Public access to UPC filings - Rule 262.1(b) RoP: Quo Vadis

Introduction

All decisions and orders of the UPC will be published on the UPC website. Quite a number can already be found there. In addition, every registered representative can see in the CMS which documents have been filed in a specific action.

Access to the actual content of those documents is quite a different matter. That is limited to the representatives appointed by the parties at hand. However, according to Rule 262.1(b) of the Rules of Procedure (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; the decision is taken by the judge-rapporteur after consulting the parties”. As such, third parties may under certain conditions also gain access to the contents of UPC filings. The first requests for public access to UPC filings have now resulted in a series of published orders by the UPC, which we discuss below.

Orders thus far

At present, there have been three published orders where the UPC has made a substantive assessment of a request for public access to UPC filings, dealing in particular with the question of what constitutes a “reasoned request” to meet the threshold set under Rule 262.1(b) RoP.

1. On 20 September 2023, the Central Division (Munich Section), in a decision by judge-rapporteur Kupecz, was the first to rule on a request pursuant to Rule 262.1(b) in Sanofi-Aventis Deutschland GmbH and others v. Amgen Inc.

The Applicant had requested access to all written pleadings and evidence. First, on behalf of an (unnamed) client and later, after the judge-rapporteur consulted the parties, in his own name. The Applicant stated a wish to form an opinion on the validity of the patent at issue.

The request was denied for lack of a reasoned request. According to the court, the term “reasoned” request in the context of Rule 262.1(b) RoP should be construed as a concrete, verifiable, and legally relevant reason, i.e. more than just any (fictitious) reason. The following points supported the decision:

• Article 58 UPCA ensures the protection of confidential information, thereby indicating that other interests beyond those of the applicant and involved parties, such as third parties and the prevention of evidence abuse, should be considered. All the more so since specific rules for safeguarding privacy and trade secrets are foreseen, the requirement of a reasoned request must therefore relate to the requested information per se.
• The legislative history and the relation between Rule 262.1(a) and 262.1(b) RoP. Unlike earlier drafts, current Rule 262.1 RoP no longer treats written pleadings and evidence as part of an "automatic access system", but rather as part of an "application-based system". This results in a situation whereby third parties can view the register and take note of the existence of documents but not of their contents. Granting access deviates from this principle and thus requires reasons.
• Openness of proceedings to the public under Article 45 UPCA means that the hearings are in principle open to the public, but does not imply that all documents must be accessible to the public.
• The restriction in Rule 262.1(b) RoP must be seen within the larger scheme of European law and national laws of the Contracting Member States, where there is no general right to public access to court files.

In view hereof, the Court dismissed the application, holding in concreto that “the 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”. There was no concrete and verifiable information underlying the request. The Court added that an opinion on the validity of a patent can be formed on the basis of its prosecution history and the prior art, without requiring access to the court file.

2. One day later, the Central Division of the UPC (Munich Section), in a decision by judge-rapporteur Kupecz, again ruled on a Rule 262.1(b) RoP request, in Astellas Institute for Regenerative Medicine v. Healios K.K, Riken and Osaka University.

Here, the Applicant requested a copy of the Statement of Revocation and a copy of the Letter of Service on the patentee, for stated reasons of education and training. One of the parties in the proceedings opposed this request, arguing that a third party should not have access to such thoughtful and costly pleadings for its own benefit, all the more when its use thereof cannot be verified.

The Court again rejected the request, finding that education and training purposes do not meet the requirement of a “reasoned” request. It reiterated, like in its first order, that “reasoned” should be understood as a concrete, verifiable, and legally relevant reason, i.e. more than just any (fictitious) reason. A legitimate reason in a particular case will have to be assessed on the basis of all the facts and circumstances of that particular case. The Court found that access to the pleadings is not useful and necessary for training and educational purposes, considering this could be achieved by…