Accessing written pleadings and evidence at the UPC

In Ocado v Autostore (ORD_19369/2024), the Unified Patent Court (UPC) Court of Appeal established key factors in deciding requests for access to written pleadings and evidence pursuant to Rule 262.1(b) RoP. Significantly, where a “specific interest” in the subject matter of proceedings exists (such as where the requestor is a competitor or licensee concerned with the validity of the patent at issue) the Court of Appeal decided this typically outweighs a more general interest in protecting the integrity of proceedings. The court concluded that in such cases, the balance of interests should generally fall in favour of granting access to written pleadings and evidence prior to the relevant UPC proceedings being concluded.

D Young & Co has represented a client in lodging a series of requests under Rule 262.1(b) RoP in respect of UPC revocation actions (ACT_571801/2023, ACT_571761/2023, ACT_571730/2023, and ACT_571795/2023) concerning European patents for which the client is a party to pending European Patent Office (EPO) opposition proceedings. The respective orders (ORD_37687/2024, ORD_38115/2024, ORD_38946/2024, and ORD_38127/2024), issued by the Paris Central Division of the UPC, each granted the applicant access. In doing so, it expressly followed the reasoning of Ocado v Autostore in acknowledging that the applicant’s involvement in parallel proceedings before the EPO led to a “vested and immediate interest in accessing to pleadings and evidence lodged in the current proceedings”. However, in the wake of Ocado v Autostore, some aspects of implementation of Rule 262.1(b) RoP remained ambiguous. For example, whilst a request must indicate the documents for which access is sought, it was not entirely clear the extent to which this indication might extend to documents not yet filed, but which could be expected to be filed in the future. Notably, each of the orders (ORD_37687/2024, ORD_38115/2024, ORD_38946/2024, and ORD_38127/2024) granted access to written pleadings and evidence lodged after the date of the request, expressly including documents lodged up the date of the order itself.

Furthermore, while Ocado v Autostore allowed that UPC courts may “…impose certain conditions on granting access, such as the obligation for that member of the public to keep the written pleadings and evidence he [sic] was given access to confidential as long as the proceedings have not come to an end”, the factors for deciding whether to apply such conditions were not further explained. Notably, the Paris Central Division placed no conditions on use of the accessed documents in any of its orders in the abovementioned applications under Rule 262.1(b) RoP.

A recent series of orders (ORD_17094/2025, ORD_20981/2025, ORD_13786/2025, and ORD_13796/2025) issued by the UPC Court of Appeal in Luxembourg has now brought further clarity to UPC practice surrounding access to documents requested under Rule 262.1(b) RoP.

We recently represented the same client in lodging a further series of requests under Rule 262.1(b) RoP, this time before the UPC Court of Appeal. The appeal proceedings relate to revocation proceedings (ACT_571801/2023, ACT_571761/2023, ACT_571730/2023, and ACT_571795/2023) in which the earlier requests had been lodged at first instance. In each instance, the applicant is party to a parallel EPO opposition appeal, providing the necessary specific interest to support a request for immediate access to written pleadings at the UPC. The orders (ORD_17094/2025, ORD_20981/2025, ORD_13786/2025, and ORD_13796/2025 of the UPC Court of Appeal granted each request in part, and so clarified two significant aspects of UPC practice surrounding Rule 262.1(b) RoP (noting the reasoning is virtually identical across the orders).

First, the Court of Appeal clarified the scope of documents which can be successfully requested. This includes written pleadings and evidence in the UPC case management system (CMS) at the time of lodging of a given request, and may extend to written pleadings or evidence that were “not yet in the casefile at the time when the request for access was made, but were added to the casefile before a party commented on the request”. Of note is that access to such documents will only be granted if an express request to this effect is made. The reasoning expressly weighs a desire to avoid applicants having to make repeated requests for documents as proceedings progress, against the interest of parties in being able to comment specifically on any documents to which access might be granted. Thus, in practice, a new request under Rule 262.1(b) RoP will be required to obtain access to any written pleadings and evidence lodged after the date(s) on which parties file their comments on a preceding request.

Second, in each order, the Court of Appeal placed an express bar on verbatim refiling of accessed written pleadings or parts thereof with “other courts or judicial instances such as the EPO Boards of Appeal”, or distribution of them elsewhere, until the conclusion of the relevant UPC proceedings. However, this bar does not exclude the applicant “informing itself of the arguments brought forward in the case before the Court of Appeal, including prior art, and if it chooses to, use the same arguments or prior art before the Boards of Appeal or elsewhere to support its own cases, or inform the Boards of Appeal that the arguments or prior art have been brought forward in the UPC proceedings”.

We note when the first instance court granted access to documents it did not apply such a prohibition on refiling written pleadings in other forums. However, the bar is not particularly limiting in practice, given the possibility of reframing arguments from written pleadings before the UPC, if it is of interest to put these of file elsewhere (for example, before the EPO). Notably, the bar does not prohibit the filing elsewhere of any prior art documents accessed via a Rule 262.1(b) request.