UPC CoA, 16 January 2026: Confidentiality club measures, membership, bans and liability
15-03-2026 Print this page
Application for ‘External Eyes Only’ confidentiality club rejected (R. 262A RoP).
Inadmissible requests by intervener that do not support SUN PATENT’s appeal and requests (R. 313.2 RoP). Requests which go beyond the scope defined by the Court and beyond the mere support of existing requests are inadmissible.
Trade Secrets Directive not directly applicable to patent law proceedings before this court (R. 262A RoP). Concerns only the unlawful acquisition, use or disclosure of trade secrets and does not provide for measures to protect the confidentiality of trade secrets in other types of court proceedings. When interpreting R. 262A RoP, the Court of Appeal will use principles similar to the principles underlying the Trade Secrets Directive.
Confidentiality club regime: proportionality of measures (R. 262A RoP, Article 9(3) Trade Secrets Directive). When deciding on the measures for the protection of confidential information and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures (cf. Art. 9(3) TSD).
Confidentiality club membership for legal persons (R. 262A.6 RoP, Article 9(2) Trade Secrets Directive). A legal person should be able to propose a natural person or natural persons to ensure proper representation of that legal person. Access of that natural person to be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person. The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person. Access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. aving full access for, at least, one of its employees, as a general rule, outweighs the interests of the applicant, even if imposing a EEO regime would be preferable from the perspective of safeguarding confidentiality.
Confidentiality club membership and confidential FRAND licensing details. The fact that employees cannot unlearn information justifies the possibility of a temporary licensing bar preventing these employees from being involved in patent licensing negotiations with the third parties concerned.
Liability and penalties for breach of confidentiality club regime (R. 262A RoP). No liability of the UPC representative of a party in the event of a breach of a duty of confidentiality. A penalty payment may be imposed on a party to the proceedings. It does not release said representative from its obligation to ensure that that each member of the legal team is bound by the provisions of the confidentiality order and also does not release him or her from its rights and obligations under the UPC Agreement and the Rules of Procedure. ailing which the Court may exclude said representative from the proceedings by way or order under the conditions set forth under R. 291.1 RoP.
