Article 45

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Public proceedings

The proceedings shall be open to the public unless the Court decides to make them 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.

 

See also: R. 262 RoP and R. 262A RoP

 

Case law

 

Court of Appeal

 

IPPT20250109, UPC CoA, Abbott v Powell
Appeal dismissed, rightly granted access (Article 45 UPCA, R. 262 RoP). A ‘reasoned request` in R.262.1(b)RoP means a request that not only states which written pleadings and evidence (…) the applicant wishes to obtain, but also specifies the purpose of the request and explains why the access to the specified documents is necessary for that purpose, thus providing all the information that is necessary for the judge-rapporteur to make the required balance of interests. Once the CFI has concluded the proceedings, there is generally no reason to protect the integrity of the CFI proceedings, regardless of whether the CFI decision or order deals with all the arguments and evidence in the case or not; irrespective of whether the rendered order concerns provisional measures of the information or evidence ia also subject to other proceedings.

 

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

 

IPPT20241014, UPC CFI, CD Paris, Meril v Edwards
Unrestricted access granted to all pleadings and evidence in ended infringement proceedings and counterclaims for revocation (Article 45 UPCA, R. 262 RoP). Generic interest: the mere fact of operating in the same field as the patent in dispute is not sufficient to establish a specific interest in the proceedings’ documents on their part. Applicants’ requests may not be considered insufficiently reasoned, because the fact that the applicants are carrying out preparatory activities to possibly enter the market concerned by the patent at issue is adequate to establish an interest in accessing the requested documents.

 

IPPT20240918, UPC CFI, RD Nordic-Baltic, Edwards v Meril
Also the written procedure of the Court shall, in principle, be open to the public. However, access to the pleadings and evidence rejected at this point in time (Article 45 UPCA, R. 262 RoP). The protection of the integrity of the ongoing proceedings hereby outweighs the interest in information asserted by the applicant, so that the parties can present their arguments and evidence and so that the court can conduct the proceedings impartially and independently, without influence or interference from external parties in the public sphere. 

 

IPPT20240917, UPC CFI, LD Hamburg, Ballinno v UEFA
Public access, subject to confidentiality order, after rejection of application for provisional measures with decision of 3 June 2024 (Article 45 UPCA, R. 262 RoP). Access granted based on claimed general interest in the work and processing of a case by the Court, but subject to confidentiality order regarding technical data and internal company information that is not being publicly available.

 

IPPT20240812, UPC CFI, LD Vienna, Swarco v Strabag
Petitioner’s request for access to the Statement of claim, the pleadings including the evidence rejected at the current stage of the proceedings (Article 45 UPCA, Rule 262 RoP). The general interest of justice includes the protection of the integrity of the proceedings. During pending proceeding the access requested by the applicant must have a significant impact on its circumstances and the interest must be concrete. In order to assess whether the applicant's product fulfils one or more features of the patent in suit, it does not need the statement of claim including the evidence of these ongoing proceedings. 

 

IPPT20240729, UPC CFI, CD Paris, Mathys & Squire v Bitzer and Carrier 
Access to all written pleadings and evidence granted (Rule 262 RoP, Article 45 UPCA). The interest of integrity of proceedings usually only plays a role during the course of the proceedings.  Having this in mind, it must be considered that the current proceedings have come to an end that the interests opposing the publication of the proceedings, as outlined in Article 45 ‘UPCA’, do not seem substantial enough to override the requester's interest in gaining access to the related documents and evidence. 

 

IPPT20240729, UPC CFI, LD The Hague, Powell Gilbert v Abbott and Sibio
Public access to the register granted, applying criteria set forth in IPPT20240410, UPC CoA, Ocado v Autostore (Rule 262 RoP). No specific interest required; interest of better understanding and scrutiny of decisions outweighs any interests of the parties involved once the proceedings have ended; in case of an appeal the purpose of protection of integrity withholding access to the documents in first instance no longer serves that purpose; No annex was filed while applying for confidentiality under R. 262A and Abbott also did not provide any specific reasons for confidentiality of (any of) those annexes. Leave to appeal granted.

 

IPPT20240514, UPC CFI, LD Milan, Oerlikon v Bhagat
Public interim conference and protection of confidential information (Article 45 UPCA, Article 58 UPCA). Ordered that the interim conference be open to the public, unless in the course of the interim conference, for the purposes of protecting confidential information, the Court decides to limit attendance to the parties' advocates only, in respect of specific matters dealt with, with particular regard to the issues examined in the order rendered on 6.5.2024. 

 

PPT20240424, UPC CFI, CD Paris, NJOY v Juul
Access granted to party in EPO opposition proceedings regarding the patent to all written pleadings and evidence submitted by both parties as currently contained in the CMS (Article 45 |UPCA, R. 262 RoP). No Access to court-generated Documents and to to future Documents

 

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.