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

Court of Appeal

IPPT20240821, UPC CoA, Aylo v Dish - II
Application for discretionary review of confidentiality club order with no leave to appeal dismissed (Rule 220(3) RoP, Rule 262A RoP). No reasons set out that would justify allowing appeal against the order of the Local Division Mannheim of 22 July 2024, which is based on the principle that the abstract risk that an in-house counsel, if admitted to confidentiality club might breach the confidentiality obligation due to conflicts of interest is not sufficient to refuse admission, unless there are concrete circumstances justifying such a suspicion.

IPPT20240726, UPC CoA, ICPillar v ARM
Request ICPillar for confidentiality of insurance policy rejected on 23 July 2024 (Rule 262A RoP). ARM given the opportunity to amend its Statement of response regarding the unredacted version of Exhibit 4 by 2 August 2024. (Rule 263 RoP). ICPillar not given an opportunity to amend its Statement and grounds of appeal. ICPillar could bring – and should have brought – forward arguments in its Statement of appeal and grounds of appeal based on the unredacted version of Exhibit 4 when lodging the appeal and request confidentiality in relation to that document together with uploading a redacted version of its Statement of claim and grounds of appeal, as it has done with Exhibit 4 itself.

IPPT20240707, UPC CoA, ARM v ICPillar
Deadline extension and confidentiality club Time period for lodging Statement of response extended with 15 days after unredacted version of Exhibit 4 has been made available to ARM’s representatives (Rule 9 RoP, Rule 262A RoP, Rule 235).

IPPT20240620, UPC CoA, Curio v 10x Genomics
No need for a new confidentiality order if the information or evidence is already protected by a confidentiality order but is only contained in another statement or document lodged in the appeal proceedings (Rule 262A RoP).

IPPT20240328, UPC CoA, Curio v 10x Genomics
Confidentiality order remains in place after the legal proceedings have ended and encompasses appeal proceedings. Any limitation of a non-disclosure obligation must be explicit (Rule 262A RoP, Article 9(1) Trade Secrets Directive)

Court of First Instance

IPPT20241024, UPC CFI, LD Hamburg, 10x Genomics v Vizgen
Confidentiality club arrangement in line with Outside Attorneys’ Eyes Only agreement before US court (R. 262A RoP)
 

IPPT20241011, UPC CFI, LD Hamburg, Daedalus v Xiaomi
Justified restriction of access to US-attorneys involved in parallel proceedings in the US with the intention to align the arguments and to provide the technical input to proceedings outside of the UPC System – and even outside of the EU (R. 262A RoP). Initially insufficiently blacked-out illustrations are part of the protection order (R. 262A RoP). The mere fact, that the Defendants insufficiently blacked-out these two illustrations in the redacted versions, though they were highlighted in grey in the redacted versions, cannot be considered as a waiver of the right to protection of what was requested at the same time. 

IPPT20241002, UPC CFI, LD Munich, NEC V TCL
Patent pool administrator admitted as intervener: restricted access. By admitting the intervention, the Applicant is a participant to the proceedings and is to be treated as a party in accordance with Rule 315 (4) RoP. As it must accept the proceedings at this stage, it must be allowed to inspect the files in order to conduct the proceedings appropriately. However, the Court has already classified certain parts of the FRAND Counterclaim of the Defendant 1) and of the Statement of defences briefs of the Defendant 1) – 6) and exhibits as confidential (R. 262A RoP) The Applicant can therefore not be granted unrestricted access to this information. 

IPPT20240920, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
Access to Confidentiality club and demarcating confidential information (Rule 262A RoP) 

IPPT20240916, UPC CFI, CD Paris, Microsoft v Suinno - II
Confidential information (R. 262A RoP) as it is known only to a limited number of persons, its disclosure is liable to cause serious harm to the person who provided it or to third parties and the interests liable to be harmed by the disclosure of confidential information are, objectively, worthy of protection. Does not lose its confidential nature due to the fact that it is contained in another document not mentioned in the application for confidentiality order. Confidentiality obligation of members of confidentiality club is not extinguished by the fact that the same information is also present in another document submitted to the Court, even if not mentioned in the application for confidentiality order. 

IPPT20240909, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Panel confirms case management orders judge-rapporteur (R. 333 RoP, R. 262A RoP, R. 29(d) RoP). Panel exercises its authority to order and extension of the time limit for lodging Reply to the Defence to the Counterclaim together with any Rejoinder to the Reply to the Statement of defence because of redacted versions of Defence in the Counterclaim (Part II – non-technical part) in the same way as the judge-rapporteur: two week extension from 14 August 2024 until 28 August 2024. The defendants in all three parallel proceedings have, when looked at in the light of the circumstances, almost seven weeks to prepare the replies to the reply to ‘Part II - non-technical part’ alone. This is more than the one-month period that would have been available without a nullity counterclaim for the statement in response to the infringement action with regard to the infringement action and the FRAND objection. No leave to appeal granted (R. 220.2 RoP). In issuing this order, the panel is not deviating from the cited orders of the Court of Appeal and the Düsseldorf Local Division.

IPPT20240903, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Expansion of confidentiality restrictions for two additional third party licence agreement dismissed (Rule 9.2 RoP, Rule 262A RoP). A party must regularly seek an order for access restrictions for third-party licence agreements at such an early stage that it can unconditionally present its submission within the applicable deadlines.

IPPT20240830, UPC CFI, LD Düsseldorf, Ona v Apple
Protected confidential information – trade secrets (Article 9 Trade secret directive, Article 58 UPCA, Rule 262A RoP). Information on profit margin can be classified as confidential if it is not available from publicly accessible sources.Information about the few employees having access to this financial information appears to be valuable and confidential in itself. Information that certain products do not support certain functionalities may also be confidential. The existence of a negative fact therefore does not per se exclude the need for secrecy. Information about the group of persons with relevant detailed knowledge of technical information classified a confidential. That information knowledge harbours the potential for targeted attacks in order to obtain confidential information concerning specific, secret functionalities.

IPPT20240821, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
Certain information classified as confidential for confidentiality club (Article 58 UPCA, Rule 262A RoP, Article 9 Trade Secrets Directive). The fact that precisely the information now classified as confidential by the Defendants was publicly discussed in the Stuttgart proceedings has not been sufficiently demonstrated by the Applicant, nor is it apparent.

IPPT20240809, UPC CFI, LD Hamburg, AGFA v Gucci
Confidentiality club protection for trade secrets and confidential information, restricting use or disclosure outside of the present court proceedings.  (Rule 262A RoP, Article 9 Trade Secrets Directive). 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. The following information relating to the internal organization, the supply chain and sales data of the Gucci group are classified as confidential pursuant to R. 262A RoP. Restricting the use of confidential instead of limiting access thereto, does not endanger the right of the other party right to be heard and the right to argue its case successfully and does not does not require the same strict balancing of interest as a limitation of access within the proceedings.

IPPT20240808, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Confidentiality club membership (Rule 262A RoP). In general, there is no reason to limit the authorised representatives of a party to a certain number or even to UPC representatives and their internal assistants, who must also be named. However, it must be clear who is obliged to maintain confidentiality and who can be held responsible and legally liable in the event of a breach of the confidentiality order. In principle, it is the responsibility of each party to identify the natural persons to be granted access to the confidential information. Once a party has done so and has identified the natural persons to whom it wishes to grant access to the confidential information, it is for the other party to state the reasons why, in its opinion, such access should not be granted in the particular case.

IPPT20240802, UPC CFI, LD Paris, HP v Lama France
Request for communication of invoices, relating to the allegedly infringing cartridges [..] which were imported by LAMA FRANCE outside the territory of the European Union, granted, subject to confidentiality club (Rule 191 RoP, Rule 262A RoP). The question […] is whether LAMA is a manufacturer, importer, and/or offers, places on the market the allegedly infringing products.

IPPT20240730, UPC CFI, CD Paris, Cead v Bego
No confidentiality club for expected litigation costs, including working hours of lawyers and patent attorneys and resulting fee claims, but confidential treatment vis-à-vis the public granted (Rule 262A RoP, Rule 262(2) RoP). A restriction of access to information for parties to proceedings pursuant to Rule 262A always includes an exclusion of the public from access to the information pursuant to Rule 262 RoP as a ‘minus’. While the parties to the proceedings who would be affected by a possible confidentiality order pursuant to Rule 262A RoP are particularly affected by the fundamental right to be heard and their right to a fair trial, only the general public interest in information must be taken into account when deciding on the request pursuant to Rule 262.2 RoP. The requirements for granting a restriction on publication are therefore lower.

IPPT20240730, UPC CFI, LD Düsseldorf, Dolby v HP
Intervener entitled to protection of confidential information. Unless otherwise ordered by the court, the intervener is to be treated as a party (Rule 315(4) RoP). Just like a party, he therefore has the option of filing an application for protection of confidential information with regard to the information contained in the pleadings submitted by him (Rule 262A RoP).

IPPT20240725, UPC CFI, LD Hamburg, Xiaomi v Daedalus
No convincing reasons for time limit extensions (Rule 9.3(a) RoP)(Rule 262A RoP). Necessary coordination with suppliers based outside Europe is not a convincing reason for an exceptional extension of the time. Neither that  exchange of technical information is subject to very restrictive confidentiality obligations imposed on the defendants 3) and 4). this does not justify the requested extension. The RoP do provide especially for that purpose a possibility for the protection of confidential information in R. 262A RoP, which can be used parallel with the lodging of the statement of defence. Counterclaim for revocation concerns technical questions that are most likely independent of any possible confidentiality obligations.

IPPT20240723, UPC CFI, LD Milan, Oerlikon v Himson
Confidentiality order (Rule 262A RoP). Document no. 37 (license agreement) excluded from evidence as it cannot be used by any of the parties

IPPT20240722, UPC CFI, LD Mannheim, AYLO v DISH
Application for panel review of Rule 262A RoP case management order admissible but unsuccessful on the merits (Rule 333 RoP). The three persons named by the applicants were rightly not excluded in the order of 3 July 2024 from access to the information to be classified as confidential on the functioning of the contested embodiments.

IPPT20240722, UPC CFI, LD Düsseldorf, Dolby v HP
Intervener to be treated as a party and entitled to have at least one natural person, in addition to his legal representatives, have access to classified confidential information (Rule 315 RoP, Rule 262A RoP). 

IPPT20240710, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Confidential information and confidentiality club rules in a FRAND case (Article 58 UPCA, Rule 262A RoP). Confidential information (Rule 262A RoP). Not accepted that the circumstances of the negotiations between the parties,  which are naturally already known to the defendants, are to be fully protected under Rule 262A RoP. A subsequent restriction of access on the part of the defendant is out of the question. Rather, this information can generally only be restricted in its intended use and be subject to protection against disclosure to uninvolved third parties in accordance with Rule 262 RoP. Likewise, the plaintiff's view that the very fact that the plaintiff enquired with the third-party licence agreement partners on the basis of the court's instructions and requested their consent to the submission must be kept secret cannot be accepted. This is because it is a procedural step ordered by the court, which must also be reflected in the court's orders. Confidentiality club rules (Rule 262A RoP, Article 48 UPCA). In the present case, the extension of access to the information in need of protection to three employees of the defendant is necessary, but also sufficient. Access to the information in need of protection in proceedings before the UPC is to be granted exclusively to authorised representatives pursuant to Art 48 UPCA who are authorised to represent the parties in the specific proceedings. 

IPPT20240710, UPC CFI, LD Munich, Panasonic v Orope
Lodging written pleadings and confidentiality club. Inadmissible lodging of a redacted “unredacted version” of the Reply (Rule 9(2) RoP, Rule 29 RoP, Rule 262A RoP). An exception be made because the problem is being addressed by the Unified Patent Court for the first time. Time limit for filing a rejoinder in the infringement action does not start to run until the defendants have been served with a fully unredacted Reply to the Statement of defence (Rule 29(c) RoP). Time limits for the counterclaim and the (alternative) amendment of the patent must be considered separately and have started running. Extension denied. 

IPPT20240709, UPC CFI, LD Mannheim, Panasonic v Orope
Confidentiality and confidentiality club rules (Rule 262A RoP). Disclosure limited to authorized representatives (article 48 UPCA) in proceedings before UPC Local Divisions in Mannheim and Munich. The issuance of a secrecy protection order is not excluded simply because the plaintiff inadvertently uploaded her reply in a workflow relating to another parallel proceeding before the Mannheim Local Court without redaction and thus without further restrictions visible to the defendant. The conclusion of a non-disclosure agreement (NDA) does not eliminate the need for secrecy protection under Rule 262A RoP. Defendant’s view that - insofar as third-party licence agreements submitted in the proceedings are concerned - only the mere name of the contractual partners is in need of protection is not convincing. Plaintiff's view that the circumstances of the negotiations between the parties, which are naturally already known to the defendants, are to be fully protected under Rule 262A RoP, cannot be accepted. Likewise, plaintiff’s view that the very fact that the plaintiff enquired with the third-party licence agreement partners on the basis of the court's instructions and requested their consent to the submission must be kept secret cannot be accepted. In the present case, the extension of access to the information in need of protection to three employees of the defendants is necessary, but also sufficient.

IPPT20240709, UPC CFI, LD Mannheim, Panasonic v Orope II
Confidentiality club and deadline extension from 17 July to 14 August 2024 (Rule 262A RoP, Rule 29 RoP). The extension is necessary but also sufficient to make a final statement on the FRAND aspect of the dispute. 

IPPT20240704, UPC CFI, LD Munich, Xiaomi v Panasonic II
Confidentiality regime (Rule 262A RoP) and extensions for filing pleadings (Rule 9(3) RoP, Rule 29 RoP). The time limit for filing a Rejoinder shall only run from the date on which the defendants have been served with a completely unredacted Reply. This shall not affect the running of the time limits for the submission of pleadings relating to the Counterclaim for revocation and relating to the (auxiliary) requests for amendment of the patent.

IPPT20240704, UPC CFI, LD Munich, Xiaomi v Panasonic I
Confidentiality club rules (Rule 262A RoP). Disclosure limited to authorised representatives in the present proceedings, parallel proceedings before the Landgericht München and the Landgericht Mannheim, the UPC Local Divisions in München and Mannheim and before the High Court of Justice of England & Wales. Penalty payment only in case of of a culpable violation. Time limit for filing Rejoinder to the Statement of Reply  does not start to run until the fully unredacted Reply is available (Rule 9(3) RoP, Rule 29 RoP, Rule 262A RoP). Time limits regarding the revocation counterclaim and the (alternative) amendment of the patent run independent therefrom. Revocation is independent from FRAND-defence.

IPPT20240703, UPC CFI, LD Mannheim, Dish v Aylo
Confidentiality club membership rules considerations Rule 262A RoP). Number of persons having access to be determined on a case by case basis with the number of persons not being greater than necessary to ensure the right to an effective legal remedy and a fair procedure, including at least one natural person from each party and the respective layers of representatives of these parties. Access for three natural persons is generally not objectionable in terms of numbers in case of complex technical matter. In the absence of indications to the contrary, persons who are professionally familiar with the handling of confidential information, can generally be assumed to be reliable without the need for further explanations by the nominating party. The fact that the designated persons are active in a technical field related to the patent in suit does not preclude suitability in a specific individual case. No reason to restrict access on the part of the plaintiffs' authorised representatives to a certain number or even to named EPG representatives and their named internal assistants. If authorised representatives wish to use external assistants with regard to confidential information, they must name them in advance so that a court decision can be made on this. It may be necessary to deviate from these principles, particularly in urgent proceedings for interim legal protection, in order to meet the requirements of the proceedings. The plaintiffs' interest alone in ensuring that their respective legal representatives in the present proceedings and the parallel proceedings before the High Court of Justice exchange information extensively for effective and coordinated litigation does not justify making the confidential information available to the plaintiffs' representatives from the London proceedings. This would undermine the legitimate expectation of effective protection of confidentiality in the proceedings conducted before the Unified Patent Court on the basis of the UPC's Rules of Procedure.

IPPT20240627, UPC CFI, LD Düsseldorf, Dolby v HP
Time limit for filing reply to Statement of defence which includes a Counterclaim for revocation extended to two months from the date of access to unredacted information under confidentiality regime (Rule 9(3) RoP, Rule 29(a) RoP, Rule 262A RoP). Need to consult with employees of patent pool related to FRAND objections that relate to a definable part of a statement; interest of effective proceedings and preventing a permanent divergence of time limits if the conduct of the oral hearing is not jeopardised by an extension of the time limit relating to the entire statement.

IPPT20240626, UPC CFI, CD Paris, Suinno v Microsoft
Access to two agreements containing business secrets related to granted licenses restricted to Microsoft attorneys and Microsoft directors who have a legitimate need to access these Agreements for the purposes of the current proceedings (Article 58 UPCA, Rule 262A RoP).

IPPT20240624, UPC CFI, LD Düsseldorf, Dolby v Asus
Time limit for filing reply to Statement of defence which includes a Counterclaim for revocation extended to within two months of access to unredacted information under confidentiality regime (Rule 9(3) RoP, Rule 29(a) RoP, Rule 262A RoP).

IPPT20240613, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Confidentiality regime (Rule 262A RoP) and extension of deadlines for filing Rejoinder to the Reply in infringement proceedings and Reply to the Defence in the revocation proceedings (Rule 29(d) RoP): rejected for the technical aspects of the case (legal facts and infringement facts); granted for FRAND aspects of dispute (plaintiff's submission contained in the pleadings designated as "Supplement Reply Part II Non-Technical Part" together with annexes on the FRAND aspect of the dispute).

IPPT20240514, UPC CFI, LD Milan, Oerlikon v Bhagat
Public interim conference and protection of confidential information (Article 45 UPCA, Article 58 UPCA). Ordered that the interim conference be open to the public, unless in the course of the interim conference, for the purposes of protecting confidential information, the Court decides to limit attendance to the parties' advocates only, in respect of specific matters dealt with, with particular regard to the issues examined in the order rendered on 6.5.2024. 

IPPT20240508, UPC CFI, LD Munich, Huawei v Netgear
Order against the requesting party itself to produce license agreement under confidentiality regime (Rule 262A RoP). With reference to the statements of the Local Chamber Mannheim in the order of 30/04/2024, orders against the requesting party itself are in any case possible pursuant to Rule 103 RoP.

IPPT20240506, UPC CFI, LD Milan, Oerlikon v Bhagat
Lawyers only confidentiality club by consent with respect to a document filed in preparation for the Interim Conference in connection with the JR's invitation to document the costs (Article 58 UPCA, Rule 262A RoP)

IPPT20240430, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Plaintiff is upon its own request ordered to submit redacted licence agreements, subject to further to be determined confidentiality regimes under Rule 262 and 262A RoP. Order is based on the extensive case management powers vested in the Court (Article 43 UPCA) and the judge-rapporteur (Rules 101, 111 and 331 et al. RoP), not Rule 172 RoP or Rule 190 RoP.

IPPT20240404, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Exceptional extension of time period to file Reply to the Statement of defence, Counterclaim for revocation and an amendment of the patent from 6 April 2024 until 28 May 2024. Due to restriction of access to pleading because of Protection of confidential information order access to the information in question to the party's employees with the relevant knowledge was granted for the first time on 27 March 2024 (Rule 9(3) RoP, Rule 262A RoP)

IPPT20240402, UPC CFI, LD Hamburg, Avago v Tesla
Finalisation of a confidentiality order under Rule 262A RoP. Defendant's forecast sales results are confidential information that must be treated as strictly confidential and may not be used or disclosed outside the present legal dispute, even after its conclusion. Access is limited to the plaintiff’s authorised representative and the following persons: a. ... ; Director and Managing IP Counsel, ... Inc.; b. ... , Master Engineer, ... Inc.; c. ... , Senior IP Counsel, ... Inc. The fact that these persons are not employed by the plaintiff itself is irrelevant.

IPPT20240327, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Confidentiality club membership rules are to balance (i) the right to have unlimited access to the file documents  against (ii) the interest to protect confidential information, on the facts of a particular case (Article 58 UPCA, Rule 262A RoP). Whereas certain guidelines how this balance can be struck may be developed, a schematic solution is not possible. Request, that employees from claimant’s R & D department must not be granted access, denied. Claimant sets out in detail with persuasive arguments why it is necessary to exchange with these employees exactly, who are in a position to comment on defendants’ allegations before the background of the technical expertise in and knowledge of the industry sector. In a dispute revolving around technical aspects it is of fundamental importance that a party may have resort to technically qualified employees in order to exercise its right to be heard. Only in rare circumstances where e.g. cutting-edge technical improvements are at stake, which put the proprietor in a significant pole position on the market, further restrictions may be considered to be proportionate. This is not the case here. Requests of the defendants to set out in further detail, in which way the claimant has to organize itself in order to prevent the breach of the court’s protective order have to be rejected. The information is sufficiently protected by the order of the court without such detailed measures to be ordered. A breach of the order will result in severe penalty payments. Rejected as manifestly disproportionate on the instant facts requests to impose upon the named employees to refrain from getting involved in research and development, pricing or any other competitive decision making, and shall not be involved in prosecution of patent applications for a period of 5 years after the end of the present proceedings (including potential appeal proceedings).

IPPT20240326, UPC CFI, LD Paris, C-Kore Systems v Novawell
Confidentiality club which with the consent of both parties does not include “one natural person from each party” (Article 58 UPCA, Rule 262A RoP). In view of all these facts, the Court notes that there is an agreement between the parties on the composition of the confidentiality club and that this proposal by the parties is in accordance with the principle of a fair trial. Even though Rule 262A RoP provides that the confidentiality club shall include at least one natural person from each party, the Court considers that it is possible for the parties to exclude access by a natural person by mutual agreement, provided that the principle of a fair trial is not affected. (UPC-CFI-239/2023, The Hague LD, Order of 4 March 2024 on confidentiality) [IPPT20240304]

IPPT20240311, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Confidentiality club membership rules (Rule 262A RoP): a)    should not be greater than necessary to ensure that the right of the parties to the proceedings to an effective remedy and a fair trial is respected, b)    must include at least one natural person from each party and the respective lawyers or representatives.  c)    Is, in principle, the responsibility of the respective party to name the persons for membership d)    the exclusion of a person cannot be justified solely on the grounds that the designated person is active in the technical field related to the patent in question. It is precisely for this reason that the person concerned is often only in a position to provide their company and its representatives with the information required for effective legal action. e)    members must comply with the confidentiality obligations imposed on them, which can be enforced, if necessary, by the imposition of fines or enforced in accordance with national law. f)    membership must always be subject to a case-by-case examination and, if necessary and appropriate, adapted to the requirements of the respective proceedings.
 

IPPT20240304, UPC CFI, LD The Hague, Plant-e v Arkyne
Possible for the parties by mutual agreement to establish an “attorneys’ eyes only’’ restricted-access group for confidential information and exclude access by a natural person from each party, provided that fair trial is not affected. (Article 58 UPCA, Rule 262A RoP, Article 9 Trade Secret Directive). Principle of fair trail not likely to be impaired where the confidential information is a side issue (providing security for costs of a party, Rule 158 RoP). Confidential Information:non-public financial information concerning sales and investments is information that is generally considered to be confidential, especially vis-à-vis a competitor.

IPPT20240223, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
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 II
Set time limit of 1 March 2024 for replying to defendant’s statement of objection not extended to the conclusion of the confidentiality procedure of Rule 262A RoP (Rule 9(3) RoP). The redacted version of the statement of objection was already available to all representatives of the applicant as well as to the applicant itself on 15 February 2024. Only access to the unredacted version was restricted. The information classified as confidential by the defendant only concerns a very limited part of the statement of objection. Moreover, it is exclusively of a non-technical and purely commercial nature. It is not apparent from the grounds for the request for an extension of the time limit that, and if so for what reasons, the applicant is not in a position to reply to the statement of objection within the time limit set.

IPPT20240214, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Submission of SEP Patent Licenses. There is typically a recognisable need for confidentiality of business-related information contained in licence agreements and only permit submission upon a court order, which may require involving the respective license agreement partner in the proceedings. Incremental 13-step procedure enables the parties to obtain comprehensive protection of secrets and allows the parties to submit the documents in the protected proceedings even without a court order to produce them (Rule 262A RoP, Rule 190 RoP). The confidentiality regime (Rule 262 RoP, Rule 262A RoP) is organised as follows:.

1) Upload the document containing confidential information without any redaction
(see also the order of the Düsseldorf Local Chamber of 14 February 2024 [[in 10x Genomics v Curio Bioscience, IPPT20240214].
2) Indicate in the CMS that the document contains confidential information
3) Upload a redacted version of the document
4) Start the separate CMS workflow (a “related proceeding”) for Rules 262/262A and again select and confirm the documents to be kept secret
5) The request under (4) can be linked to an intra-procedural condition to the effect that the document is only to be deemed to have been filed and may be used in the proceedings by the opposing party and by the court in the proceedings if the court grants to the request
6) If the court intends not to grant the application or to grant it only in part, it shall grant the applicant a hearing beforehand and request him to make the final decision as to whether the document should be deemed to have been submitted and can be taken into further consideration by the opponent and the court in the proceedings when making its decision.
7) In response to the request under (4) the court shall, as a first step, issue a provisional secrecy protection order which, on the basis of the applicant's unilateral submission to date that the document contains information to be kept secret, places it under comprehensive protection for the time being before the document is made accessible to the opposing legal representative - and initially only to him.
8) If the filing of the document is conditional pursuant (5),  the opposing counsel shall initially be authorised to use the document solely for the purpose of submitting his observations on the application pursuant to Rule 262A of the Rules of Procedure.
9) After the interim order fully protecting the document for the purposes of the observations has been issued, or at the same time as it is issued, the court shall order the Registry to make the relevant confidential documents available to the opposing party in their unredacted version via the CMS. 
10) If the opposing lawyer indicates that he is not in a position to comment on the confidential nature of the information contained in the document until he has consulted with a natural person from his party, he must name this person or persons. 
12) If the court considers the application to be only partially allowable or not allowable, it shall inform the applicant of this prior to the decision and give the applicant the opportunity to comment if the application was subject to the condition under (5). 
13) In the event of a request for access to the file by a third party not involved in the proceedings pursuant to Rule 262(3) RoP of the Rules of Procedure, the document is protected from access by the parallel request pursuant to Rule 262(2) RoP and is not part of the access to the file by third parties.

IPPT20240214, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Incremental procedure for protection of confidential information in the Rule 262A CMS workflow, grants provisional secrecy protection. Both a redacted and unredacted version of the documents concerned need to be uploaded in the CMS and at the same time file a secrecy protection request for these documents via the workflow provided for this purpose in accordance with Rule 262A RoP. If this option is used, only the redacted version is initially visible to the opposing party until the unredacted version is released by the sub-registry of the local division on the explicit instruction of the judge. Prior to this release, the CMS gives the rapporteur the opportunity within the R. 262A workflow to issue orders for the provisional protection of the (allegedly) confidential documents. As a rule, the judge-rapporteur will follow the applicant's initially unilateral assessment of the confidential nature of the document and, by means of such an order, restrict the group of persons authorised to access the document until the final decision on the application for secrecy protection. In a first step, the document is initially only released to the opposing party's representative, unless the applicant himself authorises the release to other persons yet to be named by the opposing representative. Because of principles of fairness and fairness (Preamble (5) RoP) , the party seeking confidentiality will be informed and given opportunity to comment, if on the basis of the content of the application for protection of confidential information, the judge-rapporteur considers such a provisional secrecy protection order to be dispensable in exceptional cases. The opportunity to comment, which must be granted at the same time, offers the party concerned the opportunity to react to the threat of unprotected disclosure of the information it considers to be confidential and, if necessary, to declare that the documents in question should not be made the subject of the proceedings, or not in their entirety. As a result, all documents submitted together with an application for secrecy protection pursuant to Rule 262A RoP are subject to provisional secrecy protection.

IPPT20240130, UPC CFI, LD Paris, Abbott v Dexcom
One division is not bound by a decision in another division despite belonging to the same unified court.  Discrepancy in the fines (€ 50.000 v € 250.000) set by the Local Division Paris and the Local Division Munich for breach of confidentiality orders (Rule 262 RoP, Rule 262A RoP) in parallel proceedings between the same parties concerning the same protected confidential information regarding two different patents. No justified need to harmonise the amount of the fine because one division is not bound by a decision in another division despite belonging to the same unified court. The Judge-Rapporteur was justified in considering that part of the confidential information had already been disclosed without a confidentiality restriction and that a lower amount of the fine would sufficiently protect the legitimate interests of the parties in the event of a breach. Therefore, a maximum fine amount of EUR 50,000 in case of breach is appropriate and proportionate in the contested confidentiality order and there is no need to set a higher maximum amount for the fine. No need for amendment of the order to avoid the potential risk of a double fine: it will be at the Court’s discretion, at the time of any breach, to decide on the appropriate amount of a fine to be paid, taking into account all elements in concreto, including any previous fine decided by the UPC Munich Local Division for the same breach. There is no grounds to bind the Paris Local Division, in case of breach and as requested by Dexcom, in cases where the Munich Local Division has already imposed a fine. 

IPPT20231227, UPC CFI, LD Munich, KrausMaffei v Troester
Protection of confidential information (Rule 262A RoP). The protection of confidential information contained in pleadings and annexes can only be requested within a workflow pursuant to Rule 262 and/or 262A of the Rules of Procedure at the same time as the initial filing or within 14 days. These requests must be repeated when further pleadings and annexes are filed. In exceptional cases, limited protection under Rule 262A of the Rules of Procedure may be provided within a workflow under Rule 9 of the Rules of Procedure. Insofar as the need for protection of the information is undisputed between the parties, no further judicial review of the need for protection is required in the context of an application under Rule 262A of the Rules of Procedure. The amount of a penalty payment under Rule 354.3 of the Rules of Procedure is limited by request.

IPPT20231219, UPC CFI, LD Paris, Abbott v Dexcom
Protection of confidential information (Rule 262 RoP, Rule 262A RoP). Considering the competitive relationship between the parties, the Respondent accepts the principle of a Redacted SoD, provided that the access to the information offered to the Respondent is broad enough to ensure a fair trial (Rule 262A RoP). Access restricted on the Respondent’s side to the representatives of the Respondent as identified in the Statement of claim and their “Legal team” as designated in the CMS in charge of these proceedings (further to them having signed a Non-Disclosure Agreement to comply with this confidentiality order), the representatives of the Respondent as identified in the Statement of claim and their “Legal team” as designated in the CMS in charge of the UPC parallel proceedings involved in another action pending before the Paris LD (n° 583778/2023) and the pending proceedings before the Munich LD (n° 583791/2023 and 547520/2023) (further to them having signed a NDA to comply with this confidentiality order), the three natural persons named by the Claimant, that is to say [XXXXXXXXX], as well as experts and witnesses (further to them having signed a Non-Disclosure Agreement to comply with this confidentiality order). Respondent accepts that a breach of confidentiality should be subject to a fine to ensure the efficiency of the confidentiality order. Fine of 50.000 euros is reasonable..

IPPT20231205, UPC CFI, LD Hamburg, Avago v Tesla 

Procedural order (Rule 9 RoP, Rule 262A RoP). The start of the plaintiff’s time period for lodging the Defence to the counterclaim for revocation is set for 8 November 2023 in line with the time limit for the Reply to the Statement of defence in the infringement action. This request had to be complied with, as such concurrence not only appears to be procedurally economical, but is also necessary with regard to the right to be heard, since the content of the statement of defence, including the protected information contained therein, is significant for the drafting of the Defence to the revocation action.  

IPPT20231128, UPC CFI, LD Hamburg, Avago v Tesla

The start of time limit of two months for responding to the Statement of Defence which includes a Counterclaim for revocation (Rule 29a RoP) is to be set on the date of the conclusion of the R. 262A proceedings, i.e. 8 November 2023. Opposing party to be heard on synchronizing time limit for replying to the nullity counterclaim with the time limit for replying to the Statement of Defence (Rule 264 RoP).

IPPT20231117, UPC CFI, CD Munich, Astellas v Healios

Inter parties restricted access to confidential commercial information (Rule 262A RoP). Unrestricted access to specific document containing commercially sensitive information not necessary to understand Claimant’s legal position. Access restricted to specific natural persons, at least natural party form each party (not limited to employees) and the respective lawyers, or other representatives of those parties to the legal proceedings. 

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.

IPPT20231003, UPC CFI, LD Munich, Huawei v Netgear

Workflows.  According to Rule 4.2 RoP, the parties are required to use official forms provided online, including the various workflows, such as, for instance, for the main proceedings, for Rule 262 RoP or Rule 262A RoP.  Inter parties protection of confidential information requires hearing the other party. In the workflow pursuant to Rule 262A RoP, a party may request protection for confidential information from another party to the proceedings. Before the order is issued, this other party to the proceedings must be heard (Rule 262A.4 RoP).