Unified Patent Court (UPC) proceedings often involve sensitive business information. With a single patent case potentially spanning 18 EU states, stakes are high, and competitors may risk exposure of trade secrets or other confidential data. The UPC’s rules aim to balance confidentiality with transparency and fairness. This summary explains the mechanisms the UPC uses to protect trade secrets and other confidential information during litigation, the types of information protected, and the practical challenges observed in the court’s first years.
The legal basis for protecting confidential material is found in the UPC Agreement and the Rules of Procedure. Article 58 of the UPCA empowers the court to restrict or prohibit disclosure to safeguard trade secrets, personal data, or other confidential information of parties or third parties, or to prevent abuse of evidence. It authorizes the court to implement protective measures around sensitive information. Rule 262 of the RoP implements Article 58 by allowing a party to request that certain information in pleadings or evidence be kept confidential from the public record. For instance, if a statement of claim contains secret technical data, the party can file a redacted version for public viewing and an unredacted version under seal for the court and the opposing side. Rule 262A RoP provides for more specific confidentiality orders. It allows parties to restrict how particular information is used or disclosed and to limit access to certain persons involved in the case. This rule underpins what are informally known as “confidentiality clubs,” small groups authorized to access sensitive information. Rule 262A applies to both documents and oral proceedings, including closed sessions of hearings when discussing sensitive material. Related procedural rules, including those governing evidence production, preservation orders, inspections, and other remedies, permit the court to impose confidentiality conditions. For example, if an inspection of a manufacturing facility is ordered, the court can stipulate that only specified persons attend and that they do not disclose what they observe. Enforcement of confidentiality orders is supported by Article 82(4) UPCA, which allows the court to impose penalty payments on parties breaching the order, though the court cannot directly fine external lawyers; the responsibility rests with the represented party.
The scope of confidential information under UPC practice extends beyond classical trade secrets to include any information deemed sensitive in context. A trade secret is generally defined under EU law by three criteria: it is not public or readily known, it derives commercial value from being secret, and the owner has taken steps to maintain secrecy. Article 58 explicitly extends protection to “other confidential information,” which the court interprets broadly. Early cases illustrate a wide range of protections. Business and financial data, including projected sales figures, sales volumes, market analyses, and even litigation budgets or detailed attorney invoices, have been shielded as confidential. Technical information is also a primary focus, including proprietary product or process details, internal know-how such as quality control parameters, manufacturing specifics, and supplier relationships. In some cases, even “negative” information, such as the absence of a product feature, has been considered sensitive. Conversely, information that is publicly known or generic, such as state-of-the-art knowledge, is not treated as confidential. Third-party confidential information, such as data held under a non-disclosure agreement, can also be protected, and miscellaneous business information, like invoices or billing details, may be kept confidential under the broader category of “other confidential information.” The early trend suggests that the UPC is relatively generous in granting confidentiality if the information is not public and a party considers it sensitive, even if it does not meet the strict legal definition of a trade secret. The rationale is to protect potentially sensitive information first, allowing broader access only if necessary, thereby avoiding irreparable exposure. While some designations, such as making lawyers’ fee invoices confidential, may appear excessive, Article 58’s inclusion of “other confidential information” allows for such protections, and judges generally prioritize fairness and practicality over strict trade secret classification.
When deciding on confidentiality, the court applies specific criteria. Parties requesting protection under Rule 262A must provide detailed justification for each redaction or secrecy request; generic statements that information is sensitive because of competition are insufficient. Courts require concrete reasons showing how disclosure could harm a party, such as revealing market strategies or supplier identities, as highlighted in Fujifilm v. Kodak. The court also balances confidentiality against the opposing party’s right to a fair trial, considering whether limited disclosure suffices for effective defense. Protection is more likely if the information is tangential or can be handled via restricted access. In Avago v. Tesla (Hamburg 2025), for example, the court allowed technical details and component pricing to be accessed only by a limited number of people, while sales forecasts and an internal letter were denied protection. Absolute proof that information constitutes a trade secret is not required; it is sufficient that the information appears likely to be confidential, lowering the threshold for applicants.
Confidentiality clubs, established under Rule 262A, consist of the individuals allowed to access sensitive information. Membership is intended to be minimal yet practical. Typically, the club includes lawyers or external representatives, at least one internal representative from each party, often an in-house lawyer or key managerial employee, and, in some cases, independent experts handling technical or financial information. The UPC has evolved its approach to foreign attorneys. Initially, non-European lawyers were sometimes excluded, but appellate guidance permits their inclusion if they play a significant role in parallel proceedings and commit to confidentiality. The “natural person” required in each party can be an employee of an affiliate company if they are effectively part of the litigation team. Courts generally trust in-house counsel and technical experts unless there is a specific reason to suspect misuse. The UPC encourages parties to agree on club structures, and existing confidentiality arrangements from related litigation may be mirrored for efficiency and consistency.
A particularly sensitive arrangement is the “External Eyes Only” (EEO) regime, under which access is limited to external individuals, typically outside counsel and designated experts, with company employees excluded. While not the default, EEO is feasible under UPC rules, particularly in cases requiring heightened confidentiality, such as Standard Essential Patent and FRAND licensing disputes. These cases involve sensitive licensing agreements whose disclosure to competitors could have significant commercial consequences. UPC courts generally approve EEO arrangements when both parties consent, but unilateral requests require strong justification, as reflected in the Milan decision in Ericsson v. ASUS (2023). EEO ensures that litigation can proceed with necessary evidence while protecting strategic commercial information.
Implementing confidentiality protections introduces procedural challenges. Rule 262A.3 requires that requests for confidentiality be filed with the relevant documents, delaying full sharing until the court decides. This can extend timelines as opposing counsel require time to respond and the court deliberates. When requests are denied, parties must choose between disclosing sensitive information or removing it from the case, potentially weakening their position. Appeals on confidentiality decisions are complex because once sensitive information is disclosed, it cannot be “undone,” and interim orders may affect ongoing proceedings. Parties who wait for appeal decisions risk running afoul of rules against late submission of evidence, requiring careful strategic decisions. Confidentiality orders, once granted, continue through appeals and may cover parallel proceedings, providing consistency across related cases. Personnel changes during a case are addressed on a case-by-case basis, often permitting one-for-one substitutions within confidentiality clubs, while expansion without justification is discouraged. Post-case, confidentiality obligations persist indefinitely, and the rules currently provide no formal procedure to lift or adjust them once information loses sensitivity, a gap that future revisions may address.
Looking ahead, the UPC is developing practices that blend civil law traditions with concepts more familiar in common law jurisdictions, such as confidentiality clubs. Despite the absence of the UK, which has extensive experience with such measures, UPC judges and practitioners are rapidly gaining expertise. Almost every patent infringement case in the first year has involved confidentiality issues, driving the development of practical guidance. Decisions from the Court of Appeal are clarifying how information can be protected and how to justify requests effectively. Proportionate, well-justified requests are increasingly likely to be approved, reducing objections and streamlining the process.
Currently, the procedural overhead for confidentiality remains significant, consuming time and resources that could otherwise focus on patent issues. In an ideal future, confidentiality protection will become a routine administrative measure, handled through agreed protocols or clear rules, minimizing disputes and delays. The UPC provides robust tools to safeguard trade secrets and confidential information, including sealed evidence, closed hearings, and limited disclosure. These measures have been applied liberally to reassure litigants, balancing high-stakes multinational patent disputes with protection of sensitive information. While such protections can complicate and slow proceedings, they reflect a careful effort to preserve fairness. As practices mature and rules are potentially fine-tuned, confidentiality measures are expected to interfere less with efficiency, allowing the UPC to deliver fast and fair patent dispute resolution across Europe.
by Wim Maas
