Case Law
Article 58: Protection of confidential information

Court of First Instance - Munich (DE) Central Division - Section, Order dated 17/11/2023, ASTELLAS INSTITUTE FOR REGENERATIVE MEDICINE v HELIOS K.K, OSAKA UNIVERSITY (UPC_CFI_80/2023, ORD_584830/2023)
Example of decision on a request for protection of secrecy and restricted access: “In the Court´s view, it is not necessary for the Defendants to have unrestricted access to the Confidential Annex in order to meet the objective of understanding Claimant´s legal position. Claimant is asking for a confidentiality order in relation to a specific document, whereas its legal position is set out in detail in its pleadings which have not been marked as confidential by the Claimant. The interests of the Claimant in keeping confidential the commercially sensitive information embodied in the Confidential Annex in any event outweigh the interests of the Defendants in having unrestricted access. Access shall therefore be restricted to specific natural persons. As to how many (and which) persons should have access, in accordance with Rule 262A.6 RoP, the number of persons 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.”

Court of First Instance - Hamburg (DE) Local Division - Section, Order dated 03/11/2023, Avago Technologies International Sales Pte. Limited vs. Tesla Manufacturing Brandenburg SE/Tesla Germany GmbH (Case number UPC_CFI_54/2023, ORD_577703/2023)
Example of decision recognizing or ruling out trade secrets: “The defendants can successfully argue that the information on the technical implementation of the challenged embodiment (statement of defence under C. IV. 3 c] and Annex B 2) is a trade secret with the certainty required for a confidentiality application under R. 262A of the Brussels Convention. The existence of a trade secret does not have to be established to the court’s satisfaction, but it is sufficient if this is predominantly probable, as shown by the wording in Art. 9 (1) and (2) (a) of Directive (EU) 2016/943, which alternatively refers to "alleged trade secrets". Art. 58 UPCA also refers to the possibility of ordering protective measures "for the protection of trade secrets, personal data or other confidential information of a party to the proceedings" and thus provides an extended scope of protectable information.
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The defendants can also successfully argue that the information regarding the purchase prices of individual chips (all highlighted in grey, there in particular sub D.I.2.a)(4)) is a trade secret with the certainty required for a confidentiality request under R. 262A of the German Constitution. Insofar as the plaintiff asserts that the costs of a [...] chip are not a secret in the market, this does not go to the heart of the confidentiality application.
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In this respect, a distinction must also be made between applications under R. 262.2 of the Code of Procedure on the one hand and R. 262A of the Code of Procedure on the other, in that an application for confidentiality under R.262A concerns confidentiality vis-à-vis the party to the proceedings, while applications under R. 262.2 concern confidentiality vis-à-vis third parties not involved in the proceedings. The defendants are at liberty to assert the confidentiality of this information in the event of a request for access to the file. With regard to the plaintiff itself, this is not appropriate due to the knowledge already acquired by the plaintiff itself.”