant, as discussed above, and the recent CoA decision, the Paris CD division granted the applicant’s request for access to all written pleadings and evidence on the register.

However, the Paris CD reasoned that in the absence of any legal basis they could not make the court-generated documents public and rejected that part of the request. Furthermore, in relation to public access to all future materials, the claimant (NJOY) raised an objection arguing that “(t)his would be excessively broad and contradicts the wording of Rule 262.1(b)” (see “Claimant’s Arguments” of the English version of the order). On this point, the Paris CD agreed with NJOY as “a balancing of interest as required by R.262.1(b) RoP and Art. 45 UPCA would not be possible” (see “No access to future Documents”), so this part of the request was similarly rejected.

When can access be given?

As mentioned by the CoA and the Paris CD, public interest in gaining access to written pleadings and evidence generally arises following the publication of a decision. Therefore, public access to documents is usually given after the close of proceedings. However, the Paris CD order suggests that, with a sufficient and time-sensitive reasoned request, public access can be granted while proceedings are ongoing.

In the case of Progress v AWN at the Milian LD, the ex-parte order had already been issued and published. Therefore, public access was given after the close of proceedings.

In Ocado v Autostore, the CoA agreed that “a member of the public generally has an interest that written pleadings and evidence are made available. This allows for a better understanding of the decision rendered, in view of the arguments brought forward by the parties and the evidence relied on. It also allows scrutiny of the Court, which is important for trust in the Court by the public at large. This general interest of a member of the public usually arises after a decision was rendered. At this point, there is a decision that needs to be understood and the handling of the dispute by the Court can be scrutinised.” (point 47).

The Rule 262.1(b) request at the Paris CD was made while the NJOY v Juul revocation action proceedings were still ongoing. As the applicant’s request was fuelled by an interest in parallel proceedings at the EPO, the court considered the applicant’s request to be time sensitive and granted immediate access. To reconcile this decision with that of the CoA, the Paris CD summarised this point with the following statement: “while the interest of the general public usually arises after a decision was rendered ((point) 47 of the above cited CoA decision), the Applicant’s interest is more specific in that it is present already immediately. Were the access to the file granted only after the decision, the claimant might not be able to use this information in the EPO proceedings due to timing issues.” (Page 6, under “Immediate Access”).

Liberalising access

The decision issued by the CoA on 10th April 2024 has provided clarity on the main criteria that are relevant to a Rule 262.1(b) request for public access. When considering a request, the Court has generally not considered the identity of the applicant to be relevant. Instead, the main criterion that the Court has generally considered to be relevant is the reason behind the request, or in other words, the purpose of the request and why access is necessary. The Court is also likely to consider which documents are being requested, as Rule 262.1(b) has been held to make available written pleadings and evidence only. Lastly, the Court considers that, usually, access will be requested following the close of proceedings but is likely to consider a sufficient and time-sensitive request for access to written pleadings and evidence from ongoing proceedings. As future orders and decisions are issued by the UPC, it will be interesting to see how the interplay between these different criteria is further clarified.