All decisions and orders of the UPC will be published on the UPC website. Quite a number can already be found there. In addition, every registered representative can see in the CMS which documents have been filed in a specific action.
Access to the actual content of those documents is quite a different matter. That is limited to the representatives appointed by the parties at hand. However, according to Rule 262.1(b) of the Rules of Procedure (RoP), “written pleadings and evidence, lodged at the Court and recorded by the Registry shall be available to the public upon reasoned request to the Registry; the decision is taken by the judge-rapporteur after consulting the parties”. As such, third parties may under certain conditions also gain access to the contents of UPC filings. The first requests for public access to UPC filings have now resulted in a series of published orders by the UPC, which we discuss below.
At present, there have been three published orders where the UPC has made a substantive assessment of a request for public access to UPC filings, dealing in particular with the question of what constitutes a “reasoned request” to meet the threshold set under Rule 262.1(b) RoP.
The Applicant had requested access to all written pleadings and evidence. First, on behalf of an (unnamed) client and later, after the judge-rapporteur consulted the parties, in his own name. The Applicant stated a wish to form an opinion on the validity of the patent at issue.
The request was denied for lack of a reasoned request. According to the court, the term “reasoned” request in the context of Rule 262.1(b) RoP should be construed as a concrete, verifiable, and legally relevant reason, i.e. more than just any (fictitious) reason. The following points supported the decision:
In view hereof, the Court dismissed the application, holding in concreto that “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”. There was no concrete and verifiable information underlying the request. The Court added that an opinion on the validity of a patent can be formed on the basis of its prosecution history and the prior art, without requiring access to the court file.
Here, the Applicant requested a copy of the Statement of Revocation and a copy of the Letter of Service on the patentee, for stated reasons of education and training. One of the parties in the proceedings opposed this request, arguing that a third party should not have access to such thoughtful and costly pleadings for its own benefit, all the more when its use thereof cannot be verified.
The Court again rejected the request, finding that education and training purposes do not meet the requirement of a “reasoned” request. It reiterated, like in its first order, that “reasoned” should be understood as a concrete, verifiable, and legally relevant reason, i.e. more than just any (fictitious) reason. A legitimate reason in a particular case will have to be assessed on the basis of all the facts and circumstances of that particular case. The Court found that access to the pleadings is not useful and necessary for training and educational purposes, considering this could be achieved by…