Key takeaways
A former employee may join a confidentiality club on the condition of signing a separate, penalized confidentiality agreement with the party they previously worked for
The respondent argued that their former employee had already been part of the Confidentiality Club established in the first instance. He or she should now also be part of the “Confidentiality Club” in the appellate instance. Only then would it be possible for them to verify the claims of the opposing party. The Court reasoned that a duty of loyalty cannot be assumed for a former employee regarding information received post-employment. Against this background, a new contractual obligation can be required to ensure compliance.
An unappealed first-instance confidentiality order remains valid during the appeal but can be amended by the Court of Appeal if new facts arise
The Court confirmed its existing case law, stating it can amend such orders to reflect new circumstances, such as personnel changes at one of the parties.
A confidentiality request is untimely if made for the first time on appeal for documents already submitted without restriction at first instance (R. 262A.3 RoP)
The Court rejected the request regarding information already contained in the original statement of claim, as the request to restrict access was not filed with that document.
The deadline for submitting the Statement of response to the appeal can be extended with regard to information that was not already accessible at the time the Statement of grounds of appeal was received
The Court extended the deadline for submitting the Statement of response to the appeal pursuant to R. 9.3(a) RoP by 15 working days but decided that, otherwise, the deadline for the Statement of response to the appeal under R. 235.1 RoP would remain unchanged. The Respondent had suggested issuing a clarifying order stating that the deadline for the Statement of response to the appeal under R. 235.1 would only begin to run upon issuance of the Confidentiality Order.
Division
Court of Appeal
UPC number
UPC-CoA-42/2026
Type of proceedings
Appeal proceedings / Application for procedural orders
Parties
Appellant (Claimant at first instance): Fives ECL
Respondent (Defendant at first instance): REEL GmbH
Patent(s)
EP 1 740 740
Jurisdictions
UPC
Body of legislation / Rules
Art. 50(3) UPCA, Art. 58 UPCA, R. 9.3(a) RoP, R. 262.1(b) RoP, R. 262.2 RoP, R. 262A RoP, R. 354.3 RoP, R. 354.4 RoP
