Fives ECL v REEL (CoA, 17 July 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 16 July 2026 (UPC_CoA_42/2026), in Fives ECL’s appeal against the Hamburg decision of 11 February 2026 on its damages claim (EP 1 740 740), the Court of Appeal ruled on confidentiality and language. It admitted a former employee of REEL to the confidentiality club, on condition that he first conclude with REEL a confidentiality agreement backed by a contractual penalty, and held that the unchallenged first-instance confidentiality order continues to apply on appeal. English becomes the language of the appeal, with the parties’ agreement.

Question

May a former employee of a party be admitted to the confidentiality club, and does a first-instance Rule 262A RoP order continue to apply on appeal?

Decision

A current employee’s duty of loyalty does not, after departure, extend to information received later, so the party must secure confidentiality by contract, and admission is granted on that condition (paragraphs 19 and 22). Requests concerning information already filed at first instance are inadmissible, since Rule 262A.3 RoP requires the request to accompany the filing (paragraphs 23 and 24). The remaining information is confidential and sufficiently protected (paragraphs 25 and 26). The unchallenged first-instance order applies on appeal unless new facts arise, and Fives’ request to exclude certain persons on REEL’s side is refused, REEL being responsible for compliance (paragraphs 27 to 29). The change of language is granted under Art. 50(3) UPCA (paragraphs 30 and 31) and REEL’s time limit for its response is extended by 15 working days (paragraph 32). Any culpable breach exposes REEL to a penalty payment of up to EUR 250,000.

Key points for practice

• A former employee may join the confidentiality club only once a confidentiality agreement backed by a contractual penalty has been concluded, before any disclosure (paragraph 19).
• Practical point: a Rule 262A RoP request must accompany the document concerned, it cannot be made belatedly on appeal for information already filed at first instance (paragraphs 23 and 24).

Provisions applied

Agreement on a Unified Patent Court

Arts 50(3) and 58

Rules of Procedure

Rules 9.3(a), 235.1, 262.1(b), 262.2, 262A, 354.3 and 354.4

Other provisions

TRIPS Agreement, Art. 39(2)

Case law cited

Curio Bioscience v 10x Genomics, Court of Appeal, 28 March 2024 (UPC_CoA_101/2024), Strabag v Swarco, Court of Appeal, 1 August 2025 (UPC_CoA_70/2025), Sun Patent Trust v Vivo, Court of Appeal, 26 January 2026 (UPC_CoA_755/2025)

Related decisions

• Fives ECL v REEL, 11 February 2026, Hamburg Local Division decision under appeal.

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.