This access generally includes all submissions made in relation to the application or patent, with only the most sensitive confidential information excluded. Furthermore, such file access is made available on the EPO website, with no request required to access specific documents. For example, where a European patent has had opposition proceedings brought against it at the EPO, third parties are able to access not only the decision of the opposition division but also the submissions of the opponent(s) and patentee, and the written evidence relied upon. This is not, however, the situation before the Unified Patent Court (UPC).

While orders and decisions of the UPC are publically available on its website, written pleadings and evidence filed during proceedings are not automatically made public. Rule 262.1(b) of the UPC Rules of Procedure instead requires third parties wishing to gain access to written pleadings and evidence to make a “reasoned request” to the court. A decision on whether to provide the requested documents is also only issued after consulting the parties involved in the proceedings.

The question of what constitutes a reasoned request has been considered in three recent orders of the UPC Courts of First Instance. Unfortunately, however, these orders contain conflicting guidance.

Specifically, the most recent of the orders made by the Nordic-Baltic Regional Division in Ocado v Autostore (UPC_CFI_11/2023) appears to go against the reasoning underlying two earlier orders of the Munich Central Division in Astellas v Osaka (UPC_CFI_75/2023) and Sanofi v Amgen (UPC_CFI_1/2023). This means we have an apparent early divergence in how different divisions of the UPC are interpreting Rule 262.1(b) of the Rules of Procedure.

Background

The EPO provides essentially unrestricted file access to third parties. Unrestricted file access is, however, not a uniform feature of court systems across the UPC member states. In Germany, for instance, third parties cannot rely on automatic access to court documents and must demonstrate a legitimate interest in order to gain access to files relating to litigation. Access to court documents is yet more restricted in the Netherlands, whose national law does not provide for third party access to case files at all.

Perhaps given the variance surrounding file access in the UPC member states, the extent to which third parties would be allowed access to documents of proceedings at the UPC was a relatively contentious point of discussion during the drafting process of the UPC Rules of Procedure. Notably, the requirement that a reasoned request be made by third parties who wished to gain access to UPC case files was only introduced in the final draft of the UPC Rules of Procedure; the position in previous drafts had been that such pleadings and evidence would automatically be made publically available.

Given that the term “reasoned request” is relatively open to interpretation it remained to be seen, following the entry of the UPC into force, how the judges of the new court (which are drawn from the UPC member states) would in practice apply this requirement when deciding whether to grant file access. A distinct possibility was that UPC judges would fall back on the national law and practices with which they are familiar, resulting in a so-called “couleur locale” developing in the different divisions of the Courts of First Instance.

This possibility appears to have been borne out in the approach taken by different divisions when considering requests under Rule 262.1(b) of the UPC Rules of Procedure. In particular, in two orders given by the Munich Central Division in Astellas v Osaka and Sanofi v Amgen, the court rejected requests for file access according to Rule 262.1(b) of the UPC Rules of Procedure that were made for the purposes of “education and training” and out of interest “in the patent at issue and its legal validity (or lack thereof)”. In contrast, a later order of the Nordic-Baltic Regional Division in Ocado v Autostore allowed access to the statements of case where the request for access was based on an interest in how the claim was framed.

Munich Central Division: Astellas v Osaka and Sanofi v Amgen cases

In rejecting the request for file access, in both the Astellas v Osaka and Sanofi v Amgen cases, the Munich Central Division’s reasoning relied heavily on an examination of the drafting history of Rule 262 of the UPC Rules of Procedure. The court noted that the final version of Rule 262 of the UPC Rules of Procedure was amended to make a clear distinction between decisions and orders, which shall be published, and written pleadings and evidence, which are only to be made available to third parties upon a reasoned request. The court did not consider the intention behind this change to be merely the prevention of automatic publication of all pleadings and evidence, but instead to result in an application-based system where a legitimate reason would be needed to access documents. The court concluded that a “concrete and verifiable, legitimate reason” is required to gain access to written pleadings and evidence pursuant to Rule 262.1(b) of the UPC Rules of Procedure.

The court held in both cases that the requests made by the third parties did not meet this standard.

In Astellas v Osaka the third party’s request for file access was justified on the basis that the applicant wished “to be informed of the proceedings before the Unified Patent Court for the purposes of education and training”. The court held that this was not a legitimate reason to obtain access to the pleadings and evidence, stating that the third party could instead achieve this purpose through reviewing the orders and decisions of the court, which as noted above are made publicly available.

In Sanofi v Amgen, the third party’s request was justified on the basis that one of the applicant’s clients was interested in “the patent at issue and its legal validity (or lack thereof)”. The court considered this statement to be lacking in concrete information that would allow an assessment of whether the third party indeed had a legitimate reason to access the information requested. In particular, the court held that a wish to form an opinion on the validity of a patent out of a personal or professional interest was not a sufficiently concrete and legitimate reason to gain access to pleadings and evidence. Explaining its position, the court reasoned that such an opinion could be formed by studying the patent itself as well as the prosecution history and relevant prior art, without needing access to the pleadings and evidence submitted in relation to a particular revocation action.

It is noteworthy that in each case the Munich Central Division took a relatively hard line on the meaning of “reasoned request” in Rule 262.1(b) of the UPC Rules of Procedure.

Nordic-Baltic Regional Division: Ocado v Autostore

In Ocado v Autostore the third party supported their request, on the grounds that they were interested to see how the claim was framed, and more generally on the belief that there is a broader public interest in the information being made available for public scrutiny and discussion. The Nordic-Baltic Regional Division granted the request, despite the reason given appearing similar in nature to those given to the Munich Central Division in the Astellas v Osaka and Sanofi v Amgen cases.

In reaching its decision, the court firstly referred to Article 45 of the UPC Agreement , which provides that the proceedings of the UPC 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.” The court noted that this provision is not limited to orders and decisions of the court, but refers to the proceedings as such, which according to Article 52 of the UPC Agreement consist of a written, interim, and oral procedure. The court thus considered that Articles 45 and 52 of the UPC Agreement together require that the written procedure of a case be in principle open to the public, unless the court decides to make it confidential, and that Rule 262 of the UPC Rules of Procedure should be interpreted in this context.

The court thus interpreted the term “reasoned request” in Rule 262.1(b) of the UPC Rules of Procedure to merely require a party to provide a credible reason for why they want access to the case file. The court also referred to Rule 262.6 of the UPC Rules of Procedure, which provides that even where a party to UPC proceedings has made a request under Rule 262.2 of the UPC Rules of Procedure that certain information remain confidential following a request under Rule 262.1(b) being made, the application shall be allowed unless the party has legitimate reasons which outweigh the interest of the applicant to access such information.

Applying this reasoning, the court found that the applicant had provided a sufficiently credible reason for wanting access to the statements of case, and thus allowed the application.

Noting the possibility for different interpretations of Rule 262 of the UPC Rules of Procedure, and the need for a consistent approach to be applied across the divisions of the UPC, leave to appeal was granted. Ocado has subsequently filed an appeal.

Comment

The order of the Nordic-Baltic Regional Division in Ocado v Autostore appears to apply a significantly lower bar for third party access to pleadings and evidence than that set by the Munich Central Division, in the Astellas v Osaka and Sanofi v Amgen cases. This arises due to the different approach taken when interpreting Rule 262 of the UPC Rules of Procedure. In Astellas v Osaka and Sanofi v Amgen, the Munich Central Division’s reasoning focused almost entirely on the wording and drafting history of Rule 262 of the UPC Rules of Procedure itself, with little reference to the articles of the UPC agreement. In contrast, the approach of the Nordic-Baltic Regional Division in Ocado v Autostore was to interpret Rule 262 of the UPC Rules of Procedure through the lens of Articles 45 and 52 UPC Agreement, with seemingly no significance given to the drafting history of the rule; there was in particular no mention of the significant amendment to this provision in the final draft of the UPC Rules of Procedure.

Given the appeal filed in Ocado v Autostore, the UPC Court of Appeal in Luxembourg will shortly be called upon to provide further clarity on how Rule 262 of the UPC Rules of Procedure should be interpreted. This should in principle harmonise the approach taken by the different UPC Courts of First Instance when considering requests for file access. The UPC Court of Appeal’s decision will be of significant interest, since it will likely set the standard for third party file access at the UPC for years to come.

Notably, there have been two applications under Rule 313 Rules of Procedure to intervene in these appeal proceedings. Under Rule 313 a third party may intervene in ongoing proceedings at the UPC if they are able to establish that they have a “legal interest in the result of an action submitted to the court”. In this case, both parties argued that the decision reached by the Court of Appeal was likely to affect the outcome of separate applications made by them for file access in other cases. The Court of Appeal rejected both applications, holding that a mere interest in how case law develops as a result of a particular decision was not sufficient to establish a “legal interest in the result of an action”.

A test case seeking access to the pleadings and evidence in the Astellas v Osaka case has also been filed at the Munich Central Division by a UK patent attorney firm. This test case further highlights the importance placed by patent practitioners on the transparency of UPC proceedings. Whether or not the Munich Central Division will reconsider their earlier approach following this test case remains to be seen, and will also be of significant interest.

We will provide further updates once the UPC Court of Appeal issues its decision.

Useful links

• Rules of Procedure of the UPC [PDF]: dycip.com/upc-rulesofprocedure
• UPC CFI 11/2023, Decision of the Court of First Instance of the UPC (Nordic-Baltic Regional Division), 08 September 2023 [PDF]: dycip.com/ocado-v-autostore
• UPC CFI 75/2023, Procedural Order Rule 9 of the UPC Rules of Procedure of the Court of First Instance of the UPC (Munich Central Division), 11 October 2023 [PDF]: dycip.com/astellas-v-osaka
• UPC CFI 1/2023, Procedural Order of the Court of First Instance of the UPC (Munich Central Division), 29 June 2023 [PDF]: dycip.com/sanofi-v-amgen
• UPC Court of Appeal 404/2023, Order of the Court of Appeal of the Unified Patent Court, 10 January 2024 (PDF): dycip.com/upc-coa-404-2023