Key takeaways
Confidentiality orders are not limited to trade secrets, they cover any information requiring confidentiality, balanced against the parties’ competing interests
The decisive factor is whether the information requires confidentiality, not whether it qualifies as a trade secret. The Court must weigh the right to be heard and fair trial rights of the party affected by any restriction against the interest of the information’s holder in protection (cf. DISH Technologies v. AYLO PREMIUM (UPC_CFI_471/2023)).
A confidentiality order may protect against foreign (US) export control violations without full investigation, if the risk is sufficiently demonstrated (Art. 58 UPCA, R. 262A RoP)
The claimant’s US counsel licensed a technical report subject to US export controls, contractually prohibiting its disclosure to the claimant itself. The Court found it sufficient that the claimant demonstrated the risk of a violation. A detailed investigation into the precise scope of applicable US export control law was not required. The order would not unduly disadvantage the defendants.
A party may request a confidentiality order “against itself,” restricting its own access to submitted evidence, provided a legitimate interest in such an order exists (R. 262A RoP)
The Court confirmed admissibility of self-directed orders, citing Panasonic v. Xiaomi (UPC_CFI_219/2023) and UPC_CFI_9/2023. A legitimate interest was established. The claimant needed to introduce the report into proceedings without risking a breach of its contractual obligations or US export control restrictions. The order was limited to the minimum necessary and did not restrict the defendants’ access to the confidential information.
The natural person requirement under R. 262A.6 RoP for confidentiality clubs is a protective right that the addressee of the order may independently waive
R. 262A.6 RoP generally requires at least one natural person from each party to be admitted to a confidentiality club. According to 10x Genomics v. Vizgen (UPC_CFI_169/2024) and Oerlikon v. Himson (UPC_CFI_240/2023), the Court held this protection may be waived unilaterally by the addressee, permitting the claimant to exclude all of its own natural persons from the club.
Whether litigation privilege under R. 288 RoP can independently ground a confidentiality order under Art. 58 UPCA remains an open question, left undecided by the Court
The claimant argued that the report, received from US counsel acting in parallel US litigation, was protected by litigation privilege under R. 288 RoP and thus qualified as confidential information under Art. 58 UPCA. The Court declined to decide this question, as the conditions for the order were met on other independent grounds.
Division
Local Division Düsseldorf
UPC number
UPC_CFI_1034/2025, UPC_CFI_931/2026
Type of proceedings
Infringement action
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
Body of legislation / Rules
R. 262A.2 RoP, R. 262A.3 RoP, R. 262A.4 RoP, R. 262A.6 RoP, R. 288 RoP
Art. 58 UPCA
