Merz Pharmaceuticals v Viatris Santé (CoA, 26 January 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In the appeal brought by Merz Pharmaceuticals LLC, Merz Therapeutics GmbH and Merz Pharma France against the order of the Paris Local Division of 21 November 2025 (UPC_CFI_697/2025), which had refused their application for provisional measures against Viatris Santé based on French supplementary protection certificate No. 13C0033 (EP 2 377 536), the Court of Appeal defers its decision on the confidentiality request concerning Exhibit 823 and confirms that a document may not be lodged under the “HC” code without an application under Rule 262A RoP.

Question

Does a request under Art. 58 UPCA and Rule 262.2 RoP justify making an exhibit inaccessible to the other party by lodging it under the “HC” code?

Decision

A request under Rule 262.2 RoP gives no protection, even provisionally, against disclosure by the other party. It concerns future public access and is generally decided only once a reasoned request under Rule 262.1(b) RoP is lodged (paragraph 7). A Rule 262A RoP application must be made when the document is lodged (paragraph 8). Absent a simultaneous application or a statement of earlier protection, pleadings and evidence are accessible to the other party without restriction (paragraphs 9 and 10). Lodging under the “HC” code has no legal basis and conflicts with the other party’s legitimate interest in immediate access. The Court will therefore change the code to “M” (paragraphs 11 and 12). It does not decide the request concerning public access at this stage.

Key points for practice

• To withhold an exhibit from the other party, a Rule 262A RoP application must be filed when lodging it. The “HC” code alone is not enough (paragraphs 8 and 11).
• A Rule 262.2 RoP request concerns public access only and may remain undecided until a third party seeks access (paragraph 7).

Provisions applied

Agreement on a Unified Patent Court

Art. 58

Rules of Procedure

Rules 211.4, 262.1(b), 262.2 and 262A

Case law cited

Strabag v Swarco, Court of Appeal, 1 August 2025, UPC_CoA_70/2025.

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.