Rule 262A – Protection of Confidential Information

1. Without prejudice to Article 60(1) of the Agreement and Rules 190.1, 194.5, 196.1, 197.4, 199.1, 207.7, 209.4, 315.2 and 365.2 a party may make an Application to the Court for an order that certain information contained in its pleadings or the collection and use of evidence in proceedings may be restricted or prohibited or that access to such information or evidence be restricted to specific persons.

2. The Application shall contain the grounds upon which the applicant believes the information or evidence in question should be restricted in accordance with Article 58 of the Agreement.

3. The Application shall be made at the same time as lodging a document containing the information or evidence and shall provide a copy of the unredacted relevant document and, if applicable, a copy of the redacted document.

4. The Court shall invite written comments from the representatives of the other parties prior to making any order.

5. The Court may allow the Application considering in particular whether the grounds relied upon by the applicant for the order significantly outweigh the interest of the other party to have full access to the information and evidence in question.

6. The number of persons referred to in paragraph 1 shall be no greater than necessary in order to ensure compliance with the right of the parties to the legal proceedings to an effective remedy and to a fair trial, and shall include, at least, one natural person from each party and the respective lawyers or other representatives of those parties to the legal proceedings.

7. The Registrar shall as soon as practicable take all such steps with regard to access to the evidence as may be necessary to give effect to the order of the Court under this Rule.

Relation with Agreement: Article 58

Case law

IPPT20231103, UPC CFI, LD Hamburg, Avago v Tesla

Confidentiality order and restriction of access (Rule 262A RoP, Article  58 UPCA). Prima facie evidence of trade secrets. The existence of a trade secret does not have to be established to the court's satisfaction, but it is sufficient if this is predominantly probable. Information on the technical implementation of the attacked embodiment is deemed to be a trade secret as well as the information relating to the purchase prices of individual chips. No protection regarding (a) information sent in a letter  letter with a confidentiality requirement, but without the condition of a limitation of the circle of addressees, as now associated with the request for confidentiality and (b) information based on publicly available figures. Limitation of access. The plaintiff may only make the designated information accessible to those representatives and internally only to those employees who have a legitimate interest in it. Access is limited to the authorised representatives of the plaintiff and the following persons […]. The fact that these persons are not employed by the plaintiff itself is irrelevant.

IPPT20231004, UPC CFI, LD Hamburg, Avago v Tesla

Protection of confidential information (Rule 262A RoP). Pursuant to Rule 262A(4) RoP, the representative of the other parties must be invited to submit written comments prior to making any order. However, in the interest of effective protection of secrets, the requirement to be heard before issuing an order only applies to the final order of a secrecy order and access restriction. In the interest of effective protection of secrets under Directive (EU) 2016/943 access may be further restricted until a final order is issued, namely to the person of the claimant's representative. The discussion of the confidentiality application with the party is possible with the redacted versions of the documents concerned. In substance, the information on the product-specific design of the contested embodiment, the purchase prices of individual chips and the information on the sales result to be forecast are probably business or trade secrets. With regard to the information in Annex B 4, the details of the disclosure to the plaintiff are likely to be decisive. The competence of the judge-rapporteur for the present order in the written procedure follows from Rule 331(1) in connection with 334 and 335 of the Rules of Procedure.