Surf Loch v WhiteWater West Industries (CoA, 4 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 4 September 2026 (UPC_CoA_92/2026), the Court of Appeal dismissed the request by Surf Loch, a non-party, for access to the pleadings and evidence in the appeal brought by American Wave Machines (UPC_CoA_75/2026) against the default decision of the Paris Central Division which, at the request of WhiteWater West Industries, had revoked claim 1 of EP 2 728 089. Before a pending appeal is concluded, protecting the integrity of the proceedings outweighs the interest of a competitor that shows no direct and concrete interest. The decision confirms that a non-party’s request for access must be reasoned.

Question

May a competitor obtain access under Rule 262.1(b) RoP to the statement of appeal and evidence before the appeal is concluded, relying solely on its status as a direct competitor?

Decision

Access involves a balancing exercise under Art. 45 UPCA, protecting the integrity of proceedings is a legitimate interest which generally means that access is granted only after the proceedings have closed, unless a member of the public shows a direct and specific interest in a reasoned request (paragraphs 15 to 22). Surf Loch gave no details of its technology, its products or the patent’s relevance to them (paragraph 24). Cease-and-desist letters sent to third parties were not a present or imminent threat to it (paragraph 25). It was not involved in any pending litigation on the patent, and the US IPR proceedings had closed in 2023, which it had not disclosed (paragraph 26). Being a direct competitor is not enough, and the test is stricter while an appeal is pending (paragraph 27).

Key points for practice

• A non-party seeking access before an appeal is concluded must show, with supporting material, a direct interest in the subject matter.
• Practical point: a request for access should describe the applicant’s technology and its concrete link with the patent, leaving out relevant facts, such as the closure of parallel proceedings, counts against it.

Provisions applied

Agreement on a Unified Patent Court

Arts 10(1) and 45

Rules of Procedure

Rules 262.1(b), 262.2 and 331.2

Case law cited

Nicoventures, Court of Appeal, 25 April 2025, Docket Navigator, Court of Appeal, 19 December 2025, Ocado v Autostore, Court of Appeal, 10 April 2024.

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.