2025 Week 39
New orders from the UPC Court of Appeal (CoA) this week bring together two running strands of case law at the UPC – the rules about confidentiality clubs and the hurdle for third parties to intervene in UPC proceedings. The cases all involve Apple seeking to intervene in ongoing appeal proceedings to try to protect its own confidential information.
Confidentiality clubs – who can be inside?
Many of the published orders from the UPC relate to the setting up and adjustment of confidentiality clubs – typically closed lists of individuals who will be permitted to see identified confidential information from the other side. The confidential information is usually technically and/or commercially sensitive and the named individuals are under strict personal duties not to misuse that information.
Article 58 UPCA and Rule 262A of the Rules of Procedure (RoP) provide the basis for the protection of confidential information at the UPC. A party applies to the court to explain which information should be designated as confidential, and why. To order a restriction, the court must be satisfied that the interests of the party making the application “significantly outweigh” the interests of the other side in having full access.
A tricky question keeps coming up, which is whether it is allowed to have an “external attorneys eyes only” arrangement. Some jurisdictions routinely permit this for the most sensitive information. But at the UPC the issue is how to square this with Rule 262A.6 RoP, which refers back to Rule 262A.1 RoP:
1. … a party may make an Application to the Court for an order that certain information contained in its pleadings or the collection and use of evidence in proceedings may be restricted or prohibited or that access to such information or evidence be restricted to specific persons.
…
6. The number of persons referred to in paragraph 1 shall be no greater than necessary in order to ensure compliance with the right of the parties to the legal proceedings to an effective remedy and to a fair trial, and shall include, at least, one natural person from each party and the respective lawyers or other representatives of those parties to the legal proceedings.
So, on the face of it, the UPC rules do not allow external attorneys eyes only confidentiality clubs, due to the requirement to have at least one natural person from each party inside.
See UPC Weekly 2025 Week 7 for more background and a review of the case law on confidentiality clubs.
How to intervene? And why?
At the UPC, a third party can intervene in UPC proceedings where they have “a legal interest in the result of the action”. See UPC Weekly 2025 Week 4 for a review of the case law on interventions.
The intervener files their application to intervene, including reasons why it should be allowed – i.e. what is their “legal interest”. The other parties can comment on this. If the court agrees that the application to intervene is admissible, then the intervener gets to file their statement in intervention, i.e. their statement of case. The intervener is treated as a party to the proceedings, with the attendant risk of an adverse costs award. Interestingly, if the court decides that the intervention is not admissible, this decision cannot be appealed.
The case law shows that merely being interested in UPC proceedings because of a similar fact pattern to another case is not enough to intervene. However, it is also not necessary that it is the substantive outcome of the case that establishes the required legal interest – it could be a side issue of the UPC proceedings that meets the threshold. As the CoA confirmed in Daedalus v Xiaomi, the intervener just needs to show a direct and present interest in the grant of the order or decision at issue.
Apple interventions
Patent infringement proceedings were launched in June 2024 between Ericsson and Asustek based on two patents and in April 2025 between Sun Patent Trust and Vivo based on two (different) patents. In each case, confidential information was identified as relevant to the proceedings, in the form of pre-existing licence agreements with third parties. It was clear and agreed that confidentiality clubs were needed, but the parties could not agree whether this should be external attorneys eyes only. The first instance division in each case ordered that natural persons from the defendants should have access, and it was these orders that were appealed to the CoA by the patentees in each case.
So where does Apple fit into this? Well, it is clear that at least some of the third party licence agreements involve Apple and they want to restrict access to this information as far as possible.
Apple applied to intervene in the appeals. The CoA allowed the intervention in each case, based on similar reasoning, in the orders Ericsson v Asustek and Sun Patent Trust v. Vivo.
The defendants had argued that Apple did not meet the requirement for a legal interest because they did not have an interest in the final outcome of the infringement proceedings. The CoA dismissed this argument – having an interest in the set-up of the confidentiality club in relation to their own information was sufficient.
Another argument advanced by the defendants was that events had superseded the intervention, because in an earlier decision the CoA had refused to grant suspensive effect to the appeal and so the information had already been disclosed to three Vivo employees. The CoA took the view that the outcome of the appeal would still meet the requirement for a legal interest because one possible outcome of the appeal was that the Vivo employees would no longer have access to the information and would not be allowed to use that information for any purpose.
The outcome of these orders, then, is that Apple is now a party to these appeal proceedings about the confidentiality regimes. The CoA will now allow Apple to file a statement in intervention and to support the patentee side in the appeal oral hearings.
Still to be decided is whether an external attorneys eyes only regime can be permitted without agreement between the parties. That is the subject of the appeal and the CoA decision will have a direct bearing on the future set up of UPC confidentiality clubs and so we will report again on the outcome.
