Düsseldorf Local Division
UPC_CFI_837/2024
UPC_CFI_349/2025
UPC_CFI_394/2025

Procedural Order
of the Court of First Instance of the Unified Patent Court
issued on 1 August 2025
concerning EP 2 728 089 B1

CLAIMANT:
American Wave Machines, Inc., 224 South Cedros, Suite C, Solana Beach, CA 92075, United States of America
represented by: Attorney-at-law Roland Küppers, LL.M., Taylor Wessing Part-GmbB, Benrather Straße 15, 40213 Düsseldorf, Ger-many
Electronic address for service: r.kueppers@taylorwessing.com

DEFENDANTS:
1. Surftown GmbH, Lilienthalstr. 12, 85399 Hallbergmoos, Germany
2. WhiteWater Era GmbH, Zielstattstraße 11, 81379 München, Germany
3. WhiteWater West Industries Ltd., 180-6651 Fraserwood PI, Richmond, BC, V6W 1J3, Canada
4. Endless Surf Ltd., 180-6651 Fraserwood PI, Richmond, BC, V6W 1J3, Canada
Defendant 1. represented by: Attorney-at-law Dr Philipp Neuwald, Lorenz Seidler Gossel, Widenmayerstrasse 23, 80538 Munich, Germany
Electronic address for service: neuwald@lsg.eu
Defendant 2. – 4. represented by: Attorney-at-law Dr Tobias Wuttke, Bardehle Pagenberg, Prinzregentenplatz 7, 81675 Munich, Germany
Electronic address for service: wuttke@bardehle.de

PATENT IN SUIT:
EUROPEAN PATENT NO. EP 2 728 089 B1

PANEL/DIVISION:
Panel of the Düsseldorf Local Division

DECIDING JUDGES:
This order was issued by Presiding Judge Thomas acting on behalf of the legally qualified Judge Dr. Thom as judge-rapporteur.

LANGUAGE OF THE PROCEEDINGS: English

SUBJECT: R. 262A RoP – Protection of confidential information

GROUNDS FOR THE ORDER:
1. Art. 9 (1) and (2) (a) of Directive (EU) 2016/943 provide that, in judicial proceedings, access to documents submitted by the parties or third parties containing trade secrets or alleged trade secrets may, upon request, be restricted in whole or in part to a limited number of persons. The protection of confidential information is provided for in Art. 58 UPCA and im-plemented in R. 262A RoP.
2. According to R. 262A.5 RoP, the Court may allow the application for protection of confiden-tial information considering in particular whether the grounds relied upon by the applicant for the order significantly outweigh the interest of the other party to have full access to the information and the evidence in question.
3. That being said, the application is to be granted subject to the following conditions.
A. Formal requirements
4. The formal requirements of R. 262A.2 and .3 RoP were complied with. The Claimant’s and the Defendants’ representatives were also heard before the confidentiality order was issued, as required by R. 262A.4 RoP. They made use of the opportunity to submit observations.
B. Classification of information as confidential
5. The Claimant has not successful challenged that the information in question is confidential.
6. According to the Defendants, the relevant passages contain highly sensitive information re-lating to technical know-how, the design and the operation of the challenged facility. According to the Defendants, the technical information on the challenged embodiment for which Defendants seek confidentiality are trade and business secrets of the Defendants. The Defendants have argued that the exact design of the challenged embodiment is not generally known or readily accessible, either in its entirety or in the exact arrangement and composi-tion of its components, to persons in the circles that normally deal with this type of infor-mation. It is also not known or readily accessible in the market and, particularly, not to com-petitors of the Defendants. Furthermore, the disclosure of this information is subject to rea-sonable confidentiality measures, the details of which have been provided by the Defend-ants.
7. The Claimant correctly does not dispute that the technical details of the challenged embo-diment, which the Defendants consider confidential, are indeed confidential insofar as they are not publicly available. The Claimant has not been able to demonstrate that the latter is the case with regard to the information that the Defendants have deemed confidential.
8. Insofar as the Claimant refers to a screenshot and a few bullet points in its response to the R. 262A RoP application, it is not important whether the information that the Defendants consider to be confidential can be subsumed under these bullet points. The important ques-tion is whether the information that the Defendants are seeking to protect as confidential can already be deduced from these general bullet points making it publicly known. However, this does not apply to the technical design details of the challenged embodiment, which the Defendants consider to be confidential. To the extent that these details go beyond the gen-eral information referred to by the Claimant, they are to be regarded as confidential.
C. Restrictions of access
9. According to R. 262A.6 RoP, the number of persons to whom access is restricted 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.
10. Whether a particular person may be granted full access under R. 262A.6 RoP must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before the Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential (UPC_CoA_621/2024, Order of 12 February 2025, par. 12 – Daedalus v. Xiaomi; UPC_CoA_221/2025, Order of 3 July 2025, par. 17 – NST v. Qualcomm; UPC_CFI_181/2025 (LD Düsseldorf), Order of 15 July 2025, mn. 16 – QIAGEN v bioMérieux).
11. Even if R. 262A RoP does not require that the person to whom access is given be an employee of a party or a representative within the meaning of Art. 48 UPCA (UPC_CoA_621/2024, Or-der of 12 February 2025, par. 13 – Daedalus v. Xiaomi; UPC_CFI_181/2025 (LD Düsseldorf), Order of 15 July 2025, mn. 17 – QIAGEN v bioMérieux), the Claimant has so far failed to ade-quately explain the role of Mr […]. The extent to which he requires access to the information classified as confidential in his role as “external advisor in the underlying proceedings’” re-quires further explanation. This order provides the Claimant with the opportunity to do so.

ORDER:
I. The following information is classified as confidential within the meaning of Art. 58 UPCA, R. 262.2 RoP:
1. The information relating to technical details of the challenged embodiment as highlighted in grey in the statements of defence and the counterclaims for revocation of Defendants 1. and 2. to 4. in marginal nos. 91-96, 98-103, 106, 109, 110, 117, 118, 123, 124, 131, 136-139, 150-152, 154, 155, 157, 161, 162, 164-168 of these statements, blackened in Exhibits BP 2 and BP 4, and/or contained and marked as confidential in the unredacted version of Claimant’s brief of 16 May 2025, Defendant’s 1) brief of 27 June 2025 and Defendants’ 2) to 4) briefs of 26 May 2025 (Exhibit 7a) and of 25 June 2025, as long as the respective information goes beyond the following general statements:
II. Access to the unredacted version of Defendants’ statements of defence and counterclaims for revocation dated 22 April 2025 and the unredacted version of Exhibits BP 2 and BP 4 is restricted, on the part of the Claimant, to Claimant’s legal representatives, insofar as they are authorized to represent the Claimant before the UPC in the present litigation, and their internal assistants, whereby only those professionals authorized to represent the Claimant before the UPC in the present litigation and their assistants from the law firm of Claimant’s legal representatives have access to the confidential information required for cooperation in the present litigation.
The same applies with regard to the unredacted version of Claimant’s brief of 16 May 2025, Defendant’s 1) brief of 27 June 2025 and Defendants’ 2) to 4) briefs of 26 May 2025 (Exhibit 7a) and of 25 June 2025.
III. Information classified as confidential in paragraph I. shall be treated as such by Claim-
ant’s legal representatives, insofar as they are authorized to represent the Claimant before the UPC in the present litigation, and their internal assistants, and shall not be used or disclosed outside of these court proceedings, except to the extent that it has come to the knowledge of the receiving party outside of these proceedings, provided that the receiving party has obtained it on a non-confidential basis from a source other than the Defendants or their affiliates, provided that such source is not bound by a confidentiality agreement with or other obligation of secrecy with the Defendants or their affiliates.
IV. In the event of a culpable breach of this order, the Court may impose a penalty payment for each breach, to be determined having regard to the circumstances of each case.
V. The Claimant is given the opportunity to supplement its submissions with respect to the natural person for whom access is requested by 8 August 2025.

DETAILS OF THE ORDER:
App_19218/2025, App_19229/2025, App_20886/2025, App_23512/2025 and App_25040/2025 under main file reference ACT_67723/2024, CC_18456/2025 and CC_20902/2025
UPC number: UPC_CFI_837/2024, UPC_CFI_349/2025 and UPC_CFI_394/2025
Type of procedure: Infringement action and counterclaim for revocation

Issued in Düsseldorf on 1 August 2025