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 other means such as reading the Court´s orders and decisions. Moreover, the Court states that such reason lacked precision and verifiability.
As to the request for access to the Letter for Service on the patentee, the Court found no legal basis. This Letter is not part of the written pleadings or the evidence under Rule 262.1(b) RoP.
A request was filed for access to 1) the statements of claim, 2) any orders made in the infringement action, and 3) any orders made in the parallel cases between the same parties in Düsseldorf and Milan. The applicant argued that it wanted to see how the claim was framed and also put forward a point of public interest, namely that the request would enable public scrutiny and discussion in light of the launch and development of the new court system.
According to the Court, a “reasoned” request per Rule 262.1(b) RoP should be construed as a credible explanation for why he/she wants access to the pleadings or evidence. The Court deduced from Articles 10, 45, and 52 UPCA that the default position is that the written procedure should be open to the public. Exceptions may be made to maintain confidentiality, to the extent necessary, in the interest of the parties, other individuals involved, or in the general interest of justice or public order.
The Court found a “credible explanation” in the request for access to the Statement of Claim for reasons that it would allow to identify the “framing” of the claim and to subject it to public scrutiny and discussion as the new court system launches and develops. The Court therefore granted the request (subject to redaction of personal data as required by Rule 262(1) RoP), also taking into account that there was no request for confidentiality by the parties, and no compelling reasons to maintain confidentiality in the interest of other involved individuals, the broader interests of justice, or public order.
As far as the request for access to decisions/orders of other divisions was concerned, this claim was rejected. The judge-rapporteur held that he could only decide on requests relating to proceedings pending before his division, but not on proceedings pending before other divisions. Actually, the judge-rapporteur could only decide on requests with regard to the proceedings in which he was appointed as judge-rapporteur and therefore this request had to be rejected. The judge-rapporteur emphasized that decisions and orders shall be published pursuant to Rule 262.1(a) RoP.
In a remarkable fashion, three similar requests ended up being treated quite differently, even though they are pending in one and the same court, the court of first instance of the UPC. While the Central Division, Munich Section, took a restrictive view towards the request for access to court documents (requiring a concrete and verifiable, legitimate reason, to be assessed on a case-by-case basis), the Nordic-Baltic Division, took a different and very liberal approach requiring no more than a credible explanation.
This difference in approach may be due to differences in personal experience between the judges (so-called “couleur locale”). Judge Johansson was familiar with public access to documents due to his Swedish legal background. In other countries access is more restricted, such as in the Netherlands and in the infringement courts in Germany. Of course, the UPC will form its autonomous interpretation of procedural law, independent from national law.. The reasoning in the second Munich decision that education and training could be achieved by other means such as reading the Court´s orders and decisions is not convincing. These are quite different things. If one wants to learn how to draft a Statement of Revocation, orders and decisions will not normally be helpful beyond a very high-level understanding.
One could also wonder if considerations of a more practical nature have come into play. It is clear that a liberal approach to public access requests may create a parallel stream of work for the UPC and may significantly increase the workload for the divisions concerned (in particular, the judges rapporteur). The UPC currently still being in full development (and with a CMS showing some growing pains) one cannot but wonder if the Munich court’s approach may soften once the system has further matured.
The judge-rapporteur in both divisions recognised the significance of a consistent interpretation of Rule 262.1 RoP and each time granted leave to appeal. It will be interesting to see what the Court of Appeal will decide indeed. With the strict approach before the Munich divisions, we are quite far removed from the initial idea of full transparency of the UPC proceedings. However, Rule 262 was amended intentionally after quite some discussion. The full rationale for these changes however remains undisclosed, unfortunately (Amendments to the UPC draft Rules of Procedure approved by the Preparatory Committee on 15 March 2017, 38-41).