Context: In U.S. litigation, parties sometimes succeed in convincing courts that certain information is so sensitive that access should be limited to outside counsel. That is called an “attorneys’ eyes only” (AEO) designation.
What’s new: In the Unified Patent Court (UPC), AEO designations have yet to get traction, if they ever will. Two new protective orders that the Mannheim and Dusseldorf Local Divisions (LDs) handed down yesterday (July 22, 2024) show again that those disclosing confidential information in UPC proceedings can’t realistically expect to achieve more than restricting access to one or a few natural persons.
Direct impact: One cannot put it past the moving parties in those two cases that they primarily sought to delay the proceedings or, alternatively, to shorten the amount of time actually available to their adversaries as they prepare the next pleadings.
Wider ramifications: While U.S. patent litigation, owing to pretrial discovery, generally provides greater transparency than European enforcement actions, there is a possibility that select employees of litigants may sometimes get to look at documents as a result of UPC protective orders that would be withheld from them in the U.S. by way of AEO designations. While they would formally not be allowed to use such information outside the UPC proceedings in question, it will sometimes inevitably enable them to arrive on a more knowledgeable basis at decisions concerning U.S. cases.
ip fray already reported on the two most recent UPC protective orders (both of which bear yesterday’s date (July 22, 2024)) on LinkedIn:
- Confidential business information in Dolby v. HP (LinkedIn post): Access Advance was allowed to intervene because the HP defendants disputed that the pool’s license fees were FRAND. In its order, the Dusseldorf LD’s Presiding Judge Ronny Thomas noted (PDF (in German)) that intervenors are not just there to provide information to the party they support, but actually (and in this case, as a result of the defendants’ pool-related FRAND argument) enjoy the same rights as parties. Therefore, even information on HP’s bilateral licensing negotiations will be disclosed to one of the pool administrator’s employees.
- Confidential technical information in Dish & Sling TV v. Aylo (LinkedIn post): Aylo disclosed technical information on the inner workings of the accused products, and three designated employees of the plaintiff companies will get to see that information so as to enable them to manage this UPC Mannheim litigation effectively. After Judge-rapporteur Dirk Boettcher (“Böttcher” in German) decided so earlier this month, the defendants sought a full-panel review, but in an order now signed by Presiding Judge Dr. Peter Tochtermann (whose take on confidential information is more restrictive than that of some other UPC judges, though he does rely on compliance (July 9, 2024 ip fray article)) as well as Judge Dr. Walter Schober (from Vienna; see the recent interview) (PDF (in German)), that decision was affirmed without even requiring an opposition brief.
For further detail on those decisions, please read the related LinkedIn posts. The purpose of this article is primarily to share the observation that AEO may not work, or only under extremely rare circumstances, in the UPC, and that this could even have implications for parallel litigation in the U.S. where AEO designations are not uncommon.
There is at least one exception thus far: Judge-rapporteur Margot Kokke’s March 4, 2024 protective order in Plant-e v. Arkyne (PDF).
Ultimately the standard for AEO restrictions will have to be determined by the Court of Appeal.
ip fray will continue to follow the development of the UPC’s case law closely and report in the event that a major new trend or an exception from the rule becomes identifiable.