Nicoventures Trading Limited v. Respondent

This decision, issued on 25 April 2025 by the Court of Appeal of the Unified Patent Court (Panel 2, Judge-Rapporteur Ingeborg Simonsson), concerns a request by Nicoventures Trading Limited under Rule 262.1(b) of the Rules of Procedure for immediate access to written pleadings and evidence in appeal proceedings (APL_289/2025, UPC_CoA_5/2025) between Juul Labs International, Inc. (appellant/defendant before the Court of First Instance) and NJOY Netherlands B.V. (respondent/claimant before the Court of First Instance). The underlying case was a revocation action (ACT_571669/2023, UPC_CFI_309/2023) decided by the Central Division Paris on 5 November 2024, concerning European Patent EP 3 498 115.

Nicoventures requested access to specific listed documents, including the Statement of appeal, a Formal response to the request for amendments, a Corrected Statement of appeal, and any additional documentation constituting written pleadings or evidence submitted by either party. It also requested access to all written pleadings and evidence contained in the CMS at the time the order was granted. Nicoventures argued it had a direct interest in the validity of the patent at issue because it had opposed the patent before the EPO, which resulted in revocation by the opposition division on 4 March 2024, with appeal proceedings currently pending before the EPO Boards of Appeal. It sought access to submit these materials in the parallel EPO proceedings.

Juul Labs objected, arguing that Rule 262.1(b) only covers documents already lodged and recorded, and that there was a substantial likelihood Nicoventures would copy-paste passages from the UPC pleadings into EPO briefs, which automatically become public in the EPO online register, thereby contravening the parties' confidentiality interests and undermining the UPCA's confidentiality principle. NJOY objected to the application as excessively broad, particularly insofar as it concerned future materials not yet on file.

The Court of Appeal applied the principles from its earlier decision in Ocado (CoA, 10 April 2024, UPC_CoA_404/2023), balancing the member of the public's interest in access against the general interests under Article 45 UPCA, including protection of confidential information, personal data, the integrity of proceedings, and public order. The Court held that documents not yet in the casefile at the time of the request but added before the parties commented could be covered by a decision granting access, provided the request made clear they were encompassed. However, blanket requests for documents that might be added after comments or after the decision are not admissible, requiring a new request. The Court also held that requests potentially encompassing unspecified documents in related proceedings are not admissible.

The Court found that Nicoventures' submission about its interest fulfilled the criteria for immediate access, as it is a party to concrete legal proceedings concerning the validity of the same patent. While Juul Labs raised a valid concern about the risk of reproduction in EPO proceedings, the Court held this risk could be mitigated by imposing conditions on its own motion to protect the integrity of proceedings.

The Court granted access to the specifically listed documents (the Statement of appeal, Formal response to the request for amendments, Corrected Statement of appeal of 4 January 2025, Statement of Grounds for Appeal, and Exhibit TP-15) after redaction of personal data. Access was granted subject to the condition that Nicoventures is not allowed to file the written pleadings, 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 and prior art brought forward in the UPC proceedings, or 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 raised in the UPC proceedings. The remainder of Nicoventures' request was dismissed, and the decision was declared to close the application.