Confidentiality at the UPC: What litigants need to know

This article explains how the Unified Patent Court approaches confidentiality in litigation, outlining the procedures for restricting access to sensitive information, how confidentiality clubs are formed, and when hearings may be held in private. It highlights key case law shaping these rules, the balance between fair trial rights and protection of commercial data, and the penalties for breaches. Practical guidance is provided to help parties navigate applications, manage confidential documents, and understand what to expect throughout UPC proceedings.
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1. Procedure to protect confidential information

Application

It is increasingly standard in high-value commercial disputes, such as those involving the licensing of standards-essential patents (“SEPs”), that confidential sales and licensing information may need to be disclosed to enable the court to set royalty rates. It is also possible that a party will wish to disclose, sensitive financial information in respect of security for costs applications (for example by way of evidence that a party is impecunious). In these circumstances, although a party will want to disclose this confidential information in support of their case, they will also want to maintain its confidentiality. This is achieved through making an application in the UPC Case Management system.

The UPC Rules of Procedure (“RoP”) provide the basis for requests by parties that certain documents comprising confidential information be restricted to specific persons (Rule 262A) or redacted from documents made available to third parties (Rule 262.2) in the event of a request for access being granted under Rule 262.1(b).An application under Rule 262A is made at the same time as the document containing the confidential information (which may be a statement of case or other evidence) is lodged and should include an unredacted version of the same document (Rule 262A.3). The applicant must provide detailed reasons for the grounds on which the confidential information should be restricted.

In deciding whether to grant the application, the court will consider whether the grounds relied upon “significantly outweigh” the interest of the other party to have full access to the information in question (Rule 262A.5) and will invite written comments from representatives of other parties prior to making any order (Rule 262A.4).

As for third party (public) access to documents filed in a case, the normal position under Rule 262.1 is that decisions and orders of the court shall be published, and pleadings and evidence made available on reasoned request, to third parties. The Court’s decisions on granting access to documents in the register indicate that generally requests will be granted after the proceedings are concluded; in contrast, while proceedings are ongoing a specific interest in the matter must be demonstrated. As such, parties who wish to request that certain information contained in pleadings or evidence be kept confidential from the public must apply to the court under Rule 262.2, with specific reasons.

For a useful summary of the practical steps to be taken in the confidentiality application using the UPC Case Management System (“CMS”) see the Mannheim LD’s order of 14 February 2024 in Panasonic v Oppo (UPC_CFI_210/2023) . While this summary relates to the previous CMS, the steps in principle apply under the current CMS as well. Of interest, and highlighted by the court at paragraph 5 of that decision, is the option available to an applicant to signify that a confidential document submitted should only be deemed filed (and therefore useable in the proceedings) if the court agree to grant the confidentiality request in full.

The Court is very reluctant to permit confidentiality applications to disrupt the case timetable, and deadlines are extended only in exceptional circumstances. In line with considerations about ensuring the right to fair trial for both parties, this exceptional threshold may be reached for example when natural persons at a party did not initially have access to the relevant confidential information required to prepare their case  as in Dolby International (UPC_CFI_456/2023 24 June 2024). This gives a good sense of how the court treats the balance of interests in matters of confidentiality as between the disclosing and recipient parties, as well as members of the public seeking access.

The court has further confirmed in multiple cases, including Fujifilm v Kodak (UPC CoA 312/2025 21 August 2025) Curio v 10x Genomics (UPC CoA 101/2024 28 March 2024), that confidentiality orders remain valid on appeal, protecting the information in question, unless and until that order is overturned. There is no need for applicants to re-file an application on appeal.

Interventions

The court has permitted interventions into confidentiality applications from interested third parties. In Ericsson v Asustek (UPC_CoA_631/2025, 632/2025 23 September 2025) and Sun Patent Trust v Vivo UPC_CoA_755/2025, 757/2025 23 September 2025), the Court of Appeal allowed interventions by Apple into appeals concerning “external eyes only” (“EEO”) confidentiality regimes and which related to sensitive licence agreements between Apple and Ericsson / Sun Patent Trust.

The interventions were allowed on the basis that Apple had a “legal interest in the result”. In allowing these interventions. The Court rejected arguments that a “side issue” such as confidentiality was not enough to show a legal interest; Rule 313.2 RoP provides that an application to intervene is admissible if made in support of a claim, order or remedy sought by a party.

For a more detailed look at these cases, see our other article here.

In a FRAND / SEP context, whether a party has the required legal interest to intervene in respect of a confidentiality application may be satisfied if the intervenor is a patent pool administrator and the party whose patent in suit forms part of the patent pool is accused of not having fulfilled its FRAND obligations. In the right circumstances, such a third party (who is not a party to the proceedings) may be added to the confidentiality club, following a decision in Dolby v HP (UPC_CFI_457/2023 26 June 2024).

Hearings in private

UPC hearings are open to the public. However, the UPC has powers under Rule 115 RoP to order that certain hearings involving confidential information be held in private in the interests of justice, and parties may decide to request this. Requests for hearings to be made in private should be made near to the timing of the hearing in question – as requests made alongside the filing of a confidential statement of claim were deemed to be premature in Huawei v Netgear (UPC_CFI_9/2023 3 October 2023).

2. Confidentiality club members

For applications which seek to restrict access to information by another party to the litigation, the court must decide on the list of persons at the opposing party who nevertheless should have access (often referred to as the “confidentiality club”). The UPC rules require that the club be no larger than necessary to ensure the parties’ rights to a fair trial and shall include at least one “natural person” from each party and their respective lawyers. As a general rule this means that restrictive external eyes only / attorneys eyes only confidentiality clubs, such as those common in US proceedings, are not available in UPC proceedings. However, in specific circumstances, such as Plant-e v Arkyne (discussed below) these restrictive confidentiality clubs may be justified.

Disapplication of “natural persons” rule

In Plant-e v Arkyne (UPC_CFI_239/2023 4 March 2024) The Hague LD considered an application to keep financial information (including projected sales information) confidential in response to a security for costs application under Rule 159 RoP.

The dispute concerned the “natural person” requirement under Rule 262A.6 and who, if anyone, at Arkyne this should be. Prior to the hearing, the parties agreed that the information should be provided on an “attorneys’ eyes only” basis, but the court still needed to grapple with whether this was in line with the requirement of the rule.

The court considered Rule 262A.6 in the light of Article 9(2) of Directive (EU) 2016/943 (The Trade Secrets Directive) which states:

Member States shall also ensure that the competent judicial authorities may, on a duly reasoned application by a party, take specific measures necessary to preserve the confidentiality of any trade secret or alleged trade secret used or referred to in the course of legal proceedings relating to the unlawful acquisition, use or disclosure of a trade secret. Member States may also allow competent judicial authorities to take such measures on their own initiative.

This provided the legal justification for disapplying the “natural person” requirement in Rule 262A.6.

Given the small size of the parties involved, the nature of the confidential information involved (financial information) and the fact that such information is usually treated as confidential between competitors, it was decided that providing this information to a natural person at the respondent’s company had the potential to distort competition and should be prevented. This was further supported by the fact that the information in question related solely to the security for costs application and would not be needed in the main proceedings.

Further, the Paris LD subsequently confirmed in C-Kore v Novawell (UPC_CFI_397/2023 26 March 2024), which concerned the terms of an inspection order (akin to so-called saisie orders common to other European jurisdictions), that parties may forego the right to include natural persons from their organisations in a confidentiality club by mutual agreement.

This approach has been followed in a limited number of other cases including Bhagat v Oerlikon (UPC_CFI_241/2023 6 May 2024) and in summary it appears that there remains some flexibility in the application of the “natural persons” requirement given the differing interpretations taken by Member States of the Trade Secrets Directive. That said, it must be understood that these findings are not the norm.

For more information on these cases please see our other article.

General rule – “natural persons” in confidentiality club

By contrast to the above, in 10x Genomics v Curio (UPC_CFI_463/2023 14 February 2024), the Düsseldorf LD declined to grant an order allowing access only on an EEO basis in order to ensure the respondent’s right to a fair trial (as natural persons at the client entity itself would need access to the confidential information in order to make decisions and provide instructions about the running of the case, particularly where that related to summary or interim matters, such as in the case of confidentiality applications). Here, the confidentiality club was set at nine persons; six legal representatives including two patent attorneys and three persons at the client itself.

In our experience this is by far the more standard approach of the UPC to confidentiality clubs, so parties disclosing confidential information must be live to the fact that an employee of the opposing party may gain access to their information.

However, confidentiality clubs are assessed on a case-by-case basis. See for example a subsequent order setting the terms of the confidentiality order in the 10x Genomics v Curio action (ORD_8550/2024, 11 March 2024), where the court gave the useful guidance: the group of persons entitled to access must always be subject to a case-by-case examination and adapted if necessary (for example, patent attorneys are unlikely to need access to non-technical information of a purely commercial nature).

Whatever the scope of the club, parties should take care to comply strictly with its terms; disclosure outside of the specified individuals may lead to significant penalties being imposed.

Conditions on confidentiality club membership

There is no requirement that club members (even in EEO regimes) necessarily be restricted to representatives who are UPC representatives (i.e. it could include UK-qualified lawyers) (Aylo Freesites v DISH (UPC_CFI_471/2023 3 July 2024). What is necessary is that those members are identified by name and may be held responsible and legally liable in the event of a breach of the confidentiality order” (10x Genomics v Curio (UPC_CFI_140/2024 4 August 2025)).

In 3V Sigma v ACEF (UPC_CFI_342/2025 23 September 2025) it was held that party-appointed technical experts in that case could be authorised provided they were external to the parties’ organisations and belonged to a professional association; thereby being bound by rules of professional conduct, including compliance with confidentiality obligations. This decision should not be taken as applying in all situations involving experts however, but is in line with the overall approach of assessing confidentiality requirements on a case-by-case basis.

In NEC v TCL (UPC_CFI_498/2023 14 August 2024), the claimant’s request that the confidentiality club include four external experts was rejected by the Munich LD as it had not actually approached any potential experts and it was not clear if and when it would do so. This reinforces the notion that club members must be clearly identifiable such that they may be held accountable in line with the requirement that the club be no larger than necessary. The court did however highlight the possibility of supplementing the order once experts were appointed.

Restrictions on use of confidential materials

Various cases have now confirmed that a sensible and predictable approach to use of materials deemed confidential (such as taken in other jurisdictions) applies in UPC proceedings. In summary these are that such information is to be used only for the current proceedings unless that information becomes known to the adverse party outside of the proceedings (see DDP v Greenchemicals (UPC_CFI_203/2025 16 May 2025) and Krauss-Maffei v Troester (UPC_CFI_181/2023 27 December 2023)).

In practice, in the case of applications incidental to the main infringement or validity proceedings, this may mean that use of the confidential material is restricted to use only in respect of those incidental applications, such that they cannot be used in the main proceedings without further authorisation or agreement.

These cases also confirm that the duties in respect of confidential information made available continue to apply after the proceedings have concluded unless specifically disapplied by the court at a later date or as it becomes publicly available except via disclosure in breach of extant confidentiality conditions.

3. Breaches and penalties

As can be seen, the UPC has strict procedure and rules governing confidential information disclosed within proceedings, and potential litigants will likely be reassured that the UPC’s protective powers do not stop there. The UPC also has the power to impose significant financial penalties may be used to enforce the terms of confidentiality orders made under the authority of Rule 354 RoP. This rule states that the amount of such penalties shall be set with regard to the importance of the order breached.

By way of example, in Krauss-Maffei, a penalty of €100k was set for each case of culpable misuse of the confidential information provided to the confidentiality club, at the request of the defendant. The court clarified that it could not set a penalty higher than that requested.

Dexcom v Abbott (UPC_CFI_230/2023 19 December 2023) provided some interesting insight into harmonisation efforts on this issue as between different local divisions. In that case, the Paris LD set the penalty for breach at €50k in circumstances where the Munich LD had specified a penalty of up to €250k in respect of the same confidential information. Dexcom argued that the Munich LD’s penalty was disproportionate and that there was a risk of double jeopardy should a breach occur.

While wishing to emphasise that penalties should be large enough to have a dissuasive effect, the Paris LD reached its decision to set a different penalty amount on the grounds that the two sets of proceedings related to different patents; as such it was not bound to follow the Munich LD and could set its own penalties.

Given the assumed open nature of the case register to interested third parties and the fact that documents once uploaded cannot be unilaterally withdrawn, care should be taken when uploading unredacted documents to the CMS. In Sanofi v Stada (UPC_CFI_146/2024 26 March 2025) the Munich LD held that the uploading of a privileged and confidential document by a third party representative alongside an application under Rule 262.1(b) for access to documents on the register, but without a corresponding application under 262.2 or 262A to restrict access to the document uploaded, was a negligent breach of the UPC’s Code of Conduct resulting in a warning for the representative and the administrative costs of correcting the register falling to the third party.

Any questions?

As the UPC’s body of case law on confidentiality continues to grow, it is clear that parties navigating these issues must be prepared for a nuanced, case by case approach from the Court. With our deep experience acting in UPC proceedings and our specialist understanding of confidentiality issues and applications, EIP is well placed to guide clients through both the procedural demands and the practical realities of protecting confidential information before the UPC. If you would like to discuss any of the points raised in this article, or require tailored advice on handling confidential information in UPC litigation, please contact our UPC team.