Rule 262 – Public access to the register

1. Without prejudice to Articles 58 and 60(1) of the Agreement and subject to Rules 190.1, 194.5, 196.1, 197.4, 199.1, 207.7, 209.4, 315.2 and 365.2, and following, where applicable, redaction of personal data within the meaning of Regulation (EU) 2016/679 and confidential information according to paragraph 2

   (a) decisions and orders made by the Court shall be published,

   (b) 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.

2. A party may request that certain information of written pleadings or evidence be kept confidential and provide specific reasons for such confidentiality. To this end content of the register is made publicly available according to paragraph 1(b) only 14 days after it has been available to all recipients. The Registrar shall ensure that beyond this time period information subject of a request for confidentiality shall not be made available pending an Application pursuant to paragraph 3 or an appeal pursuant to Rule 220.2. When a party lodges a request that parts of written pleadings or evidence shall be kept confidential, he shall also provide copies of the said documents with the relevant parts redacted when making the request.

3. A member of the public may lodge an Application with the Court for an order that any information excluded from public access pursuant to paragraph 2 may be made available to the applicant.

4. The Application shall contain:

   (a) details of the information alleged to be confidential, so far as possible;

   (b) the grounds upon which the applicant believes the reasons for confidentiality should not be accepted; and

   (c) the purpose for which the information is needed.

5. The Court shall invite written comments from the parties prior to making any order.

6. The Court shall allow the Application unless legitimate reasons given by the party concerned for the confidentiality of the information outweigh the interest of the applicant to access such information.

7. The Registrar shall as soon as practicable take all such steps with regard to access to the register as may be necessary to give effect to an order of the Court under this Rule.

Relation with Agreement: Articles 10, 45, 58 and 60(1)

Relation with Statute: Article 24(2)

Case law

Court of Appeal

IPPT20240410, UPC CoA, Ocado v Autostore
Public access to written pleadings and evidence (Article 45 UPCA, Rule 262 RoP). Appeal dismissed. Balance of interests in the present proceedings in favour of granting access to statement of claim based on an interest of a general nature after the proceedings had come to an end by a settlement. The general principle is that the register and the proceedings are open to the public, unless the balance of interests involved is such that they are to be kept confidential. Interests to be balanced. The interests of the parties or other affected persons include the protection of confidential information and personal data (’the interest of one of the parties or other affected persons’). The general interest of justice includes the protection of the integrity of proceedings. Public order is at stake e.g. when a request is abusive or security interests are at stake. A “reasoned request” R.262.1(b) RoP means a request providing all the information that is necessary to make the required balance of interest. General interest of a member of the public that written pleadings and evidence are made available allows for a better understanding and scrutiny. Interest of protection of the integrity of proceedings ensures that the parties are able to bring forward their arguments and evidence and that this is decided upon by the Court in an impartial and independent manner, without influence and interference from external parties in the public domain. The general interest of public access and the interest of protection of integrity of the proceedings are usually properly balanced and duly weighed against each other, if access is given after the proceedings of an instance have come to an end by a decision. The balance is usually also in favour of allowing access if proceedings have come to an end before a decision and the integrity of proceedings no longer plays a role. A direct interest, such as regarding validity or infringement, may be immediately present and, in weighing against the general interest of integrity of proceedings, the balance will generally be in favour of granting access. The Court may, however, for the purpose of appropriate protection of the integrity of proceedings, impose certain conditions on granting access, such as the obligation for that member of the public to keep the written pleadings and evidence he was given access to confidential as long as the proceedings have not come to an end. 

Court of First Instance

IPPT20240306, UPC CFI, CD Paris, Bitzer Electronics v Carrier
Request for access to documents rejected (Rule 262 RoP). The Rule has to be interpreted, according to the literal wording of the provision, meaning that it refers to only written pleadings and evidence lodged by the parties and that it does not include other documents which are uploaded in the CMS (see UPC_CFI_75/2023 CD Munich, order of 21 September 2023). Does not apply to communications between the registry and the parties and to evidence of activities carried out by the Registry (examination of formal requirements). The same can be said with regard to an order, issued by the Court regarding a request of stay of the proceedings, because it cannot be deemed as written pleadings or evidence lodged by one of the parties. It may be added that the interest of members of the public to know the status of a patent and, in particular, whether it is subject to an opt-out or not can be satisfied by accessing to the Register pursuant to Rule 37 of the Rules governing the Registry of the Unified Patent Court.

IPPT20240214, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Submission of SEP Patent Licenses. There is typically a recognisable need for confidentiality of business-related information contained in licence agreements and only permit submission upon a court order, which may require involving the respective license agreement partner in the proceedings. Incremental 13-step procedure enables the parties to obtain comprehensive protection of secrets and allows the parties to submit the documents in the protected proceedings even without a court order to produce them (Rule 262A RoP, Rule 190 RoP). The confidentiality regime (Rule 262 RoP, Rule 262A RoP) is organised in the following 13 steps [....] (see also the order of the Düsseldorf Local Chamber of 14 February 2024 [[in 10x Genomics v Curio Bioscience, IPPT20240214]..[...]. 13) In the event of a request for access to the file by a third party not involved in the proceedings pursuant to Rule 262(3) RoP of the Rules of Procedure, the document is protected from access by the parallel request pursuant to Rule 262(2) RoP and is not part of the access to the file by third parties. 

IPPT20240208, UPC CoA, Ocado v Autostore
Public access to register requires representation (Rule 8 RoP, Rule 262 RoP, Article 47 UPCA, Article 48 UPCA). ‘Parties’ requiring representation pursuant to Rule 8(1) RoP encompasses also (i) a third party affected by an order or decision such as a third party under Rule 190 RoP and (ii) a member of the public under Rule 262.1(b) RoP. Opt-out applicants are expressly exempted in Rule 5(4) RoP..Members of the public requesting access to the register pursuant to Rule 262 RoP are in an adversarial situation where representation is called for.

IPPT20240130, UPC CFI, LD Paris, Abbott v Dexcom
One division is not bound by a decision in another division despite belonging to the same unified court.  Discrepancy in the fines (€ 50.000 v € 250.000) set by the Local Division Paris and the Local Division Munich for breach of confidentiality orders (Rule 262 RoP, Rule 262A RoP) in parallel proceedings between the same parties concerning the same protected confidential information regarding two different patents. No justified need to harmonise the amount of the fine because one division is not bound by a decision in another division despite belonging to the same unified court. The Judge-Rapporteur was justified in considering that part of the confidential information had already been disclosed without a confidentiality restriction and that a lower amount of the fine would sufficiently protect the legitimate interests of the parties in the event of a breach. Therefore, a maximum fine amount of EUR 50,000 in case of breach is appropriate and proportionate in the contested confidentiality order and there is no need to set a higher maximum amount for the fine. No need for amendment of the order to avoid the potential risk of a double fine: it will be at the Court’s discretion, at the time of any breach, to decide on the appropriate amount of a fine to be paid, taking into account all elements in concreto, including any previous fine decided by the UPC Munich Local Division for the same breach. There is no grounds to bind the Paris Local Division, in case of breach and as requested by Dexcom, in cases where the Munich Local Division has already imposed a fine. 

IPPT20231228, UPC CFI, CD Munich, Astellas v Healios
The Court will wait for the outcome of the Appeal Proceedings on the application of Rule 262 RoP before proceeding with the present Application for access to written pleadings and evidence. The Applicant is to submit the final Court of Appeal decision in the Appeal Proceedings (´the Court of Appeal decision´). No legal basis for request to have the judge-rapporteur inform the Court of Appeal of the order staying the present proceedings to ensure that the Court of Appeal is aware of that order. Moreover, the judge-rapporteur has no access to the Court of Appeal (CMS) file. 

IPPT20231227, UPC CFI, LD Munich, KrausMaffei v Troester
Protection of confidential information (Rule 262A RoP). The protection of confidential information contained in pleadings and annexes can only be requested within a workflow pursuant to Rule 262 and/or 262A of the Rules of Procedure at the same time as the initial filing or within 14 days. These requests must be repeated when further pleadings and annexes are filed.

IPPT20231219, UPC CFI, LD Paris, Abbott v Dexcom
Protection of confidential information (Rule 262 RoP, Rule 262A RoP). Redacted commercial information in the Statement of Defence, shall be kept confidential and excluded from public access (Rule 262 RoP). the Statement of Defence contains information regarding notably sales figures and revenues, which are indeed sensitive information, the Court considers that there are sufficient reasons not to disclose the Confidential information in the public register pursuant to R. 262.2 RoP. 

IPPT20231211, UPC CoA, Ocado v Autostore 

Parties to address whether a third party requesting access to documents under Rule 262 RoP needs to be represented as a party before the UPC under Rule 8 RoP.

IPPT20231201, UPC CFI, LD Milan, PMA v AWM
Access given to a representative before the UPC to application for preserving evidence and inspection filed on 23.8.2023 after redaction of personal data (Rule 262 RoP).

IPPT20231117, UPC CFI, CD Munich, Astellas v Healios

Public access to confidential commercial information restricted (Rule 262 RoP). The Court grants request to keep the information in the Confidential Annex confidential for third parties, provided a redacted version thereof is submitted (Rule 262(2) RoP).

IPPT20231106, UPC CoA, Ocado
Appeal from the order to grant a third party access to documents (Rule 262 RoP) shall have suspensive effect, to ensure that there is time to adjudicate Ocado’s appeal on the merits from the Order to grant a third party access to documents, which will be enforceable on 7 November 2023 and would make the appeal devoid of purpose. (Article 74 UPCA, Rule 223 RoP, Rule 262 RoP) Application ex officio handled as having extreme urgency by the standing judge (Rule 223(4) RoP).

IPPT20231017, UPC CFI, RD Nordic-Baltic, Ocado v Autostore

Availability to the public of pleadings or evidence. Article 45 UPCA means that the written procedure of the Court shall, in principle, be open to the public unless the Court decides to make it confidential, to the extent necessary, in the interest of one of the parties or other affected persons, or in the general interest of justice or public order. If a person has made an application under Rule 262.1(b) for access to pleadings or evidence and provided a credible explanation for why he/she wants access, the application shall be approved unless it is necessary to keep the information confidential.

IPPT20231003, UPC CFI, LD Munich, Huawei v Netgear

1) Workflows.  According to Rule 4.2 RoP, the parties are required to use official forms provided online, including the various workflows, such as, for instance, for the main proceedings, for Rule 262 RoP or Rule 262A RoP.  Automatic provisional protection against public access. In the workflow in accordance with Rule 262.2 RoP, a party can apply for protection against third party access. Provisional protection is automatically provided upon receipt of the request. If a third party requests access, the request will be reviewed by a court. This also applies in the event that this information is contained in an order or decision of the court. The requesting party and the third party are parties to the proceedings. Other parties to the proceedings are not involved in the proceedings.

IPPT20230927, UPC CFI, LD Milan, Oerlikon v Himson

Rule 262(1) RoP requires that the application be made by a third party - private or public - with respect to the parties to the proceedings. A lawyer who declares himself to be the defendant's advocate, asserting that he only has the power of attorney to access the documents of the proceedings but not to enter an appearance, and asks for access to the file before the service of the writ of summons in order to obtain prior knowledge of the documents, is not a third party.

IPPT20230921, UPC CFI, CD Munich, Astellas v Healios
Public access to letter for service rejected (Rule 262.1(b) RoP). A concrete and verifiable, legitimate reason is required for making available written pleadings and evidence upon a request by a member of the public. To be informed of the proceedings before the Unified Patent Court for the purposes of education and training is not a legitimate reason as required by Rule 262.1(b) RoP. It is also insufficiently concrete and verifiable. No legal basis to give access to letter for service.

IPPT20230920, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Availability of written pleadings and evidence to the public requires a legitimate reason. Rule 262(1)(b) RoP requires a concrete, verifiable and legally relevant reason, i.e. more than just any (fictitious) reason. In other words: a legitimate reason is required for making available written pleadings and evidence to a member of the public. Otherwise, this provision and the distinction made would seem to be moot and without substance. 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.