Background

As we have previously reported (see "Transparency of UPC proceedings: Court of Appeal to rule on “reasoned requests” for file access") 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 has been an early point of contention in the UPC. The Munich Central Division applied a highly restrictive approach in Astellas v Osaka (UPC_CFI_75/2023) and Sanofi v Amgen (UPC_CFI_1/2023) rejecting requests for file access based on “education and training” and “out of interest” in the patent at issue and its legal validity. This was contradicted by the Nordic-Baltic Regional Division applying a more liberal approach in Ocado v Autostore (UPC_CFI_11/2023) and granting access to an (anonymous) member of the public based on “interest” in how the statement of claim was framed.

Ocado appealed the decision of the Nordic-Baltic Regional Division on this point.

The arguments of the parties

In its appeal against the first instance decision, Ocado accepted that access to pleadings and evidence might be justified in order to enable members of the public to understand a final order or decision of the UPC. However, Ocado argued that in a case where no decision was issued, for example where the parties reached a settlement prior to the court hearing (as was the case in Ocado v Autostore), there was no justification for members of the public to be granted access to documents. Ocado also acknowledged that access to pleadings and evidence could be justified where the proceedings concerned the validity of a patent that the requesting party was specifically concerned with, but that no such interest had been established for the anonymous member of the public making the request in the case in question.

The member of the public argued in response that access to a case file should always be given, regardless of the stage or nature of the proceedings. It was further argued that the term “reasoned request” in Rule 262.1(b) of the UPC Rules of Procedure merely requires the requesting party to set out which documents are requested to be given access to, so long as the request is not abusive as required by Article 45 UPCA. The member of the public also argued that access may only be denied according to the UPC Agreement if a party to proceedings has a legitimate reason to keep certain information confidential.

The decision of the court

The court dismissed Ocado’s appeal and further expanded upon the reasoning of the Nordic-Baltic Regional Division’s at first instance for granting access to the requested statement of claim.

The court interpreted Articles 10(1), 45, and 52 of the UPC Agreement as providing the general principle that the UPC register and proceedings held before the UPC should be open to the public, “unless the balance of interests is such that they are to be kept confidential”.

The “interests” to be balanced were the interests of a member of the public of getting access to the written pleadings and evidence, against the protection of integrity of proceedings. The latter included (1) the interests of the parties to proceedings or other affected persons (for example, protection of confidential information and personal data), and (2) general interest of justice and public order. Public order was noted to be affected where, for example, the reasoned request made is abusive or public security would be at stake if the request were granted.

In view of the arguments put forward by Ocado and the member of the public, the court discussed these “interests” with reference to the stage of proceedings.

• The court acknowledged that the general interest of the public for documents to be made available usually arises only after a decision is issued, since it is only then that a decision exists that requires scrutiny.
• The court considered that the “protection of integrity of proceedings” was usually only an issue whilst proceedings were still ongoing, where it is important to ensure that the parties can bring forward arguments and evidence without undue influence or interference from external third parties.

The UPC Court of Appeal thus concluded that “these interests”, that is, the general interest of the public and the protection of integrity of proceedings are “usually properly balanced and duly weighed against each other”, if access to written pleadings and evidence is given to a member of the public after the proceedings have come to an end by a decision of the court.

The court also, however, acknowledged that as in the case at issue, proceedings may come to an end before a decision is issued. However, Ocado’s argument that access to documents should be denied in such a case was explicitly rejected. The court held that once the integrity of proceedings no longer plays a role, the balance of interests will usually be in favour of granting access given the general principle that the UPC register and its proceedings are open to the public. The court even acknowledged that in such a situation, the case file may “serve another legitimate interest” of the member of the public, “such as scientific and/or educational interests”.

Finally, the court considered the situation where the third party requesting access has a more specific interest in the ongoing proceedings. An example of “a more specific interest” was “a direct interest in the subject-matter of the proceedings, such as the validity of a patent that he is also concerned with as a competitor or licensee, or where a party in that case is accused of infringing a patent with by a product which is the same or similar to a product (to be) brought on the market by such member of the public”. In such a scenario, the court acknowledged that a direct legitimate interest in gaining access to pleadings and evidence may arise during the proceedings themselves and not only on their termination.

The court held that the “balance of interests” would again generally be in favour of granting access. The “direct interest” in the proceedings would seemingly outweigh the general interest of integrity of proceedings.

The court did, however, note that such access could be subject to certain conditions to appropriately protect integrity of proceedings. An example was the obligation for that member of the public to keep the provided documents confidential until proceedings had come to an end.

With the above principles in mind, the UPC Court of Appeal dismissed the appeal and thereby upheld the decision of the Nordic-Baltic Regional Division to grant access to the statement of claim to the anonymous third party. The court noted that:

• the interest of the third party was one of a general nature;
• Ocado had not argued that the request was abusive, and there was no indication that it was; and
• at the time of the request, the proceedings in question had come to an end by a settlement.

It was also noted that Ocado had not made any request for certain information in the statement of claim to be excluded from public access for the purposes of confidentiality or personal data protection. The court concluded that the balance of interest was in favour of granting access.

The court also explained that a “reasoned request” pursuant to Rule 262.1(b) of the UPC Rules of Procedure must not only indicate the documents for which access is sought, but must also specify the purpose of the request and explain why access to the specified documents is necessary for that purpose. The court held that such an explanation is required for the judge-rapporteur deciding on the request to consider the balance of interests required by Article 45 of the UPC Agreement.

The court further noted that Rule 262 of the UPC Rules of Procedure allows for parties to proceedings to request that certain information in the requested documents be kept confidential (for example, details of the settlement agreement reached) and that Rule 262.3 of the UPC Rules of Procedure provides a separate procedure for the requesting party to apply for access to such confidential information.

Comment

The UPC Court of Appeal’s decision provides welcome clarity as to how requests for access to pleadings and evidence should be assessed at the UPC. It is particularly reassuring that the appeal was dismissed and in view of a genuine interest from a third party, without a counter-balance from protecting the integrity of the proceedings, the request for access was allowed.

It seems likely that following this decision, the first instance courts of the UPC will draw a clear distinction between requests for access to documents made whilst proceedings are still ongoing and those made after the proceedings have come to an end. Specifically, it appears that requests made after proceedings have terminated will in general be granted, unless the parties to proceedings request that certain information stay confidential. In contrast, it appears that requests to access pleadings and evidence made whilst proceedings are ongoing will be more closely assessed and may require a direct interest in the patent at issue.

We will continue to monitor developments in this area and provide updates as they arise.

Case details at a glance

Registry number: ORD_19369/2024
Date: 10 April 2024
Parties: Ocado Innovation Limited
Order/decision reference: ORD_19369/2024
Type of action(s): Generic Order
Language of Proceedings: English
Court/ Division: Court of Appeal: Luxembourg
Link to full decision: dycip.com/upc-19369-2024