Recently, the Unified Patent Court (UPC) issued its final ruling on the trade secret protection dispute within the patent infringement case between Ericsson and Asus: The court rejected Ericsson's request to apply the “External Eyes Only (EEO)” regime to the confidentiality agreement. Instead, it permitted each party to designate one natural person (employee) to access relevant confidential information. However, this employee is prohibited from participating in or assisting with patent licensing negotiations with the other party to the confidentiality agreement for five years following the order's enforcement. The court also imposed strict confidentiality obligations and set breach penalties in the millions of euros.
The UPC's determination primarily relied on Article 262A of the Unified Patent Court Rules and core principles of the EU Trade Secrets Directive, holding that:
Employee status alone does not justify denying access to confidential information: The court noted that barring employee access would restrict parties' right to choose litigation representatives. Employees are typically better equipped to submit arguments, review evidence, and guide agents—key to ensuring parties receive effective remedies and fair trials. Their participation interests generally outweigh confidentiality concerns.
Third-party interests must be balanced through additional measures: Regarding third-party rights under the “Confidential License Agreement,” the court acknowledged that employee access could potentially impact future negotiations. Therefore, it adopted a “license negotiation injunction” as an additional protective measure rather than directly applying the EEO regime.
Apple's additional claims are inadmissible: Under procedural rules, intervenors may only support claims already raised by a party. Apple's claims exceeding the scope of Ericsson's appeal were dismissed for failing to meet intervention requirements.
Case Background
On June 14, 2024, Ericsson filed two patent infringement lawsuits against Asus and other defendants in the Milan District Court of the Unified Patent Court, involving patents EP 2 727 342 and EP 3 076 673;
On November 29, 2024, the defendants, including ASUS, filed their answers to both infringement lawsuits while simultaneously initiating two counterclaims for patent invalidation. They also requested confidential treatment for litigation-related documents under Rules 262.2 and 262A of the Rules of Procedure of the Unified Patent Court (RoP).
On December 20, 2024, Ericsson responded to the confidentiality protection request, asking the court to apply an “External Experts Only” (EEO) regime to confidential documents submitted by both parties. This regime would permit access only to designated experts and external counsel of each party, excluding internal employees.
On April 28, 2025, the Milan Chamber of the Unified Patent Court issued a “Confidentiality Order” establishing confidentiality for confidential documents submitted by defendants including ASUS and all documents marked as confidential by either party. However, it rejected Ericsson's request for the EEO regime and dismissed Ericsson's review application against the aforementioned confidentiality order on June 20, 2025;
On September 23, 2025, Apple was granted third-party intervener status in the appeal proceedings, primarily concerning procedural disputes over the confidentiality regime and potential disclosure of documents related to licensing agreements. The court permitted intervention based on Apple's long-standing SEP licensing agreement with Ericsson, where the confidentiality and disclosure boundaries of its terms hold tangible commercial significance for Apple. Apple's intervention focuses on procedural matters and does not alter its status as a party in the underlying infringement case.
Attached: Original ruling text
