Background

The appropriate standard to be applied when considering requests by third parties for access to written pleadings and evidence pursuant to Rule 262.1(b) of the UPC Rules of Procedure was an early point of contention in the UPC system.

The UPC Court of Appeal’s April 2024 decision in Ocado v Autostore provided some welcome clarity on this standard. Of particular note was the principle set out by the UPC Court of Appeal that once the proceedings concerned have come to an end the balance of interests between the third party seeking access to pleadings and evidence, and that of the parties themselves, would favour granting access.

A recent decision of the UPC Munich Central Division now appears to confirm that this principle will be followed in practice by the courts of the UPC.

The decision

The decision concerned an application under Rule 262.1(b) of the UPC Rules of Procedure made in November 2023 by Mathys and Squire to obtain all written pleadings and evidence filed in relation to Astellas v Healios (case number ACT_464985/2023), a revocation action concerning EP3056563. The Munich Central dDivision deferred its decision until the outcome of the UPC Court of Appeal’s decision in Ocado v Autostore. In the meantime, Astellas and the proprietors of EP3056563 reached an out of court settlement such that the proceedings terminated.

In accordance with Rule 262.1(b) of the UPC Rules of Procedure, before deciding on the request, the Munich Central Division first consulted the parties to the revocation action. Astellas opposed the request on the grounds that the applicant did not have any direct interest in the subject matter of the proceedings. The proprietors did not provide any observations. Astellas also requested that, in the event the court granted the request, certain information in the written pleadings and evidence relating to its product pipeline be kept confidential, pursuant to Rule 262.2 of the UPC Rules of Procedure.

The Munich Central Division considered the request to be allowable when applying the decision of the Court of Appeal in Ocado v Autostore. In particular, the court noted the principle established by the Court of Appeal that once proceedings have come to an end, the integrity of proceedings is no longer at stake and thus the balance of interests favours granting access to the written pleadings and evidence. The court also referred to Articles 10 and 45 of the UPC Agreement, which set out that the UPC Register and proceedings are in principle open to the public.

The court did, however, grant Astellas’s request for certain information in the pleadings and evidence relating to its product pipeline to be kept confidential. Therefore, only redacted versions of the pleadings and evidence in the case concerned were to be provided to the applicant.

Summary

This decision represents a fairly straightforward application of the UPC Court of Appeal’s decision in Ocado v Autostore, and seems to suggest that in general third parties can expect to obtain written pleadings and evidence relating to UPC proceedings once they have terminated, by a decision of the UPC or otherwise. Similar decisions granting access where proceedings have come to an end have also been reached by other divisions of the UPC (see ORD_39938/2024; ORD_39917/2024).

This decision also highlights that requests for certain information in such pleadings and evidence to be kept confidential will also, in general, be granted where credible reasoning is given by the party concerned.

It is less clear, however, how the UPC courts will treat requests for file access in cases where the proceedings are still ongoing, and where it is accordingly more difficult to weigh up the balance of interests between the parties and the applicant seeking file access.