Provisional Confidentiality on Appeal: The Court of Appeal on Rule 262A RoP
The Court of Appeal has clarified the provisional handling of confidential information introduced for the first time during appeal proceedings. Access was strictly limited to admitted representatives for the purpose of commenting.
The procedural framework governing the protection of confidential information at the Unified Patent Court requires a careful sequencing of access rights, particularly when new evidence is introduced on appeal. Under Rule 262A RoP, the Court must invite written comments from the representatives of the other parties before issuing a final confidentiality order. This creates a structural tension regarding who may view the contested documents to prepare those very comments without defeating the purpose of the application itself.
Why did the appellant seek a new confidentiality order in UPC_CoA_42/2026?
Fives ECL appealed a decision by the Hamburg Local Division (UPC_CFI_274/2023), which had dismissed its claim for damages and lost profits against REEL GmbH. The Court of First Instance found that Fives had failed to sufficiently demonstrate an actual loss of profit and had not proven the necessary causal link to the infringement of EP 1 740 740. Alongside its statement of grounds of appeal filed on 11 June 2026, Fives submitted new annexes that were not covered by an earlier confidentiality order issued by the Court of First Instance in July 2025.
Consequently, Fives filed a new request under Rule 262.2 RoP and Rule 262A RoP to classify specific grey-highlighted text in the appeal statement and several new annexes as confidential. The appellant sought to restrict access on the defendant side to a defined group of individuals, including REEL's representatives, their assistants, and specific named persons, while explicitly excluding text passages that originated from REEL itself.
How did the judge-rapporteur secure the information prior to the substantive decision?
Before the Court of Appeal could rule on the merits of the confidentiality request, it had to afford REEL the opportunity to comment, as mandated by Rule 262A.4 RoP. To facilitate this without preemptively destroying the requested confidentiality, the judge-rapporteur issued a provisional order.
The order strictly limited interim access to the newly introduced information exclusively to REEL's representatives admitted before the Unified Patent Court who are subject to professional secrecy obligations. This access was granted solely for the purpose of submitting the required comments within a five-day deadline. The judge-rapporteur also required Fives to correct a drafting error in its request and clarify whether certain documents were genuinely new to the appeal, demonstrating the Court's careful tracking of confidentiality boundaries across instances.
What penalties enforce this provisional access restriction?
To ensure strict compliance during this highly restricted interim phase, the judge-rapporteur attached a severe financial deterrent to the provisional order. The order established that any culpable breach of the confidentiality obligation by REEL's representatives could result in a penalty payment of up to 250,000 EUR per violation against REEL.
The exact amount of any such penalty would be determined based on the specific circumstances of the individual case. Furthermore, the order explicitly stated that the obligation to neither use nor disclose the information outside the court proceedings continues indefinitely, even after the proceedings have concluded.
What must practitioners anticipate when introducing confidential evidence on appeal?
When submitting new, sensitive evidence at the Court of Appeal, practitioners should prepare for a strict two-stage access procedure. This order illustrates that the Court may provisionally restrict access strictly to the opposing party's admitted representatives to allow them to comment under Rule 262A.4 RoP, before granting any broader access to the opposing party's internal experts or management.
Applicants should clearly identify which documents are newly introduced and which are already covered by orders of the Court of First Instance, as the Court may require precise delineation. Finally, representatives receiving such provisional access should implement rigorous internal ring-fencing, as the substantial penalty payments for unauthorized disclosure attach directly to their client and the confidentiality obligations survive the conclusion of the dispute.