A new order has been issued by the UPC regarding Rule 262.1(b) RoP applications in Bitzer v Carrier (UPC_CFI_ 263/2023), in which Dehns is acting on behalf of the defendant, Carrier Corporation.

This is the latest in a series of orders in this area, which further hardens the boundaries of such applications by extending the list of documents that the Court will not provide public access to, further limiting the transparency of the Court.

In recent months, a slew of applications for public access to various Unified Patent Court (UPC) proceedings have been made in apparent tests of the transparency of the new European Court.  These applications have sought to probe at the boundaries of what elements of proceedings, if any, can be made accessible to the public and under what conditions.

Most recently, an order has been issued by the Paris Central Division in Bitzer v Carrier (UPC_CFI_ 263/2023) regarding a third-party application pursuant to Rule 262.1(b) RoP, in which Dehns is acting on behalf of the defendant, Carrier Corporation.  The applicant sought access to several documents, including:

  1. A notification under Rule 16.3a by the Registrar for correction of deficiencies of the statement for revocation,
  2. The subsequent communication under Rule 17.1c by the Registrar,
  3. Three “Acknowledgment-of-lodging” documents,
  4. The “Formal-checks_Notification-of-positive-outcome” document, and
  5. The order ORD_591040/2023 of 8 January 2024, in App_590707/2023 UPC_CFI_263/2023.

The applicant also provided various reasoned statements for requesting access to these documents.  For the notification under Rule 16.3a and subsequent communication under Rule 17.1c, the applicant argued that the public is unaware of whether the patent at issue was subject to an effective opt-out or not, and that this status is of importance to the public.

In the grounds of the order, the Court referred to the “literal wording” of Rule 262.1(b) RoP, which states that “written proceedings and evidence […] shall be available to the public upon reasoned request”.  The Court states that this does not apply to “other documents” uploaded to the CMS, referencing the earlier order of 21 September 2023 by the Munich Central Division in Astellas v Healios et. al. (UPC_CFI_75/2023), which presents similar reasoning.  Therefore, the Court concludes that these documents do not fall under the scope of Rule 262.1(b) RoP.

The Court also notes that all decisions and orders are published pursuant to Rule 262.1(a), which fulfils the applicant’s desire to access the order ORD_591040/2023 of 8 January 2024.

The Court therefore rejects the application in respect of all of these documents.

A further set of comments are made by the Court on the applicant’s reasoning that the effectiveness of the opt-out needed to be determined.  It states that the specific interest of the applicant as a member of the public is “not clear”, and, regardless, ultimate determination of the effectiveness of the opt-out lies with the Court’s decision on the revocation action.

The outcome of this order is in line with previous orders in this area.  It is, therefore, unsurprising that the Court has denied public access to any of these documents under a Rule 262.1(b) RoP application.  This order adds to the growing consensus that the Court considers only a limited, closed, list of documents that the public may inspect, and only after filing an application pursuant to Rule 262.1(b) RoP and with sufficient reasoning.

This order also adds to the concerns of many in our profession of the lack of transparency of UPC proceedings.  At Dehns, we will certainly be watching the development of case law in this area with interest.