Short Summary
This appeal before the Court of Appeal of the Unified Patent Court concerned an application by a member of the public for access to written pleadings and evidence under R. 262.1(b) RoP in a counterclaim for revocation case. The Court of Appeal set aside the Central Division Paris's order granting access, holding that access to written pleadings and evidence should not be granted to members of the public who are not properly represented. The Court also held that compensation for costs should not be awarded in relation to such applications.
Detailed Summary
This case arose from an application by Respondent 1, a European patent attorney and representative before the UPC, who applied to the Central Division Paris under R. 262.1(b) RoP for access to all pleadings and evidence lodged in a counterclaim for revocation case between Meril Life Sciences and Edwards Lifesciences Corporation concerning EP 3 646 825. Respondent 1 presented himself as a board member and investor in a medical device company in the field of cardiac implant technology. He later amended the application to include SWAT Medical as a co-applicant, with himself acting as both individual applicant and representative.
The Central Division Paris granted Respondent 1 and SWAT Medical access to all pleadings and evidence in the counterclaim for revocation, finding that the balance of opposing interests favored disclosure since the proceedings had ended and there was no need to protect the integrity of proceedings, public order, confidential information, or personal data. Meril Life Sciences appealed this decision.
On appeal, several procedural issues arose regarding representation. The Court of Appeal 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, applying the requirement of independence of representatives, the Court found that Respondent 1, as Chair of the board of directors of SWAT Medical, held a high-level management position and was not allowed to represent SWAT Medical. Both Respondent 1 and SWAT Medical were ordered to instruct an authorized representative and lodge a Statement of response within 14 days.
On 26 February 2025, Respondent 1 submitted an application to change representative and a Statement of response, both signed by himself. The Court found this improper since 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 Statement of response was therefore not properly lodged by an authorized representative.
The Court of Appeal held that a decision by default has been issued when a Statement of response was submitted by a respondent who was not allowed to represent himself or the co-applicant. R. 235.3 RoP is a lex specialis which applies if the Statement of response is not lodged timely, and the drafting history demonstrates that a reasoned decision is effectively a default decision. The remedy in R. 356.1 RoP applies mutatis mutandis to reasoned decisions.
On the substantive issue of public access, the Court 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. The Court reasoned that the requirement of representation under R. 8.1 RoP applies to all applicants, including members of the public making applications under R. 262.1(b) RoP, as confirmed by the Ocado v. Autostore decision.
Regarding costs, the Court 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. The Court noted that there are no court fees for requesting access to the register, and the Scale of ceilings for recoverable costs does not mention requests for access to the register. 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 of 14 October 2024 was set aside; (2) the application for access was dismissed; and (3) Meril Life Sciences' request that the respondents bear the costs of the proceedings at first instance and on appeal was rejected.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Meril Life Sciences Pvt. Ltd vs SWAT Medical AB and Respondent is valuable context for structuring arguments or assessing risk in similar proceedings.
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