UPC_CoA_917/2025 – Merz v Viatris

Expert Commentary

Confidentiality regime Facts 1. In appeal proceedings, for which the oral argument is set for 5 February 2026, Merz requested confidentiality of a new piece of evidence, for which they asked admission into the proceedings on 21 January 2026 (sic!). 2. They also asked that the exhibit not to be made accessible to the public (R. 262.2 RoP). The Court of Appeal 1. Merz lodged the request in the CMS invisible for Viatris without submitting a confidentiality request pursuant to R. 262A RoP at the same time. 2. A request under R. 262.2 RoP is not a request for such confidentiality. This request is usually made after a member of the public requests access. 3. Filing in invisible mode is contrary to the legitimate interest of the other party and will be changed by the Court to make it visible. The Court refused the request according to R. 262.2 RoP at this time. Comment 1. The representatives did not know how to request confidentiality in the proceedings and confused R. 262A RoP with R. 262.2 RoP. 2. The Court of Appeal explains (again) how to request confidentiality in proceedings (R. 262A RoP). You must request confidentiality at the time of filing. 3. The Court also explains that, in general, a request under R. 262.2 RoP will be made if a member of the public requests public access. 4. The Court of Appeal does not say that you cannot make a request under R. 262.2 RoP alongside a request under R. 262A RoP, but of course it cannot replace such a request! The only advantage I can see to asking for both is that, if a member of the public later asks for access, it is immediately clear what is confidential (which of course can be disputed by that member of the public). However, if this leads to accidents like the one in this case, then perhaps it is better to keep the requests strictly separate, as in fact advocated by the Court of Appeal!

Full Decision Text

1 ORDER of the Court of Appeal of the Unified Patent Court issued on 26 January 2026 regarding a request pursuant to R. 262.2 RoP HEADNOTES - According to case-law, only R. 262A RoP allows the Court to restrict the use of confidential information by the opposing party and its representatives. A request under R. 262.2 RoP that certain information of written pleadings or evidence be kept confidential does not automatically grant provisional protection against the disclosure of information by the other party (UPC CoA 70/2025, order of 1 August 2025, Strabag vs Swarco et al, paras 19 and 20). Furthermore, and as set out repeatedly, a decision on a request according to R. 262.2 RoP is generally not made until a reasoned request from the public under R. 262.1(b) RoP is lodged. This is because requests under R. 262.2 RoP are made in relation to future requests for access to information by the public, not in relation to the other parties to the proceedings. - An Application for a confidentiality order, with or without establishment of a confidentiality club, under R. 262A RoP shall be made at the same time as lodging a document containing the information or evidence. In this case the information should be uploaded as HC (highly confidential). Where the information is of such confidential nature that only a limited number of people should be allowed access to it, a so-called confidentiality club can be set up in accordance with R. 262A.6 RoP. Alternatively, it may - and must - be subject of a R. 262A RoP request if it is requested that the other party is only limited in its use of the confidential information in that it shall only be used for the purpose of the legal proceedings and may not be disclosed to third parties. - As is apparent from R. 262A.3 RoP, a party's written submissions and evidence are, in principle, made directly accessible to the other party without any restrictions as to its use or recipients, unless a simultaneous request is made under R. 262A.1 RoP when the document is lodged, or a statement is made that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal. UPC Court of Appeal UPC CoA 917/2025 2 - Absent an explicit request for a confidentiality order, or a statement that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal, the Court will not treat a document as potentially containing confidential information in the sense of R. 262A RoP. - This also applies if the document was uploaded by that party under HC code. Uploading a document under this code prevents access to it by the other party. A legal basis for uploading a document under HC code is lacking, and is also contrary to the legitimate interest of the other party to have unrestricted access to the documents lodged by the other party without delay, if there is no simultaneous application pursuant to R. 262A RoP. - In such a situation, the Court will therefore as a matter of routine change the code to M to make it immediately available to the other parties to the procedure. KEYWORD Request for confidentiality APPLICANTS AND APPELLANTS (AND APPLICANTS BEFORE THE COURT OF FIRST INSTANCE ) 1. Merz Pharmaceuticals LLC, Raleigh, United States of America 2. Merz Therapeutics GmbH, Frankfurt am Main, Germany 3. Merz Pharma France, Courbevoie, France (hereinafter jointly ‘Merz’) represented by attorneys at law Laëtitia Bénard and Charles Tuffreau, Allen & Overy Shearman Sterling LLP, Paris, France R ESPONDENT ( AND D EFENDANT BEFORE THE COURT OF FIRST INSTANCE ) Viatris Santé, Lyon, France (hereinafter ‘Viatris Santé‘) represented by attorneys at law Marc Lauzeral and Denis Schertenleib, Schertenleib, Paris, France P ATENT AT ISSUE EP 2 377 536 (French Supplementary Protection Certificate No. 13C0033) P ANEL AND D ECIDING JUDGES Panel 2 Rian Kalden, presiding judge and legally qualified judge Ingeborg Simonsson, legally qualified judge and judge-rapporteur Patricia Rombach, legally qualified judge Anna Hedberg, technically qualified judge Jeroen Meewisse, technically qualified judge 3 IMPUGNED O RDER OF THE COURT OF FIRST INSTANCE Order of 21 November 2025 issued by the Paris Local Division, UPC CFI 697/2025 L ANGUAGE OF THE PROCEEDINGS English SUMMARY OF FACTS 1. Merz brought an application for provisional measures against Viatris Santé before the Paris Local Division, alleging infringement of French Supplementary Protection Certificate No. 13C0033 (SPC 033) based on the patent at issue. 2. The Local Division considered that Merz had failed to demonstrate that it was seeking provisional measures within the reasonable delay provided for by R. 211.4 RoP, rejected the application and ordered Merz to pay Viatris Santé’s interim costs of the proceedings for 56.000 Euros. 3. Merz has appealed the order. An oral hearing is scheduled for 5 February 2026. 4. On 21 January 2026, Merz has applied for the admission of a new piece of evidence, Exhibit 823, into the proceedings. Merz requests that the Court order that Exhibit 823 be kept confidential and not be made accessible to the public pursuant to Art. 58 UPCA and R. 262.2 RoP. Merz submits that the information in Exhibit 823 is covered by French professional secrecy, and that it contains confidential information regarding a third party. When uploading Exhibit 823 in the CMS, Merz applied the HC code (highly confidential). REASONS 5. When Merz lodged Exhibit 823 with code HC in the CMS, it made the exhibit inaccessible to Viatris Santé, until the Registry changes the code to M (mutual). 6. However, Merz has not applied for a confidentiality order pursuant to R. 262A RoP. 7. According to case-law, only R. 262A RoP allows the Court to restrict the use of confidential information by the opposing party and its representatives. A request under R. 262.2 RoP that certain information of written pleadings or evidence be kept confidential does not automatically grant provisional protection against the disclosure of information by the other party (UPC CoA 70/2025, order of 1 August 2025, Strabag vs Swarco et al, paras 19 and 20). Furthermore, and as set out repeatedly, a decision on a request according to R. 262.2 RoP is generally not made until a reasoned request from the public under R. 262.1(b) RoP is lodged. This is because requests under R. 262.2 RoP are made in relation to future request for access to information by the public, not in relation to the other parties to the proceedings. 8. An Application for a confidentiality order, with or without establishment of a confidentiality club, under R. 262A RoP shall be made at the same time as lodging a document containing the information or evidence. In this case the information should be uploaded as HC (highly confidential). Where the information is of such confidential nature that only a limited number of people should be allowed 4 access to it, a so-called confidentiality club can be set up in accordance with R. 262A.6 RoP. Alternatively, it may – and must – be subject of a R. 262A RoP request if it is requested that the other party is only limited in its use of the confidential information in that it shall only be used for the purpose of the legal proceedings and may not be disclosed to third parties. 9. As is apparent from R. 262A.3 RoP, a party's written submissions and evidence are, in principle, made directly accessible to the other party without any restrictions as to its use or recipients, unless a simultaneous request is made under R. 262A.1 RoP when the document is lodged, or a statement is made that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal. 10. Absent an explicit request for a confidentiality order, or a statement that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal, the Court will not treat a document as potentially containing confidential information in the sense of R. 262A RoP. 11. This also applies if the document was uploaded by that party under HC code. Uploading a document under this code prevents access to it by the other party. A legal basis for uploading a document under HC code is lacking, and is also contrary to the legitimate interest of the other party to have unrestricted access to the documents lodged by the other party without delay, if there is no simultaneous application pursuant to R. 262A RoP. 12. In such a situation, the Court will therefore as a matter of routine change the code to M to make it immediately available to the other parties to the procedure. O RDER The Court will not at this stage issue a decision on Merz’ request that the Court orders that Exhibit 823 be kept confidential and not be made accessible to the public pursuant to Art. 58 UPCA and R. 262.2 RoP. Issued on 26 January 2026 Rian Kalden, presiding judge and legally qualified judge Ingeborg Simonsson, legally qualified judge and judge-rapporteur 5 Patricia Rombach, legally qualified judge Anna Hedberg, technically qualified judge Jeroen Meewisse, technically qualified judge

Key Holdings

• Requests for confidentiality of evidence in proceedings must be made under R. 262A RoP at the time of filing.
• Filing documents in 'invisible mode' without a proper confidentiality request (R. 262A RoP) is contrary to the legitimate interest of the opposing party.
• A request under R. 262.2 RoP (to prevent public access) is typically made when a member of the public requests access, not for initial filing confidentiality.
• The Court emphasizes the distinct purposes of R. 262A RoP (confidentiality in proceedings) and R. 262.2 RoP (public access).

Tags

• CMS
• Confidentiality
• Evidence
• Public Access
• Rules of Procedure

Related Cases

• UPC_CoA_523/2024 – Docket Navigator v Sumi Agro and Syngenta
• UPC_CoA_891/2025 – Centripetal v Palo Alto Networks
• UPC-COA-0000894/2025 – Windhager Handelsgesellschaft m.b.H. v bellissa HAAS GmbH
• UPC_CoA_012/2026 – Amazon v Interdigital
• UPC_CoA_23/2025 – Hewlett Packard v Lama