CoA, January, 26, 2026, final order concerning an application for the protection of confidential information under R. 262A RoP, UPC_CoA_631/2025, UPC_CoA_632/2025

When deciding on the measures for the protection of confidential informaiton and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interest of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, whrere appropriate, for third parties, resulting from the grantign or rejection of such measures.

In the event that one of the parties is a legal person, that party should be able to propose a natural person or natural persons who ought to form part of that circle of persons entitled to have access so as to ensure proper representation of that legal person, subject to appropriate judicial control to prevent the objective of the restriction of access to evidence and hearings from being undermined.

As a general rule, the interest of the party in having full access for at least one of its employees outweighs the interests of the applicant, even if the imposition of an “External Eyes Only” regime would be preferable from the perspective of safeguarding confidentiality.

Whether the person proposed by a party may be granted access to the confidential information must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential.

The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person. The exclusion of employees would severely restrict a party’s freedom to choose who will represent it in the proceedings. Furthermore, an employee of a party will often be better placed to present the party’s view, provide and review relevant information and instruct the representatives than persons external to the party’s organization. Consequently, access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. For that reason, and as a general rule, the interest of the party in having full access for at least one of its employees outweighs the interests of the applicant, even if the imposition of an “External Eyes Only” regime would be preferable from the perspective of safeguarding confidentiality.

Furthermore, where the confidential information concerns a licence agreement between a party and a third party, the potential harm for this third party, resulting from allowing access to an employee of the other party to the proceedings, may be mitigated by requiring that employee to refrain from involvement in patent licensing negotiations with the third party for a certain period. Such a bar prevents the employee from using such confidential information in these negotiations, whether intentionally or not. It thereby facilitates compliance with the confidentiality regime and provides all parties with a greater degree of legal certainty, as the involvement of the employee in negotiations is easier to establish than the employee’s use – inadvertent or otherwise – of the confidential information in such negotiations.