Case Law
Rule 262: Public access to the register
Court of First Instance - Paris (FR) Central Division - Seat, Order dated 30/07/2024, BEGO Medical GmbH v. CEAD USA B.V., CEAD B.V. (Case/ Registry number: App_37662/2024, ORD_39244/2024)
Example of decision on the granting of confidentiality: "3. When deciding on the application pursuant to R. 262.2 of the Rules of Procedure, the public’s general interest in information must be considered first and foremost. The requirements for the granting of confidentiality are therefore lower than in R. 262A of the Code of Procedure.
4. The public’s interest in learning about individually agreed attorney’s fees in patent disputes regularly takes a back seat to the litigant’s interest in keeping the negotiated fees confidential."
Court of First Instance - Milan (IT) Local Division, Order dated 6/05/2024, Bhagat Textile Engineers/ Oerlikon Textile GmbH & CO KG (Case number: UPC_CFI_223/2025 ORD_23384/2024)
Example of decision on confidentiality order relating to financial information: “3. The request for confidentiality must be granted since:
a) The defendant did not oppose the adoption of confidential protection measures in the manner indicated by the opposing party: there is therefore consent of the parties to the claimant’s request. This condition has already been held by this Court to be sufficient to restrict access to a club of which the physical person of the opposing party is not a member, provided that fair trial is not affected (UPC case CFI 239/2023, App. 589842/2023, Local Division the Hague).
[…]
d) the information that is the subject of the application must be classified as confidential in the light of the wording of Article 58 UPCA, which extends protection not only to trade secrets in the strict sense but also to confidential information”
“In conclusion, the Court holds that it is possible for the parties to exclude access by a natural person by mutual agreement or by the interested party’s waiver of the right of access, as this is compatible with the Unified Patent system and as fair hearing and the right of defence are guaranteed in practice, in light of the principle of proportionality and flexibility.”
Court of First Instance - Paris (FR) Central Division - Seat, Order dated 24/04/2024, Nicoventures Trading Limited / NJOY Netherlands B.V and Juul Labs International Inc. (Registry number : App_587265/2023 ORD_587436/2023)
Example of decision on the request to access written pleadings and evidence: “In weighing the direct interest of Applicant against the general interest of integrity of proceedings, the balance is in favour of granting access to the written pleadings and evidence of such proceedings to Applicant. He is involved in opposition proceedings which give him a direct interest in the UPC proceedings concerning the validity of the patent.
Applicant requests and is awarded immediate access. The Court grants immediate access and does not require Applicant to wait until the proceedings are terminated. Applicant has a plausible interest in gaining access to the written pleadings and evidence immediately moment of the issuance of this order. He intends to consider the arguments raised in the ongoing EPO opposition proceedings in comparison with the arguments raised in the Main Action. Parallel opposition proceedings at the EPO operate under a time regime. Applicant’s interest in the proceedings hence is also specific as regards timing. While the interest of the general public usually arises after a decision was rendered (mn 47 of the above cited CoA decision), the Applicant’s interest is more specific in that it is present already immediately. Were the access to the file granted only after the decision, the claimant might not be able to use this information in the EPO proceedings due to timing issues.”
Court of Appeal – Luxembourg (LU), Order dated 10/04/2024, Ocado Innovation Limited v. Autostore Sp. Z o. o., Autostore System GmbH, Autostore System AT GmbH, Autostore System AB, Autostore System S.L., Autostore System Srl, Autostore AS, Autostore S.A.S ORD_19369/2024
Example of decision on the public access to written pleadings and evidence: “43. When a request to make written pleadings and evidence available to a member of the public is made pursuant to R.262.1(b) RoP, the interests of a member of the public of getting access to the written pleadings and evidence must be weighed against the interests mentioned in Art. 45 UPCA. These interests include the protection of confidential information and personal data (’the interest of one of the parties or other affected persons’) but are not limited thereto. The general interest of justice and public order also have to be taken into account. The general interest of justice includes the protection of the integrity of proceedings. Public order is at stake e.g. when a request is abusive or security interests are at stake.
44. To allow the judge-rapporteur to balance all the interests set forth in Art. 45 UPCA, the applicant of a R.262.1(b) RoP request must set out the reasons why he has an interest to obtain access to the written pleadings and evidence. It follows that ‘reasoned request’ in R.262.1(b) RoP means a request that not only states which written pleadings and evidence 10 the applicant wishes to obtain, but also specifies the purpose of the request and explains why access to the specified documents is necessary for that purpose, thus providing all the information that is necessary for the judge-rapporteur to make the required balance of interests mentioned in Art. 45 UPCA. This includes but is not limited to an assessment whether the request is abusive or not. Nor are the reasons only relevant when determining whether there is a need to keep information confidential.”
“53. As Ocado rightly pointed out, a member of the public may also have a more specific interest in the written pleadings and evidence of a particular case, than the general interest mentioned above. This is in particular so where he has 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 by a product which is the same or similar to a product (to be) brought on the market by such member of the public. When a member of the public has such a direct legitimate interest in the subject-matter of certain proceedings, this interest does not only arise after the proceedings have come to an end but may very well be immediately present.
54. In weighing such a direct interest against the general interest of integrity of proceedings, the balance will generally be in favour of granting access to the written pleadings and evidence of such proceedings. The Court may, however, for the purpose of appropriate protection of the integrity of proceedings, impose certain conditions on granting access, such as the obligation for that member of the public to keep the written pleadings and evidence he was given access to confidential as long as the proceedings have not come to an end.”
Court of First Instance - Paris (FR) – Central Division - Seat, Order dated 6/03/2024, AUGUST DEBOUZY (Registry number: App_6758/2024 ORD_7460/2024)
Example of decision on language of proceedings: “7. The Rule has to be interpreted, according to the literal wording of the provision, meaning that it refers to only written pleadings and evidence lodged by the parties and that it does not include other documents which are uploaded in the CMS (see UPC_CFI_75/2023 CD Munich, order of 21 September 2023). “
“8. It follows that Rule 262 (1) (b) ‘RoP’ does not apply to the request to access to communication occurred between the Registry and the parties and to evidence of activities carried out by the Registry.”
Court of First Instance - Mannheim (DE) Local Division, Order dated 14/02/2024, Panasonic Holding Corporation v. Guangdong OPPO Mobile Telecommunications Corp. Ltd., OROPE Germany GmbH (Case number UPC_CFI_210/2023 ORD_)
Example of decision on the procedure for protecting confidential data where there is a license agreement between the parties : “In doing so, the court has taken into consideration that there is typically a recognisable need for confidentiality of business-related information contained in licence agreements. The procedure described in the steps below enables the parties to obtain comprehensive protection of trade secrets and allows the parties to submit the documents in the protected proceedings even without the need of a court order to produce them. If, according to the parties’ consensus, the clauses usually contained in licence agreements do not permit production until a court order is issued, this has to be understood before the background that such orders aim at involving the respective licence agreement partner into the proceedings and its confidentiality regime prior to any production in the court proceedings. This interest is fully taken into account by the confidentiality regime which is hereby established, so that a court order to produce the respective documents does not appear appropriate for the time being. Rather, the agreement of the respective licence agreement partner must be obtained on this basis if necessary or, in the event of a refusal, a separate decision on the production must be made by the party concerned. The interests of the licence agreement partner of the party wishing to submit a licence agreement in the proceedings must therefore be safeguarded by the respective party. In this context, it has to be taken into consideration that the documents in question are those that the party wishes to submit and that it is able to contact the third party concerned directly and efficiently. The court would first have to involve the third party, who is generally not represented by a representative in the proceedings, in the proceedings via the often time-consuming route of serving court documents abroad in accordance with the Hague Service Convention or the EU Regulation on Service of Documents. It also appears appropriate to arrange for the third party’s statement to be provided via the party, because the party itself has contributed to making it more difficult to produce documents in court proceedings by concluding corresponding contractual clauses.”
Court of Appeal – Luxembourg (LU), Order dated 08/02/2024, Ocado Innovation Limited v. Respondent (Case number UPC_CoA_404/2023 ORD /)
Example of decision on the representation of a member of the public requesting access to the register:“From this follows that ‘A party‘ in R.8.1 RoP is a wider concept than ‘Parties‘ in the heading of Article 47 UPCA and covers all applicants of any application or action under the UPCA and RoP. The Court of Appeal notes that ‘a party‘ in R.220.1 has a similar wider meaning; it also applies to a third party affected by an order or decision such as a third party under R.190 and a member of the public under R.262.1(b). Consequently, all applicants of any application or action under the UPCA and RoP are required to be represented, except if the rules of procedure waive the requirement of representation. An applicant under Rule 262.1(b) is not exempted from the requirement of R.8.1 RoP and is therefore required to be represented.”
“8. Members of the public requesting access to the register pursuant to R.262 RoP are consequently in an adversarial situation where representation is called for.
9. It follows from the above that the Respondent should have been represented before the Court of First Instance and must also be represented before the Court of Appeal. The Statement of response that was lodged by the Respondent shall be disregarded, as it was not lodged by an authorised representative pursuant to Article 48 UPCA.”
Court of First Instance - Munich (DE) Central Division - Section, Order dated 17/11/2023, ASTELLAS INSTITUTE FOR REGENERATIVE MEDICINE v HELIOS K.K, OSAKA UNIVERSITY (UPC_CFI_80/2023, ORD_584830/2023)
Example of decision on a request for protection of secrecy and restricted access: “In the Court´s view, it is not necessary for the Defendants to have unrestricted access to the Confidential Annex in order to meet the objective of understanding Claimant´s legal position. Claimant is asking for a confidentiality order in relation to a specific document, whereas its legal position is set out in detail in its pleadings which have not been marked as confidential by the Claimant. The interests of the Claimant in keeping confidential the commercially sensitive information embodied in the Confidential Annex in any event outweigh the interests of the Defendants in having unrestricted access. Access shall therefore be restricted to specific natural persons. As to how many (and which) persons should have access, in accordance with Rule 262A.6 RoP, the number of persons shall be no greater than necessary in order to ensure compliance with the right of the parties to the legal proceedings to an effective remedy and to a fair trial, and shall include, at least, one natural person from each party and the respective lawyers or other representatives of those parties to the legal proceedings.”
Court of First Instance - Nordic Baltic Regional Division, Order dated 17/10/2023, OCADO INNOVATION LIMITED v. AUTOSTORE AS (Case number UPC_CFI_11/2023, ORD_543819/2023)
Example of decision on public access to registers: “The expression “reasoned request” also appears in several other provisions in the Rules of Procedure, e.g. Rule 9, which, inter alia, gives the Court the possibility to extend or shorten a time period on the basis of a reasoned request. When it comes to access to documents, this expression 5 should be understood to mean that the applicant needs to provide a credible explanation for why he/she wants access to the pleadings or evidence. This information can be relevant when determining whether there is a need to keep information confidential.”
Court of First Instance - Milan (IT) Local Division, Order dated 27/09/2023, Oerlikon textiles GmbH & Co KG v. Himson Engineering Private Limited (Case number UPC_CFI_240/2023, ORD_569313/2023)
Example of decision refusing public access to the register: “It follows from the above observations that:
– the notion of "public" includes all third parties -public or private- other than and distinct from the parties to the proceedings (who must be heard following the request);
– the application must be supported by a precise, concrete and current reason relating to access to the written pleadings and evidence of a trial already pending between other parties, from which the applicant is extraneous;
– the parties to the proceedings may oppose reasons of confidentiality with respect to certain information contained in the file;
– the consent of the parties to the proceedings -in certain circumstances- may not be sufficient to allow access.”
Court of First Instance - Munich (DE) Local Division, Order dated 21/09/2023, ASTELLAS INSTITUTE FOR REGENERATIVE MEDICINE v. HEALIOS K.K, RIKEN, OSAKA UNIVERSITY (Case number UPC_CFI_75/2023, ORD_552745/2023)
Example of decision rejecting a request for copies of document from the file: “The present application is made by a natural person “so that [he] can be informed of the proceedings before the Unified Patent Court for the purposes of education and training”. In the Court´s view, this is not a legitimate reason for access to the requested documents. Apart from the lack of concrete and verifiable information in the reason stated by the Applicant, the Court fails to see why the requested pleadings (a statement of revocation drawn up by another representative in a ´random´ case) would be useful, let alone necessary, for said purpose (which can be achieved by other means such as reading the Court´s orders and decisions which shall be published in accordance with 262.1 (a) RoP). The reason provided is also insufficiently concrete and verifiable for the JR to be able to weigh this reason against the (commercial) interest in denying access as brought forward by the Claimant in the main proceedings who requested that the Court refuses the application to the extent that it concerns the Statement of Revocation.”
Court of First Instance - Munich (DE) Local Division, Order dated 20/09/2023, Amgen, Inc. v. Sanofi-Aventis Deutschland GmbH (Case number UPC_CFI_1/2023, ORD_550152/2023)
Example of decision rejecting a request for copies of document from the file: “The mere “wish” from a natural person to form “an opinion” on the validity of a patent out of a “personal and a professional interest” cannot be accepted as a sufficiently concrete, legitimate reason to make available all pleadings and evidence in this case. Apart from the lack of concrete and verifiable information in the reason stated by the Applicant, the Court fails to see why access to the written pleadings and evidence in this particular case would be useful, let alone necessary in order to fulfil a wish of forming an opinion on the validity of the patent. The Applicant can study the patent and its (public) prosecution history as well as the prior art without access to what the parties to the proceedings have submitted. The fact that the Application concerns a revocation action concerning a European patent which, as argued by the Applicant, “confers rights on the patent proprietor(s) with erga omnes effect”, does not make this assessment different. The general public can likewise inform themselves based on other sources than the pleadings and evidence filed in this action.”