Dehns’ UPC representative Laura Ramsay is already finding there are controversial procedural issues arising in the cases that she’s handling at the new Unified Patent Court (UPC). Here, she reports on how the question of public access to documents has been interpreted in contrasting ways by different divisions of the UPC.

The Nordic-Baltic Regional Division of the UPC issued its Order UPC_CFI_11/2023 on 17 October 2023 relating to a public access request made under Rule 262.1(b) of the UPC Rules of Procedure (RoP).

Users of the UPC Case Management System (CMS) will know that the main details of proceedings are publicly visible, but no documents such as written pleadings can be viewed or accessed automatically. According to this Order, the party who applied for public access to written pleadings under Rule 262.1(b) shall be given access to the statement of claim filed in an infringement action at the Nordic-Baltic Regional Division. However, to provide for a possible appeal by the claimant, access to the statement of claim is not granted until 7 November 2023.

What is interesting is that this regional division of the UPC has decided to interpret the UPC Agreement (UPCA) more liberally than the Munich central division who denied a similar request last month (see UPC_CFI_75/2023).

The Nordic-Baltic presiding judge, Stefan Johansson, is the judge-rapporteur issuing this latest Order. He took the view that the purpose of Articles 10 & 45 UPCA is, in principle, for the written procedure to be open to the public unless there is a reason for confidentiality. None of the parties made a request for documents to be kept confidential.

The judge referred to the title of Rule 262 RoP “Public access to the register”, seemingly as an indication that public access is intended to be allowed. The judge then considered the requirement under Rule 262.1(b) RoP that written pleadings and evidence “shall be available to the public upon reasoned request to the Registry” – as compared to decision and orders which are always published according to Rule 262.1(a) RoP. It was the judge’s view that the applicant had provided a credible explanation for wanting access to the statement of claim.

In support of the request, the applicant had stated, inter alia, that he is interested to see how the claim filed in the Nordic-Baltic division was framed, particularly since it was filed in parallel with cases in other divisions, and that he believes there is broader public interest in this information being made available for public scrutiny and discussion as the new court system launches and develops.

The judge seems to appreciate that his finding goes against the reasoning of the Munich central division in their order of 21 September 2023 (UPC_CFI_75/2023 – referenced above), where András Kupecz as judge-rapporteur held that the explanation “so that [he] can be informed of the proceedings before the Unified Patent Court for the purposes of education and training” was not considered a legitimate reason for public access. In his reasoning, judge Kupecz referred to the history of the drafting of Rule 262.1(b) RoP and considered that the drafters did not intend to create a ‘default’ right of access to written pleadings and evidence – which goes against the reasoning we now see from judge Johansson.

The Nordic-Baltic presiding judge comments in the latest Order (UPC_CFI_11/2023) that:

The question of access to documents in the register is controversial, and there is room for different interpretations. A clear and consistent interpretation of a “reasoned request” pursuant to Rule 262.1(b) RoP and a consistent application of said Rule is important. Therefore, leave to appeal this order shall be granted.”

Accordingly, this order granting access does not take effect immediately so that the claimant is given sufficient time to appeal and apply for suspensive effect.

Judge Johansson’s comments seem to be a clear signal that the issue of public access to the written pleadings of UPC actions is one that requires the UPC Court of Appeal to provide harmonisation. If there is no appeal in this case then we will be left with uncertainty about the extent to which public access can be expected as a matter of default or exception in the UPC.