EOFlow Co., Ltd v. Insulet Corporation, UPC Court of Appeal, 18 March 2026, Case no. UPC_CoA_930/2025
The Court of Appeal of the Unified Patent Court (“UPC”) recently issued an Order confirming that confidentiality cannot be assumed merely because a party asserts that material is confidential or requests restricted access under Rule 262.2 of the Rules of Procedure (“RoP”).
The Court held that trade secrets and confidential information lose their protected status once disclosed to the opposing party unless the disclosing party has obtained a Rule 262A RoP order, or an equivalent protective measure. A request under Rule 262.2 RoP does not impose restrictions on the opposing party’s use or disclosure of the information.
Legal Framework
Pursuant to Rule 262.1(b) RoP, written pleadings and evidence that have been lodged at the Court and recorded at the Registry shall be made available to the public upon a reasoned request.
Rule 262.2 RoP provides that a party may request that certain information contained in written pleadings or evidence be kept confidential, including by making documents available to the public only in redacted form. Specific reasons for seeking such confidentiality must accompany the request.
Pursuant to Rule 262A RoP, a party may apply for an order restricting or prohibiting the disclosure, collection, or use of certain information contained in its pleadings or evidence, or limiting access to that information to specifically designated persons.
Background
In its order of 30 April 2025 in proceedings for provisional measures (preliminary injunction), the Court of Appeal found that EOFlow Co., Ltd (“EOFlow”), a South Korean manufacturer of insulin pumps, had infringed Insulet Corporation’s (“Insulet”) patent and ordered EOFlow to refrain from making or offering the infringing products, inter alia in the territories of the Italian Republic and/or the Kingdom of Sweden.
In a counterclaim for infringement action brought by Insulet, the Milan Central Division ordered EOFlow to provide Insulet with complete information on the extent of EOFlow’s infringing acts since 19 June 2024. EOFlow subsequently filed applications under Rule 262.2 RoP, requesting confidential treatment for information relating to its business-contractual arrangements, invoices, packaging lists, turnover numbers, prices and e-mails from business partners. The Milan Central Division dismissed the request on the basis that most of the information had been obtained pursuant to an order of the same court and there was no evidence that the information had been kept secret through protective measures taken by the parties.
EOFlow appealed the order, while Insulet requested that the Court of Appeal reject EOFlow’s confidentiality request, save for information derived from, or directly pertaining to, its Settlement Agreement with EOFlow’s exclusive distributor.
The Court’s Decision
The Court confirmed that confidentiality is a procedural status granted by the Court and is not a default condition attached to information simply because the parties believe it to be sensitive. Once information is exchanged between parties without any restriction, it is no longer considered confidential. Rule 262A RoP provides the only mechanism within UPC proceedings to impose such restrictions.
In the present case, Insulet received the information without any restriction because EOFlow did not request a Rule 262A RoP order. The information was therefore considered to be readily accessible to the public and so could not qualify as trade secret or confidential anymore.
Key Takeaway
The decision serves as a reminder that litigants should not conflate a Rule 262.2 RoP request with a general confidentiality regime. Rule 262.2 RoP governs public access only and does not bind the opposing party’s conduct or impose confidentiality obligations between the parties. Accordingly, a Rule 262.2 RoP request cannot be used as a substitute for a Rule 262A RoP protective order.
Parties must assume that any information disclosed without a Rule 262A RoP order may lose confidentiality entirely. Practitioners should therefore seek protection under Rule 262A RoP when filing the first substantive pleadings, supported by specific and justified reasoning, and ensure that clients understand that failing to do so may permanently erode trade secret protection.
The Order can be read here.
