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

IPPT20231106, UPC CoA, Ocado
Suspensive effect given to an appeal of an order on access to documents under R. 262.1(b) RoP, an order which would otherwise have been enforceable soon, to ensure that there is time to adjudicate the appeal on the merits.

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.

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.

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.