Parties to litigation often end up finding that information shared in the course of proceedings may become generally available to the wider public (non-parties), in particular information contained in pleadings, court orders or evidence. Sometimes, that information may not be confidential however it may be information which a company would not ordinarily share as part of its day-to-day business. Defendants who have not chosen to be subject to litigation can be particularly irked by the principle of open justice.

In this three-part series we take a look at how this plays out, and the documents which non-parties can obtain in the Unified Patent Court (the "UPC") (part one), the courts of England & Wales (part two) and the French courts (part three).

Transparency before the UPC

After contradictory rulings by the Court of First Instance[1], the Court of Appeal's decision in Ocado v Autostore (10 April 2024) has provided some clarity. A member of the public had requested, inter alia, the Statement of Claim in those proceedings, relying on R.262.1(b) of the UPC Rules of Procedure which states that documents recorded in the Registry should be made available on a reasoned request. The Nordic-Baltic Regional Division[2] had granted that request and considered that the written procedure should be open to the public (subject to the maintenance of any necessary confidentiality) as long as a credible explanation for obtaining access was given. Ocado appealed that decision.

The Court of Appeal interpreted the relevant articles of the UPC Agreement (Articles 10(1), 45, and 52) and the general principle that the UPC register, and proceedings held before the UPC should be open to the public, "unless the balance of interests is such that they are to be kept confidential". Particularly, Article 45 sets out the circumstances where confidentiality might be relied on; these are not limited to simply protecting parties' confidential information but also to situations where making proceedings confidential is in the "general interest of justice or public order".

The Court of Appeal considered there to be a balance between avoiding influence and interference from non-parties and a general interest which the public would have for a better understanding of the decision rendered. According to the Court of Appeal, that balance is usually properly achieved if access to pleadings and evidence is given to non-parties after the proceedings have ended, either by a decision of the Court or after the dispute is settled.

The Court also pointed out that a member of the public may also have a more specific interest than the general one mentioned above in accessing pleadings and evidence in a case, e.g. where they are concerned about the validity of the patent as competitor or licensee or where they want to assess infringement issues concerning the same patent. In such situations, the Court of Appeal admits that the balance may be in favour of granting access to pleadings and evidence before the proceedings have come to an end, possibly limiting their use under certain conditions.

In fact, the request for access to the documents was of a general nature but, since the proceedings between Ocado and Autostore had settled without a decision having been made, Ocado's appeal was dismissed with the member of the public being granted access to the requested documents. It is also worth noting that there was no suggestion that it was an abusive request and there could be no suggestion that the integrity of the proceedings could be jeopardised. The balance of interest was in favour of allowing access.

Since that Court of Appeal decision, the Paris Central Division[3] has granted a non-party (Nicoventures) access to written pleadings and evidence available in the UPC's CMS under R.262.1(b). The documents were in the context of a patent revocation case brought by NJOY Netherlands B.V. against Juul Labs International. As Nicoventures was an opponent in parallel European Patent Office (EPO) opposition proceedings in relation to the same patent, the balance again lay in favour of granting immediate access. The Court noted particularly the greater interest of the public in revocation actions (i.e. in respect of whether a particular patent right has been "wrongly" granted) than infringement actions, and this may be a consideration in future cases.

Although the analysis of whether a third party or member of the public has a legitimate interest in obtaining documents is likely to be fact specific, some key principles appear to arise from the decisions:

  • During ongoing proceedings: It seems unlikely that purely general requests for pleadings and evidence from non-parties, without a genuine interest in the proceedings, will be granted.
  • During ongoing proceedings: Individuals with elevated levels of interest e.g. those genuinely concerned with the validity or invalidity of the patent in suit as a competitor or licensee, or those marketing products similar to the products subject to the dispute, may be granted access to documents during proceedings. It seems that a company with a pending EPO opposition in respect of a patent disputed before the UPC is very likely to have an elevated level of interest. Whether or not a pending national revocation action would be enough remains to be seen.
  • After a decision has been given, or a case has settled: Non-parties who make a request and explain the purpose of their request and why access to the specified information is necessary for that purpose are likely to be able to obtain documents once a decision has been given (or once a case has settled). Such a request may not be entertained if it is abusive.

Takeaways

The Court of Appeal in Ocado v Autostore clarified the ability of the public to access UPC documents. Although the Court has confirmed that it will balance the avoidance of interference from non-parties against a general interest which the public would have for a better understanding of the decision rendered, the decision is not in line with the open approach of the EPO and a number of national Courts and more akin to the approach in jurisdictions such as Germany. Most members of the public and non-parties will not be able to obtain relevant documents in most cases.

Those with specific interests, such as competitors concerned with the validity of the patent in question (e.g. an opponent in EPO opposition proceedings), may be granted access. Additionally, after a decision or settlement, it seems that reasoned requests will likely be granted unless they are deemed abusive. If you would like to discuss any of the points raised in this article, please contact Marianne Schaffner, Celine Bey, Huw Evans or Alex Driver.

Footnotes

[1] On the one hand Munich Central Division, 21 September 2023, Astellas Institute for Regenerative medicine v Healios K.K and Munich Central Division, 20 September 2023, Amgen Inc. v Sanofi-Aventis Deutschland GmbH, and on the other hand Nordic Baltic Regional Division, 17 October 2023, Ocado Innovation Limited v Autostore AS.
[2] Nordic Baltic Regional Division, 17 October 2023, Ocado Innovation Limited v Autostore AS.
[3] Paris Central Division, 24 April 2024, Nicoventures Trading Limited v NJOY Netherlands B.V and Juul Labs International Inc.