UPC CFI LD Düsseldorf, 23 February 2024: Restricted access group must have at least one natural person from a party

Because of article 9(2) Trade Secrets Directive and Rule 262A(6) RoP at least one natural person from a party must have access to confidential information, even though such is not provided for in article 58 UPCA. 

In the interest of effective protection of “confidential information” protection the requirement to invite written comments prior to secrecy order only applies to the final secrecy order and access restriction (article 58 UPCA, Rule 262A RoP). 

With regard to “trade secrets” access can be further restricted to party representatives until a final order is issued (Article 9 Trade Secrets Directive). 

Discussion of the confidentiality application with the party is possible with the redacted versions of the documents concerned. 

Generally, a preliminary limitation to four lawyer representatives (two partners and two associates to support them), two patent attorney representatives and three representatives of the client appears appropriate, whereby this group of persons can be extended by two paralegals if necessary (Rule 262A(6) RoP). In order to take into account the special features of summary proceedings, the group of persons required for a fair trial (Rule 262A.6 RoP) must be selected in such a way that the party affected by the provisional secrecy protection order is fully capable of working and in a position to comment on the merits of each point raised by the opposing party, taking into account the confidentiality interests of the opposing party. 

Since the group of persons who are granted access to the (allegedly) confidential information must not exceed the scope necessary to ensure compliance with the right of the parties to the proceedings to an effective legal remedy and a fair trial (Rule 262A(6) RoP,) the group of persons entitled to access must always be subject to a case-by-case examination, taking into account the above considerations, and, if necessary and appropriate, adapted to the requirements of the respective proceedings.

IPPT20240223, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience