Mon 10th Jun 2024

Public access to UPC submissions



Patent Attorney Liz Mills explores the expansion of public access to submissions filed at the UPC.

Since opening its doors in June 2023, the UPC has faced criticism regarding the lack of public access to filed submissions.


However, this position by the UPC should not have come as a surprise. Although most patent attorneys are most familiar with proceedings before the European Patent Office (EPO), which largely affords the public unfettered access to all submissions, there are numerous UPC member states that have national courts having much more restrictive access rights to submissions than the EPO.


For example, a large majority of UPC cases have been filed in Germany, where third parties do not have an automatic right in National courts to access filed submissions. Instead, in order to obtain access to documents relating to a specific case, a third party has to file a request for this information and must demonstrate a legitimate interest in the proceedings.


Moreover, from a practical point of view, the UPC is better placed to find its way through its teething stages in complying with the more restrictive of these access rights. It is therefore understandable why access to submissions made to the UPC is more restrictive than at the EPO.


Reasoning for third party access to submissions


To test the waters for what submissions may be made available to third parties, different patent firms and companies across Europe have been filing requests for accessing various UPC submissions using a range of different reasons. These include: for personal reasons, for professional reasons, for “education and training”, out of interest “in the patent at issue and its legal validity (or lack thereof)”, general public interest, and an interest in the framing of an infringement claim. Several firms have also attempted to obtain document access by filing an application to intervene, where an application to intervene allows for third parties with a legal interest in a particular case to intervene in ongoing proceedings when it is made in support of a claim, order or remedy sought by one of the parties of the case.


All except one of these requests appear to have been refused, with the Munich Central Division moreover stating (in an order on 20 September 2023) that such requests may only be granted in the case of a “concrete and verifiable reason”, thus implying that third party submission access should be an exception rather than the rule. In fact, all of the requests made to the jurisdictions having more restrictive national court document access have been refused, with the sole allowed request being granted by a Judge-Rapporteur of the Nordic-Baltic Regional Division. This sole allowed request has recently been upheld by the Court of Appeal of the UPC.


In more detail, in Order no. 573437/2023/ UPC_CFI_11/2023, an unknown applicant made a request for access to a statement of infringement claim filed by a claimant (Ocado) against a defendant (Autostore). This request was made despite the fact that the proceedings had been dismissed before any order was issued. The filing by Ocado against Autostore in the Nordic-Baltic Regional Division was one of a plurality of cases between these two litigants filed across a number of UPC courts and in National Courts. The reasoning for the request for access was that the applicant had an interest in seeing the framing of the infringement claim, and that there was a wider general interest in this framing being made available. When the Judge-Rapporteur at first instance agreed with the applicant that the infringement claim should be made available to them, the claimant applied for, and was given leave to appeal this decision.


The position of the Court of Appeal of the UPC


The Court of Appeal of the UPC, which is based in Luxembourg, has since issued its decision in respect of this appeal and agreed that this infringement claim should be made available to the applicant. The Judge-Rapporteur for the appeal also appeared to reverse the Munich Central Division’s comments mentioned above, by noting that:

As is clear from Art. 10 and Art. 45 UPCA, the general principle laid down in the UPCA is that the register is public and the proceedings are open to the public, unless the balance of interests involved is such that they are to be kept confidential, which means that in such case access to the public is to be denied” (emphasis added).


The Court of Appeal’s decision also provides some guidance on how the request should be phrased in order to allow such a balancing of interests to be performed, and includes that the request should not only “state which written pleadings and evidence the applicant wishes to obtain, but also [specify] the purpose of the request and [explain] 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”. The request should also not be abusive.


Impact of the Court of Appeal's decision


Now that this issue has been litigated to the Court of Appeal of the UPC, it will be interesting to see how this will be applied by the Courts of First Instance, particularly in those jurisdictions more familiar with restricted access to filed submissions. In the interim, claimants wishing to avoid their claim submissions being made public should file in those countries having more restrictive document access provisions for national cases, and should avoid filing in more permissive countries.  


This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis. Please note that the law may have changed since the day this was first published in June 2024.


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