UPC on access to written pleadings and evidence
The Central Division Munich has rejected two separate requests based on Rule 262.1 (b) RoP requesting access to the content of the court file of two revocation actions. The Court found that a “reasoned request” requires a concrete and verifiable legitimate reason that can be weighed against the party’s interest to deny access.
The Nordic-Baltic Regional Division found contrary to this, that “reasoned request” shall only require the Applicant to provide a credible explanation for why he or she wants access to the pleadings or evidence.
I. Central Division Munich: Wish to form an opinion on validity is not a legitimate reason
The first order was delivered on 20th September 2023 (docket number CFI 1/2023). The Applicant asked for full access to the content of the register, including all written pleadings and evidence filed in a revocation action. The Applicant solely stated that the patent at issue and its legal validity were of interest to one of the Applicant’s clients. The parties to the main proceedings were invited to submit comments and the Claimant raised the argument that it was not possible to assess whether there was in fact a reason to grant the access as the client of the Applicant remained anonymous. Following this the Applicant solely requested the access in his own name. As the reason for the request he now argued that it was his wish to form an opinion on the validity of the patent.
The Judge-rapporteur (following “JR”) rejected the request as he found that the Applicant did not show a legitimate reason to access the register. This is interesting as Rule 262.1 RoP solely mentions a “reasoned request”, thus not explicitly stipulating a legitimate reason. However, the JR concludes that there was no intention to create a “default” right of access to written pleadings and evidence. He substantiates this finding with the wording of the Rule – making a clear distinction between decisions and orders that shall be published whereas written pleadings and evidence shall only be available upon reasoned request – following with the structure and history of the Rule. Therefore, the JR concludes that reasons have to be provided that justify departing from the default situation where third parties can solely view the register and take note of the existence of documents but not their content.
The Court therefore “concludes that Rule 262.1 (b) RoP requires a concrete and verifiable, legitimate reason for making available written pleadings and evidence upon a request by a member of the public”.
In the decided case the Applicant did not show this required reason. He had argued that he wished to form an opinion on the validity of the patent and that this was for him as a member of the public and a patent attorney of personal and professional interest. The JR found that this wish cannot be accepted as a sufficiently concrete, legitimate reason. The request therefore did not only lack concrete and verifiable information, but the Court also did not see why access to the written pleadings and evidence would be useful or necessary in order to form an opinion on the patent. The JR refers the Applicant to the study of the patent and the public prosecution history as well as prior art.
II. Central Division Munich: Wish to be informed for the purposes of education and training is not a legitimate reason
The Court decided similarly in another case. This second order was delivered on 21st September 2023 (docket number CFI 75/2023). The requesting party asked for copies of the Statement of Revocation and the Letter for Service on the Patent Proprietor in another revocation action. In this request the Applicant argued that it wanted to be informed about the proceedings before the UPC for the purpose of education and training. After having been invited to submit comments, the Claimant in the main action argued that a third party shall not be permitted to use the “carefully constructed pleadings (prepared at a not insignificant cost)” with a view to advancing its own interests.
Again the JR meticulously refers to the wording and history of the Rule and comes to the conclusion that a request for access to written pleadings and evidence pursuant to Rule 262.1 (b) RoP must pertain to the reasons for access per se. The JR finds that the reasoned request forms the basis of the decision after consulting the parties and that it has to be assessed on the basis of all facts and circumstances whether there is indeed a legitimate reason.
In this case the JR did not find a legitimate reason as the Applicant had failed to show concrete and verifiable information. Apart from this the Court did not see why the requested documents would be useful or necessary for said purpose as the Applicant could read the Courts orders and decisions. The JR found that the provided reason was also insufficiently concrete and verifiable so that the JR was not even able to weigh this reason against the (commercial) interest of the Claimant in denying access.
Lastly, the Court clarified that irrespective of the lack of a legitimate reason there is no legal basis to make available the copy of the Letter for Service as it is neither “written pleadings” nor “evidence” in accordance with Rule 262.1 (b) RoP.
III. Nordic-Baltic Regional Division: Credible explanation is sufficient
The Nordic-Baltic Regional Division also had to decide on a request according to Rule 262.1 (b) RoP. This order was delivered on 17th October 2023 (docket number CFI 11/2023). Here the Applicant requested access to documents in an infringement proceeding that was withdrawn even before all Defendants had been served with the statement of claim.
The JR acknowledged the decisions of the Central Division Munich but found that in the Nordic-Baltic Regional Divisions view the written procedure shall in principle be open to the public unless the Court decides to make it confidential. Therefore the JR concluded that “reasoned request” within the meaning of Rule 262.1(b) RoP has to be understood to mean that the Applicant needs to provide a credible explanation for why he or she wants access. This information could then be relevant when determining whether there is a need to keep information confidential.
The Applicant had explained that he was interested to see how the claim was framed, particularly since it was filed in parallel with cases in other divisions. This explanation was sufficient in the view of the Nordic-Baltic Regional Division.
IV. Leave to appeal
It should be noted that the Court in all orders stated that a clear and consistent interpretation of “reasoned request” and the consistent application of Rule 262.1 (b) RoP is especially important. Therefore, the Court has granted leave to appeal the Orders. The Nordic-Baltic Regional Division additionally only ordered access to the statement of claim for 7th November 2023. This was intended to give the Claimant sufficient time to appeal and apply for suspensive effect.
The UPC has to find and establish its jurisdiction in this first months of operation regarding many smaller and bigger questions. The application of Rule 262.1 (b) RoP might be one of those smaller questions, however, it concerns the very important issue of the access of the public to UPC Court files. It should be appreciated that the Court has perceived the different opinions on Rule 262.1 (b) RoP and did therefore grant the leave to appeal. It should be expected that a decision on this issue will be handed down by the Court of Appeal in the coming months.