Two decisions regarding the transparency of proceedings at the Unified Patent Court (UPC) were handed down last week – both of which will reignite the concerns of practitioners as to the level of access for non-parties to documents filed with the Court. Both decisions come from the Munich central division and were considered by the judge-rapporteur for the cases, András Kupecz.
The late amendment of Rule 262.1 in the final version of the Rules of Procedure was one of the most significant and debated final changes to the rules. The Rule distinguishes between public access to decisions and orders on the one hand, and written pleadings and evidence, with the latter requiring a “reasoned request”. Following much pre UPC launch debate concerning Rule 262.1 which allows non-parties access to documents, practitioners were reassured by those working in the system that, despite the GDPR concerns which were said to require the proposed changes, the threshold for granting access requests would be relatively low. These judgments now cast doubt on that threshold and leaves us asking – what grounds from a non-party could be sufficient to justify the acceptance of a reasoned request?
In a decision given on 20 September 2023 (case 464985/2023), the applicant requested copies of documents from the file in a revocation action, specifically the Statement of revocation and the Letter for service on the patent proprietor. The reason cited for the request was for educational and training purposes. A preliminary order was issued inviting the parties to submit their comments and/or observations to the request and, following objections having been raised by the claimant in the main action, arguing on essentially proprietary grounds against a third party using the pleadings for their own interests. The defendants did not object, and no request for confidentiality had been made under Rule 262.2. The applicant submitted further comments in response to the preliminary order.
The Court considered Rule 262.1, noting that it differentiates between public access to decisions and orders and to written pleadings and evidence, the former being published but access to the latter requiring a reasoned request. The Court emphasised the need, therefore, for a “legitimate” reason and discussed the history of the rule, highlighting the change from an automatic access system to an application-based one. They also stressed the importance of considering the interests of third parties and preventing evidence abuse. The Court rejected the applicant’s request, finding their reason for educational and training purposes insufficient and not a legitimate reason to access the requested documents. They also stated that the Letter for service on the patent proprietor did not have a legal basis for disclosure under Rule 262.1(b).
The following day, a further decision was given (case 459505/2023) in which the applicant initially requested access to the register’s content, including all documents again related to a patent revocation action. It may be that practitioners would consider the reason cited as a stronger one – the express interest of one of their clients in the patent’s validity. However, objections were raised by the parties, and in response the applicant (a law firm) changed their request to be in their own name, expressing a desire to form an opinion on the patent’s validity. Again, the Court determined that a legitimate reason must be provided for accessing written pleadings and evidence, not just any reason. They also considered the interests of third parties and the prevention of evidence abuse. The Court held that access should not be automatic but should be justified by a concrete, verifiable, legitimate reason and in this instance, the applicant’s initial reason was deemed insufficient as it lacked specificity. The Court found that the mere wish to form an opinion on the patent’s validity was not a sufficiently concrete, legitimate reason for access. They argued that the public could inform themselves using other sources, and access to pleadings and evidence was unnecessary.
In both instances, the Court granted leave to appeal the order, recognising the need for a consistent interpretation of the “reasoned request” rule, especially considering criticism regarding transparency in court proceedings. Given that the second decision involved the interests of a possible party to proceedings on the same patent, it will be enlightening to hear what the Court of Appeal considered is a “legitimate” reasoned request.