Short Summary
Procedural order concerning the protection of confidential information under Rule 262A of the Rules of Procedure of the Unified Patent Court. The Defendants requested that certain internal information contained in their Rejoinder be treated as strictly confidential, and the Local Division Munich granted the request, restricting access to the Claimant's named representatives and three named employees, with provisions for confidentiality obligations and penalty payments for breaches.
Detailed Summary
This Procedural Order was issued by the Presiding Judge Ulrike Voß of the Local Division Munich of the Unified Patent Court on 9 August 2024, in proceedings between Claimant Abbott Diabetes Care Inc. and Defendants Dexcom Inc., Dexcom Deutschland GmbH, and Dexcom International Limited, concerning European patent EP 4 087 195 (Case No. UPC_CFI_402/2023).
By written submission dated 26 June 2024, the Defendants filed an application pursuant to Rule 262A RoP requesting that internal information contained in their Rejoinder of 26 June 2024 (highlighted in gray) be classified as strictly confidential. They requested that the Claimant be permitted to access this information only through its representatives in the proceedings and internally through a maximum of three named reliable persons with a legitimate interest. They further requested that the Court be empowered to impose a recurring penalty payment of up to EUR 250,000.00 for any non-compliance.
The judge-rapporteur invited the Claimant to comment on the request by preliminary order of 28 June 2024. In its submission of 7 August 2024, the Claimant named three persons for internal access but otherwise did not wish to comment on the Defendants' request.
The Court found that the formal requirements of Rule 262A.2 and .3 RoP were complied with, and that the Claimant had been heard as required by Rule 262A.4 RoP. The Court noted that the Claimant had not disputed that the information classified as confidential constituted trade secrets or confidential information, and therefore the information was deemed worthy of protection.
Regarding the group of authorised persons, the Court referenced prior decisions and held that while there is normally no reason to limit the number of representatives, Rule 262A.6 RoP requires that the number of persons with access shall not be greater than necessary to ensure effective remedy and fair trial. The Court emphasized that the number of representatives should not be 'unlimited' or 'indeterminable,' as effective protection requires clear accountability. The Court granted access to the Claimant's named representatives—Dr. Dietrich Kamlah, Dr. Christian Lederer, Dr. Gisbert Hohagen (attorneys-at-law), and Dr. Alexander Esslinger (European patent attorney)—along with their teams actively involved in the proceedings, and the three employees named by the Claimant.
The Court ordered that the unredacted version of the Defendants' Rejoinder be classified as confidential, with access restricted to the named representatives, their teams, and the three named employees. The information must not be used or disclosed outside the proceedings, and the obligation continues after termination of the proceedings. The Court reserved the right to impose a penalty payment of up to EUR 250,000.00 for each culpable breach. The named representatives bear responsibility for ensuring their team members maintain confidentiality, and would be liable for any breaches by their team members.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Munich (DE) Local Division. Understanding the court's reasoning in Abbott Diabetes Care Inc. vs Dexcom Deutschland GmbH, Dexcom International Limited , Dexcom Inc. is valuable context for structuring arguments or assessing risk in similar proceedings.
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