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Balancing transparency and confidentiality at the UPC
Managing confidential information is a critical aspect of litigation before the Unified Patent Court. Alex Rogers examines the UPC’s evolving approach to confidentiality, from confidentiality clubs and access restrictions between parties to public access to court files, offering practical guidance on how to protect sensitive information while navigating the Court’s procedural requirements.
Knowledge of how to keep information confidential at the Unified Patent Court is an essential part of every UPC litigator’s toolkit. You may, for example, need to disclose sensitive financial information of a client in a request for security for costs or wish to disclose trade secrets relating to a product or process to prove a point on validity or infringement. Either way, your client is likely to want to restrict the information that is revealed to the other side as well as preventing it reach the public domain.
There are two rules that address confidentiality at the UPC. One (r.262) deals with public access to the register. Another (r.262A) deals with protection of confidential information between the parties of the proceedings. It is essential to make any application to protect confidential information during proceedings (r.262A), or request to keep certain information in the register confidential (r.262) under the right rule in the right way, otherwise you risk the Court denying your application according to r.262A or request according to r.262 for confidentiality and simply revealing sensitive information to other parties.
Confidentiality between parties – Rule 262A
I will address this aspect first, as you are likely to encounter this first as a UPC representative. I reproduce the full rule below, as it is worth reading it line by line. Rule 262A – Protection of Confidential Information – reads as follows:
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.
Some key points to recognise about making a request for confidentiality:
- You need to file the Application to keep a document (or part of it) confidential from the other party at the same time as filing the document (r.262A.3). Failure to do so can simply result in the Court releasing the information to the other parties. As an illustration that once a document has been released to the other party without a confidentiality request, you cannot then alter its status to be confidential under r.262A, see Court of Appeal case STRABAG v SWARCO.[1] And do not forget to ensure that every document is individually electronically signed – simply signing the overall submission is not deemed sufficient to comply with r.4.1,[2] as recently confirmed by the Court of Appeal in SharkNinja v SEB.[3]
- You need to explain why the relevant information should be confidential (r.262A.2).
- If you want part of the document to be kept confidential, you need to submit both the redacted document and an unredacted version of the document (r.262A.3). On CMS, the status of unredacted document should be set to ‘HC’ or highly confidential on filing (see later section on CMS codes). Simply filing a document under the HC code without an Application under r.262A is not sufficient and the Court can simply change the code to ‘M’ (mutual) to allow access to the other party.[4]
- You also should bear in mind that the Court can ‘not award more than is requested’ (Article 76 UPCA). With this in mind, you should think carefully about including fallback positions or ‘auxiliary requests’ in your Application under r.262A, should your main request for confidentiality be denied. For example, your main request could be for only the lawyers of the other side to see the sensitive information, and not the party itself – a so-called ‘external eyes only’ (‘EEO’) regime, familiar to those with experience of High Court actions in the UK. However, as discussed later, the UPC does not favour such regimes, so it would be sensible to also include a request that reflects r.262A.6, such that it allows for a ‘natural person’ of the other party to see the evidence. You may also have different categories of evidence that could warrant different levels of confidentiality – again, you may wish to include various ‘auxiliary requests’ for different possible levels of access to each category.
- After filing the Application under r.262A, the other parties are invited to comment in writing. There is no right to an oral hearing in the case of confidentiality requests under r.262A – it is an entirely written procedure.
- After the other parties have commented upon it, the Court will then decide upon whether to allow the Application. In its decision-making, the Court balances the principle that a party should, generally, have full access to the information filed by another party for a fair trial against the harm the other party would suffer should that information be revealed.
Confidentiality clubs
As you will have seen in r.262A.1, you can ask that sensitive information or evidence is ‘restricted or prohibited’ or ‘access to such information or evidence be restricted to specific persons’. Reading this rule alone, it seems to allow for access to information to be ‘prohibited’ from view by others parties, so potentially encompassing an ‘in camera’ review (i.e. a judge-only review) or an EEO regime (i.e. only allowing the legal representatives of an opposing party to see certain information, not the opposing party itself). In the UK, in camera and EEO regimes are used for certain types of information (e.g. privileged information for in camera review; and, for EEO regimes, very sensitive information such as details about licences or confidential financial information). However, the UPC is a blend of many courts systems across Europe, and in many civil law countries, confidentiality clubs are more common for sharing confidential information. Indeed, the architects of the UPC embodied the possibility of confidentiality clubs in r.262A.6 (see above). This rule lays out the minimum and maximum number of people in the club. The minimum is prescribed to include: ‘at least one natural person from each party and the respective lawyers or other representatives of those parties to the legal proceedings’. Accordingly, there has to be at least one person from each party so that they can see the relevant information being disclosed. This person can be an employee, but does not need to be – it could be another advisor.[5] The maximum number of people in a confidentiality club is given not by an absolute number, but more by the principle that it ‘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’. In other words, just enough people needed to consider and advise a party on the issue in hand.
The Court of Appeal in two cases earlier this year set out that confidentiality clubs are to be the default at the UPC, where parties cannot agree otherwise. These are: Sun v Vivo, 26 January 2026[6] and Ericsson v Asus, 26 January 2026.[7]
Both cases involved an Application under r.262A to keep information about a licence confidential under an EEO regime. And in both cases, the Local Division (Paris in Sun v Vivo; Milan in Ericsson v Asus) denied the request and ruled that at least one natural person of the other party was to be part of the confidentiality club. The appeals in both cases, clearly coordinated, given the similarity and timing of the judgments, essentially confirmed the rulings of the Local Divisions, but set out some useful guiding principles.
The Court of Appeal struck a balance between allowing a party to have access to confidential information disclosed by the other side to allow it to have a fair trial, and avoiding harm to the disclosing party. Accordingly, while at least one employee in each case was allowed access, the Court placed restrictions on those people in being involved in licence negotiations for a period. The principles and guidance from Sun v Vivo are set out below:
1. When deciding on the measures for the protection of confidential information and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures.
2. In the event that one of the parties is a legal person, that party should be able to propose a natural person or natural persons who ought to form part of that circle of persons entitled to have access so as to ensure proper representation of that legal person, subject to appropriate judicial control to prevent the objective of the restriction of access to evidence and hearings from being undermined.
3. Whether the person proposed by a party may be granted access to the confidential information must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential.
4. The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person. The exclusion of employees would severely restrict a party’s freedom to choose who will represent it in the proceedings. Furthermore, an employee of a party will often be better placed to present the party’s view, provide and review relevant information and instruct the representatives than persons external to the party’s organisation. Consequently, access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. For that reason, and as a general rule, the interest of the party in having full access for at least one of its employees outweighs the interests of the applicant, even if the imposition of an EEO regime would be preferable from the perspective of safeguarding confidentiality.
5. Furthermore, where the confidential information concerns a licence agreement between a party and a third party, the potential harm for this third party, resulting from allowing access to an employee of the other party to the proceedings, may be mitigated by requiring that employee to refrain from involvement in patent licensing negotiations with the third party for a certain period. Such a bar prevents the employee from using such confidential information in these negotiations, whether intentionally or not. It thereby facilitates compliance with the confidentiality regime and provides all parties with a greater degree of legal certainty, as the involvement of the employee in negotiations is easier to establish than the employee’s use – inadvertent or otherwise – of the confidential information in such negotiations.
So, confidentiality clubs will be applied by the UPC as a default where there is no agreement between the parties. If the parties agree to an EEO regime, the Court may well grant this if it considers the trial will still be fair (and in this author’s recent experience, this has happened in an as-yet-to be published decision). For examples of where EEO regimes have been applied with the agreement of parties (see Plant-e v Arkyne[8], C-Kore v Novawell[9], 10x Genomics v Vizgen[10])
Confidentiality from the public
Access to the UPC register is not as open as that of the EPO. For those used to being able to view an online EPO file and see all arguments and documents filed, even up to the day before, the UPC’s register will seem quite a closed book. When you look at a UPC case, the only documents open to the public are the orders and decisions of the Court – you can see the generic titles of the pleadings filed by each party in the list of documents, but you cannot open them. The rules for public access to the UPC Register are set out in r.262. Again, it is worth reading it very carefully, so I set it out below.
Rule 262 – Public access to the register
1. Without prejudice to Articles 58 and 60(1) of the Agreement and subject to Rules 190.1, 194.5, 196.1,197.4, 199.1, 207.7, 209.4, 315.2 and 365.2, and following, where applicable, redaction of personal data within the meaning of Regulation (EU) 2016/679 and confidential information according to paragraph 2
- a. decisions and orders made by the Court shall be published,
- b. written pleadings and evidence, lodged at the Court and recorded by the Registry shall be available to the public upon reasoned request to the Registry; the decision is taken by the judge-rapporteur after consulting the parties.
2. A party may request that certain information of written pleadings or evidence be kept confidential and provide specific reasons for such confidentiality. To this end content of the register is made publicly available according to paragraph 1 (b) only 14 days after it has been available to all recipients. The Registrar shall ensure that beyond this time period information subject of a request for confidentiality shall not be made available pending an Application pursuant to paragraph 3 or an appeal pursuant to r.220.2. When a party lodges a request that parts of written pleadings or evidence shall be kept confidential, he shall also provide copies of the said documents with the relevant parts redacted when making the request.
3. A member of the public may lodge an Application with the Court for an order that any information excluded from public access pursuant to paragraph 2 may be made available to the applicant.
4. The Application shall contain:
- a. details of the information alleged to be confidential, so far as possible;
- b. (b) the grounds upon which the applicant believes the reasons for confidentiality should not be accepted; and
- c. (c) the purpose for which the information is needed.
5. The Court shall invite written comments from the parties prior to making any order.
6. The Court shall allow the Application unless legitimate reasons given by the party concerned for the confidentiality of the information outweigh the interest of the applicant to access such information.
7. The Registrar shall as soon as practicable take all such steps with regard to access to the register as may be necessary to give effect to an order of the Court under this Rule.
As you can see from r.262.1, if a third party wishes to see any pleadings or evidence from a UPC case, it must apply to the court. And you cannot simply do this directly as a member of the public – you must instruct a UPC representative.[11] Moreover, the request from a third party needs to be ‘reasoned’. In Ocado v AutoStore,[12] the Court of Appeal clarified that the reasoned request means the requester needs to state the purpose of the request and why access to the specified documents is necessary for that purpose. In other cases, simply requesting access for ‘education and training’ purposes was not considered sufficient,[13] and nor was ‘a wish to form an opinion on the validity of a patent out of a personal and a professional interest’.[14] Requests that have shown a more direct relationship between the purpose and how the documents are necessary to achieve it have been granted, such as being a party in a parallel EPO opposition proceedings[15] and even having a professional interest in seeing how to frame certain arguments at the UPC (Progress v AWM[16] – interestingly, in that case, the requester was anonymous).
After the Court has received a request, it then consults the parties. At that point, a party may request that certain information is kept confidential under r.262.2, giving reasons. If only some information in a document is considered confidential, the party will need to provide the court with a redacted version of the document, removing such information. The third party then is allowed to object to documents being confidential on under rules 262.3 and 262.4.
Case law has shown that access to concluded proceedings is granted more readily than ongoing proceedings, even if the case was settled (see the Ocado case above). Even then, any request to see documents needs to be quite specific – simply requesting access to all documents relating to a certain topic is unlikely to be sufficient (again see Ocado).
So, the case law on public access at the UPC continues to develop, and it is worth watching with interest over the coming years how transparent the UPC wishes to be. While the Ocado case signalled that open access is desirable to allow better understanding and scrutiny of decisions of the Court, which is important for public trust, the practical reality is that most documents in most cases remain unpublished and only accessible to those with the financial means to pay a representative and enough of a desire to go through a legal procedure to obtain a document in question.
[1] STRABAG Infrastructure & Safety Solutions GmbH, and Chainzone Technology (Foshan) Co, Ltd v SWARCO FUTURIT Verkehrssignalsysteme GmbH, UPC_CoA_70/2025, 1 August 2025; tinyurl.com/kj45h2xs
[2] Rule 4.1, first sentence, states: ‘written pleadings and other documents shall be signed and lodged at the Registry or relevant sub registry in electronic form.’
[3] SharkNinja Operating LLC v Groupe SEB France et al, UPC_CoA_61/2026, 22 May 2026; tinyurl.com/ycxt79wx
[4] Merz v Viatris, 26 January 2026 (Appeal no. UPC_CoA_917/2025; www.unifiedpatentcourt.org/sites/default/files/files/api_order/Final%20order%20confidentiality%2026%20January%202026%20in%20917-2025_JM.pdf)
[5] Daedalus v Xiaomi (UPC_CoA_621/2024, order of 13 February 2025 – see www.unifiedpatentcourt.org/sites/default/files/files/api_order/A5817509F636099D4052F585D696A9AD_en.pdf)
[6] Appeal no’s: UPC_CoA_755/2025, UPC_CoA_757/2025, UPC_CoA_791/2025, UPC_CoA_793/2025, www.unifiedpatentcourt.org/sites/default/files/files/api_order/FINAL-ORDER_SUN%20v%20VIVO_755_757-2025_2026-01-26_Redacted-Anonymized_Signed.pdf
[7] Appeal no. UPC_CoA_632/2025, www.unifiedpatentcourt.org/sites/default/files/files/api_order/Final%20order%20Ericsson%20-%20ASUS%20final%20%28redacted%20and%20anonymized%29.pdf
[8] The Hague Local Division, 4 March 2024 – UPC_CFI_239/2023; 2024-03-04 LD The Hague UPC_CFI_239-2023 ORD_590350-2023ACT_549536-2023 anonymized.pdf;
[9] Paris Local Division, 26 March 2024 – UPC_CFI_397/2023; 2135CE6AA4A6DC35C915C337C99C1A99_en.pdf
[10] Hamburg Local Division, October 2024, UPC_CFI_22/2023; 1AFEB056048AB567065B99FAB43582B2_de.pdf
[11] UPC_CoA_404/2023; App_584498/2023; www.unifiedpatentcourt.org/sites/default/files/upc_documents/Order%20on%20representation%208%20February%202024%20signed_Redacted.pdf
[12] UPC_CoA_404/2023; 10 April 2024; www.unifiedpatentcourt.org/sites/default/files/files/api_order/CA6099480F08111F4E2F898795DC8B8D_en.pdf
[13] Regenerative Medicine v Healios K.K. et al., UPC_CFI_75/2023, 2023-09-21-cd-munich-upc_cfi_75-2023-ord_552745-app_545443-2023-order-rejecting-rule2621b-request-upc_cfi_75_2023_anonymized.pdf
[14] Sanofi-Aventis v Amgen, Inc., UPC_CFI_1/2023, 2023-09-20-cdmunich-upc_cfi_1-2023-ord_550152-app_546231-2023_orderrejecting-2621b-application_anonymized.pdf
[15] NJOY v Juul, UPC_CFI_316/2023, 2024-04-24 CD Paris UPC_CFI_316-2023 ORD_587436-2023 App_587265-2023 anonymized.pdf
[16] UPC_CFI _287_2023, 1 December 2023; 2023-12-04 LD MILAN UPC_CFI_287-2023 ORD_584786-2023 App_584786-2023 anonymized.pdf
First published in the CIPA Journal, June 2026 edition.
This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic then please contact hlk@hlk-ip.com or your usual HLK advisor.