Nicoventures Trading Limited v. Respondent

This decision concerns a request for access to written pleadings and evidence filed by Nicoventures Trading Limited, a company based in London, UK, represented by Samuel Keyes of D Young & Co LLP. The underlying proceedings are an appeal (App_13352/2025) arising from a revocation action (ACT_571801/2023, UPC_CFI_315/2023) before the Central Division Paris, decided on 5 November 2024. In those proceedings, NJOY Netherlands B.V. (Amsterdam, The Netherlands), represented by Dr Henrik Holzapfel of McDermott Will & Emery, is the appellant and claimant, while Juul Labs International, Inc. (San Francisco, USA), represented by European Patent Attorney Bernhard Thum of Thum&Partner, is the respondent and defendant. The patent at issue is EP 3 504 991. The request was filed in the context of APL_322/2025 before the Court of Appeal (UPC_CoA_7/2025), with the matter decided by Panel 2, with Ingeborg Simonsson as the legally qualified judge and judge-rapporteur. The language of the case is English.

Nicoventures requested immediate access to all written pleadings and evidence in APL_322/2025 under Rule 262.1(b) of the Rules of Procedure. The central legal questions addressed by the Court of Appeal concerned the scope and admissibility of such access requests. Specifically, the Court examined whether documents added to the casefile after the request was made but before comments were submitted could be encompassed by a decision granting access, and whether blanket requests for documents that might be added in the future are admissible. The Court also considered whether a request that does not explicitly mention specific documents but could be understood to encompass unspecified documents in related proceedings is admissible.

& Analysis

The Court of Appeal established several principles regarding access to written pleadings and evidence. First, it held that written pleadings or evidence not yet in the casefile at the time of the request, but added before a party commented on the request, can be covered by a decision granting access, provided the request made clear that such documents were encompassed. This approach reduces the need for further separate requests while ensuring parties are consulted. Second, blanket requests for access to documents that may be added after comments or after the decision on access are not admissible; a new request would be required. Third, a request that does not explicitly mention specific documents, even if it could potentially be understood to encompass unspecified documents in related proceedings, is not admissible. The Court further reasoned that immediate access can be granted based on a reasoned request by a member of the public who is party to concrete legal proceedings concerning the validity of the patent at issue, with a stated direct interest in that validity. The Court also noted that, for the purpose of appropriate protection of the integrity of proceedings, it may impose certain conditions on granting access, and this can be done on the Court's own motion as a matter of general interest, citing the earlier decision in Ocado (CoA, 10 April 2024, UPC_CoA_404/2023, APL_584498/2023).

Final Order & Ruling

The Court of Appeal granted immediate access to the written pleadings and evidence to Nicoventures Trading Limited, subject to a specific condition: the member of the public is not allowed to file the written pleadings in question, or parts thereof, with other courts or judicial instances such as the EPO Boards of Appeal, or distribute them elsewhere, until the present appeal has been adjudicated or otherwise closed. The Court clarified that this condition does not prevent Nicoventures from informing itself of the arguments brought forward in the case, including prior art, and from using the same arguments or prior art before the Boards of Appeal or elsewhere to support its own cases, or from informing the Boards of Appeal that such arguments or prior art have been brought forward in the UPC proceedings.