Person, Bar, Perimeter: What Comparable Licences Cost Before the UPC

A comparable licence is never only evidence of a rate. Before the Unified Patent Court, pleading one may open it to an employee of the opponent, keep that employee away from negotiations with named counterparties for years, and leave parts of the licensing narrative within reach of whoever later applies for access to the file. The case law since February 2025 gives that choice a structure: person, bar, perimeter.

The disclosure decision comes first

Confidentiality belongs to the selection of evidence, at the moment the rate case is built. Even that moment is not entirely in the licensor’s hands: production may be ordered, and a confidentiality clause does not decide who reads the agreement in court. A team that builds the rate case first and arranges protection afterwards will settle the commercial consequences under procedural deadlines, which is the worst place to settle anything.

Confidentiality has already produced more than a hundred decisions and orders within the corpus indexed by our UPC Litigation Watch (112 entries out of 2,345 decisions and orders recorded as at 23 October 2026). Within that body, a line of orders running from February 2025 has given the selection a structure. The Court of Appeal has protected the access an effective defence requires, access by employees included, and has accepted that the price of reading may be a restriction on later negotiating roles. Who reads, what reading forecloses, how far the protection reaches. None of the three is settled in advance. Each can be prepared before the agreements are pleaded. Our 2024 note on the first production orders in the Panasonic cases covers the earlier stage (Panasonic cases: clarification on the production of comparable licences before the UPC).

The test that governs access

The starting point is Article 58 of the UPC Agreement, read with R. 262A RoP. The court balances confidentiality against the right to an effective remedy and a fair trial. The confidentiality club must be no larger than necessary and must include at least one natural person from each party alongside its representatives. In Daedalus Prime v. Xiaomi (12 February 2025), the Court of Appeal admitted two US attorneys who assisted the claimant on technical matters, weighing their role in the proceedings, the relevance of the information to that role and their trustworthiness. The natural person need be neither an employee nor a representative within the meaning of Article 48 UPCA. The January 2026 appeals carried the test over to comparable licences in FRAND disputes and settled its legal basis: Article 9 of the Trade Secrets Directive does not apply directly to patent proceedings, although its principles guide the reading of R. 262A. The party proposes. The court decides what the defence actually needs.

The Milan orders in Ericsson v. ASUSTeK show why that control matters. On 28 April 2025 the judge-rapporteur refused Ericsson’s request for an external eyes only regime. The competition-law objection failed for want of concrete facts establishing a real risk, against a request that concerned a single natural person. The Court of Appeal reached the same point by its own route, finding that neither Ericsson nor Apple had shown that disclosure under the proposed safeguards would breach EU law or produce anticompetitive effects. An objection of this kind has to name the person, the information and the risk. Invoked in general terms, competition law will not displace the other side’s right to conduct its defence.

From the door to the bar

On 26 January 2026 the Court of Appeal decided the question of employee access twice, in Sun Patent Trust v. Vivo and in Ericsson v. ASUSTeK. Sun relied on comparable licences in support of its request that the court determine FRAND terms, and the Paris Local Division had admitted three Vivo employees. The Court of Appeal held that employment by a party is, as a general rule, no ground for exclusion, since an employee may be the person best placed to explain the business, review the evidence and instruct counsel. Apple’s suggestion that aggregated data would suffice failed for the same reason. A defendant entitled to test the rate case must see what the rate is built on.

The court then turned to what those readers may do once they have read. In Sun, the three Vivo employees were barred from participating in or advising on licensing negotiations with the counterparties identified in the disclosed agreements for two years from the order, save with the relevant counterparty’s consent. In Ericsson the bar ran for five years from the order, and the operative part provided for a penalty of one million euros against the party for each culpable breach. No proof is required that confidential figures found their way into a later negotiation. The cost of reading is fixed when the reader is named.

Two and five years are not a tariff. In Sun, two years was the period Sun itself requested and Vivo did not dispute. The court set the starting point at the date of the order, rejecting a clock that would have run from the end of possession or access. In Ericsson, the five years proposed by Apple were not contested as such. A party that wants a shorter bar, or a different trigger, has to propose and justify it, because silence tends to leave the field to the other side’s figure.

Designation weighs as heavily. Vivo argued that its three employees were the only people with the skills the affected negotiations required. The court answered that Vivo could have nominated fewer people and kept some of its key negotiators outside the circle. Access for the litigation and staffing for the next renewal have to be planned by the same people, at the same time.

The counterparties to the licences have interests of their own, and limited means of asserting them. In Ericsson, three counterparties would consent only to external eyes only disclosure, and their position did not determine the regime: a contractual restriction on voluntary disclosure, the court observed, left an order to produce available. The contract keeps a role. Its notice requirements survive, and liability under each NDA has to be assessed on its own terms and governing law. Who reads the agreement once it is in the file is for the court.

The width of the bar, and its timing

The English comparison points to a risk the UPC orders leave open. In InterDigital v. OnePlus, the Court of Appeal of England and Wales upheld a bar extending to SEP licensing generally, beyond negotiations with the counterparties to the disclosed licences, while the individual had access and for two years afterwards. What a licence with one counterparty reveals can be useful in a negotiation with another, for instance to estimate the aggregate royalty burden in a top-down analysis. The decision was nonetheless taken at an early stage, on limited evidence, and did not prescribe that undertaking for every case. The January orders tied the bars to specified counterparties. That scope implies no licence to use the information elsewhere. A wider bar before the UPC would need its own justification, on evidence. Nothing in the January orders says it will be refused. Nothing says it will be granted.

Timing can change the regime. In Philips v. TCL, the Hague Local Division ordered reciprocal production under R. 103 RoP and, because it was not yet clear which agreements would be relied upon, allowed external eyes only access for the time being. The distinction rests on the stage of the proceedings and gives no general entitlement to prolong secrecy by producing before pleading. In Yangtze Memory v. Micron, the Düsseldorf Local Division held in August 2026 that a waiver of access given for material a party chose to introduce does not authorise its exclusion from different evidence later introduced against it. The basis, scope and duration of any external eyes only arrangement should be written down.

Mannheim’s routine

In ZTE v. Samsung (13 January 2026), the Mannheim Local Division admitted the registered representatives acting in the UPC proceedings and in the parallel German proceedings, their assistants, three ZTE individuals and the external economic expert with his team. Admitting attorneys from the parallel cases did not authorise use of the information in those cases, and abstract FRAND questions remained open to public discussion. Six days later, in Huawei v. HMD Global, the same division adopted a standing regime for the non-public details of the parties’ negotiations, future submissions included, with confidential passages marked in grey and one week to object.

The public side of the perimeter

R. 262A governs access and use within the proceedings. R. 262.1(b) governs reasoned requests from the public for pleadings and evidence, and R. 262.2 allows a party to withhold specified confidential information, with reasons and redacted copies. In Huawei v. TP-Link (17 February 2026), the Court of Appeal held that once proceedings are concluded the balance generally favours access, and left open whether an R. 262.2 request must accompany the original filing. In Huawei v. Quinn Emanuel (29 June 2026), what protected Huawei was the identification of the confidential passages, whoever the applicant happened to be. A pleading can disclose a rate or reconstruct a negotiation while the underlying licence remains protected, so the narrative, the tables and the exhibits have to be reviewed together.

The two boundaries also last for different periods. In Amazon v. Nokia, the Court of Appeal held that an unchallenged confidentiality order made at first instance continued through the appeal and after the proceedings. When a two-year negotiating restriction ends, its former subject is not thereby free to deploy what he read. Lawful access before the UPC carries no permission to use the same material in a London rate case or a German action.

The map

The person. Identify who can explain the commercial evidence and instruct the litigation team, then set that name against the negotiating responsibilities the person actually holds, upcoming renewals included. The court will assess necessity and trustworthiness. The business has to assess what its nomination will cost it.

The bar. Propose its scope, duration, starting point and any consent exception, and support them with evidence instead of borrowing two or five years from another case. The bar and the continuing obligation not to use the information are distinct provisions, to be drafted as such.

The perimeter. Specify the authorised readers, the permitted uses, the proceedings concerned, settlement discussions, future submissions and the handling of information at hearings and in decisions. Public versions under R. 262.2 are a separate exercise.

The same map should be run across the licences already signed, against the governing clause and law, the notice process and any side letters. Take a recipient whose proposed reader also leads next year’s renewal with one of the disclosed counterparties. Identified before nomination, the overlap leaves options. Discovered after access, it leaves only the cost of reorganising the negotiation. The person and the bar should be settled before the comparables are chosen, and the comparables before the court. More on FRAND rates and comparable licences in our glossary, and on each confidentiality order in our UPC Litigation Watch.

Dhenne Avocats advises licensors and licensees on preparing these confidentiality regimes, before the UPC and in parallel FRAND proceedings. Contact the firm.

This article is an adaptation of an analysis by Matthieu Dhenne originally published on Kluwer Patent Blog on 6 October 2026: Person, Bar, Perimeter: What Comparable Licences Cost Before the UPC.