Action no:
UPC_CoA_835/2024
APL_67638/2024
App_68644/2024

Procedural Order
of the Court of Appeal of the Unified Patent Court
concerning an application under Rule 262A RoP
issued on 20 January 2025.

APPLICANTS AND APPELLANTS (DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE CFI)
1. Amazon Europe Core S.à.r.l., (Société à responsabilité limitée), 38 avenue John F. Kennedy, L-1855 Luxembourg, represented by Sanjay Balakrishnan, ibid.,
Appellant 1)
2. Amazon EU S.à r.l., (Société à responsabilité limitée), 38 avenue John F. Kennedy, L-1855 Luxembourg, represented by Jorrit van der Meulen, ibid.,
Appellant 2)
3. Amazon.com, Inc., 410 Terry Avenue North, Seattle Washington 98109-5210, United States of America, represented by the Registered Agent: c/o Corporation Service Company, 300 Deschutes way SW STE MC-CSC1, Tumwater, WA, 98501, United States of America,
Appellant 3)
(hereinafter jointly “Amazon“)
represented by: Dr. Steffen Steininger, M.Jur., Attorney-at-law and registered representative before the Unified Patent Court, Hogan Lovells International LLP,

DEFENDANT AND RESPONDENT (CLAIMANT IN THE MAIN PROCEEDINGS BEFORE THE CFI)
Nokia Technologies Oy, Karakaari 7, 02610 Espoo, Finland (hereinafter "Nokia"),
represented by Tim Smentkowski, Attorney-at-law and registered representative before the Unified Patent Court, ARNOLD RUESS Rechtsanwälte PartmbB,

PATENT AT ISSUE
EP 2 661 892

PANEL AND DECIDING JUDGES:
This decision was issued by Panel 1 comprising
Klaus Grabinski, President of the Court of Appeal,
Peter Blok, legally qualified judge,
Emmanuel Gougé, judge-rapporteur and legally qualified judge.

LANGUAGE OF PROCEEDINGS:
German

IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE
□ Order of the Court of First Instance of the Unified Patent Court, Local Division Munich of 16 December 2024
□ Action no: ORD_55998/2024, ACT_584119/2023, UPC_CFI_399/2023

SUMMARY OF FACTS
1. On 16 December 2024, the Local Division Munich of the Court of First Instance, in the context of a patent infringement proceeding, rejected Amazon's application for the disclosure of unredacted versions of several documents and items of information held by Nokia.
2. By a further order (protective order) dated 19 December 2024, the Local Division Munich of the Court of First Instance designated certain passages and annexes of the Reply Part II (RAND) of 3 June 2024 as confidential, restricted access to this information for the applicants ("defendants") to a specific group of persons and issued further orders (orders 1 to 5).
3. Amazon lodged an appeal against the Order of 16 December 2024 (impugned order) pursuant to Rule 220.1 RoP (APL 67638/2024, UPC_CoA_835/2024).
4. Together with this appeal, Amazon submitted an application pursuant to Rule 262.2 RoP (App 68645/2024, UPC_CoA_835/2024) as well as an application pursuant to Rule 262A RoP (App 68644/2024, UPC_CoA_835/2024). The latter application is the subject of this procedural order.

APPLICATION OF THE APPLICANT
5. Amazon requests

I. That access to the information summarised below from the appeal and the Statement of grounds of appeal (67638/2024) be restricted - beyond the confidentiality designation requested in the application pursuant to Rule 262 RoP - pursuant to Article 58 UPCA in conjunction with Rule 262A(1) Var. 1 RoP:
- All text passages highlighted in gray and the corresponding illustrations, as well as the annexes marked “strictly confidential,” concerning information relating to the identity of the licensees and the content of the claimant's license agreements, as well as the license agreements submited by the claimant and any related information.
II. It is hereby ordered that the access-restricted information referred to in Item I must be treated as confidential by anyone who becomes aware of it through their involvement in the present proceedings (whether as a party, representative, witness, expert, court staff, or in any other capacity). This information may not be used or disclosed outside these court proceedings unless such individual has obtained knowledge of it outside the proceedings.
III. It is hereby ordered that the obligation of confidentiality pursuant to Item II shall continue to apply even after the conclusion of the court proceedings, unless the disputed information becomes otherwise known or readily accessible to persons who typically have access to such information.
IV. It is noted that, in the event of a culpable violation, the court may impose a recurring penalty payment on the obligated party for each violation and enforce it immediately.
Furthermore, the applicants argue that they are taking into account the 'Confidentiality Club' established on their side (protective order of 19 December 2024, ORD_41450/2024), which should not be weakened by the present submission, and also argue that all information contained in the appeal and the Statement of grounds of appeal that is already subject to access restrictions is likely already covered by the relevant protective orders of the Court of First Instance.

GROUNDS FOR THE ORDER
6. The applicants' applications are to be rejected.
7. The applications for confidential treatment of information are to be rejected, firstly, because the information intended to be protected under Rule 262A RoP is already covered by the confidentiality order issued by the Local Division Munich of the Court of First Instance on 19 December 2024.
8. According to the case law of the Court of Appeal, an order of the Court of First Instance that has not been challenged on appeal and that, pursuant to Rule 262A RoP, restricts access to certain information or evidence to specific persons remains in effect after the conclusion of the proceedings and thus also during the appeal proceedings, unless otherwise specified in the order (UPC Court of Appeal, Order of 28 March 2024, UPC_CoA_101/2024, APL_12137/2024 – Curio/10x Genomics).

9. Accordingly, the applicability of the confidentiality order (Orders 1 to 5) issued by the Local Division Munich of the Court of First Instance on 19 December 2024, pursuant to Rule 262A RoP, and which explicitly states that it shall also “remain in effect after the conclusion of the proceedings,” also extends to the present appeal proceedings.
10. Furthermore, the application for confidential treatment of information is to be rejected even in the event that the applications, which, according to their wording, are intended to cover “all text passages highlighted in gray [in the appeal and the statement of grounds of appeal] and the corresponding illustrations, as well as the annexes marked “strictly confidential” concerning information relating to the identity of the licensees and the content of the defendant's license agreements, as well as the license agreements submited by the defendant and any related information,” also include information that is not covered by the confidentiality protection order of the Munich Local Division of the Court of First Instance dated 19 December 2024, as such information has not been sufficiently specified in the applicants' applications.
11. In this regard, the applicants have merely stated in this respect that all information contained in the appeal and the Statement of grounds of appeal that is already subject to access restrictions, is "likely" to be covered by the protective orders of the Court of First Instance. This rather suggests that the application does not contain any information that is not covered by the confidentiality order of the Local Division Munich of the Court of First Instance and, in any case, does not specify which information might not be covered.

PROCEDURAL ORDER
The applicants' applications are rejected.

This Order was issued on 20 January 2024.