Meril Italy v [REDACTED] & SWAT Medical (UPC_CoA_634/2024, UPC_CoA_635/2024 & UPC_CoA_636/2024)
Decision date:
12 February 2025
Osborne Clarke summary
- The first respondent was a member of the public, as well as a board member and investor in SWAT Medical (the second respondent). The first respondent applied (later amending to include the second respondent) to the Paris CD under Rule 262.1(b) RoP to be given access to all pleadings and any evidence lodged in the revocation action between Meril v Edwards Lifesciences. The first respondent is a European patent attorney and a representative before the UPC and represented himself in the application.
- The Paris CD had granted both respondents access, but permission to appeal was granted and the effects of the order were suspended until the end of the appeal proceedings.
- Meril Italy appealed, arguing that self-representation is not valid under Article 48(1) & (2) UPCA. The representative must be a third party, different to the party to the proceedings. It maintained that a board member cannot be independent as a representative.
- The Court of Appeal ordered that each respondent must instruct an authorised representative (Rule 8.1 RoP). Lawyers and European Patent Attorneys are not exempted from the duty to be represented if they are parties in cases before the UPC. Additionally, following the Court of Appeal's decision in Suinno v Microsoft, a corporate representative of a party who has extensive administrative and financial powers within that party by virtue of holding a high-level management or administrative position cannot act as their UPC representative, regardless of whether the corporate representative is a legal or natural person (Article 48(1) or (2) UPCA). In this case, the first representative was not allowed to represent the second representative.
- The court held that representation was a point of admissibility involving public policy considerations (due process) which the court could examine at any time and of its own motion.
Issue
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