UPC: Court of Appeal clarifies questions of public access to certain procedural documents

In its decision dated 10 April 2024 (UPC_CoA_404/2023, ORD_19369/2024), the Court of Appeal of the Unified Patent Court (UPC) ruled on the requirements for public access to written pleadings and evidence.

Based on the Rules of Procedure (RoP) of the UPC, decisions and orders of the UPC must always be published – subject to any necessary redactions, for example regarding personal data, see Rule 262.1(a) RoP (see also our blog post). The UPC has set up a separate page on its website for the publication of decisions and orders. The question of when the public not involved in the respective proceedings is granted access to procedural documents in the form of written pleadings and evidence is more difficult to assess. Rule 262.1(b) RoP provides in this respect that written pleadings and evidence submitted to the UPC and recorded by the UPC’s Registry are to be made accessible to the public upon a reasoned request addressed to the Registry. The decision to make them accessible is taken by the judge-rapporteur of the respective panel after hearing the parties. The Court of Appeal of the UPC has now commented for the first time on the specific requirements for making said documents available to the public.

Procedure and background

In relation to patent infringement proceedings before the Nordic-Baltic Regional Division (an overview of the UPC's locations can be found here), the UPC's Registry had received an application under Rule 262.1(b) RoP in which anonymous applicant requested access to the statement of claim and all decisions taken by the Nordic-Baltic Regional Division in these infringement proceedings as well as to the decisions in the parallel proceedings before the Düsseldorf Local Division and the Milan Local Division. In support of his request, the applicant stated, inter alia, that he was interested in the wording of the statement of claim filed with the Nordic-Baltic Regional Division, as it had been filed in parallel in proceedings before other local divisions, and that he considered that there was a general public interest in this information being made available to the public in order to open a discussion as the new court system was introduced and developed. The parties to the proceedings were given an opportunity to comment on the request by the applicant, as provided by Rule 262.1(b) RoP, including a possible application under Rule 262.2 RoP, which allows a party to request that certain information contained in written pleadings or evidence be treated as confidential. The plaintiff in the infringement proceedings objected to the request to make the statement of claim or the decisions accessible and requested that the request be rejected. It argued that Rule 262.1(b) RoP only referred to "written pleadings and evidence". The rule did not refer to the making available of decisions and orders. The applicant must wait for the publication of the decisions on the website like everyone else. In the case of written pleadings and evidence, Rule 262.1(b) RoP requires a "reasoned request", i.e. there must be a specific, verifiable and legitimate reason for making the documents available to a member of the public. A third party should not be permitted to use the pleadings, which have been prepared with care and at considerable expense, to assert its own economic interests, and the plaintiff has no opportunity to check how the knowledge gained from the review of its pleadings is applied in practice. In the event that the request for access to, inter alia, the statement of claim is granted, the plaintiff requested that access to the documents to the applicant be suspended pending the outcome of any appeal proceedings or, in the alternative, that the documents not be made available to the applicant until 21 days after a decision has been issued to ensure that the plaintiff has sufficient time to apply to the Court of Appeal for suspensive effect under Rule 223 RoP. The defendants in the infringement proceedings did not comment on the request by the applicant. None of the parties filed an application for protection of secrecy pursuant to Rule 262.2 RoP.

The decision of the Nordic-Baltic Regional Division

In its decision dated 17 October 2023 (UPC_CFI_11/2023, ORD_543819/2023), the Nordic-Baltic Regional Division first sets out in detail the legal framework relevant to the decision after the facts. In doing so, it first clarifies that according to Art. 10(1) sentence 3 of the Agreement on a Unified Patent Court (UPCA), the register kept by the Registry is public, subject to the conditions laid down in the UPCA and the Rules of Procedure. The Nordic-Baltic Regional Division then raises the question of whether Art. 10 UPCA also refers to the contents of the register. To answer this question, the Regional Division refers to Art. 45 UPCA, according to which the proceedings are public unless the UPC 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. The scope of application of Art. 45 UPCA is not limited to decisions, orders or oral proceedings, but refers generally to the proceedings as such. From this, the Regional Division concludes that, inter alia, the written procedure (for the individual stages of the proceedings before the UPC, see Art. 52(1) UPCA) is in principle also public, subject to any restrictions within the meaning of Art. 45 UPCA. This fundamental understanding must be taken into account in the requirements for the "reasoned request" under Rule 262.1(b) RoP. The term can also be found in other rules of the Rules of Procedure, such as Rule 9 RoP, according to which the UPC may shorten or extend time limits upon a reasoned request. In the context of Rule 262.1(b) RoP, "reasoned request" is to be understood as meaning that the applicant must provide a credible or plausible explanation as to why he is seeking access to pleadings and/or evidence. This interpretation is based on Art. 45 UPCA and is in line with Rule 262.6 RoP, which clarifies that the UPC will in principle grant the request for access to written pleadings/evidence irrespective of a possible request for confidentiality under Rule 262.2 RoP, unless legitimate reasons for confidentiality of the information invoked by the party concerned outweigh the applicant's interest in access to that information.

On the basis of this interpretation, the Regional Division granted the applicant access to the statement of claim. The Regional Division also rejected the request for access to decisions/orders in the parallel proceedings for lack of jurisdiction. The Regional Division leaves open whether it is in principle possible to obtain access to decisions/orders of the UPC that have not yet been published via an application under Rule 262.1(b) RoP.

Since the question of public access to documents under Rule 262.1(b) RoP is controversial, the Regional Division ordered that the application should not be made available to the applicant until 7 November 2023 – after redaction of personal data within the meaning of the GDPR – in order to give the plaintiff in the infringement proceedings the opportunity to lodge an appeal and to apply for suspensive effect of the appeal.

The interim decision of the Court of Appeal

The plaintiff in the infringement proceedings appealed against the decision of the Regional Division. Before the Court of Appeal ruled on the merits (see below), it ruled in its decision dated 8 February 2024 (UPC_CoA_404/2023, App_584498/2023) on whether applicants must be represented (by a lawyer) when filing an application under Rule 262.1(b) RoP. Both the plaintiff in the infringement proceedings and the applicant argued that representation was not required because the applicant was not a "party" to the proceedings within the meaning of Art. 48(1), (2) UPCA or Rule 8.1 RoP. The Court of Appeal, on the other hand, is of the opinion that the applicant of an application under Rule 262.1(b) RoP is also a "party" within the meaning of Rule 8.1 RoP. This follows, inter alia, from the fact that Rule 8.1 RoP only explicitly and conclusively excludes applicants of opt-out applications, applications for annulment or alteration of a decision of the European Patent Office (EPO) and applications for legal aid from the representation requirement, from which, conversely, it follows that the representation requirement applies to applicants in all other proceedings. The representation requirement also did not constitute an undue burden for the applicant, as it was only in the applicant's own interest to protect himself from possible consequences of procedural acts with the help of a representative. Accordingly, the Court of Appeal ordered the applicant to nominate or appoint a representative within 14 days and to submit an appeal response within the same period.

The decision of the Court of Appeal

In its decision dated 10 April 2024, the Court of Appeal rejects the appeal. First of all, the Court of Appeal states that it can decide on issues of a non-technical nature – as here l – in a composition of three legally qualified judges without the involvement of technically qualified judges. With regard to access to documents, the Court of Appeal states that the general principle follows from Art. 10 and Art. 45 UPCA that both the register and the proceedings are public, unless the balancing of the interests involved shows that the information introduced into the proceedings is to be treated confidentially. In the case of an application under Rule 262.1(b) RoP, the applicant's interest in access to the requested documents on the one hand and the interest of the party or parties to the proceedings in the protection of confidential information and personal data on the other must be weighed up. The general interest of justice and public order must also be taken into account. The general interest of justice includes the protection of the integrity of proceedings. Public order is affected, for example, if an application under Rule 262.1(b) RoP is abusive or security interests are at stake. In order to enable the judge-rapporteur deciding on the application to weigh up the interests, the application must be substantiated in accordance with Rule 262.1(b) RoP. According to the Court of Appeal, public access to documents enables, among other things, public scrutiny of the UPC, which is important for building trust in the UPC. This general interest of the public regularly exists in particular after a decision has been issued by the UPC, as the procedure and decision-making process of the UPC can be understood on the basis of the decision taken. The protection of the integrity of the proceedings regularly only plays a role until the proceedings are concluded, whether by a decision of the UPC or by other termination, e.g. by withdrawal of the action. If the protection of the integrity of the proceedings no longer plays a role, access to procedural documents – subject to any redactions – must be granted as a rule.

Irrespective of the situation of the termination of proceedings, according to the Court of Appeal, an applicant may also have a specific interest in access to the pleadings and evidence of a particular proceeding. This is particularly the case if he has a direct interest in the subject matter of the dispute, such as the legal status of a patent which also affects him as a competitor or licensee, or if the applicant uses or intends to use a similar or identical (allegedly) infringing product as the defendant in patent infringement proceedings before the UPC. If a member of the public has such a direct legitimate interest in the subject matter of a particular proceeding, this interest does not only arise after the conclusion of the proceeding, but can also exist during the ongoing proceeding.

Finally, the Court of Appeal clarifies that even if access to pleadings/evidence is granted, the UPC may, for the purpose of adequately protecting the integrity of the proceedings, make the granting of access subject to certain conditions, such as the obligation of the applicant to treat the pleadings and evidence to which he has been granted access confidentially as long as the proceedings have not been concluded.

Other relevant decisions

Prior to the decision of the Court of Appeal, the Central Division (Paris) of the Court of First Instance had already decided in March 2024 (UPC_CFI_262/2023, ORD_7460/2024) that, under Rule 262.1(b) RoP, access could only be granted to pleadings and evidence and not to other procedural documents, such as those relating to communications between the Registry and the parties to the proceedings. Similarly, in September 2023, the Central Division (Munich Section) had already decided (UPC_CFI_75/2023, ORD_552745/2023) and also commented on the interpretation of the "reasoned request" in this decision.

Outlook

With its decision, the Court of Appeal has strengthened the position of the public with regard to access to pleadings and evidence, even in proceedings that have not yet been concluded. Parties to the proceedings and their representatives are therefore well advised to protect confidential information in pleadings and/or evidence from (possibly unwanted) access by the public by means of appropriate applications, at the latest upon receipt of an application pursuant to Rule 262.1(b) RoP. It remains to be seen how the UPC will deal with applications for access to pleadings/evidence in ongoing proceedings and how it will decide on them. It is unlikely that a mere general interest in access will be sufficient. A specific or particular interest must be demonstrated, such as, for example, being affected by the patent in dispute.