A question sometimes asked in any discussion of the UPC is whether and to what extent information will be available for public inspection. We are used to the European Patent Office (EPO) making its files generally open to full public inspection, with only certain limited types of material being restricted from being accessible to public file inspections. However, the procedure before national courts is often more restrictive.
Rule 262 of the Rules of Procedure of the UPC (RoP UPC) provides for written pleadings and evidence that are lodged at the Court and recorded by the Registry to be available to the public upon reasoned request to the Registry. The decision is taken by the judge-rapporteur after consulting the parties.
A party may, though, request that certain information relating to the written pleadings or evidence be kept confidential. However, the party making such a request must provide specific reasons for the documents being kept confidential. The provisions of Rule 262 set out that the content of the public Register is only made available to the public 14 days after it has been made available to all recipients, i.e. all of the parties and the Court. When a statement of case is filed, a party can request that certain material is kept confidential, but it also appears possible to make such a request for confidentiality at any time.
There is a route, though, for a member of the public to contest a confidentiality request (even if the exact nature and/or content of the material may not be entirely known). The procedure requires the member of the public to detail the information alleged to be confidential as far as possible and the grounds upon which the applicant/requestor believes the reasons for confidentiality are not justified, as well as the purpose for which the information is needed. The Court will then invite written comments from the parties before making an order. The Court is mandated to consider the balance of the interests of both parties and to allow the request for the release of the information unless the reasons for confidentiality outweigh the reasons for access to the information.
The procedure for challenging a request that documents be kept confidential is therefore another example of where the UPC will need to exercise its discretion. Quite how that will work out in practice remains to be seen, and also whether a consistent practice emerges or if it becomes a case-by-case decision.
Another interesting feature of UPC proceedings, is the option for a party to restrict access to certain persons under Rule 262A RoP UPC. The application for such a direction is made to the Court and must also contain reasoned grounds for the request. Again, the Court will invite comments from the parties to the matter. So, another interesting area for the Court to exercise its discretion.
If you have any questions about UPC procedure and practices, please contact Nick Bassil or your usual Kilburn & Strode advisor.