Article 58

Protection of confidential information

To protect the trade secrets, personal data or other confidential information of a party to the proceedings or of a third party, or to prevent an abuse of evidence, the Court may order that the collection and use of evidence in proceedings before it be restricted or prohibited or that access to such evidence be restricted to specific persons.

Case Law

See also Rule 262 RoP (public access) and Rule 262A RoP (inter parties access)

Court of Appeal

IPPT20250801, UPC CoA, Strabag & Chainzone v Swarco
Restrictions on access to and use of information by a party and its representatives may only be subject to restrictions in accordance with R. 262A RoP. An application under Rule 262.2 RoP does not automatically grant provisional protection against the disclosure of information by the other party. A party's written submissions and evidence are, in principle, made directly accessible to the other party without any restrictions as to its use or recipients, unless a simultaneous request is made under R. 262A.1 RoP when the document is lodged. R. 262.2 RoP relates only to a limitation of access to documents to the public. An applicant who does not request protection of the relevant information at the time of its submission does not take the necessary confidentiality measures. This results in the information losing its character as a trade secret. For this reason a request under R. 262A.3 RoP cannot be granted at a later stage. Trade secret product characteristics are those that are not readily available to third parties but can only be determined after time-consuming analysis (Article 58 UPCA, Article 2 Trade Secrets Directive). Scope of confidentiality obligation (Article 58 UPCA, R. 262A RoP). Confidentiality requests cannot be so broad so as to prevent a party from divulging to third parties information that it obtained through legal means outside of the procedure (such as through its own measurements or tests)

IPPT20250120, UPC CoA, Amazon v Nokia- II
Penalty payment sanction (Article 82(4)UPCA) on a confidentiality order (Article 58 UPCA) can only be imposed on a party, but not against their representatives, which does not exclude the parties' liability for infringements by their representatives. Insofar as the requests relate to court staff, there is also no legal basis, since neither Rule 262 nor Rule 262A RoP is applicable with regard to court staff. It should also be noted that court staff are subject to a duty of confidentiality that extends beyond their period of service, in accordance with Article 5.3 of the Staff Regulations of Officials and other servants of the Unified Patent Court. 

Court of First Instance

IPPT20260224, UPC CFI, LD Munich, UERAN v Xiaomi

 No reason to exclude claimant's patent attorneys from confidentiality club. (Article 48 UPCA, Article 58 UPCA, Rule. 262A RoP). It follows from Art. 48 UPCA that a party has the fundamental right to freely choose whether it wishes to be represented by a lawyer or a European Patent Attorney or by a team of both, optionally assisted by patent attorneys.Neither Art. 48 UPCA nor Art. 58 UPCA implies that the right to freely choose a representative can be restricted with regard to whether the representative has a legal or a technical background. As with technically qualified judges, the competence of patent attorneys is not limited to purely technical matters.

IPPT20260218, UPC CFI, LD Düsseldorf, Dai Nippon v Zapp

Confidentiality club regarding sensitive commercial information and technical know-how of the defendant. (Article 58 UPCA, Rule 262A (2) RoP)

IPPT20251119, UPC CFI, LD Düsseldorf, Bekaert v Siltronic
Confidentiality club regime regarding inspection report by expert. (Article 60 UPCA, Article 58 UPCA,  Rule 262A of the Rules of Procedure). Confidential information irrelevant to the question of infringement must be redacted. Access to confidential information relating to the issue of infringement and/or the scope of acts of use, to be decided on case-by-case basis 

IPPT20251023, UPC CFI, CD Milan, bioMérieux v Labrador
Agreed amount of legal costs will not be kept confidential (Article 58 UPCA, R. 262 RoP): In principle, the costs of the proceedings are not covered by confidentiality unless they are specifically indicative of the company's financial capacity, its commercial strategy, or the importance of the patent as a corporate asset. Since the agreement on the amount of the legal costs between parties, does not (simply) say anything about the company's financial capacity, its commercial strategy, or the importance of the patent as a corporate asset, the request of Labrador to order the agreed amount as confidential will be dismissed

IPPT20250910, UPC CFI, LD Düsseldorf, Ona Patents v Ekahau
Clarification of confidentiality order of 9 September to include an explicit statement about being confidential of the information provided by the Claimant in its application dated 20 August 2025 (Article 58 UPCA, R. 262A RoP)

IPPT20250909, UPC CFI, LD Düsseldorf, Ona Patents v Ekahau
Confidentiality regime (Article 58 UPCA, R. 262A RoP) for documents mostly related to third parties having confidentiality clauses and information submitted to the District Court of Munich I in the pending case for alleged patent infringement of EP 1 354 491 B1

IPPT20250908, UPC CFI, CD Paris, Microsoft v Suinno
Confidential and privileged information concerning costs of legal representation pursuant to EU law (Article 58 UPCA, R. 152 RoP, R. 262A RoP, R. 287 RoP). Information concerning the number of hours spent on the case by the instructed representatives and the fees agreed upon between the parties must be considered confidential and information concerning the number of hours spent on the case by the instructed attorneys and the fees agreed upon between the parties falls within the scope of the attorney-client privilege provided by Rule 287 RoP.

IPPT20250826, UPC CFI, LD Düsseldorf, Hologic v Siemens
Uncontested determination of confidential information for confidentiality club regime, including information regarding the design, components and the functioning of the attacked embodiments (R. 262A RoP., Article 58 UPCA)

IPPT20250605, UPC CFI, CD Milan, Eoflow v Insulet
Confidentiality club as to information regarding attorney’s fees and expenses incurred. (Article 58 UPCA, R. 262A RoP). Protection cannot be recognized from the point of view of protecting the law firm about the disclosure of the costs it applies to patent litigation, but only from the point of view of the company, which is the sole beneficiary of the protection governed by Rule 262A RoP but not under the principle of attorney-client privilege. In fact, rule 262A refers to information ‘contained in its pleadings’ and evidence thereof and, therefore, to information identifiable as company secrets in the sense previously referred to. INSULET’s request to limit confidentiality to law firms’ representatives only is dismissed

IPPT20250513, UPC CFI, LD Munich, Huawei v MediaTek - II
IPPT20250513, UPC CFI, LD Munich, Huawei v MediaTek - I
Confidentiality and confidentiality club (Article 58 UPCA, R. 262 RoP, R. 262A RoP, Article 9 Trade Secrets Directive). Whether Rule 262A VerfO also covers the situation where (without a restriction on access being imposed on one party) the parties to the proceedings are required to treat confidential information as confidential vis-à-vis third parties or the public, or whether such an obligation arises directly from a simultaneous application pursuant to Rule 262.2 VerfO, does not require a final decision. Such an obligation of confidentiality would in any case follow from the analogous application of the aforementioned provisions. 

IPPT20250428, UPC CFI, LD Milan, Ericsson v Asustek

Confidentiality club as agreed by parties: external eyes only request rejected (Article 58 UPCA, R. 262A RoP). In the opinion of the Court, it is therefore possible to order the adoption of an “external eyes only” regime, at least in cases where there is an actual and proven risk of conflict between the patent system and antitrust law and provided that the further conditions set out in the provisions of the above-mentioned European Commission communication are also met.

IPPT20240904, UPC CFI, LD Milan, Insulet v Menarini
Confidentiality club (Article 58 UPCA, R. 262A RoP). Article 58 UPCA must be interpreted as meaning that it extends protection not only to trade secrets but also to confidential information. 

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.

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. 

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).

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. 

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)

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]

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.

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. Public access to confidential commercial information restricted (Rule 262 RoP). The Court grants request to keep the information in the Confidential Annex confidential for third parties, provided a redacted version thereof is submitted (Rule 262(2) RoP).

IPPT20231114, UPC CFI, LD Paris, C-Kore Systems v Novawell
Ex parte measure granted to preserve evidence, detailed description, physicial seizure of product and technical and promotional documentation an a written report by expert appointed by the Court (Article 58 UPCA, Article 60 UPCA, Rule 196 RoP, Rule 197 RoP)

IPPT20230925, UPC CFI, LD Milan, PMA v AWM

Ex parte order to inspect premises and to preserve evidence; confidentiality: In accordance with art. 58 UPCA, rule 196.1 (d) and rule 199.1 RoP, the Court orders that the access to any information and document gathered by the experts in charge of carrying out the measure is prohibited, so to ensure effective protection of confidential information. Whether the Defendants should lodge a request for the review of this order according to rule 197.3 RoP, they are expressly invited to comment on any confidentiality interests that they might have after the written expert Report has been submitted by the experts appointed to carry out this order.