UPC_CFI_283/2026 – Gowling v Merz and Viatris

Expert Commentary

Public access to case file Facts 1. An order for preliminary measures was issued in Merz v Viatris on 27 November 2025. 2. Gowling, a UK law firm, requested access to the file for “including but not limited to” a number of documents. 3. Merz opposed the request because of its lack of specificity or, alternatively, asked that documents be redacted. 4. Viatris also wanted restrictions. The Court 1. Referring to the case law of the Court of Appeal, the Court states that after the decision on a case has been made public, access to the file on a reasoned request should in principle be granted. 2. A reason for a law firm is getting a “better understanding of the decision” by seeing what submissions and evidence it was based on. 3. The request must be specified; in other words, it should contain a list of the requested documents. Only those actually listed in the request will be accessible. 4. Documents which are already publicly accessible cannot be requested. 5. (Parts of) documents for which no confidentiality has been asked during the proceedings are not considered confidential: no confidentiality can then be asked anymore on the basis of R. 262.2 RoP. 6. Access will only be given access to pleadings and exhibits which addressed the point of law (here: “unreasonable delay”) that was actually decided in the judgment. Comment 1. Gowling argued that it needed access for a better understanding of the decision. As the decision only rules on the question of unreasonable delay, no access is given to the documents as far as they relate to the other issues discussed in the proceedings. 2. The Local Division confirms what I wrote earlier: if you do not ask for confidentiality (R. 262A RoP) in the course of the litigation, you can no longer use it against a member of the public. 3. As the decision shows, handling such requests for public access must be quite time-consuming for the Court. I wonder whether it would be possible to think of a more efficient method under the (to be) revised Rules.

Full Decision Text

1 Paris Local Division UPC CFI 283/2026 Procedural Order of the Court of First Instance of the Unified Patent Court delivered on 19/02/2026 concerning R. 262.1(b) Request for access to the case file - UPC CFI 697/2025 APPLICANT Gowling WLG 38 avenue de l'Opera, 75002, Paris, FR Represented by Marianne SCHAFFNER PARTIES in the case UPC CFI 697/2025 Merz Therapeutics GmbH Eckenheimer Landstraße 100 60318 Frankfurt am Main - DE Merz Pharmaceuticals LLC Unit 35/36, 6601 Six Forks Road, 4th Floor 27615 Raleigh, North Carolina - US 2 Merz Pharma France Tour EQHO, 2 Avenue Gambetta 92400 Courbevoie – FR Represented by Laëtitia Bénard PATENT AT ISSUE Patent no. Proprietor EP2377536 Merz Pharmaceuticals, LLC Patent no. SPC details EP2377536 SPC ID FR13C0033 National Designations FR Patent no. SPC ID National Designations Holders EP2377536 FR13C0033 FR Merz Pharmaceuticals, LLC Viatris Santé 1 rue de Turin 69007 Lyon – FR Represented by Marc Lauzeral 3 DECIDING JUDGE: Presiding judge & Camille Lignières Judge-rapporteur LANGUAGE OF PROCEEDINGS: English ORDER Summary of procedure A final order on provisional measures requested by MERZ against VIATRIS was delivered by the present Division on 21 November 2025 in the case UPC CFI 697/2025. On 27 January 2026, the court was seized by a request for access to the concerned case file from a third party, Gowling WLG (dit ci-après “GOWLING” or the “Applicant”) pursuant to R. 2621b) RoP. Invited by the judge rapporteur to provide comments on this applicaƟon, the parƟes of the case, MERZ and VIATRIS, filed their wriƩen comments via CMS on 12 February 2026. ParƟes’ requests and arguments The Applicant (third party) requests access, “including but not limited to”: - ApplicaƟon for provisional measures filed by Merz on 31 July 2025; - ApplicaƟon for provisional measures filed by Merz on 1 August 2025 - "ObjecƟon Viatris Sante 15092025 APP 339802025 compressed signed" filed by Viatris on 15 September 2025; - "Request for procedural order" filed on 16 September 2025; - "ObjecƟon" filed on 16 September 2025 - Response to ObjecƟon filed by Merz on 29 September 2025; - "Statement of reply" filed on 1 October 2025; - "ApplicaƟon" filed on 1, 2, 5, 9 and 14 October 2025; - Rejoinder filed by Viatris on 3 October 2025; - All exhibits, in parƟcular: o Exhibits evidencing the threat of infringement or actual infringement, including but not limited to: • Exhibit MERZ No. 120 - French Price NoƟce 22.11.2024; • Exhibit MERZ No. 122 - French Fampridine MA; • Exhibits MERZ No. 125 - NoƟce LeƩer 18.06.2025; • Exhibit MERZ No. 126 - Reply LeƩer 02.07.2025; • Exhibit MERZ No. 127 - NoƟce LeƩer 04.07.2025; 4 • Exhibit MERZ No. 128 - Reply LeƩer 10.07.2025; • Exhibit MERZ No. 129 - FAMPYRA French Reimbursement Order 02.06.2025; • Exhibit MERZ No. 130 - FAMPYRA French Public InsƟtuƟon Approval Order 02.06.2025; • Exhibit MERZ No. 135 - Email from Viatris to indicate that the product would be marketed in the French market.  Exhibits relevant to the balance of interest. In support of its request, the applicant argues that it seeks access to the Documents as it has a general interest in informaƟon to gain a beƩer understanding of how the parƟes and the court conducted the proceedings and ulƟmately reached the decision in view of the arguments brought forward by the parƟes and the evidence relied upon in the context of preliminary injuncƟon pro- ceedings. Such understanding is important for the Applicant, a firm of UPC representaƟves, to pro- vide professional and expert advice to their clients, which would benefit both the court and their users. In its comments, MERZ requests that the Court: A) Reject the third-party request in its enƟrety on the ground that its open-ended formulaƟon fails to saƟsfy the requirement under Rule 262(1)(b) RoP that a request be reasoned. B) In the alternaƟve to A), require the requesƟng party to idenƟfy with precision the documents to which it seeks access before the request is considered further; In the alternaƟve, C) Refuse access to, or defer disclosure of, any documents or parts thereof relaƟng to any issues not adjudicated at first instance and subject to the pending appeal UPC CoA 917/2025 – i.e., pa- tent and SPC validity, proporƟonality, necessity, and balance of interests – at least unƟl the appeal has been determined and/or it is clear whether main proceedings on the merits will be com- menced; D) In the alternaƟve to C), impose condiƟons on access to documents relaƟng to validity, proporƟonality, necessity and balance of interests, such as an undertaking that the documents will not be published, disseminated, publicly commented on, or filed with other Courts or judicial instances unƟl the appeal has been adjudicated or otherwise closed; E) Reject the request insofar as it seeks access to documents that are publicly available and do not require Court intervenƟon to obtain; And in any event, F) Permit disclosure only in redacted form of the Applicant’s wriƩen pleadings and translaƟons thereof, including Merz’s Exhibits Nos. 701, and 702; 5 G) Exclude from disclosure Merz’s Exhibits Nos. 123, 124, 125, 126, 127, 128, 134, 135, 136, 142, 143, 406, 407, 410, and 416; or in the alternaƟve, permit disclosure only in redacted form; H) Exclude from disclosure all copyright-protected publicaƟons, including Merz’s Exhibits Nos. 103, 104, 105, 106, 400, 401, 402, 403, 404, 413, 421, 429, 430, 431, 432, 434, 435, 436, 437, 438, 439, 443, 444, 445, 446, 502, 503, 504, and 512; or in the alternaƟve, permit disclosure of biblio- graphic details (cover pages) only; I) Apply appropriate redacƟons to all remaining documents to protect personal data pursuant to the GDPR and any remaining commercially confidenƟal informaƟon, consistent with ArƟcle 45 UPCA and Rule 262(2) RoP. In its comments, VIATRIS requests the Court to: Primarily, • Grant Gowling GLW access to the following elements insofar as their content is limited to the lack of urgency requirement and redacted otherwise, namely: o ApplicaƟon for provisional measures filed by Merz on 31 July 2025 in a redacted version; o The ObjecƟon filed by Viatris on 15 September 2025 in an uncompressed and redacted version; o The Summary of the ObjecƟon filed by Viatris on 19 September 2025 in a redacted version; o Statement of Reply filed by Merz on 1 October 2025 in a redacted version; o Rejoinder filed by Viatris on 3 October 2025 in a redacted version; • Deny the ApplicaƟon for public access for the remainder, namely all other wriƩen pleadings and evidence filed in the case UPC CFI 697/2025; In the alternaƟve, • Grant Gowling GLW access to the following wriƩen pleadings pertaining only to procedural mat- ters, namely: o Merz’s Request for Procedural Order of 16 September 2025; o Viatris’ ObjecƟon to Merz’s Re- quest of 16 September 2025; o Merz’s Request for Review of Procedural Order of 22 September 2025; o Viatris’ ObjecƟon to Merz’s Request for Review of 23 September 2025; o Viatris’ Request for Procedural Order of 1 October 2025; o Merz’s ObjecƟon to Viatris’ Request of 2 October 2025; o Viatris’ Reply to Merz’ ObjecƟon of 2 October 2025; • Deny the ApplicaƟon for public access for the remainder, namely all other wriƩen pleadings and evidence filed in the case UPC CFI 697/2025; In the final alternaƟve, 6 • Grant Gowling GLW access to the elements detailed above, namely the redacted wriƩen pleadings on the substanƟve aspects of the case outside of urgency and/or the pleadings relaƟng only to procedural maƩers; • Grant Gowling GLW access to only the exhibits menƟoned by the Court in the Final Order of 21 November 2025, namely: o AŌer the redacƟon of personal data within the meaning of RegulaƟon (EU) 2016/679 included pursuant to Rule 262.1: -Viatris’ Exhibits no. 135, 135bis and 146; -Merz’s Exhibits no. 125, 126, 127, 200, 201, 203, 204 and 212 ; o Viatris’s Exhibits no. 82, 82bis, 145, 148, J5 and J5bis; o Merz’s Exhibits no. 6, 100, 116, 117, 118, 120, 205, 300 and 301; • Deny the ApplicaƟon for public access for the remainder, namely all other wriƩen pleadings and evidence filed in the case UPC CFI 697/2025; In any event, • Order that any provided documents and the informaƟon they contain must not be published nor otherwise be made available to the public; • Pursuant to Rule 262.2, maintain the confidenƟality of Viatris’ Exhibit 149 “IQVIA Data unre- dacted version” as requested in the ApplicaƟon of 15 September 2025. In its response of 16 February 2026, GOWLING refuted the parƟes' arguments, as follows: -regarding the integrity of the proceedings: The mere existence of an appeal in the maƩer opposing Merz and Viatris is not a valid reason to refuse access to the proceedings ; -regarding a request sufficiently reasoned: the request is sufficiently reasoned since the Court recognised that the request for access was legiƟmate and jusƟfied by the general educaƟonal and informaƟon interest set forward by the applicant, and the Request idenƟfies the categories of doc- uments (pleadings and exhibits) and explains the educaƟonal purpose; -regarding confidenƟality: the Court will hold Merz's request to reject the Request on the grounds of confidenƟality as unfounded and will give access to the wriƩen pleadings and exhibits aŌer re- dacƟon of the confidenƟal passages. Moreover, the Applicant reserves the right to contest any redacƟons that go beyond personal data or genuinely confidenƟal commercial informaƟon, should parƟes' proposed redacƟons prove excessive. -regarding a limitaƟve access: The Court's decision on urgency alone does not jusƟfy limiƟng ac- cess. "The Documents [we] request access to are unrelated to any pending or upcoming proceed- ings [we are] advising on, and the hereby request is unrelated to the parƟes involved in the acƟon […] in quesƟon in this acƟon." As a result, there is no risk of any "compeƟƟve harm" occurring. Legal framework Art. 45 UPCA-Public access to the register 7 The proceedings shall be open to the public unless the Court decides to make them confidenƟal to the extent necessary, in the interest of one of the parƟes or other affected persons, or in the general interest of jusƟce or public order. Rule 262 – Public access to the register 1. Without prejudice to ArƟcles 58 and 60(1) of the Agreement and subject to Rules 190.1, 194.5, 196.1, 197.4, 199.1, 207.7, 209.4, 315.2, and following, where applicable, redacƟon of personal data within the meaning of RegulaƟon (EU) 2016/679 and confidenƟal informaƟon according to paragraph 2 […] b) wriƩen pleadings and evidence, lodged at the Court and recorded by the Registry, shall be avail- able to the public upon reasoned request to the Registry; the decision is taken by the judge-rappor- teur aŌer consulƟng the parƟes. GROUNDS On the admissibility of the applicaƟon As decided by the UPC Court of Appeal (UPC CoA 404/2023, April 10, 2024), the general principle set out by the UPC is that the register is public and the proceedings are open to the public, unless the balance of interests at stake is such that access to the register must be denied. Consequently, when hearing an applicaƟon based on Rule 262.1(b) RdP, the Judge Rapporteur must balance the applicant's interest against the interests menƟoned in ArƟcle 45 UPCA. These interests include the protecƟon of confidenƟal informaƟon and personal data, but also the general interest of jusƟce, which includes the protecƟon of the integrity of the proceedings and public order (UPC CoA 404/2023, April 10, 2024). As a maƩer of principle, once the decision has been made public, the relevant arguments and evidence presented by the parƟes are disclosed, which jusƟfies access to the procedural documents. The UPC Court of Appeal rightly pointed out that in order to enable the Judge Rapporteur to bal- ance these interests, the applicant must set out the reasons why it has an interest in obtaining access to the briefs and evidence. It follows that the term “reasoned request” means a request that not only indicates the briefs and evidence that the applicant wishes to obtain, but also speci- fies the purpose of the access request and explains why access to the specified documents is nec- essary for the purpose pursued, thereby providing all the informaƟon necessary for the Judge Rap- porteur to weigh up the interests (UPC CoA 404/2023, April 10, 2024; UPC CoA 480/2024, Janu- ary 9, 2025). In the present case, the applicant is a law firm that is interested in accessing certain documents in the proceedings in order to beƩer understand the decision rendered in the dispute between Merz and Viatris. The UPC CoA has already ruled in a case in which the applicant was also a law firm with a legiƟmate interest in accessing certain documents in the case file. (CoA, 22 December 2025, Herbert Smith Freehills Kramer LLP v Insulet and EOFlow, UPC CoA 886/2025:” The interest put forward by 8 Herbert Smith Freehills Kramer LLP to have a beƩer understanding of the decision rendered on 30 April 2025 in view of the arguments brought forward by the parƟes and the evidence relied on, corresponds to the general interest named in the Ocado v Autostore order, which interest arises aŌer a decision was rendered.”) Furthermore, it has already been ruled that the request cannot be too vague or general and must relate to specifically designated documents in the case file. In this case, even though the applicant used the term “in parƟcular,” it specifically designated a list of documents to which it wished to have access. The Court considers that it is seized of the applicaƟon only for the documents specif- ically designated in the request and not for the enƟre file. Consequently, GOWLING's applicaƟon will be declared admissible. Regarding the scope of access Regarding the scope of access to the concerned case file, it should be noted that GOWLING, law firm, is jusƟfied in its request to access certain documents in the file supporƟng the final decision and procedural orders issued by the Court, to beƩer understand the decisions rendered by the Court in the provisional measures dispute between MERZ and VATRIS. As the applicant has indi- cated, the purpose of this request for access to the documents in the file is as follows: “to gain a beƩer understanding of how the parƟes and the court conducted the proceedings.” When deciding on the scope of access to the case file, the Judge rapporteur takes into account, on a case-by-case examinaƟon, the legiƟmate objecƟve pursued by the applicant. (see decision of the Milan CD, 16/10/2025, Herbet Smith Freehills Kramer v. Insulet, EO Flow, UPC 941/2025) In the present case, concerning the procedural issues dealt with by the Court: - The Court essenƟally dealt with the issue of the alleged excessive number of pages in the Objec- Ɵon, and this procedural order was published. It is therefore legiƟmate (and this is not disputed by the parƟes) for the applicant, a law firm, to have access to the applicant's pleadings on this im- portant point of law in the handling of provisional measures cases before the UPC: - “Request for procedural order” filed on September 16, 2025; - “ObjecƟon” filed on September 16, 2025. Both applicaƟons will be made available to the applicant. The other procedural issue addressed by the Court in this dispute concerns VIATRIS's request for an extension of Ɵme in the specific context of summary proceedings for “provisional measures,” which was rejected in its order by the judge rapporteur: - “ApplicaƟon” filed on October 1, 2025, by VIATRIS and Response by MERZ filed on October 2, 2025. These documents will be made available to the applicant. As for the procedural applicaƟons of October 5, 9, and 14, 2025, they concern the admissibility of documents alleged to be late, which only concern the validity of the SPC, a point of law that was not addressed in the final decision and is therefore not relevant to its understanding. Access to them will therefore not be granted as it is not jusƟfied by a legiƟmate interest in beƩer understand- ing the Court's decision rejecƟng MERZ's provisional applicaƟon. 9 Concerning the final order, -The Court addressed only one key issue in the dispute, namely the criterion of unreasonable delay under Rule R. 211.4 RoP, MERZ's failure to comply with this criterion having rendered MERZ's ap- plicaƟon inadmissible. In view of this context, the Court considers that GOWLING's legiƟmate in- terest in beƩer understanding the issues dealt with in the MERZ/VIATRIS dispute by the Paris Local Division at first instance will be limited to this point of law and will not be extended to other points of law that were debated but which the Court did not have to rule on (such as the validity of the SPC, proporƟonality, necessity and balance of interests). This is in order to protect the integrity of the proceedings, as no ruling has yet been made on these points, and the parƟes sƟll have the possibility at this stage to bring an acƟon on the merits before this division. Access to the case file will be strictly limited to the point of law dealt with in the decision concerned, i.e. the unreasonable delay provided for in Rule 211.4 RoP. In view of the various interests at stake, it is therefore not jusƟfied to grant the applicant broader access to enable him to understand how the dispute was decided. Consequently, the arguments set out in the parƟes' submissions will be made available to the ap- plicant but limited to extracts relaƟng to the point of law concerning “unreasonable delay”, as fol- lows: --in MERZ's ApplicaƟon: § 4.2 and 4.3 (pages 17 to 20) -in VIATRIS's ObjecƟon: § 2 (pages 61 to 75) and Summary ObjecƟon: §2, pages 4 to 6 -in MERZ's Reply: §1 (pages 3 to 6) -in VIATRIS's Rejoinder: §1 (pages 1 to 3); Regarding the exhibits supporƟng these submissions relaƟng to the criterion set out in R. 211.4 RoP and specifically referred to by GOWLING in its applicaƟon: - Exhibits MERZ Nos. 120, 122, 125, 126, 127, and 128. The Court notes that Exhibits MERZ Nos. 129 and 130, to which the applicant specifically re- quested access, have been published in the “Journal Officiel” and are therefore public data, meaning that a court order is not necessary to access them. The access to Exhibit MERZ N°135, which does not relate to the maƩer of “unreasonable delay’ is not jusƟfied by the purpose of the request. And the content of the “- Email from Viatris to indicate that the product would be mar- keted in the French market” has already been shown in the final order (see § 55 of the Final order MERZ v VIATRIS, Exhibit VIATRIS n°135). Access to the above-menƟoned documents will be granted to the third-party applicant to enable him to beƩer understand the final decision, even though the judge-rapporteur notes that, in the interests of transparency and clarity, the Court had already chosen to include in its grounds the extracts from these documents that were most relevant to the examinaƟon of the point of law to be seƩled. In response to the arguments of MERZ and VIATRIS based on confidenƟality and the protecƟon of third-party rights, the Court notes that, at the Ɵme of filing, none of the above-menƟoned docu- ments were the subject of a request under R. 262.2 or R. 262A RoP, so these documents will be 10 made available to the applicant aŌer the Registry has anonymised the personal data contained in those documents. On these grounds, The Judge rapporteur orders access to the following documents, after anonymisation by the Reg- istry to protect personal data: - in MERZ's Application: § 4.2 and 4.3 (pages 17 to 20) - in VIATRIS's Objection: § 2, pages 61 to 75 (and Summary Objection §2, pages 4 to 6) - in MERZ's Reply: §1 (pages 3 to 6) - in VIATRIS Rejoinder: §1 (pages 1 to 3); - “Application” filed on October 1, 2025, by VIATRIS and Response by MERZ filed on October 2, 2025. - Exhibits MERZ No. 120, 122, 125, 126, 127, and 128. - And dismisses the other claims. - This order is subject to a review under the conditions provided for in the provisions of R. 333 RdP. Issued in Paris, on 19 February 2026. C. Lignières, Presiding judge and Judge rapporteur ORDER DETAILS Date of issue of the order: 19/02/2026 CFI case: UPC CFI 283/2026 Type of application: R. 262.1(b)-Request for access to the case file - UPC CFI 697/2025

Key Holdings

• Public access to case files is generally granted after a decision, upon a reasoned and specific request.
• Requests for access must list specific documents; general requests will be denied.
• Documents for which confidentiality was not requested during proceedings cannot be deemed confidential later under R. 262.2 RoP.
• Access is limited to documents relevant to the specific point of law decided in the judgment.

Tags

• Public Access
• Confidentiality
• Procedural
• Case File

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