UPC: Take proactive steps to protect your confidential information and trade secrets

Background

Insulet filed provisional measures against EOFlow for the infringement of a unitary patent on a patch insulin pump. The UPC Milan Central Division rejected the claim. On April 30, 2025, the UPC Court of Appeal reversed the decision and granted a preliminary injunction against EOFlow. Subsequently, on July 22, 2025 the UPC Milan Central Division adjudicated on the merits, and ordered EOFlow to provide Insulet with complete information on the extent of infringement since June 19, 2024.

On December 4, 2025, the UPC Milan Central Division imposed penalty payments in the amount of EUR 150,000 on EOFlow for non-compliance with the preliminary injunction and dismissed EOFlow’s request for the protection of confidential information.

The UPC Court of Appeal order dated March 18, 2026 relates to the Milan Central Division order dated December 4, 2025. The UPC Court of Appeal had to decide whether EOFlow was entitled to the protection of the business information it had submitted in the proceedings and information it had provided in compliance with the Milan Central Division order dated July 22, 2025 as well as the information relating to Insulet’s settlement agreement with Menarini.

Decision

Legal framework

In the assessment of the applicable framework, the UPC Court of Appeal recognised the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) as a source of law for UPC decisions by virtue of Art. 24(1)(d) UPCA, notwithstanding that TRIPS does not have direct effect under EU law. According to Article 39.2 of TRIPS, a trade secret is information that:

• is not generally known
• has commercial value due to its secrecy and
• has been subject to reasonable steps to keep it secret.

There is no harmonised European legislation on access to public documents. Directive 2016/943 on the protection of trade secrets protection is limited to protection against unlawful use, disclosure, or acquisition but does not govern the use of trade secrets in other types of proceedings.

The UPC Court of Appeal considered that RoP 262.2 and RoP 262.A were applicable in this case. It is critical to understand the distinction between these two provisions:

• RoP.262.2 allows a party to request that certain information in written pleadings or evidence is kept confidential. It does not, however, restrict the opposing party’s use of such information vis-à-vis the public.
• RoP.262.2A allows a party to file an application requesting that certain information contained in its pleadings, as well as the collection or use of evidence in the proceedings, is restricted or prohibited, or that access to such information or evidence is restricted to specific persons. This is the only mechanism by which a party can restrict the opposing party’s use of confidential information.

Information in scope

The UPC Court of Appeal applied its earlier reasoning on a similar matter in the Strabag/Swarco case, confirmed in a previous order dated January 29, 2026 between Insulet and EOFlow: a RoP 262.2 request does not automatically protect the applicant against the disclosure of concerned information by the opposing party. A request under RoP 262A is required to get an order for the protection of confidential information. 

• Information submitted in compliance with the court of Appeal’s order: without restriction, there is no limitation on the use of the information disclosed to the opposing party. Such information is no longer confidential or a trade secret.
• Information submitted in the proceedings: a request under RoP 262.2 does not automatically protect the disclosing party against the disclosure of the information by the opposing party. The disclosing party must file a confidentiality request under RoP 262A and the UPC must issue a R.262.2A order for information to be protected. As EOFlow did not apply for a R.262.2A order and stated it was not necessary, Insulet received the information without restriction.
• Settlement agreement: the UPC Court of Appeal distinguished between information relating to the settlement agreement that had already been disclosed in proceedings and the settlement agreement itself. As the settlement agreement had not been fully disclosed to the UPC Court of Appeal, it retained its confidential nature, contrary to information relating to the (content of) the settlement agreement.

As EOFlow did not restrict the information it had communicated and it did not consider it necessary to request a RoP 262.2A order, the UPC Court of Appeal considered the information was no longer confidential or a trade secret and dismissed the appeal.

Key takeaways

Act early: if you intend to submit confidential information in your pleadings or evidence, or in compliance with a court order or decision, apply for a protective order under RoP 262.A at the time the information is disclosed or lodged in proceedings. A RoP 262.2 request alone is not sufficient to prevent the opposing party from using or disclosing the information.

Act proactively: information provided without restriction to the opposing party loses its confidentiality. This applies to information submitted in pleadings and evidence as well as to information provided in compliance with a court order or decision. The communication of confidential information or trade secrets should be redacted or communicated with prior confidentiality commitment from the other party. For a request under RoP 262A, the UPC should receive both an unredacted and redacted version of relevant information.