Transparency at the UPC – accessing information, pleadings and evidence

David Webb and Rachel Montagnon have written an article for Practical Law on Access to information on proceedings at the Unified Patent Court (available here as a pdf or for subscribers via this link). The article was published on 13 January 2025 and looks in detail at the UPC's procedural and legal framework for access to pleadings and evidence, including the UPC CoA case Ocado v Autostore and its application by the UPC's courts of first instance, and including the primary considerations the UPC will apply when receiving an access request from a party not involved in the dispute.                                       

A general principle of open justice is built into the UPC system. Third parties should in principle be able to access decisions and orders of the court freely, subject to redactions for confidential material. More broadly, third parties should be able to access pleadings and evidence filed with the court.

However, there are restrictions on this access, primarily in order to protect the "integrity of the proceedings".  The theory behind this is  that parties should be free to litigate without worrying what impact their pleadings or evidence should have outside of those proceedings, in the sense of external parties influencing or interfering with the UPC's decisions (see Ocado at paragraph 48). However, that concern can be overcome where a third party is able to demonstrate a specific interest in being given access and largely falls away when proceedings come to an end.

During the course of proceedings before a decision is issued, third parties need to provide significant reasons to justify why they should be given access to the pleadings and evidence, demonstrating a "direct interest" in being granted access.  A direct interest can be evidenced by the applicant being involved in EPO opposition proceedings in relation to the patent for example. Applicants without such a direct interest will be refused access until the proceedings are completed. 

Completed proceedings include those that have reached a decision on the merits, or where proceedings relating to a preliminary injunction (PI) application has been completed, even if there is an appeal of either (or if the case is continuing to a full decision on the merits in the case of a PI application) and also even if the patent or the information included in the materials is also involved in other proceedings. Pleadings and evidence are also available where cases have settled. It is only "pleadings and evidence" that are identified in the UPC's procedural rules as accessible by third parties; requests for other sorts of documents connected to a case have been rejected by the court.

Nevertheless, these developments mean that access is now much simpler in relation to completed proceedings where modest reasons can now be sufficient; effectively, reasons such as gaining a better understanding of UPC procedure may be qualify as a "reasoned request" in those circumstances, although this request will still need to be made to the court and is granted on a request by request basis to specific parties and not as an open publication of those materials to third parties in general.