Public Access to Pending Appeals: The Court of Appeal on Rule 262 RoP
The Court of Appeal clarifies the strict requirements for third parties seeking access to written pleadings in pending cases. General competitor status and third-party enforcement threats are insufficient under Rule 262 RoP.
When a third party discovers that a competitor's patent is under appeal following a revocation by a decision by default, the immediate instinct is often to request the case file to monitor the arguments. However, as the Court of Appeal has now clarified in a dispute over wave pool technology, simply pointing to general market competition and past foreign litigation is not enough to unlock the registry while the appeal remains pending.
Why did Surf Loch request access to the pending appeal file?
The underlying dispute began when WhiteWater filed a revocation action against American Wave at the central division in Paris concerning EP2728089. American Wave did not appear, resulting in a decision by default revoking the patent as regards claim 1. American Wave subsequently lodged an appeal.
While the appeal was pending, Surf Loch requested immediate access to the statement of appeal and exhibits pursuant to Rule 262.1(b) RoP. To justify its request, Surf Loch argued it was a direct competitor developing projects in Lisbon and Rotterdam. It also sought to compare American Wave's positions before the Unified Patent Court with those taken in Inter Partes Review proceedings before the United States Patent and Trademark Office. Finally, Surf Loch cited cease-and-desist letters that American Wave had sent to industry allies as evidence of a potential threat.
How does the Court of Appeal balance interests under Rule 262.1(b) RoP?
The judge-rapporteur must balance the public interest in access against the protection of confidential information and the integrity of proceedings under Article 45 UPCA. The Court of Appeal reiterated that protecting the integrity of proceedings ensures parties can present arguments without external interference.
While these interests are usually balanced in favour of access after a decision is rendered, obtaining documents before the proceedings close requires a more specific justification. A member of the public must demonstrate a direct interest in the subject matter, such as being accused of infringement by a similar product or having a specific concern regarding validity as a competitor.
Why did the panel reject the competitor argument and third-party letters?
Applying this standard, the panel found Surf Loch's assertions insufficiently substantiated. Surf Loch provided no details about its own technology or why the patent at issue was relevant to its products. A website link provided for the Rotterdam project only mentioned Surf Loch's name among several other companies, offering no technical specifics.
Crucially, the Court of Appeal agreed with American Wave that cease-and-desist letters sent to third parties cannot be regarded as a present assertion or imminent enforcement threat against the applicant itself. The panel established the operative holding: the mere allegation of being a "direct competitor" to the patentee or being active in a "similar" field of technology as the patent at issue is not sufficient to get such access to the case file before the closure of the proceedings (reasons 27).
How did the closed US proceedings impact the request?
Surf Loch's reliance on foreign litigation also failed to persuade the panel. In its application, Surf Loch stated it was a co-petitioner in US proceedings, but failed to disclose that these proceedings had actually closed in 2023.
The Court of Appeal noted the fundamentally different legal principles applicable to US patents. Because Surf Loch did not provide information about the scope of the US patents or explain why the prior art raised there would be relevant to the European patent at issue, the panel failed to see the relevance of the terminated proceedings. The burden was on the applicant to explain why a comparison of positions was necessary, which Surf Loch did not do.
What must applicants show to access pending files after UPC-COA-0000092/2026?
Practitioners seeking access to written pleadings before a case is closed must provide concrete and relevant information demonstrating a direct interest. Vague references to operating in a similar field are insufficient. Applicants are expected to detail their specific technology and explain how the patent at issue threatens their European operations.
Furthermore, applicants generally cannot rely on enforcement threats directed at third parties to establish their own direct interest. If relying on foreign proceedings to justify access, practitioners should explicitly detail the relevance of those proceedings to the Unified Patent Court dispute and accurately report their status. Without this specific substantiation, the need to protect the integrity of ongoing proceedings takes precedence.