Protection of confidential information before the UPC

Current developments regarding Rule 262A of the Rules of Procedure – protection of confidential information – before the Unified Patent Court

Under Rule 262A of the Rules of Procedure, a party may request the Unified Patent Court (UPC) to grant special protection to certain confidential information or evidence contained in its pleadings by restricting access to such information or evidence to specific persons only, or by prohibiting the use of such information or evidence altogether. In recent months, the Unified Patent Court has issued several decisions that illustrate how it interprets and applies this rule.

Proportionality

On 10 March 2025, the Munich Local Division granted the plaintiff’s request for protection of confidential information (ORD_11652/2025, BioNTech v Promosome) and established a so-called “Confidentiality Club”, which grants access to certain documents only to designated natural persons and legal representatives. However, the return or destruction of these documents after the end of the proceedings was rejected on the grounds that the general protection of confidentiality under Article 58 UPCA and Rule 262A RoP was sufficient. In this decision, the court clarified that it takes into account, in particular, whether the reasons asserted by the applicant significantly outweigh the other party’s interest in unrestricted access to the information (Rule 262A.5 RoP).

Attorney-Eyes-Only

Unlike the Munich Local Division, which insists that at least one natural person per party must have access to the confidential information in accordance with Rule 262A.6 RoP, the Hague Local Division ruled in a decision dated 4 March 2024 (UPC_CFI_239/2023) that access could also be restricted to the defendant’s legal representatives alone. In this decision, the court further stated that the EU Trade Secrets Directive (Directive (EU) 2016/943) is implemented differently in the various contracting states and that the differences in interpretation allow for more flexibility in adapting access to the information to the circumstances of the individual case and the nature of the confidential information in question.

Restriction of access to one person

The Court of Appeal applied similarly strict confidentiality rules in its decision of 3 July 2025 (UPC_CoA_221/2025, UPC_CoA_222/2025, UPC_CoA_223/2025), in which it emphasised that access to confidential information must be limited to what is strictly necessary and upheld the first instance decision, which had restricted access to confidential documents to only one person on the US legal team.

Graded procedure in the CMS

In its decision of 14 February 2024 (UPC_CFI_463/2023), the Local Division in Düsseldorf outlined a graduated procedure for the protection of confidential information. According to this, the CMS (Case Management System of the UPC) provides for protective measures as soon as an application for protection of confidential information is filed, so that the Judge Rapporteur can order provisional secrecy before documents are released. If the application for secrecy of the relevant information is rejected, the applicant must be informed in good time and given the opportunity to comment or withdraw the documents.

Confidentiality of procedural costs

The Central Division in Mannheim dealt with the confidentiality of procedural costs in its decision of 5 June 2025 (UPC_CFI_477/2025), in which it clarified that these are generally not covered by confidentiality under Rule 262A RoP or by attorney-client privilege, unless they provide specific information about the financial capacity of the company, its business strategy or the significance of the patent as a corporate asset. If this is the case, confidentiality may also be ordered with regard to costs incurred by companies for legal services in connection with litigation and patent protection, as this information could provide insight into the importance companies attach to their patents and the risks they take to protect them.

The Central Division in Paris also dealt with the confidentiality of litigation cost information in its decision UPC_CFI_484/2025 of 16 July 2025 (Kinexon Sports & Media v Ballinno B.V.). The court clarified that such information may not be kept secret from the opposing party, as it does not relate to the subject matter of the proceedings and its exclusion would impair the right to a fair trial. Confidentiality under Rule 262A RoP is therefore not justified. However, litigation cost information is certainly worthy of protection from the public as strategically sensitive data. Its disclosure could allow conclusions to be drawn about the internal distribution of resources and the competitiveness of both the claimant and its legal counsel. Confidentiality under Rule 262.2 RoP was therefore permissible. The court also clarified that a request for confidentiality vis-à-vis the opposing party implicitly also included a request for protection from the public.

Conclusion

The recent decisions of the Unified Patent Court on Rule 262A RoP show that confidentiality is not granted across the board, but is carefully weighed against the right to a fair trial. The decisions diverge depending on the type of information and the procedural situation.