UPC_CFI_1079/2025; UPC_CFI_1080/2025 – Philips v TCL

Court
Local Division The Hague
Date
Outcome
Granted
Sector
Electronics/SEP
Decision Type
PROCEDURAL

Expert Commentary

Confidentiality Facts Disclosure and confidentiality requests of both parties. The Judge-Rapporteur (“JR”) 1. The JR decides on various elements of the disclosure and confidentiality requests. 2. If parties have agreed that certain information exchanged between them is confidential, then only R. 262.2 RoP (confidentiality towards third parties) is necessary. 3. As all defendants belong to the same group and raised the same defence, it is not necessary that a natural person of each defendant gets access. 4. The JR also orders that the natural persons to whom access will be given to license agreements with third parties, will have to sign an undertaking that they will adhere to the imposed confidentiality regime and accept the jurisdiction of the UPC in case of disputes regarding potential breaches. Comment 1. Indeed, if parties in proceedings are bound vis-à-vis each other with respect to confidentiality, then a R. 262.2 RoP order can still be imposed if a member of the public asks for access. 2. Can the Unified Patent Court deal with the consequences (damages etc.) of a breach of a confidentiality undertaking? Maybe the national court in The Hague Court is better suited for this?

Full Decision Text

1 Local Division The Hague UPC CFI 1079/2025 UPC CFI 1080/2025 Procedural Order of the Court of First Instance of the Unified Patent Court delivered on 9 April 2026 concerning: R. 262/262A and production of licences CLAIMANT 1) KONINKLIJKE PHILIPS N.V. Eindhoven (5656 AG), High Tech Campus 52- NL (hereinafter also “Philips”) Represented by Roeland Grijpink DEFENDANTS 1) TCL INDUSTRIES HOLDINGS CO., LTD TCL Technology Building, 22nd floor, 17 Huifend 3rd Road, Zhongkai High-tech Zone, 516029, Huizhou, Guangdong, People´s Republic of China Represented by Holger Stratmann 2) TCL COMMUNICATION LTD 5/F, Building 22E, 22 Science Park East Avenue, Hong Kong Science Park,Shatin, NT, 999077, HK Represented by Holger Stratmann 3) TCL Netherlands B.V. Beursplein 37, 5th floor, 3011 AA Rotterdam, NL Represented by Holger Stratmann 4) TCL ENERGY & MOBILE NETHERLANDS B.V. Beursplein 37, 5th floor, 3011 AA Rotterdam, NL and TCL Technology Building, 21st floor, 17 Huifeng 3rd Road, Zhongkai High-tech Zone, 516029, Huizhou, Guangdong, CN Represented by Holger Stratmann 2 5) TCL MOBILE EUROPE SAS 15 rue Rouget de Lisle, 92130 Issy les Moulineaux, FR Represented by Holger Stratmann 6) TCL EUROPE SAS 15 rue Rouget de Lisle, 92130 Issy les Moulineaux, FR (hereinafter collectively also “TCL”) Represented by Holger Stratmann PATENT AT ISSUE Patent no. Proprietor/s EP3103116 KONINKLIJKE PHILIPS N.V. EP2420029 KONINKLIJKE PHILIPS N.V. DECIDING JUDGE Presiding judge Edger Brinkman Judge-rapporteur Edger Brinkman LANGUAGE OF PROCEEDINGS: English SUBJECT-MATTER OF THE PROCEEDINGS Infringement claim PROCEDURE 1. The following submissions of the parties in the main case files are of relevance for this order: 3 - Statement of Claim of 9 October 2025, with exhibits CE01-CE29, - Application for confidentiality (R. 262.2 RoP) by Philips, with Annex 1 and 2, dated 22 December 2025, - Statement of Defence and Request for Confidentiality, with exhibits HE1-HE2 (non- confidential), HERCC01-HERCC12 and HE1-HE2 (confidential), dated 13 February 2026, - Response to confidentiality and evidence request / application for an order to produce evidence and confidentiality (R. 264 RoP / Art. 43 UPCA / R. 103 RoP / R. 262A RoP), by Philips, dated 12 March 2026, - Response to Confidentiality Regime proposed by Claimant by TCL, of 19 March 2026, - Communication to the court by Philips, dated 20 March 2026. 1.1. A case management hearing (according to R. 264) took place confidentially on 27 January 2026, summarized in an order of 3 February 2026. RELIEF SOUGHT 2. The applications are as follows 2.1. Claimant requests the Court: 1. to reject TCL’s confidentiality request and request to produce evidence as included in its SoD; 2. to classify the information marked confidential in TCL’s SoD as well as the information marked confidential in Philips’ Statement of Claim and Application for Confidentiality as Confidential Information within the meaning of R. 262.2 RoP and order that such confidential information is subject to the measures sought in Philips’ Application for Confidentiality dated 22 December 2025, included below for convenience: “Philips requests: 1. to classify the information in the SoC, paragraph 9 and 10, and in Exhibit CE9 as confidential within the meaning of Art. 58 UPCA, R. 262.2 RoP; 2. to order anyone who becomes aware of the information listed under 1 as a result of their involvement in the present proceedings (as a party, intervener, lawyer, witness, expert, court employee or in any other way) to treat the information as strictly confidential and that the information may not be used or disclosed outside the court proceedings, except to the extent if and insofar as the receiving party has demonstrably gained knowledge of the confidential information outside the present legal dispute on a nonconfidential basis from a source other than TCL or its affiliates, provided that such source is not bound by a confidentiality agreement with or other obligation of secrecy with Philips or its affiliates. 3. to treat the information under 1 as confidential and exclude it from the possibility of inspection by third parties and not publish it in the register or otherwise disclose the information under 1; 4. to redact prior to publication of the decision or notices, any information contained therein which concerns the information to be classified as confidential under 1; 4 5. to exclude the public from the oral hearing during the direct and indirect discussion of the information to be classified as confidential under 1 (R. 115 RoP); 6. to exclude the public from the reasoning of the judgment as far as the information to be classified as confidential under 1 is discussed directly or indirectly; 7. to redact, prior to publication of the reasons for the judgment or other announcements, the information contained therein that is to be classified confidential under 1; 8. to declare that the measures under 2 to 7 above shall apply, mutatis mutandis, to any information designated as confidential towards third parties in any future pleading, evidence or other submission filed in these proceedings, said designation being without prejudice to the other party’s right to object to it, upon which the Court shall decide; and that pending any decision on such objection the designated information shall be treated in accordance with the measures under 2 to 7 above.” 3. to order Philips and TCL, on the basis of R. 103 RoP, to submit within two weeks of the date of the order to be given on this application, subject to the confidentiality regime set out below, the following documents: ii. with respect to Philips, all licence agreements to date, including any settlement agreements, entered into by Philips relating to one or more patents that form part of its Cellular SEPs Portfolio with handset manufacturers, as well as any side letters, modifications, amendments, supplementary agreements and similar documents relating to one or more of the agreements referred to; and iii. with respect to TCL, all licence agreements to date, including any settlement agreements, entered into by TCL relating to one or more patents that are declared to be essential to cellular standards (including but not limited to UMTS, LTE and 5G), as well as any side letters, modifications, amendments, supplementary agreements and similar documents relating to one or more of the agreements referred to. 4. to classify the Highly Confidential Information (i.e. the confidential information relating to the license agreements concluded with third parties) as confidential within the meaning of Art. 58 UPCA and R. 262A RoP; 5. to order that access to the Highly Confidential Information shall be restricted exclusively to, primarily: a. the parties’ authorized UPC Representatives; and b. up to three external economic experts (excluding external counsel instructed in a legal capacity or instructed to conduct licensing negotiations) for either party (the TCL defendants taken together as one party), who (i) are not employees of the parties nor any entity that is a licensee or licensor of cellular standard essential patents, and (ii) have a legitimate need to receive the Highly Confidential Information; or, alternatively, to the persons under a. and b. above, and c. a maximum total of two inhouse individuals employed by either party (the TCL defendants taken together as one party), to be designated by the receiving party and approved by the disclosing party in accordance with the procedure set out in 3. below, each of whom (i) has a legitimate need to access the Highly Confidential Information for their submissions in the Proceedings; and (iii) will not participate in or advise upon any licensing negotiations with the counterparties to the disclosed license agreements or related agreements for a period of five years after ceasing to be in possession and/or have access 5 to such agreements (or any related material submitted in the proceedings), save with the relevant counterparty’s consent; 6. to order the parties to provide the other party, within five business days after the date of the order to be rendered on this application, a list of designated individuals to whom access to the Highly Confidential Information is intended to be provided in conformity with the present confidentiality regime, to which designations the other party may object on reasonable grounds within five days after receipt of said list, after which objection the designating party shall immediately replace the individual subject to the objection with a new designated individual (with respect to whom this objection procedure shall also apply); 7. to order that the individuals under 5 to whom access to the Highly Confidential Information will be provided, shall, prior to getting access, provide a signed undertaking to the other party in which they undertake to adhere to the imposed confidentiality regime and acknowledge the jurisdiction of the Unified Patent Court regarding any dispute over alleged breaches of the confidentiality regime; 8. to order the individuals under 5 to whom access to the Highly Confidential Information will be provided, to treat the Highly Confidential Information as strictly confidential and that the Highly Confidential Information may not be used or disclosed outside the proceedings; 9. to order that any submitted documents containing the Highly Confidential Information may only be accessed by the individuals under 5.c through a secure remote access link in a virtual shared folder to be provided by the other side upon receipt of the undertaking under 7, without copying, forwarding, downloading or printing the Highly Confidential Information, or alternatively, that such actions are only allowed to the extent that they are strictly necessary for the purpose of the proceedings; 10. to order that the individuals under 5 to whom access to the Highly Confidential Information will be provided, shall keep any further document based on or containing Highly Confidential Information in a safe and secure place (which would include without limitation a restricted access virtual file within their document management system) and take all reasonable precautions necessary to exclude the risk of unauthorised use or disclosure of the Highly Confidential Information or any part thereof by or to any other persons; 11. to order that the confidentiality regime shall remain in effect after termination of the proceedings, whether by settlement or final judgement, and that, no later than two weeks after the termination of the proceedings, all persons having received Highly Confidential Information shall destroy all materials containing such Highly Confidential Information (for materials held electronically, the obligation is to use reasonable endeavours to destroy or delete those copies that are readily available, but there shall be no requirement to destroy such materials contained on archival media which should be treated in accordance with standard retention policies) and shall immediately thereafter provide written confirmation thereof to the other party; 12. to order that the parties or any of the individuals under 5 in case of breach of this confidentiality regime forfeits a penalty of up to €1,000,000 for every time that the party or any of the individuals under 5 acts in breach of any clause of the confidentiality regime to be ordered based on this application; and to order that if the party and/or the individuals under 5 become aware of any breach or suspected breach of the confidentiality regime or any confidentiality undertaking given pursuant to point 7 of this order, including any unintentional or inadvertent disclosure, the party’s representative shall notify in writing the other party’s representatives as soon as practically possible after becoming so aware, giving details of any such breach or suspected breach; 13. to order that the confidentiality measures as set out above in 2.2 to 2.7 shall apply mutatis mutandis; 6 14. to declare that the measures under 5 to 13 above shall apply, mutatis mutandis, to any information designated as Highly Confidential in any future pleading, evidence or other submission filed in these Proceedings, said designation being without prejudice to the other party’s right to object to it, upon which the Court shall decide; and that pending any decision on such objection the designated information shall be treated in accordance with the measures under 5 to 13 above. 2.2. Defendants request the Court that: A. Confiden5ality Request I. the information marked in grey in the Statement of Defence and all Exhibits submitted along with it and marked in grey and as “CONFIDENTIAL”, summarized in the following table, be classified as confidential (R. 262.2 RoP, R. 262A RoP), Confidenbal Informabon Submission SoD Exhibit Business figures Paras. 96, 102 - 105, 107, 109 - 120 Exhibits HE 1 and HE 2 and that they be treated as strictly confidential by anyone who becomes aware of them as a result of their involvement in the present proceedings and that it not be used or disclosed outside these proceedings, unless it has become known outside these proceedings (R.262A); II. on the side of the Claimant the access to the confidential information be limited to (1) the legal representatives of the Claimant, (2) three employees of the Claimant's legal department to be named by the Claimant, III. the obligation under Sec. A.I. shall remain in force even after the completion of these pro- ceedings, unless the Division has denied the need for confidentiality of this information by means of a final decision or order or as soon as the information in dispute becomes known to persons who are usually involved in handling such information; IV. in the event that this submission or facts are discussed in the oral hearing to order (1) to exclude the public and anyone from the Claimant's side not named in Sec. A.II. from this part of the interim hearing and/or oral hearing pursuant to Art. 45 UPCA in conjunction with R. 115 RoP, insofar as information subject to con- fidentiality pursuant to Sec. A.I is discussed; (2) to oblige the individuals present at the interim hearing and/or oral hearing, including the Parties' representatives, their legal representatives and the pa- tent attorneys appointed to participate in the legal dispute, to keep confiden- tial any facts relating to the statements referred to in Sec. A.I. which come to their knowledge for the first time during the interim hearing and/or the oral proceedings, and to use them only for the purposes of litigation in the present case proceedings; 7 (3) to exclude the public and anyone from the Claimant's side not named in Sec. A.II. from part of the pronouncement of the grounds for the judgment insofar as information subject to confidentiality pursuant to Sec. A.I. is discussed; V. to exclude the confidential information pursuant to Sec. A.I. from access to the files by third parties (Art. 58 UPCA i.c.w. R. 262.1 lit. b), 262.2 RoP); VI. before publishing the grounds for the judgment or other announcements, to redact all infor- mation contained therein that falls under Sec. A.I. in accordance with R. 262.1 lit. a), 262.2, 262A RoP. B. Procedural Requests I. the Local Division hear both the infringement action as well as the Counterclaim for Revoca- tion, Art. 33(3) a UPCA; II. the President of the Court of First Instance assign to the Local Division a technically qualified judge who is an engineer in electrical engineering, communications engineering or computer science with a university education and several years of professional experience in the field of standardized mobile communication technology; III. the Court order the Claimant to submit a copy of the patent portfolio license agreement, all amendments and additions to license agreements, any ancillary agreements and other agree- ments relating to the aforementioned agreements, concluded by the Claimant with Xiaomi, Oppo and Vivo, which must be submitted with the Claimant’s reply to the Statement of De- fense; in this regard, passages may be redacted if the Claimant does not refer to them in its submissions; as an auxiliary request, if request III. is not granted IV. to grant access to the patent portfolio license agreement, all amendments and additions to license agreements, any ancillary agreements and other agreements relating to the afore- mentioned agreements, concluded by Philips with Xiaomi, Oppo and Vivo only to the Defend- ants’ Representatives and to a total of six employees, i.e. one for each defendant, to be named by the Defendants; GROUNDS FOR THE ORDER 3. The grounds for the order are as follows 3.1. Information in SoC and exhibit CE9 3.1.1. TCL did not oppose the confidential nature of this information, that pertains to a previous agreement between the parties and that is subject to a confidentiality clause. The Court sees no reason to judge otherwise at this point in time, subject to any application based on R. 262.3. 3.2. Information on discussions between the parties in the SoD 3.2.1. Philips asserts that while this information as such is considered by the parties to be confidential vis-à-vis third parties, it is not confidential vis-à-vis Philips. Only R. 262.2 RoP should therefore apply (and not R. 262A RoP). The Court understand that TCL again did not oppose this position (except for when this information would include sales data, with which the Court deals 8 below). The Court sees no reason to judge otherwise at this point in time, subject to any application based on R. 262.3 RoP. This applies to para 96, 107 and 120 of the SoD. 3.3. Information on TCL’s sales data in the SoD 3.3.1. Philips asserts that while this information as such is confidential vis-à-vis third parties, it is not confidential vis-à-vis Philips as (i) it should be freely usable within Philips, who is not a competitor and (ii) it was emailed a few hours before the actual SoD with confidentiality application was filed, without any restrictions. TCL opposes this. 3.3.2. The Court agrees with TCL that the email with the annex were sent with the warning “PRIVILEGED CONFIDENTIAL”, so Philips’ assertion they were sent unrestrictedly must be rejected. The Court also fails to see that no restrictions as meant in R. 262A may be imposed, just because Philips is not a competitor. This is a factor that may be taken into consideration in assessing the restriction to be imposed. 3.3.3. Under R. 262A.5 RoP, the Court must determine whether the grounds on which the applicant for protection relies significantly outweigh the opposing party's interest in full access. R. 262A.6 RoP states that the circle of persons granted access must be no wider than is necessary to safeguard the right to an effective remedy and a fair trial. The Court of Appeal has confirmed that this is a proportionality assessment focused on necessity, role, relevance, and trustworthiness, which varies from case to case. Likewise, the Court of Appeal has stressed that confidentiality protection must be calibrated by balancing the legitimate interests of the parties and the potential harm likely to result from disclosure.1 3.3.4. Under Article 2(1) Trade Secrets Directive (which is not directly applicable but according to the Court of Appeal, similar principles apply), a 'trade secret' means information that meets the following conditions: • It is secret — i.e. it is not generally known among, or readily accessible to, persons within the circles that normally deal with that kind of information, whether taken as a whole or in the precise configuration and assembly of its components. [lesi.org], [eurlex.europa.eu] • It has commercial value because it is secret. • It has been subject to reasonable steps, under the circumstances, to keep it secret by the person lawfully in control of the information. 3.3.5. Philips did not dispute that the TCL's revenue, sales figures and profits are not readily accessible to third parties, have commercial value and that TCL takes appropriate measures to keep these business figures confidential. Philips did not contest that this warrants access to only three employees of the Claimant, who are involved in the infringement proceedings, as well as Philips’ litigation team for these proceedings. However, should Philips meanwhile have shown this data to more or other employees, it shall send a list to TCL’s representative within one week from this order (with name, position and evidence of such access), and these employees will be equally bound to confidentiality as provided below in this order. 3.4. Comparable licences 3.4.1. Philips has stated it will voluntarily grant access to the licences requested (for which however a court order is necessary in view of the non-disclosure agreements with the contractual 1 UPC CoA 755/2025, Order of 26 January 2026, Sun v Vivo 9 counterparties). This means the Court need not decide on the application as such. Similarly, TCL did not oppose Philips’ request to grant it access to any licences TCL has concluded regarding SEPs for UMTS, LTE and 5G, so will be granted. The language of “including but not limited to” these standards, will be rejected as too vague, far reaching and unnecessary. 3.4.2. However, Philips did indicate it wants access to be restricted to TCL’s representatives and a maximum of three external economic experts, so an External Eyes Only regime (EEO). TCL has opposed this and points to R. 262A.6 RoP and the SUN/Vivo order by the Court of Appeal. The Court notes that in both CoA orders of the same date (also the order in Asus v Apple, 26 January 2026, UPC CoA 631/2025 and UPC CoA 632/2025), the licence agreement relied on was already in the proceedings and was deemed relevant. This is a material difference as the reasoning of the Court of Appeal seems to be based on a party’s right to an effective remedy and a fair trial in the circumstances of those cases. At the stage of the written proceedings in the present cases, however, it remains to be seen whether all, none or a few (particular) licences will be relevant or relied on in the main proceedings. While this is not yet the case, the Court finds that an EEO regime is possible and appropriate for the time being, given the uncontested confidential nature of the licences involved. So will be ordered below. TCL asserted that Philips’ requests, in particular under 4, are unclear. The Court will remedy this below in as far as necessary. 3.4.3. Having said this, and in case the same circumstances as in the above-mentioned Court of Appeal orders will arise, the Court finds as follows (and assumes the parties may use this as a basis to agree to amend the order if need be). The Court does not deem it necessary and appropriate that a natural person for each Defendant, so a total of 6 employees, have access, as TCL requested. All Defendants belong to the same group of companies, filed a joint SoD and Defendants indicated that “Defendant 1 is conducting negotiations” (SoD para. 91), apparently on behalf of all other Defendants. TCL failed to give other reasons why more than two employees as envisaged by Philips should be granted access, so the Court will follow Philips in this respect. TCL rightly referred to the CoA orders to suggest a licensing bar of two years and not the five-year bar as requested by Claimants. The Court may leave undecided for now whether a rejection mechanism as envisaged by Philips is appropriate, since it may be reasonable assumed parties will resolve this amicably, or if not, submit the details of the persons to the Court in any subsequent request for amendment to the order. ORDER 3.5. The Court: 3.5.1. classifies the information in the Statement of Claim, paragraph 9 and 10, and in Exhibit CE9, as Confidential Information within the meaning of R. 262.2 RoP; 3.5.2. orders anyone who becomes aware of the information listed under 3.5.1 as a result of their involvement in the present proceedings (as a party, intervener, lawyer, witness, expert, court em- ployee or in any other way) to treat the information as strictly confidential and that the infor- mation may not be used or disclosed outside the court proceedings, except to the extent if and insofar as the receiving party has demonstrably gained knowledge of the confidential information outside the present legal dispute on a nonconfidential basis from a source other than TCL or its affiliates, provided that such source is not bound by a confidentiality agreement with or other obligation of secrecy with Philips or its affiliates; 10 3.5.3. treats the information under 3.5.1 as confidential and excludes it from the possibility of inspection by third parties and not publish it in the register with code “P”or otherwise disclose the information under 3.5.1, subject to any order granted on an application under R. 262.3 RoP; 3.5.4. redacts prior to publication of the decision or notices, any information contained therein which concerns the information to be classified as confidential under 3.5.1; 3.5.5. excludes the public from the oral hearing during the direct and indirect discussion of the information to be classified as confidential under 3.5.1 (R. 115 RoP); 3.5.6. excludes the public from the reasoning of the judgment as far as the information to be classified as confidential under 3.5.1 is discussed directly or indirectly; 3.5.7. redacts, prior to publication of the reasons for the judgment or other announcements, the information contained therein that is to be classified confidential under 3.5.1; 3.5.8. declares that the measures under 3.5.2 to 3.5.7 above shall apply, mutatis mutandis, to any information designated as confidential towards third parties in any future pleading, evidence or other submission filed in these proceedings, said designation being without prejudice to the other party’s right to object to it, upon which the Court shall decide; and that pending any decision on such objection the designated information shall be treated in accordance with the measures under 3.5.2 to 3.5.7; 3.5.9. orders Philips and TCL, on the basis of R. 103 RoP, to submit within two weeks of the date of the order to be given on this application, subject to the confidentiality regime set out below, the following documents: i. with respect to Philips, all licence agreements to date, including any settlement agreements, entered into by Philips relating to one or more patents that form part of its Cellular SEPs Portfolio with handset manufacturers, as well as any side letters, modifica- tions, amendments, supplementary agreements and similar documents relating to one or more of the agreements referred to; and ii. with respect to TCL, all licence agreements to date, including any settlement agree- ments, entered into by TCL relating to one or more patents that are declared to be essen- tial to cellular standards (UMTS, LTE and 5G), as well as any side letters, modifications, amendments, supplementary agreements and similar documents relating to one or more of the agreements referred to. 3.5.10. classifies the confidential information relating to the license agreements concluded with third parties as confidential within the meaning of Art. 58 UPCA and R. 262A RoP; 3.5.11. orders that access to the confidential information relating to the license agreements con- cluded with third parties shall be restricted exclusively to (subject to a subsequent order expand- ing the access to other persons): a. the parties’ authorized UPC Representatives; and b. up to three external economic experts (excluding external counsel instructed in a legal capacity or instructed to conduct licensing negotiations) for either party (the TCL de- fendants taken together as one party), who (i) are not employees of the parties nor any entity that is a licensee or licensor of cellular standard essential patents, and (ii) have a 11 legitimate need to receive the confidential information relating to the license agreements concluded with third parties; 3.5.12. orders that the individuals under 3.5.11 to whom access to the confidential information relating to the license agreements concluded with third parties will be provided, shall, prior to getting access, provide a signed undertaking to the other party in which they undertake to adhere to the imposed confidentiality regime and acknowledge the jurisdiction of the Unified Patent Court regarding any dispute over alleged breaches of the confidentiality regime; 3.5.13. orders the individuals under 3.5.11 to whom access to the confidential information relating to the license agreements concluded with third parties will be provided, to treat this confidential information as strictly confidential and that this confidential information may not be used or dis- closed outside the proceedings; 3.5.14. orders that the individuals under 3.5.11 to whom access to the confidential information relating to the license agreements concluded with third parties will be provided, shall keep any further document based on or containing such confidential information in a safe and secure place (which would include without limitation a restricted access virtual file within their document man- agement system) and take all reasonable precautions necessary to exclude the risk of unauthor- ised use or disclosure of this confidential information or any part thereof by or to any other per- sons; 3.5.15. orders that the confidentiality regime shall remain in effect after termination of the pro- ceedings, whether by settlement or final judgement, and that, no later than two weeks after the termination of the proceedings, all persons having received confidential information relating to the license agreements concluded with third parties shall destroy all materials containing such confidential information (for materials held electronically, the obligation is to use reasonable en- deavors to destroy or delete those copies that are readily available, but there shall be no require- ment to destroy such materials contained on archival media which should be treated in accord- ance with standard retention policies) and shall immediately thereafter provide written confirma- tion thereof to the other party; 3.5.16. orders that the parties or any of the individuals under 3.5.11, not being UPC representa- tives, in case of breach of this confidentiality regime forfeits a penalty of up to €1,000,000 for every time that the party or any of the individuals under 3.5.11 acts in breach of any clause of the confidentiality regime to be ordered based on this application; and to order that if the party and/or the individuals under 3.5.11 become aware of any breach or suspected breach of the con- fidentiality regime or any confidentiality undertaking given pursuant to point 3.5.12 of this order, including any unintentional or inadvertent disclosure, the party’s representative shall notify in writing the other party’s representatives as soon as practically possible after becoming so aware, giving details of any such breach or suspected breach; 3.5.17. orders that the confidentiality measures as set out above in 3.5.2 to 3.5.7 shall apply mu- tatis mutandis; 3.5.18. classifies the information marked in grey in the Statement of Defence and all Exhibits sub- mitted along with it and marked in grey and as “CONFIDENTIAL”, summarized in the following table, as confidential, Confidenbal Informabon Submission SoD Exhibit 12 Business figures Paras. 96, 102 - 105, 107, 109 - 120 Exhibits HE 1 and HE 2 and orders that they be treated as strictly confidential by anyone who becomes aware of them as a result of their involvement in the present proceedings and that it not be used or disclosed out- side these proceedings, unless it has become known outside these proceedings (R.262A), with the exception of the greyed information in para’s 96, 107 and 120 of the Statement of Defence; 3.5.19. orders that on the side of the Claimant the access to the confidential information under 3.5.18 be limited to (1) the legal representatives of the Claimant, (2) three employees of the Claimant's legal department to be named by the Claimant (if more persons from Claimant have had access by the date of this order, Claimant will send a list of names and positions to Defendants’ UPC representative, including evidence of the date of such access, within one week from this order), 3.5.20. holds that the obligation under 3.5.18 shall remain in force even after the completion of these proceedings, unless the Court has denied the need for confidentiality of this information by means of a final decision or order or as soon as the information in dispute becomes known to persons who are usually involved in handling such information; 3.5.21. orders in the event that this submission or facts are discussed in the oral hearing (1) to exclude the public and anyone from the Claimant's side not named in 3.5.19 from this part of the interim hearing and/or oral hearing pursuant to Art. 45 UPCA in con- junction with R. 115 RoP, insofar as information subject to confidentiality pursuant to 3.5.18 is discussed; (2) to oblige the individuals present at the interim hearing and/or oral hearing, includ- ing the Parties' representatives, their legal representatives and the patent attorneys ap- pointed to participate in the legal dispute, to keep confidential any facts relating to the statements referred to in 3.5.18 which come to their knowledge for the first time during the interim hearing and/or the oral proceedings, and to use them only for the purposes of litigation in the present case proceedings; (3) to exclude the public and anyone from the Claimant's side not named in 3.5.19 from part of the pronouncement of the grounds for the judgment insofar as information subject to confidentiality pursuant to Sec. A.I. is discussed; 3.5.22. excludes the confidential information pursuant to 3.5.18 from access to the files by third parties (Art. 58 UPCA i.c.w. R. 262.1 lit. b), R. 262.2 RoP), subject to any order granted on an ap- plication under R. 262.3 RoP; 3.5.23. before publishing the grounds for the judgment or other announcements, redacts all in- formation contained therein that falls under 3.5.18 in accordance with R. 262.1 lit. a), 262.2, 262A RoP; Case management orders 13 3.5.24.holds that the above orders, in as far as possible, are immediately enforceable notwith- standing appeal; 3.5.25. relates that the panel decided that both the infringement action as well as the Counter- claim for Revocation, Art. 33(3) a UPCA will be heard in this Local Division; 3.5.26. understands that the President of the Court of First Instance has assigned to the Local Di- vision a technically qualified judge. Brinkman, Presiding judge and Judge rapporteur For the Deputy Registrar, clerk

Key Holdings

  • The Judge-Rapporteur (JR) decides on various elements of disclosure and confidentiality requests.
  • If parties have agreed on confidentiality, R. 262.2 RoP is sufficient for confidentiality towards third parties.
  • Access for a natural person of each defendant is not necessary if defendants belong to the same group and share the same defense.
  • Natural persons granted access to third-party license agreements must sign an undertaking to adhere to confidentiality and accept UPC jurisdiction for breaches.
  • A R. 262.2 RoP order can be imposed even if parties are already bound by confidentiality, should a member of the public request access.

Tags

  • Confidentiality
  • Disclosure
  • Procedural
  • Access to documents
  • Undertaking

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