Local Division Düsseldorf
UPC_CFI_457/2023
Procedural Order
of the Court of First Instance of the Unified Patent Court Local Division Düsseldorf
Issued on 22 July 2024
concerning EP 3 490 258 B1

Headnote:
Unless the court orders otherwise, the intervener is treated as a party pursuant to R. 315.4 RoP. Consequently, R. 262A.6 RoP also applies to it. The intervener therefore has the right to ensure that the group of persons entitled to access information classified as confidential includes at least one natural person in addition to their legal representatives.

Keywords:
Protection of secrets; Parties; Interveners; Access restriction; Group of persons entitled to access; Tiered regime for the protection of secrets

Claimant:
Dolby International AB, represented by its EMEA Finance Director Susan Way, 77 Sir John Rogerson's Quay, Block C, Grand Canal Docklands, Dublin, D02 VK60, Ireland,
represented by: Attorney-at-Law Dr Volkmar Henke, Attorney-at-Law Dr Tilman Müller, Bardehle Pagenberg Partnerschaft mbB, Bohnenstraße 4, 20457, Hamburg,
assisted by: Patent attorney Dr. Georg Anetsberger, Patent attorney Dr Johannes Möller, Bardehle Pagenberg Partnerschaft mbB, Prinzregentenplatz 7, 81675, Munich,
Electronic address for service: henke@bardehle.de

Intervener:
Access Advance LLC, represented by its CEO Peter Moller, 100 Cambridge Street Suite 21400, Boston, MA 02114,
represented by: Attorney-at-Law Dr Volkmar Henke, Attorney-at-Law Dr Tilman Müller, Bardehle Pagenberg Partnerschaft mbB, Bohnenstraße 4, 20457, Hamburg,
assisted by: Patent attorney Dr Georg Anetsberger, Patent attorney Dr Johannes Möller, Bardehle Pagenberg Partnerschaft mbB, Prinzregentenplatz 7, 81675, Munich,
Electronic address for service: mueller@bardehle.de

Defendants:
1. HP Deutschland GmbH, represented by its directors, Mr Adrian Müller and Mr Peter Kleiner, Herrenberger Straße 140, 71034, Böblingen, Germany,
2. HP Inc., represented by its director, 1501 Page Mill Road, Palo Alto, California, 94304, U.S.A.,
3. HP International SARL, represented by its directors, Route du Nant-d'Avril 150, 1217 Meyrin, Switzerland,
4. HP Austria GmbH, represented by its directors, Technologiestrasse 5, 1120, Vienna, Austria,
5. HP France SAS, represented by its directors, Meudon Campus Bât. 1, 14 Rue de la Verrerie, 92190, Meudon, France,
6. HP Belgium SPRL, represented by its directors, Hermeslaan 1a, B-1831, Diegem (H.P. Inc.), Belgium,
7. HP Inc Danmark ApS, represented by its directors, Engholm Parkvej 8, 3433, Allerød, Denmark,
8. HP Finland Oy, represented by its directors, Piispankalliontie, 02200, Espoo, Finland,
9. HP Italy S.r.l., represented by its director, Via Carlo Donat Cattin, 5 – 20063, Cernusco sul Naviglio (Milan),
10. Hewlett-Packard Nederland BV, represented by its directors, Startbaan 16, 1187 XR Amstelveen, the Netherlands,
11. HP PPS Sverige AB, represented by its directors, Gustav III:s Boulevard 30, 169 73, Solna, Sweden,
12. HPCP – Computing and Printing Portugal, Unipessoal, Lda., represented by its directors, Building D. Sancho I, Quinta da Fonte, Porto Salvo, 2770-071 Paço de Arcos, Lisbon, Oeiras, Portugal,
13. Hewlett-Packard d.o.o., represented by its directors, Tivolska cesta 48, 1000, Ljubljana, Slovenia,
14. Hewlett-Packard Luxembourg SCA, represented by its directors, Vegacenter, 75 Parc d'Activités, Capellen, L-8308 Capellen, Luxembourg,
15. HP Inc Bulgaria EOOD, represented by its directors, Mladost Region, Business Park Sofia, Building 10, Sofia 1766, Bulgaria,
Defendants 1) to 15) represented by: Attorney-at-Law Dr Frank-Erich Hufnagel, Attorney-at-Law Dr Nina Bayerl, Attorney-at-Law Dr Stephan Dorn, Attorney-at-Law Dr Sabrina Biedermann, Attorney-at-Law Eva Acker, Attorney-at-Law Vanessa Werlin, Freshfields Bruckhaus Deringer Rechtsanwälte Steuerberater PartG mbB, Feldmühleplatz 1, 40545 Düsseldorf,
Electronic address for service: eva.acker@freshfields.com PATENT AT ISSUE:
European patent No. EP 3 490 258 B1
PANEL/DIVISION:
Panel of the Local Division Düsseldorf DECIDING JUDGES:
This order has been issued by the presiding judge Thomas, acting as judge-rapporteur. LANGUAGE OF
PROCEEDINGS: German

SUBJECT MATTER: R. 262A RoP – Protection of Confidential Information

SUMMARY OF FACTS:
The claimant is asserting claims against the defendants for infringement of the European bundle patent EP 3 490 258. It has contributed its HVEC essential patent portfolio, including the patent at issue, to a patent pool administered by Access Advance LLC (hereinafter: Access Advance).
At the same time as filing the statement of defence, the defendants submitted an application for the protection of confidential information (R. 262A Rules of Procedure). By order dated 6 May 2024, the Local Division Düsseldorf granted the claimant’s previously designated attorneys access to the unredacted version of the pleading, which had been classified as confidential by the defendants, along with its annexes. The attorneys were bound to confidentiality and given the opportunity to comment on the application for the protection of confidential information.
The claimant has not fundamentally opposed the defendants’ application for the protection of confidential information. However, the claimant has stated that approval can only be granted if Access Advance, as the pool administrator, is also included among the authorized and obligated recipients. This applies to correspondence between the defendants and Access Advance, as well as discussions regarding the respective pool offers.
The defendants objected to such an inclusion of Access Advance in the group of persons entitled to access, arguing that a prerequisite for granting such access is the participation of the relevant person in the proceedings. Based on this, there would be no fundamental objections to granting access to persons associated with Access Advance if Access Advance were involved in the proceedings, for example, as an intervener or a party.
As the defendants did not object to granting access to the information classified as confidential by them to employees specifically designated by the claimant, the Local Division Düsseldorf provisionally expanded the group of persons entitled to access to include these employees by order dated 19 June 2024. The decision regarding granting access rights to employees of Access Advance was initially deferred by the Local Division Düsseldorf, following a corresponding application by the claimant.
Thereafter, Access Advance joined the proceedings by written submission dated 20 June 2024.
By order of 26 June 2024, the Local Division Düsseldorf admitted Access Advance LLC as an intervener on the side of the claimant.
The defendants then took the opportunity granted to them to comment regarding the application for the protection of confidential information and, for the first time, asserted that the content of the bilateral license negotiations between the parties was subject to a strict confidentiality agreement. Given that the legal representatives of the intervener had not even requested access to these strictly confidential items of information, the defendants saw no need to grant the intervener such access. In any event, access should be restricted to one person.

REQUESTS OF THE PARTIES
The defendants request, with respect to the claimant, to rule as decided.
In relation to the intervener, the defendants request:
I. that the information listed in the table below, contained in the unredacted version of the statement of defence dated 3 May 2024 (Part II), as well as in the redacted version intended for the intervenor, including the referenced annexes, be classified as confidential:
Found in Description
1. Statement of Defence, Part II
paras. 4-5, 157-191, 315-343,
Annex FBD-K 31, Annex FBD-K 32,
Annex FBD-K 33, Annex FBD-K 34,
Annex FBD-K 35, Annex FBD-K 36,
Annex FBD-K 37, Annex FBD-K 38,
Annex FBD-K 39
Information regarding the parties' licensing negotiations, including the terms of the mutual licensing offers (Information of the parties subject to the CDA with the claimant).
2. Statement of Defence, Part II, paras. 4, 6, 41-57 Information regarding the defendants' licensing negotiations with third parties, including the terms of the licensing agreements (Information of the defendants subject to the NDA with third
parties).
3. Statement of Defence, Part II
paras. 408, 413, 418-426
Annex FBD-K 44
Information on the defendants' business
figures
II. to order that the information subject to confidentiality according to item I. be protected by an appropriate duty of confidentiality. This means that anyone who becomes aware of such information due to their involvement in the present proceedings (whether as party, representative, witness, expert, court official, or in any other capacity) must treat it as confidential and may not use or disclose it outside of these proceedings, unless they have obtained knowledge of it independently of the proceedings;
with respect to the intervener, to restrict access
6
1. to the information classified as confidential under items I.2 and I.3:
a. to the legal representatives of the intervener,
b. to the following employees of the intervener:
• […]
2. to exclude access to the information classified as confidential under item I.1;
In the alternative to 2.:
3. to restrict access to the information classified as confidential under items I.1, with respect to the intervener, as follows:
a. to the legal representatives of the intervener;
b. to one reliable employee of the intervener, to be designated in advance by the intervener to the court and the defendants;
III. to clarify:
1. that the obligation of confidentiality under item II. continues to apply even after the conclusion of the court proceedings, unless the disputed information becomes known to or readily accessible to individuals who typically have access to such information;
2. that the information to be treated confidentially under item II must be kept confidential by all persons who become aware of it due to their involvement in these proceedings (whether as a party, representative, witness, expert, or in any other capacity). Such information may not be used or disclosed outside these proceedings, unless they have gained knowledge of it outside the proceedings, provided that it was made available to the receiving party on a non-confidential basis from a source other than the defendants or their affiliated companies, and provided that this source is not bound by a confidentiality agreement or any other obligation of secrecy towards the defendants or their affiliated companies;
3. that the court, in the event of a culpable breach, may impose a recurring penalty payment on the obligated party for each violation and enforce it immediately.
With regard to the additional requests concerning the protection of confidential information during the oral proceedings and the reading of the judgment in open court, reference is made to the written submission dated 15 July 2024.

GROUNDS FOR THE ORDER:
The application concerning the protection of trade secrets and other confidential information is admissible and granted to the extent set out in the operative part of the order.
I.
There are no objections regarding the admissibility of the application.
1.
Pursuant to Art. 9(1) and (2)(a) of Directive (EU) 2016/943, it is provided that, upon request, access to documents submitted by the parties or third parties in judicial proceedings containing trade secrets or alleged trade secrets may be wholly or partially restricted to a limited number of persons. The protection of confidential Information is provided for in Article 58 UPCA and implemented in Rule 262A of the Rules of Procedure of the United Patent Court (see UPC_CFI_54/2023 (Local Division Hamburg), Order dated 3 November 2023, ORD_577703/2023 – Avago Technologies International v. Tesla Germany; UPC_CFI_463/2023 (Local Division Düsseldorf), Order dated 11 March 2024, ORD_8550/2024 – 10x Genomics v. Curio Bioscience).
2.
The formal requirements set out in Rule 262A.2 and .3 RoP have been met. In addition, the claimants’ representatives as well as the intervener’s representatives were heard before the protective order was issued, as required by Rule 262A.4 RoP. They made use of the opportunity to comment that was granted to them.
II.
Neither the claimant nor the intervener has specifically disputed that the information classified by the defendants as confidential constitutes trade secrets or at least other confidential information. Therefore, it is to be assumed that the information in question requires protection.
If the passages in the statement of defence (Part II) classified by the defendants as confidential contain references to annexes that are not explicitly mentioned in the application for the protection of confidential information, these annexes are not covered by the confidentiality protection. This specifically applies to annexes FBD-K 12 and FBD-K 13 with respect to the intervener.
The information found under Paragraph 4 of the statement of defence (Part II) pertains to the defendants' licensing negotiations with third parties. Therefore, with respect to the intervener, this information falls exclusively under item 2 of the table. Its inclusion under Item 1 is to be considered void.
III.
According to R. 262A.6 RoP, the number of persons entitled to access information classified as confidential must not exceed what is necessary to ensure the parties' right to an effective remedy and a fair trial. However, the group of persons entitled to access must include, in addition to the respective attorneys, at least one natural person from each party (UPC_CFI_359/2023 (Local Division Mannheim), Order dated 21 March 2024; UPC_CFI_355/2023 (Local Division Düsseldorf), Order dated 27 March 2024, ORD_7096/2024 – Fujifilm v. Kodak). This applies unless the parties have agreed to a further restriction of the group of persons entitled to access.
1.
With regard to the group of persons entitled to access on the claimant's side, there is no dispute between the parties, therefore, no further elaboration is required in this respect.
2.
Insofar as the defendants seek to restrict access to the information classified as confidential to the intervener's legal representatives and thereby exclude all employees from such access, such a complete exclusion cannot be reconciled with the intervener's role in the proceedings. Therefore, in line with the auxiliary request, a limited group of individuals on the intervener's side must therefore be granted access to the information classified as confidential.
(a)
Unlike before the intervention prompted by the defendants themselves, the present matter no longer concerns the question of the extent to which participants on the claimant's side are permitted to share certain information with employees of Access Advance. Rather, Access Advance now holds its own procedural role as an intervener. According to R. 315.4 RoP, the intervener is treated as a party unless the court orders otherwise, which is not the case here. The principle of equal treatment of the intervener and the party requires that the intervener be involved in the proceedings in the same way as a party (Tilmann/Plassmann/Dorn, Unitary Patent, Unified Patent Court, R. 315 RoP, para. 17). Therefore, R. 262A.6 RoP also applies to the intervener. Accordingly, the intervener has the right to extend the group of persons entitled to access to include at least one natural person. Access Advance has not waived this right in the present case, for example, through an agreement with the defendants (see UPC_CFI_239/2024 (The Hague Local Division), Order of 4 March 2024, ORD_590350/2023, para. 13 – Plant-e Knowledge v. Arkyne Technologies). Therefore, the exclusion – sought in the main request – of all employees of the intervener from access to the information classified as confidential with respect to it lacks a legal basis.
b)
Based on this, the defendants' auxiliary request was to be granted, as neither the intervener nor the claimant objected to it. Therefore, in addition to the intervener's legal representatives, access to the information classified as confidential with respect to the intervener must also be granted to the employees of the intervener to the extent specified in the operative part of the decision.
IV.
Insofar as the defendants request measures to protect confidential information during the oral hearing and the pronouncement of the judgment, no decision is currently required in this regard. Such measures, if necessary, will be issued shortly before or during the oral hearing or the pronouncement of the judgment.

ORDER:
A. The following order is issued with respect to the claimant:
I. The information listed in the table below in the statement of defence dated 3 May 2024 (Part II), including the following annexes, is classified as confidential.
Found in Description
1. Statement of Defence, Part II
paras. 4, 6, 41-57, 68-80, 82-156, 201, 238-269, 280-313
Annex FBD-K 14, Annex FBD-K 15,
Annex FBD-K 17, Annex FBD-K 18,
Annex FBD-K 19, Annex FBD-K 20,
Annex FBD-K 21, Annex FBD-K 22,
Annex FBD-K 22a, Annex FBD-K 23,
Annex FBD-K 24, Annex FBD-K 25,
Annex FBD-K 26, Annex FBD-K 27,
Annex FBD-K 28, Annex FBD-K 29,
Annex FBD-K 30
Information regarding the defendants' licensing negotiations with the intervener, including the terms of the mutual licensing
offers
(Defendants' information subject to the CDA with the
intervener)
2. Statement of Defence, Part II, paras. 4, 6, 41-57
Annex FBD-K 12, Annex FBD-K 13
Information regarding the defendants' licensing negotiations with third parties, including the terms of the licensing agreements and the identity of the licensors.
(Defendants' information subject to the NDA with third
parties)
3. Statement of Defence, Part II,
paras. 408, 413, 418-426
Annex FBD-K 44
Information on the defendants' business
figures
II. Access to the information classified as confidential under item A. I. is restricted on the claimant's side to the following persons:
1. the claimant's legal representatives;
2. the following employees of the claimant:
• […]
III. The information classified as confidential under item A. I. must be treated as confidential by the persons listed under Section A. II. This information may not be used or disclosed outside of these proceedings unless the receiving party became aware of it outside of these proceedings. However, this exception only applies if the receiving party obtained this information on a non-confidential basis from a source other than the defendants or their affiliated companies, provided that this source is not bound by a confidentiality agreement with the defendants or their affiliated companies or by any other duty of confidentiality toward the defendants or their affiliated companies.
This obligation also applies to the claimant.
The aforementioned persons are likewise obligated to maintain the confidentiality of the information contained in the unredacted versions of the aforementioned documents with respect to the claimant.
The obligation of confidentiality continues even after the conclusion of the proceedings.
IV. In the event of a culpable breach of this order, the court may impose a coercive penalty payment for each instance of the violation, the amount of which shall be determined based on the circumstances of the individual case.
B. The following order is issued with respect to the intervener:
I. The information listed in the table below in the statement of defence dated 3 May 2024 (Part II), including the following exhibits, is classified as confidential:
Found in Description
1. Statement of Defence, Part II,
paras. 4-5, 157-191, 315-343
Annex FBD-K 31, Annex FBD-K 32,
Annex FBD-K 33, Annex FBD-K 34,
Annex FBD-K 35, Annex FBD-K 36,
Annex FBD-K 37, Annex FBD-K 38,
Annex FBD-K 39
Information regarding the parties' licensing negotiations, including the terms of the mutual licensing offers.
(Information of the parties subject to the CDA with the claimant)
2. Statement of Defence, Part II, paras. 4, 6, 41-57 Information regarding the defendants' licensing negotiations with third parties, including the terms of the licensing agreements.
(Information of the defendants subject to the NDA with third
parties)
3. Statement of Defence, Part II,
paras. 408, 413, 418-426
Annex FBD-K 44
Information on the defendants' business
figures.
Paragraph 4 of the statement of defence (Part II) is to be assigned exclusively to Item 2 of the above table. Its inclusion under item 1 of the table is void.
To the extent that annexes FBD-K 12 and FBD-K 13 are mentioned in paragraphs 41 to 57 of the statement of defence (Part II), these annexes are not covered by the confidentiality protection order.
II. Access to the information classified as confidential under item B. I. 1 is restricted on the intervener's side to the following persons:
1. the intervener’s legal representatives;
2. the following employee of the intervener:
• […]
III. Access to the information classified as confidential under items B. I. 2 and I. 3 is restricted on the intervener's side to the following persons:
1. the intervener’s legal representatives;
2. the following employees of the intervener:
• […]
IV. The information classified as confidential under item B. I. must be treated as confidential by the persons listed under items B. II. and III. This information may not be used or disclosed outside of these proceedings unless the receiving party became aware of it outside of these proceedings. However, this exception only applies if the receiving party obtained this information on a non-confidential basis from a source other than the defendants or their affiliated companies, provided that this source is not bound by a confidentiality agreement with the defendants or their affiliated companies or any other confidentiality obligation toward the defendants or their affiliated companies.
This obligation also applies to the intervener.
The aforementioned persons are also obligated to maintain the confidentiality of the information contained in the unredacted versions of the aforementioned documents with respect to the intervener.
The obligation of confidentiality continues even after the conclusion of the proceedings.
IV. In the event of a culpable breach of this order, the court may impose a coercive penalty payment for each instance of the violation, the amount of which shall be determined based on the circumstances of the individual case.
C. The defendants' requests are otherwise dismissed.

DETAILS OF THE ORDER:
Regarding the application App_25069/2024 concerning the main case number ACT_590145/2023
UPC number: UPC_CFI_457/2023
Type of proceedings: Infringement Action
Issued in Düsseldorf on 22 July 2024 NAMES AND SIGNATURES