UPC_CFI_936/2025 – InterDigital v Amazon

Expert Commentary

Access to recording of the hearing Facts The defendants wanted the recording of the hearing to be made available to the respondents or their representatives at the premises of the Court at the Local Division Düsseldorf, so that they could take notes with the help of a professional transcriber. The JR The representatives are only allowed to listen to the recording. Comment 1. The JR first considers that a full transcript is not necessary, as US counsel could also listen by video and there were sufficient representatives present who could make notes during the hearing. But, in preparing an appeal, you want to be sure you know exactly what was said. I am not convinced by the argument that a party had enough representatives in the court room who did not speak and could take notes. If I hire and bring an associate to the hearing only for their stenographic capacity, what is the difference then with the request of the defendants? 2. The JR also fears that such transcript could be used in a so-called “beauty contest” to advertise the capabilities of the representatives to prospective clients. I do not think this should be a concern. In my 53 years of practice, I have never used my pleading notes (basically the same as a verbatim report of an oral argument in Dutch proceedings) to win a beauty contest. Transcripts of oral hearings are generally full of verbal tics, wrongly pronounced words, etc., which you certainly do not want to use for self-promotion. Moreover, it could simply be ruled that the transcript cannot be made public but can only be used for the purpose of the proceedings. 3. A confidentiality regime should be no reason either to deny the possibility of making a transcript out of the audio recording. Of course, the parts of the hearing which were ruled confidential shall remain subject to the confidentiality regime. 4. The Rules drafting history points in a different direction. Reporter Tillmann (from Germany) suggested after the public consultation that one could only listen to the recording. However, the rest of the Drafting Committee during its meetings of 14, 16 and 17 December 2013 had a different view. This is understandable, as the UK members were used to full transcripts, which then could still be made from the recording at the Registry. The text remained unchanged, the audio recording being “made available” without any restriction. The text was also accepted by the legal group of the Preparatory Committee (which consisted of representatives of the different countries). 5. There has never been any discussion in the Drafting Committee indicating that R. 115 RoP should be interpreted in accordance with the customs of the Court of Justice of the European Union, which is a court of a different nature than a first-instance court where facts are important and where minutes are produced. 6. I do not think it is plausible that a representative would make a false transcript and present this as a court manuscript. That should lead to severe consequences for the representatives and would also be easy to show. On the contrary, a person who makes just cursory notes may draw wrong conclusions, even in good faith.

Full Decision Text

Local Division Mannheim UPC_CFI_936/2025 Order of the Court of First Instance of the Unified Patent Court issued on 27 November 2025 Applicants: 1. InterDigital VC Holdings, Inc., 200 Bellevue Represented by Parkway, Suite 300, Wilmington, Delaware Cordula 19809, USA, represented by the CEO, Schumacher 2. InterDigital Patent Holdings, Inc., 200 Bellevue Parkway, Suite 300, Wilmington, Delaware 19809, USA, represented by the CEO, 3. InterDigital Madison Patent Holdings, SAS, 20 rue Rouget de Lisle, 92130 Issy-les-Moulineaux, France, represented by Richard J. Brezski, 4. Interdigital CE Patent Holdings SAS, 20 rue Rouget de Lisle, 92130 Issy-les-Moulineaux, France, represented by Richard J. Brezski, Defendants: 5.1. Amazon.com, Inc., 410 Terry Represented by Klaus Avenue North Seattle, Haft Washington, 98109, USA, represented by the CEO, represented for service by its agent Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808, USA 2. Amazon Digital UK Limited, 1 Principal Place, Worship Street, London, EC2A 2FA, 1  UK, represented by the CEO, 3. Amazon Europe Core S.à.r.l. (Société à responsabilité limitée), 38 Avenue John F. Kennedy, L-1855 Luxemburg, represented by the CEO, 4. Amazon EU S.à.r.l. (Société à responsabilité limitée), 38 Avenue John F. Kennedy, L1855 Luxemburg, represented by the CEO 5. Amazon Technologies, Inc., 410 Terry Avenue North Seattle, Washington 98109, USA, represented by the CEO, represented for service by its agent CSC – Lawyers Incorporating Service, 2710 Gateway Oaks Drive, Sacramento, CA 95833, USA, EUROPEAN PATENTS: cf. Exhibit AR10 PANEL: Panel of the Local Division Mannheim JUDGES: This order is issued by the Presiding Judge and Judge Rapporteur Tochtermann. LANGUAGE OF THE PROCEEDINGS: English SUBJECT: R. 206 RoP – preliminary measures, here: Transcript of audio recording (R. 115 RoP) SUMMARY OF FACTS AND ARGUMENTS Defendants request as follows under R. 115 RoP: A. The recording of the oral hearing before the Local Division Mannheim dated 14 November 2025 shall be made available to the Respondents or their representatives at the premises of the Court at the Local Division Dusseldorf. B. The Respondents are allowed to take notes from the audio recording with the help of a professional transcriber to be named by the Respondents. 2  C. In the event of full or partial refusal of the application, the Respondents request that leave to appeal is granted. Defendants argue, given the importance of access to the audio record, representatives must be allowed to involve assistants in the preparation of a complete (!, see mn. 33 of the application) transcript. Nothing else followed from R. 115 sentence 3 RoP. The fact that R. 115 sentence 3 RoP states that the audio record “shall be made available to the parties or their representatives” had to be understood before the background of R. 115 sentence 1 RoP, which was directed at the publicity of the hearing and allows third parties to attend the hearing. The purpose of R. 115 sentence 3 RoP, according to which the audio record can only be accessed by parties or their representatives, excluded the public from access to the audio record. However, it was not intended to create obstacles for access in the sense that the parties or representatives cannot involve assistants to take notes or to create a transcript of the oral hearing. This interpretation also followed from the travaux préparatoires, i.e. the preparatory documents for the UPC Rules of procedure. Furthermore, also a comparison with the function of the audio recording in proceedings before the ECJ would support Deefendants interpretation. A complete transcript was necessary to coordinate with US and UK counsel in parallel proceedings. Claimant was invited to comment but decided to put the decision into the hands of the court without further statement from its side. Reference is made to the application and its exhibits and the comments of Claimant. GROUNDS FOR THE ORDER The requests of Defendants are successful only in part. I. Defendants or their representatives had to be granted access to the audio recording at the premises of the Local Division Düsseldorf, in conformity with the established confidentiality regime for this proceeding, so that the representatives may listen to the audio recording there upon appointment. As the access is granted by the registry and the registry is a uniform institution of the UPC, access to the audio protocol of a hearing before the CFI can be provided at the premises of any convenient Local, Regional or Central Division of the CFI upon appointment. II. However, Defendants request to produce a complete transcript with the help of a stenographer had to be rejected. 1. First, such complete transcript is not necessary at the case at hand to coordinate with counsel of Defendants in non-UPC jurisdictions as Defendants allege. The Local Division undertook great efforts to accomodate Defendants request to attend the oral hearing not only with UPC representatives but also with their US counsel and UK counsel in person as well as by way of video conferencing. A large court room had to be equipped with a video- conferencing solution at the costs of the court. Therefore, counsel of parallel litigation in the UK and the US were able to attend the hearing and take their notes as deemed 3  appropriate. The same is true for the seven UPC representatives, of which only the lead representatives made oral statements during the hearing, so that there was a sufficient number of further representatives, who were able to listen attentively and take their proper notes. 2. Second, Rule 115 RoP does not foresee, that the UPC provides full transcripts of its hearings. It is also not forseen by Rule 115 RoP, that a party or a representative produces a full transcript after the hearing, especially not for any use outside the UPC proceedings, i.e. especially not for world-wide distribution in other jurisdictions, so that the transcript is out of control of the court and may be distributed through any media anywhere in the world. 3. Defendants correctly acknowledge, that Rule 115 RoP and its limitation to audio recordings wants to avoid, that lawyers are speaking out to the world and advertise their services to further prospective clients, instead of focussing on a neutral exchange of arguments with the court. This argument is explicitly true for video recordings, which have been excluded for good reason. Still, a complete transcript of an audio recording may be abused in the same way as a video recording, if distributed outside the proceedings concerned and in foreign jursdictions, which are not under the control of the UPC, e.g. for advertisement purposes during a so-called „beauty contest“, in which law firms present themselves to prospective clients so as to attract the next case. 4. Furthermore, as in the case at hand, a complete transcript of an audio recording is to be excluded especially in cases, where the parties motioned to set up a confidentiality regime and applied for the exclusion of the public during parts of the oral hearing. In this case, both sides motioned for a confidentiality regime and insisted on excluding the general public from parts of the oral hearing. If now, after the hearing, a complete transcript of the audio recording for unlimited use in foreign jurisdictions was produced, as envisaged by Defendants, the enforcement of the established confidentiality regime was not under control of the UPC anymore. 5. Also the drafting history does not point into another direction. Defendant only points to non-authoritative lists of comments, which had been set up by non-authoritative members of a working group. These documents do not qualify as travaux préparatoires of the UPC member states, but – at best – are express individual opinions of individual members of experts, and not even the group of experts, which were consulted during the drafting of the rules. As laudable as their efforts may be, their opinion cannot be equated with the clear intention of the legislator, which are the contracting member states of the Unified Patent Court. 6. This construction furthermore is in line with the concept in place for the hearings before the European Court of Justice after which R. 115 RoP was modelled. Audio recordings of hearings before the ECJ (and the General Court) can only be listened to at the premises of the ECJ (and the General Court). There are neither transcripts being produced, nor is it allowable to produce such complete transcripts and disseminate them wherever deemed appropriate. The fact that, next to the audio recording, formal minutes of the hearing before the ECJ are set up, does not change this result. The minutes only contain the core elements of the hearing, i.e. which judges, representatives, witnesses etc. were present, 4  which formal documents were exchanged etc. (see e.g. Practice Rules for the Implementation of the Rules of Procedure of the General Court of 10 July 2024 (OJ L 2024/2097, 12.8.2024, p. 53 et seq, mn. 248)Consolidated version). Therefore, the minutes do not include a verbatim transcript of the exchange between the Court and the parties. That Art. 85 RoP CJEU explicitly uses the wording „to listen to the soundtrack“ instead of „making the audio recording available“ in R. 115 RoP does not justify a different construction of R. 115 RoP bevor this background as argued by Defendants. 7. Furthermore, if a party was allowed to produce its private allegedly „complete transcript“, a non-authoritative document of what was addressed during the court hearing would be produced without authorisation of the UPC. As this document was non-authoritative, as it it would not be produced internally by the court, such private transcript could draw an incomplete or even false picture of the exchange between the UPC and the parties, because such transcript could be incomplete, contain errors, take specific phrases out of context or even purposefully falsify statements made during the hearing. Therefore, such transcript could only be used, if the transcript would have been confirmed as correct by the court. This is not foreseen by the UPCA and/or the Rules of Procedures. Furthermore, if there was a dispute amongst the parties, whether or not the private transcript is correct or not, the court would be faced with applications to confirm that the transcript is correct, which is also not foreseen by the Rules of Procedure. Such a dispute is not abstract but has already arisen before the LD Mannheim, where a party cited parts of a (not authorised) transcript so as to establish that a lawyer clearly made false factual statements and motioned for a re-opening of the hearing, which then triggered the next request of the lawyewr concerned to listen to the audio protocol and comment upon the delicate accusations. 8. That other jurisdictions, like the UK, decided to provide for a complete transcript or allow the parties to produce such transcript, is also not of importance, since legislatives decisions of non-UPC-member states cannot serve as a basis for the proper construction of the UPCA and the Rules of Procedure. That verbatim minutes may be necessary in other jurisdictions will have to be understood before the specific background of such foreign procedural law, which may put a strong emphasis on the content of the exchange during the oral hearing. In that regard, the UPCA and the Rules of Procedure decided that the case has to be prepared comprehensively by way of written submissions. Therefore, not every fact and argument, which is contained in the briefs has to be reiterated during the oral hearing but the hearing can be used more efficiently so as to address specific points and arguments only. Therefore, the member states decided that hearings before the UPC should normally be conducted on one day alone in an efficient manner, whereas hearings in the UK regularly take multiple hearing days and only come at extraodinary legal costs for the parties concerned. In the interest of making access to justice available at reasonable costs, the decision of the UPC member states was to conduct the proceedings before the UPC as efficient as possible. 9. Finally, Defendants did not put forward any further concrete reason, why they would need a (complete) transcript after multiple persons from their side and from various jurisdictions attended the oral hearing. 10. The request for immediate leave to appeal is to be dismissed, since the decision whether or not to grant leave to appeal is reserved for the panel after an admissible application for review under R. 333 RoP had been filed. 5 ORDER: I. The representatives or the Defendants may listen to the recording of the oral hearing before the Local Division Mannheim dated 14 November 2025, in conformity with the established confidentiality regime for this proceeding, at the premises of the Court at the Local Division Dusseldorf upon appointment. II. All further requests are rejected. Peter Michael Dr. Digital unterschrieben von Peter Michael Dr. Tochtermann Tochtermann Datum: 2025.11.27 14:36:27 +01'00' Tochtermann Presiding Judge and Judge Rapporteur 6

Key Holdings

• Defendants requested access to the hearing recording for transcription purposes.
• The Judge-Rapporteur (JR) allowed representatives only to listen to the recording, not to transcribe it.
• The JR's reasoning included the belief that a full transcript was unnecessary and a fear of misuse for 'beauty contests'.
• The commentary strongly disagreed, arguing that transcripts are crucial for appeal preparation and that concerns about misuse are unfounded and contradict the Rules drafting history (R. 115 RoP).

Tags

• Confidentiality
• Evidence
• Hearing
• Rules of Procedure

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