Meril Italy S.r.l. v. Respondent 1 and SWAT Medical AB

This case concerns an appeal by Meril Italy S.r.l. against an order of the Central Division Paris dated 14 October 2024, which had granted access to written pleadings and evidence in a revocation action between Meril Italy and Edwards Lifesciences Corporation concerning EP 3 646 825. The access had been requested by Respondent 1, a European patent attorney and representative before the UPC, who applied on 5 June 2024 under R. 262.1(b) RoP as a member of the public, being a board member and investor in a medical device company in the field of cardiac implant technology. On 8 August 2024, Respondent 1 amended the application, identifying himself as Main Applicant (in his role as board member of SWAT Medical), SWAT Medical as 1st Co-applicant, and himself as 2nd Co-applicant (in his role as an investor).

The Central Division Paris had granted access, finding that the balance of opposing interests favoured disclosure, that the proceedings had ended so there was no need to protect the integrity of the proceedings, and that there was no need to protect confidential information, personal data, public order, or security interests. Meril Italy appealed, requesting that the order be set aside and that the respondents bear the costs.

On 30 November 2024, Respondent 1 lodged a Statement of response on behalf of the respondents. The Court of Appeal subsequently issued an order on 12 February 2025, holding that representation is a point of admissibility involving public policy considerations. The Court found that lawyers and European patent attorneys are not exempted from the duty to be represented if they themselves are parties in cases before the UPC. Respondent 1 was therefore not allowed to represent himself. Furthermore, as Chair of the board of directors of SWAT Medical, Respondent 1 held a high-level management position and was not allowed to represent SWAT Medical either. Both Respondent 1 and SWAT Medical were ordered to instruct an authorised representative and lodge a Statement of response within 14 days.

On 26 February 2025, Respondent 1 filed an application to change representative, signed by himself alone, and submitted a Statement of response also signed by himself. The Court of Appeal held that Respondent 1 was not in a position to renounce his role as representative for himself or transfer it to someone else, as he was not allowed to represent himself in the first place. The person newly named as representative had not made any visible appearance before the Court of Appeal claiming to represent the respondents. The Court therefore concluded that no authorised representative had lodged a Statement of response in time.

The Court of Appeal held that R. 235.3 RoP is a lex specialis that applies when a Statement of response is not lodged timely, and that a reasoned decision under this rule is effectively a default decision. The remedy in R. 356.1 RoP (application to set aside within one month) applies mutatis mutandis to reasoned decisions. The Court further held that access to written pleadings and evidence under R. 262.1(b) RoP should not be granted to members of the public who are not represented, as the requirement of representation under R. 8.1 RoP applies to all applicants, including members of the public under R. 262.1(b) RoP.

Regarding costs, the Court of Appeal held that compensation for costs should not be awarded in relation to applications for access to written pleadings and evidence pursuant to R. 262.1(b) RoP, noting that there are no court fees for such requests and that the Scale of ceilings for recoverable costs does not address such requests. In exceptional cases, a party may be ordered to bear unnecessary costs under Art. 69.3 UPCA, but this was not applicable here.

The final decision was: (1) the order of the Central Division Paris is set aside; (2) the application App_33486/2024 is dismissed; and (3) Meril Italy's request that the respondents bear the costs of the proceedings at first instance and on appeal is rejected.