Hisense Gorenje Germany GmbH, Hisense Europe Holding GmbH v. Corning Incorporated

Corning Incorporated brought a patent infringement action against Hisense, TCL, and LG before the Mannheim Local Division of the Unified Patent Court concerning EP 3 296 274. All defendants were initially represented by the same legal counsel. The defendants requested separation of proceedings under R. 303.2 RoP, arguing that defending against Corning's allegations would require disclosure of sensitive supply chain information, and that sharing such information among competing groups of companies could create conflicts with EU competition law.

The judge-rapporteur rejected the request for separation and ordered the defendants to submit a single Statement of defence. The judge-rapporteur held that the potential conflicts arose solely from the defendants' decision to be represented by identical counsel, and that it was the representative's obligation to organize proceedings internally to avoid such conflicts. The judge-rapporteur further noted that the representative could exchange individualized versions of the Statement of defence with each group of clients to maintain confidentiality. The panel of the Court of First Instance confirmed this order on panel review and did not grant leave to appeal. Subsequently, Hisense changed counsel and was represented by a different law firm.

Hisense, TCL, and LG then filed a request for discretionary review under R. 220.3 RoP and an application for suspensive effect. They argued that the panel violated R. 333.4 RoP by not addressing their arguments, that the decision would impact the UPC's handling of antitrust-relevant information, that confidentiality agreements and access restrictions were insufficient, and that the fundamental right to be heard would be impaired if they had to restrict their presentation of facts to protect sensitive business information.

The Court of Appeal, presided by Standing Judge Patricia Rombach, dismissed the request for discretionary review as admissible but unfounded. The court held that while parties can have a legitimate interest in maintaining confidentiality of business information, separation of proceedings is not the only option available. The court noted that under Art. 58 UPCA and R. 262A RoP, the court may order that access to confidential information be restricted to specific persons, and that parties may also conclude confidentiality agreements among themselves. The court further held that any residual risk of confidentiality breaches is largely mitigated by granting full access only to trustworthy individuals, citing the UPC Court of Appeal's earlier decision in Daedalus vs Xiaomi (12 February 2025). The court found no misuse of discretionary power and emphasized that procedural economy may justify not separating proceedings.

Regarding the requirement to submit a single Statement of defence, the court noted this was not the subject of the discretionary review request. The court observed that with Hisense now represented by a different lawyer, a new situation had arisen, and the respective representatives could each lodge a Statement of defence on behalf of the defendants they represent, if necessary with redacted versions. The application for suspensive effect was deemed devoid of purpose following the rejection of the discretionary review request.