Key takeaways
An “attorneys’ eyes only” regime needs the consent of the party losing access rights (R. 262A.6 RoP)
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- A confidentiality order must give at least one natural person per party access, plus their legal representatives. The Court can only exclude all natural persons of a party if that party agrees. A simple objection kills the request. In this case, the Defendants wanted an AEO regime to keep the Claimant away from technical information about the Defendants’ “Z01M die” (filed to support a right-of-prior-use defence). The Claimant objected, so the Court dismissed the request outright.
- A party’s earlier waiver for one set of confidential information does not stop it from claiming access to different confidential material later. Only the affected party can waive its own rights under R. 262A.6 RoP. In this case, the Defendants argued that the Claimant had already waived access to the Defendants’ “Y52P die” details (by fully trusting outside counsel with that assessment), so it should not get access to the Z01M die information either. The Court disagreed: the Y52P waiver covered different information and was the Claimant’s own choice. Here, the Defendants introduced the new Z01M die material themselves, so only the Claimant could decide whether to waive access to it.
- Competing on the market does not justify an “attorneys’ eyes only” regime. Otherwise, R. 262A.6 RoP would lose its meaning in almost every patent case. In this case, Yangtze Memory Technologies and Micron are direct competitors in the semiconductor memory market, but this fact alone did not justify shutting out the Claimant’s employees.
US export control rules cannot trump the access rights under R. 262A.6 RoP
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- Following foreign export control law is the job of the party who submits the information, not the Court. In this case, the Defendants claimed that sharing Z01M die details with the Claimant would breach US export rules (EAR), because the Claimant allegedly appears on a US list of entities of concern, which triggers a presumption that any export license gets denied. The Z01M die itself is not even on the Commerce Control List.
- Vague claims that a license would definitely get refused, without proof anyone even applied for one, will not convince the Court. Raising the export argument too late in the process also weakens it. In this case, the Defendants never showed that a license application would fail, never tried to get one, and only raised this argument after the Claimant objected, instead of in their original request.
Shrinking an existing confidentiality club needs a specific, case-based reason (R. 262A.6 RoP)
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- General claims about competitive sensitivity are not enough to shrink an existing confidentiality club. The party asking for more restrictions must show why the current club fails to protect the information. In this case, a four-person Confidentiality Club (Patent Dispute Manager, Deputy General Counsel/Chief IP Counsel, Senior Patent Engineer, General Counsel) already existed for other confidential information in the same case.
- The Defendants wanted to cut this down to one person for the Z01M die information, but only argued that the die’s design was highly secretive and that the parties were competitors. The Court found this too generic.
- A company’s need for its own technical expertise to fight back against a defence argument outweighs the wish to exclude technical staff. Representatives must also be able to share technical information with their clients.
- Here, Defendants wanted to exclude the Claimant’s technical staff, including a Senior Patent Engineer, to stop them from misusing the Z01M die design. The Court rejected this: the Claimant needed technical expertise to counter the Defendants’ prior-use defence. The fact that the disputed technical information covered only nine pages made no difference, since it was part of a bigger defence strategy across several parallel cases between the same companies.
Long-term bans on confidentiality club members’ future work go too far unless narrowly tailored
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- Barring employees for five years from any technical design, research, or development work hits their right to do their job too hard. This differs sharply from the narrow, license-related bar the Court of Appeal once accepted.
- Here, Defendants wanted to bar each of the four Confidentiality Club members from SDRAM technical design, research, or development work for five years. They worried that a Senior Patent Engineer and a Chief IP Counsel among them might later work in R&D or draft patents using the confidential knowledge. The Court found this bar disproportionate and different from the narrow bar allowed in Ericsson v. ASUSTeK.
A short window to withdraw a filing can balance export control worries against access rights (Art. 58 UPCA, R. 262A RoP)
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- Export control law cannot justify an “attorneys’ eyes only” order, but a court can still give the filing party a brief chance to pull sensitive material back instead of disclosing it. This puts the pressure of a quick decision on that party.
- In this case, the Court gave the Defendants until 20 August 2026 — just three days after the order — to withdraw the Z01M die submission. If withdrawn, the Court ignores it, and the Claimant’s employees get no access at all. If not withdrawn, the four-person Confidentiality Club gets access automatically.
Division
Local Division Düsseldorf
UPC number
UPC_CFI_1034/2025; UPC_CFI_931/2026
Type of proceedings
Application for protection of confidential information (incidental to main infringement proceedings)
Parties
Claimant: Yangtze Memory Technologies Co., Ltd.
Defendants: Micron Technology, Inc.; Micron Europe Ltd.; Micron Semiconductor (Deutschland) GmbH; Micron Semiconductor France SAS
Patent(s)
EP 3 909 047
Jurisdictions
UPC – (Germany and France)
Body of legislation / Rules
Art. 58 UPCA, R. 262A RoP
