Transparency in the UPC: The first case law

Transparency in the UPC: The first case law

In some of its very first decisions, the recently established Unified Patent Court clarified how third parties can gain access to written pleadings and evidence that was lodged by parties to the proceedings.

The Unified Patent Court (“UPC”) is up and running since the 1^st of June 2023. It is the first court in civil and commercial matters that is composed of judges from different EU member states before which companies, non-commercial organizations and individuals can litigate.

From the outset, the UPC put a significant focus on public transparency with respect to proceedings before it.[1] This is made clear by the public nature not only of the oral hearings but also of the registry,[2] including decisions and orders.[3]

Moreover, the Rules of Procedure of the UPC provide that upon “reasoned request” even the written pleadings and evidence submitted by the parties during proceedings can be consulted by third parties.[4] The Rules thus provide that a request must be “reasoned”,  which raises the question when a request is considered to be “reasoned”.

In a first decision, that bore the mystical case number “1/2023”,[5] the Central Division of the Court of First Instance in Munich had to deal with the concept of a “reasoned” request. According to the Court, a reasoned request is a request that contains a reason that is “concrete, verifiable and legally relevant”. In other words: a “legitimate” reason. The reason invoked by the applicant – a natural person – was its wish to form an opinion on the validity of the patent out of a personal and a professional interest (since he was a patent attorney). The Court stated that such “wish” did not constitute a legitimate reason c.q. a reasoned request.

In another relevant decision handled by the Central Division in Munich,[6] the applicant filed a request invoking the reason that he wanted to be informed on the proceedings for purposes of education and training. According to the Court, this reason was again not sufficiently concrete and verifiable to obtain access to the written pleadings and evidence. More specifically, the Court held that it could not be verified whether the applicant would use the information for other (commercial) purposes. In addition, the Court emphasized that personal education and training is also possible by consulting the patent grant history or the orders and decisions which are publicly available.[7]

According to this early case law, it appears that the UPC refuses to establish a general right of access for the public to the complete case – as before the European Patent Office (“EPO”) – and thereby safeguards confidential information and personal data in written pleadings and evidence. This seems to be a correct balance to avoid prying eyes.

Although this outcome may sound restrictive to those used to practicing before the EPO, it is in line with the national practice before the Belgian courts in patent proceedings, where written pleadings, evidence and exhibits are in principle also not made available to third parties.

In both orders leave to appeal was granted. In case of appeal it remains to be seen whether the UPC Court of Appeal in Luxembourg shares the same vision as the Court of First Instance.

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[1] And particularly the Agreement on the UPC (“UPCA”).

[2] Articles 45 and 10 UPCA; Rule 115 Rules of Procedure of the UPC.

[3] Rule 262 Rules of Procedure of the UPC.

[4] Rule 262.1(b) Rules of Procedure of the UPC.

[5] In full: UPC_CFI_1/2023 related to UPC case no. 459505/2023 (Sanofi/Amgen).

[6] UPC_CFI_75/2023 related to UPC case no. 464985/2023 (Astellas Institute for Regenerative Medicine/Healios K. K. e.a).

[7] Rule 262.1(a) Rules of Procedure of the UPC.