Oerlikon Textiles v Himson Engineering (CFI, 27 September 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 27 September 2023 (UPC_CFI_240/2023, App_562298/2023), the judge-rapporteur of the Milan Local Division dismissed an application for access to the file made under Rule 262.1(b) RoP by a lawyer describing himself as counsel for Himson Engineering, a defendant not yet served in Oerlikon Textiles’ infringement action on EP 2 145 848. The order refuses to let public access become a means for the defence to get ahead of service of the Statement of claim.

Question

Is a lawyer holding a mandate limited to inspecting the file, before service of the Statement of claim, a « third party » under Rule 262.1(b) RoP, and does the parties’ consent suffice to grant access?

Decision

Access under Rule 262 RoP concerns written pleadings and evidence, decisions and orders being public. The applicant must show a concrete, verifiable and legally relevant interest. A lawyer who presents himself as counsel for the defendant is not a third party, and he set out no interest of his own distinct from that of his client: the real aim was to give the defendant more time to prepare its defence, in light of the time limits in Rule 23 RoP. The purpose of transparency (Art. 45 UPCA, Art. 1 of the Treaty on European Union) would not be served, as the information would remain between the parties. The parties’ consent may, in some circumstances, be insufficient, and Rule 285 RoP does not stand in the way of that assessment. The judge also noted that there was no proof of a mandate from Himson. An appeal lies within 15 days.

Key points for practice

• Rule 262.1(b) RoP is not available to a party’s counsel seeking to inspect the file before service. Only a third party showing an interest of its own may rely on it.
• Practical point: the opponent’s agreement does not guarantee access, as the Court examines the purpose of the request of its own motion.

Provisions applied

Agreement on a Unified Patent Court

Arts. 10, 45 and 73(2)(b)(ii)

Rules of Procedure

Rules 23, 220.2, 224.1(b), 262.1, 262.2 and 285

Case law cited

Munich Central Division, 20 September 2023 (parties not identified in the order).

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.