Context:
- Ericsson and Transsion are engaged in a widening global standard-essential patent (SEP) dispute. In May, Transsion escalated the conflict by filing its first-ever public patent infringement action against Ericsson before the Unified Patent Court (UPC) (May 6, 2026 ip fray article). The parties are litigating in multiple UPC venues, including proceedings before the Hague Local Division (LD), the Mannheim LD, and the Paris seat of the Central Division (CD). Other jurisdictions in which cases are pending range from Brazil to Nigeria to Vietnam (January 30, 2026 ip fray article).
- At the Hague LD, Ericsson is pursuing not only infringement claims on three SEPs but also a fair, reasonable, and non-discriminatory (FRAND) rate-setting action, seeking a determination that its proposed royalty terms are FRAND. Ericsson is also embroiled in UPC disputes with ASUS (May 6, 2026 ip fray article) and Verifone (February 20, 2026 ip fray article), and has defended the confidentiality of some of its license agreements, particularly the one with Apple, before the Court of Appeal (CoA) (September 24, 2025 ip fray articles).
- SEP disputes routinely raise confidentiality questions.
What’s new: On May 27, 2026, the Hague LD issued a confidentiality order establishing a phased “external eyes only” (EEO) regime for Ericsson’s comparable license agreements. For now, access to those agreements is limited to outside counsel and designated external experts. The court held that it remains unclear which of the more than 20 comparable licenses discussed in the proceedings will ultimately be relevant to the FRAND assessment, making a phased approach appropriate.
Direct impact: The court rejected Transsion’s request for immediate access by in-house personnel to Ericsson’s comparable licenses and dismissed related procedural applications seeking additional time and review of earlier case-management decisions. However, the court indicated that if access later becomes necessary, two employees representing all defendants would likely be sufficient. The order also imposes confidentiality obligations backed by penalties of up to €1 million per culpable breach.
Wider ramifications:
- The decision provides the UPC’s clearest endorsement so far of a phased EEO regime in a FRAND dispute. By allowing outside counsel and experts to assess relevance before confidential licenses are disclosed internally, the court sought to balance litigation-management needs against the confidentiality interests of third-party licensors and licensees. The approach may influence future SEP cases involving comparable-license evidence before the UPC.
- The Hague LD is the first non-German one to have surpassed, in terms of the number of recent filings, a German LD (Hamburg) (June 1, 2026 ip fray article).
Phased access to comparable licenses
A central issue was access to Ericsson’s comparable license agreements and the related report prepared by an expert referred to as “Mr. Mills”. According to the court, more than 20 comparable licenses are currently in play, and it remains uncertain which of them, if any, will ultimately prove relevant to the FRAND determination.
Under the Phase 1 regime, access to Ericsson’s comparable-license material is limited to authorized UPC representatives and designated external experts, including licensing and valuation expert Philip Kline and his assistants. No Transsion employee receives access at this initial stage. The court stressed that the arrangement is temporary and will be reviewed no later than the interim conference.
Confidential correspondence treated differently
The court adopted a different approach for the parties’ licensing correspondence.
Transsion’s four core entities — defendants one through four — are permitted to access the confidential licensing correspondence exchanged during negotiations with Ericsson. By contrast, the reseller and distributor defendants remain subject to stricter EEO restrictions for that material.
The court considered this distinction appropriate because the core Transsion entities are directly involved in licensing discussions with Ericsson.
Court rejects Transsion’s procedural objections
The panel was critical of Transsion’s conduct during the confidentiality negotiations.
According to the order, the defendants took more than two months to respond to Ericsson’s confidentiality application and failed to provide a constructive alternative proposal when they eventually responded. The court concluded that Transsion could not rely on delays of its own making to justify further extensions of procedural deadlines.
The court also observed that Transsion had not publicly confirmed until mid-May 2026 that it intended to pursue a FRAND defense, making its arguments regarding urgent internal access less persuasive.
As a result, the court dismissed Transsion’s remaining procedural applications.
Potential future expansion of the confidentiality club
While rejecting immediate in-house access, the court provided guidance on how the confidentiality club could evolve.
If later expansion becomes necessary, the court indicated that access for two employees representing all represented defendants would likely be reasonable. The panel rejected the notion that each defendant requires its own designated employee with access to the material.
The court also agreed that any licensing bar imposed on those individuals could not extend to negotiations with Ericsson itself. It further noted that a two-year restriction period has previously been considered reasonable by the CoA.
Enforcement and confidentiality obligations
The order establishes substantial penalties for violations of the confidentiality regime.
Any culpable breach may result in penalties of up to €1 million. Confidentiality obligations continue even after the litigation ends, and most recipients of the restricted information must destroy or delete copies within 90 days after final resolution of the proceedings.
The court also held that any comparable-license agreements later produced by Transsion should be subject to a reciprocal confidentiality regime.
Broader implications for SEP litigation
The order may prove influential in future UPC FRAND disputes involving comparable-license evidence.
The phased EEO approach allows outside counsel and independent experts to assess the relevance of license agreements before confidential commercial information is disclosed to company personnel. In doing so, the court sought to balance the parties’ need to manage litigation effectively against the confidentiality interests of third-party licensors and licensees whose agreements may become part of the evidentiary record.
The approach also appears consistent with recent UPC CoA decisions recognizing that a natural person associated with a party should generally obtain access to confidential information, while leaving flexibility as to the timing and scope of that access.
The order therefore provides further guidance on how the UPC may approach confidentiality-club disputes in SEP and FRAND litigation.
Court and counsel
Panel: Presiding Judge Edger Brinkman, Judge-rapporteur Margot Kokke, and Judge Samuel Granata (Brussels, Belgium).
Ericsson is being represented by Winston Taylor’s (ip fray firm profile in the making) Prof. Dr. Wim Maas (whom we recently interviewed about the UPC: June 3, 2026 ip fray podcast episode) and David Mulder.
Transsion is being represented by Powell Gilbert’s Dr. Andreas Kramer, Alex Wilson, and Ari Laakkonen.