UPC_CoA_42/2026 – Fives v REEL
- Court
- Court of Appeal
- Date
- Outcome
- Granted
- Sector
- Other
- Decision Type
- PROCEDURAL
Expert Commentary
Confidentiality Facts 1. This case concerns the appeal against the decision of LD Hamburg in UPC_CFI_274/2023. 2. REEL filed a Statement of Response containing a confidentiality request. The JR 1. The JR grants Fives an extension until 20 October 2026 to respond. 2. Pending the decision on confidentiality, only Fives’ representatives, their team members and experts may have access to the information. They may only disclose the information to other lawyers, patent attorneys and support staff, provided that they ensure that each such person complies with the provisions of the order. 3. The information may not be used outside these proceedings, unless it was obtained from a source on a non-confidential basis and that source was not bound by a confidentiality obligation. Comment This seems to be a rather standard provision, but one wonders who all these persons are (apart from team members) “lawyers, patent attorneys and support staff”? Are they from the same firm as the representatives? What about Fives’ French lawyers and patent attorneys, not to mention in house patent attorneys? Who belongs to the team? I think that, at this stage, disclosure to Fives’ representatives and their support staff and independent experts is sufficient, as all the attorneys at the law firm Bonabry Partnerschaft are, according to the decision, representatives. If this law firm is cooperating with independent patent attorneys, they should have stated so in their Statement of Claim, and those patent attorneys should then be included.
Full Decision Text
Order issued on 14 October 2026 concerning an application to protect confidential information from the other party (R. 262A RoP) APPELLANT (AND CLAIMANT BEFORE THE COURT OF FIRST INSTANCE) Fives ECL, Ronchin, France (hereinafter “Fives”) represented by Konstantin Schallmoser, attorney-at-law, and other attorneys-at-law of the law firm Bonabry Partnerschaft von Rechtsanwälten, Hamburg, Germany RESPONDENT (AND DEFENDANT AT THE COURT OF FIRST INSTANCE) REEL GmbH, Veitshöchheim, Germany (hereinafter “REEL”) represented by Dr Benjamin Schröer, attorney-at-law, and other attorneys-at-law of the law firm Hogan Lovells Cadwalader International LLP, Munich, Germany, as well as other attorneys-at-law of the law firm Jones Day, Paris, France PATENT AT ISSUE EP 1 740 740 LANGUAGE OF THE APPEAL PROCEEDINGS English PANEL AND JUDGE Panel 2 Ingeborg Simonsson, legally qualified judge and judge-rapporteur IMPUGNED DECISION OF THE COURT OF FIRST INSTANCE Date: 11 February 2026, Hamburg Local Division, Case number of the Court of First Instance: UPC_CFI_274/2023 UPC Court of Appeal UPC-CoA-42/2026 SUMMARY OF FACTS 1. On 17 July 2026, the Court of Appeal issued a panel order (dated 16 July) concerning (insofar as relevant here) confidentiality pursuant to R. 262A RoP, and a time extension for REEL to lodge its Statement of response. The order replaced a provisional order issued by the judge-rapporteur on 17 June 2026, where only the representatives of REEL were given access to the unredacted versions of the Statement of grounds of appeal and exhibits. 2. On 8 October 2026, REEL submitted its Statement of response containing a confidentiality request pursuant to R. 262.2 and 262A RoP. CONFIDENTIALITY REQUEST 3. REEL has requested as follows (insofar as relevant): VIII. Access to the information highlighted in violet in this Statement of Response as well as the Exhibits HLC Appeal 3, 5, 6, 7, 8, 9, 10 marked “strictly confidential” is limited to the following individuals: 1. Fives’ UPC Representatives and its assistants, including experts and its team members; 2. The following individuals from the Fives´ Group: a) b) c) d) e) f) g) h) IX. Individuals who have access to the confidential information pursuant to item VIII are obliged not to disclose the confidential information to others beyond the individuals listed in item VIII and not to use the confidential information for purposes beyond the present proceedings. These obligations stay in effect beyond the conclusion of the present proceedings. They do not apply if and to the extent an individual listed in item VIII has learned of the confidential information outside the present proceedings, provided that it was obtained on a non-confidential basis from a source other than REEL and its affiliates and that the source is not bound by a confidentiality obligation in relation to Defendant or its affiliates. X. In case of a culpable violation of the obligations pursuant to item IX, the Court may order a penalty of up to EUR 250,000 per violation against Five, the specific amount being determined on the basis of the circumstances of the case. GROUNDS 4. Pursuant to R. 262A.4 RoP, the Court shall invite written comments from the representatives of the other parties prior to making any order. 5. Fives shall be provided the opportunity to comment on REEL’s Confidentiality request. ORDER I. Fives is invited to comment on REEL’s confidentiality request, no later than 20 October 2026. II. It is provisionally ordered, pending the decision on the confidentiality request, that access to the information highlighted in violet in the Statement of Response as well as Exhibits HLC Appeal 3, 5, 6, 7, 8, 9, 10 marked “strictly confidential” shall be treated as confidential and be restricted to the legal representatives of Fives. III. The representatives of Fives may disclose the information to their experts and team members who are actively involved in the respective proceedings, including other lawyers, patent attorneys and support staff, provided that the representatives respectively ensure that each such person complies with the provisions of this order. IV. The confidential Information shall be treated as such by the persons referred to above under II and III and shall not be used or disclosed outside of these court proceedings, except to the extent that it has come to the knowledge of the receiving party outside of these proceedings, provided that it has been obtained by the receiving party on a non-confidential basis from a source other than the parties or its affiliates, provided that such source is not bound by a confidentiality agreement with or other obligation of secrecy with the parties or its affiliates. This duty continues after the termination of these proceedings. V. In the event of a culpable breach of this order, the Court may impose a periodic penalty payment for each violation on Fives, with the amount determined based on the circumstances of the individual breach. Issued on 14 October 2026 Ingeborg Simonsson, legally qualified judge and judge-rapporteurDigitally signed by Åsa Ingeborg Simonsson Date: 2026.10.14 12:03:03 +02'00'
Key Holdings
- An extension of time was granted to respond to a Statement of Response containing a confidentiality request.
- Pending the decision on confidentiality, access to the confidential information is provisionally restricted to representatives, their team members, and independent experts.
- Access may be extended to other lawyers, patent attorneys, and support staff provided that compliance with the confidentiality order is ensured.
- Confidential information obtained in the proceedings may not be used outside them unless received from a non-confidential source bound by no confidentiality obligation.
Tags
- Confidentiality