How transparent is the Unified Patent Court?

The Unified Patent Court cannot be accused of not striving for transparency. Last week, it not only published the budget for 2025, which provides insights into the key economic figures and reveals that the court is planning to greatly expand the judiciary. The 2024 annual review also gives an account of what the court has achieved in the first year and a half. It includes not only the case numbers but also the most important decisions of the court of first instance and the Court of Appeal in 2024.

Since the turn of the year, the Court of Appeal has published two further judgments on the subject of confidentiality and the representation rights of in-house lawyers.

Recent judgments

On 12 February 2025, the Court of Appeal granted two partners of the Texas law firm Blue Peak Law Group access to the confidential version of Xiaomi’s statement of defence and the written statement (case ID: UPC_CoA_621/2024).

In the infringement case NPE Daedalus vs Xiaomi and MediaTek, the Chinese implementer had requested that confidential information be restricted to certain persons in accordance with R. 262A of the Rules of Procedure. This mainly concerned information on the architecture of MediaTek processors. Daedalus then requested that its managing director and two US attorneys be granted access to the confidential information.

In its ruling, the Court of Appeal under presiding judge Klaus Grabinski highlighted that “pursuant to R. 262A.6 the number of persons to whom access is restricted shall be no greater than necessary in order to ensure compliance with the rights of the parties to the legal proceedings to an effective remedy and to a fair trial, and shall include, at least, one natural person from each party and the respective lawyers or other representatives of those parties to the legal proceedings.”

Judges explained, “Whether a particular person may be granted full access under this provision must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential.”

In a second headnote the Court of Appeal sets out that the same rule “does not require that the person to whom access is given be an employee of a party or a representative within the meaning of Art. 48 of the UPC Agreement. Such a requirement does not follow from the wording of the provision and would unduly restrict a party’s freedom to choose its assistants in the proceedings. Therefore, the fact that the US attorneys are neither employees of Daedalus, nor representatives within the meaning of Art. 48 UPCA, does not preclude them from having full access to the confidential information under R. 262A”.

Yes and no for in-house representation

Only one day earlier, the UPC Court of Appeal ruled that the position of Suinno’s representative as the company’s managing director and shareholder precludes him from representing Suinno in an application for confidentiality. Helsinki-based patent attorney Mikko Väänänen is both the inventor of the patent-in-suit and the main representative for Suinno in the case. According to the judgments, he is also the company’s managing director and main shareholder.

The ruling is part of a case brought by Finnish company Suinno Mobile & AI Technologies Licensing Oy against Microsoft over infringment of a patent that protects a method for browsing by walking. In the course of the proceedings, Suinno also filed an application requesting that certain documents be kept confidential from both the public and Microsoft. Microsoft argued that Väänänen could not be considered independent within the meaning of 2.4.1 of the Code of Conduct for UPC Representatives because he is financially dependent.

Initially, this argument was not accepted by the Paris central division in June 2024. The judge granted Suinno’s application and ordered access to documents be restricted to Microsoft representatives. But later, the same court set aside the initial order and declared Suinno’s application inadmissible. It ordered the disclosure of documents to certain identified persons only.

The court granted leave to appeal, which Suinno did. But the panel comprising president Klaus Grabinski, Peter Blok and judge-rapporteur Emmanuel Gougé upheld the first-instance ruling (case ID: UPC CoA_563/2024). The judges ruled that Väänänen is a qualified UPC representative, but his “administrative and financial powers within Suinno preclude him from representing Suinno” in filing an application to keep documents confidential from Microsoft.

In the first few months, various UPC court rulings on confidentiality and public access to documents had already been issued

Confidentiality guidelines

Fujifilm vs Kodak (case ID: UPC_CFI_355/2023): On 27 March 2024, the Düsseldorf local division under presiding judge Ronny Thomas ruled in the case over printing technology between that “when deciding an application to grant protection for the allegedly confidential information, the court has to weigh the right of a party to have unlimited access to the documents contained in the file, which guarantees its fundamental right to be heard, against the interest of the opposing party to have its confidential information protected.”

The judges explained further, “A party seeking protection for confidential information has – in a first step – to put forward sufficiently substantiated arguments, why it believes the information concerned is to be protected. It is therefore not enough to have resort to general circumstances such as there being competition between the parties to the dispute. The Court has to be put in a position to understand, why the applicant believes that the concrete information to be protected is vulnerable and confidential. It is therefore necessary to substantiate with regard to each redacted part of the written submissions, why this explicit part of the submission amounts to confidential information.”

The Düsseldorf panel also stated in the ruling that “once adequate explanation in that regard has been received, it is then for the court to decide, which extent of certainty has to be reached for the court to believe that the applicant’s allegations are true. The necessary level of persuasion that the information is confidential in nature may differ having due regard to the substance matter of the dispute. In a further step, the Court has to strike a balance between the adequate level of protection of said confidential information and the right of the claimant to have sufficient access to the information in order to exercise its right to be heard.”

The judges added, “In this context, R. 262A.6 RoP establishes with all desirable clarity as a ground rule of paramount importance that at least one natural person from each party and the respective lawyers or other representatives are to be granted access in order to ensure a fair trial. When deciding upon the level of restriction, again the circumstances of the case are to be taken into consideration. Whereas in some cases a restriction may be more important to safeguard the confidential information concerned, in other cases the right to full access to the files of a party trumps the interest of protection.”

Public access to the registry

Powell Gilbert vs Abbott, Sibio & Umedwings (case ID: UPC_CFI_131/2024): In the case between Abbott and Sibio and Umedwings over glucose-monitoring devices a London-based law firm, as a member of the public, requested access to the written pleadings and evidence in several proceedings of this multi-jurisdictional patent fight.

On 29 July 2024, the Munich section of the central division under presiding judge Ulrike Voß ruled that “enabling better understanding and scrutiny of decisions is a legitimate reason to request access (CoA jurisprudence). In case of an appeal, withholding access to the documents in first instance no longer serves the purpose of protection of integrity of proceedings A term of 15 days before access granted is to be observed (and unless no appeal is filed within that period)”.

Astellas vs Helios Riken Osaka University (case ID: UPC_CFI_75/2023). In the case over revocation of a biotech patent, UK firm Mathys & Squire requested under Rule 262.1(b) of the RoP with the Munich section of the central division that the court make available all written pleadings and evidence filed in relation to one of two revocations actions.

On 22 August 2024, judge raporteur András Kupecz ruled that “in weighing the interests of the applicant against the interests mentioned in Art. 45 UPCA, once the proceedings have come to an end, as in the present case by way of settlement, the integrity of proceedings is no longer at stake and the balance of interests will normally be in favour of granting access to written pleadings and evidence pursuant to Rule 262.1(b) RoP, subject to the redaction of personal data and the redaction of confidential information pursuant to Rule 262.2 RoP”. Kupecz granted Mathys & Squire access to the written pleadings and evidence, after redaction of personal data.

As a follow-up to the first order of the Munich central division, Mathys & Squire requested that the documents be made available to the applicant in unredacted form or with redactions limited to those strictly necessary.

On 4 November 2024, the Munich central division under presiding judge Ulrike Voß granted access to the documents in unredacted form (case ID: UPC_CFI_75/2023). The judges stated in their second ruling that in accordance with Rule 262.3 RoP “nformation excluded from public access pursuant to Rule 262.2 RoP may be made available to the applicant granted in the absence of legitimate reasons to withhold access.”

Confidentiality club

Abbott vs Dexcom (case ID: UPC_CFI_230/2023): In the settled dispute over glucose-monitoring devices, the Paris local division under judge raporteur Camille Lignieres ruled on 19 December 2023 that “pursuant to Article 9.3 of the EU Directive on Trade Secrets, the Court, when deciding on the measures to protect confidential information, shall take into account the need to ensure a fair trial and any potential harm for either of the parties resulting from the granting or refusal of such measures.”

The judges added, “While it is necessary and appropriate to extend access to parallel pending proceedings within the UPC, allowing the extension of access to the Respondent’s law firm involved in national proceedings in Europe and in the US would weaken the efficiency of the confidentiality measure.”

The ruling was based on Abbott’s confidentiality application under R. 262A and R. 262.2 RoP related to information mentioned in their statement of defence in one of Dexcom’s five infringment claims against Abbott. During the intense global patent battle Abbott had lodged four infringment proceedings with the UPC.

Dolby and Access Advance vs Hewlett Packard (case ID: UPC_CFI_457/2023). In the dispute between Dolby and various HP entities over video-coding technology, the patent pool Access Advance joined — with permission of the local division Düsseldorf — as an intervener on the side of the claimant. HP then commentedon the application for the protection of confidential information and, for the first time, asserted that the content of the bilateral licence negotiations between the parties was subject to a strict confidentiality agreement.

On 22 July 2024, the Düsseldorf local division ruled that “unless the court orders otherwise, the intervener will be treated as a party in accordance with R. 315.4 RP. R. 262A.6 RP is therefore also applicable to him. He is therefore entitled to have at least one natural person, in addition to his legal representatives, among those entitled to have access to information classified as confidential”.