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

The disclosure decision comes first

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. Confidentiality therefore 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.1A 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 indexed corpus of roughly 2,250 UPC decisions and orders recorded since June 2023.2 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: person, bar, perimeter. None of the three is settled in advance. Each can be prepared before the agreements are pleaded.

The test that governs access

The starting point is Article 58 UPCA, read with R. 262A RoP. The court balances confidentiality against the right to an effective remedy and a fair trial. The circle of readers 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, 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.3The 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, and the panel later dismissed the request for review. The competition-law objection failed for want of concrete facts establishing a real risk, against a request that concerned a single natural person.4The 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.5An 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: the designated persons had to be able to examine, and if need be challenge, the material underlying any aggregate.6A 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, the reasons reserving an adjustment for reasonableness and proportionality.7No 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. Both orders still examined proportionality. 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 and experience the affected negotiations required. The court answered that Vivo could have nominated fewer people and kept some of its key negotiators outside the circle. In Ericsson, the designated employee’s statement that he took no part in outbound licensing supported the proportionality of the bar. Access for the litigation and staffing for the next renewal have to be planned by the same people, at the same time.

The operative part of Sun repays close reading. The authorised legal team includes the internal support staff working on the case, bound by the order under the responsibility of the named representative. The information may be used in settlement discussions between the parties about those proceedings, as the parties had agreed. A separate penalty-payment liability for the UPC representative was refused, which leaves intact the representative’s professional obligations and the risk of exclusion under R. 291 RoP. Each of these points has to be written into the draft order. None can be presumed from what a confidentiality club usually allows.

The counterparties to the licences have interests of their own, and limited means of asserting them. Apple intervened in support of the disclosing parties but could not enlarge the appeals with further requests on matters such as the residence of readers or virtual data rooms. 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, liability under each NDA has to be assessed on its own terms and governing law, and the disclosure clause may still decide how the agreement reaches the file. Who reads it once it is there 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. It applied while the individual had access and for two years afterwards, with an exception for settlement discussions relating to FRAND litigation. The reasoning will be familiar to anyone who has priced a licensing programme: 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, within a staged confidentiality regime and on limited evidence about the receiving organisation, and the court did not prescribe that undertaking for every case.8Its value lies in identifying the harm a wider restriction would have to address.

The January orders tied the bars to specified counterparties. That scope implies no licence to use the information elsewhere, since the separate restriction on use outside the proceedings continues to apply. A wider bar before the UPC would need its own justification: why the restriction on use and a targeted bar fall short, and why the additional burden is proportionate. Nothing in the January orders says such a bar will be refused. Nothing says it will be granted. The argument remains to be made, on evidence.

Timing can change the regime. In Philips v. TCL, the Hague Local Division ordered reciprocal production under R. 103 RoP, including Philips’ cellular SEP agreements with handset manufacturers; Philips had agreed to disclose subject to an order, and TCL did not oppose reciprocal disclosure within the specified standards. Because it was not yet clear which agreements would be relevant or relied upon, the judge-rapporteur allowed external eyes only access for the time being. The remarks on two TCL employees and a two-year bar looked ahead to a possible amendment and granted no employee access.9The distinction rests on the stage of the proceedings, drawn at first instance, and gives no general entitlement to prolong secrecy by producing before pleading. Consent is a separate route. In Yangtze Memory v. Micron, the Düsseldorf Local Division held in August 2026 that a party may waive its own access under R. 262A.6 RoP, but that a waiver given for material it chose to introduce does not authorise its exclusion from different evidence later introduced against it; competition between the parties, the order adds, cannot by itself justify an attorneys eyes only regime.10The basis, scope and duration of any external eyes only arrangement should therefore be written down.

Mannheim’s routine

The local divisions have turned these principles into working arrangements. Of the hundred or so indexed orders on R. 262A applications, seventeen arise in SEP and FRAND cases and nine come from the Court of Appeal.11 In ZTE v. Samsung, Samsung sought to produce its own third-party licence to answer ZTE’s reliance on a published headline rate. The Mannheim Local Division admitted the registered UPC representatives acting in the UPC proceedings and in the parallel German proceedings, their assistants, three ZTE individuals, and the external economic expert with his internal team. Internal consultation and cover for absences justified more than one client reader. Admitting lawyers from the parallel cases did not authorise use of the information in those cases, and abstract FRAND questions remained open to public discussion while the specific confidential information was protected. Production was ordered at Samsung’s request, subject to its right to withdraw that request by a set deadline.12Readers, permitted use and the route to production were each dealt with on their own terms.

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. Confidential passages were to be marked in grey, and the receiving party had one week to object. Access extended to the representatives and to employees or advisers with a need to know, bound on terms no less strict than the parties’ NDA, while either party could seek stronger protection for particular material, third-party licences among them.13The model is practical. The parties agree early on how recurring negotiation evidence will be handled, and treat the comparables at the level of sensitivity they actually carry. A standing order spares repeated applications, though the information still has to be identified and the marking rules followed.

The public side of the perimeter

The perimeter has a second boundary, facing the public. 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. Those redactions may themselves be challenged under R. 262.3 to 262.6, and hearings and published decisions raise questions of their own. A confidentiality application closes one route among several. Requests for access to the file are no longer occasional: some sixty indexed decisions and orders have dealt with them under R. 262.1(b), eleven of them in the Court of Appeal.14

In Huawei v. TP-Link, the applicant sought the pleadings of concluded proceedings between Huawei and Netgear concerning a patent also asserted against TP-Link. On 17 February 2026 the Court of Appeal dismissed Huawei’s appeal. Once proceedings are concluded, the balance generally favours access, subject to confidentiality, personal data and the interests the request engages. Huawei had provided neither specific reasons nor the redacted copies the rule requires. The court expressly allowed that a party heard on the access application may file a compliant R. 262.2 request at that stage, and left open whether such a request must accompany the original filing.15Redacting at the time of filing remains the prudent course. The order stops short of making it a condition.

Huawei v. Quinn Emanuel separates the identity of the applicant from the content of the file. A law firm’s interest in understanding how parties and the court conduct proceedings was enough to justify access to pleadings from the terminated proceedings between Huawei and MediaTek. The court rejected an allegation of intelligence gathering that had not been substantiated and upheld access to redacted documents. Some redactions dated from the infringement proceedings; others, proposed by MediaTek during the access proceedings, were accepted as well. No further undertaking was needed to protect proceedings that had ended. On procedure, the court confirmed review by the panel under R. 333 RoP, followed by the appeal framework of R. 220.2 and 220.3.16What protected Huawei was the identification of the confidential passages, whoever the applicant happened to be.

For a licensing team, the exposure reaches beyond the agreements. A pleading can disclose a rate, explain a discount or reconstruct a negotiation while the underlying licence remains protected, so the narrative, the tables and the exhibits have to be reviewed together. A reasoned R. 262.2 request with suitable redactions is best filed early and revisited whenever new material goes in or someone asks for access. The end of the case makes such requests easier to win, though the file still opens only on application.

Time, and the questions left open

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, and refused additional protection that did not identify with sufficient precision what fell outside the existing order.17The expiry of a licensing bar must be kept apart from the duration of confidentiality and of the restriction on use. When a two-year negotiating restriction ends, its former subject is not thereby free to deploy what he read. The operative wording has to be checked at each stage.

Parallel litigation makes that check harder. In Ericsson, the Court of Appeal refused to let a foreign protective regime determine access before the UPC, on facts that included the absence of any reliance on documents available only under the US order.18The UPC orders reviewed here, for their part, restrict use outside the designated proceedings, so lawful access before the UPC carries no permission to use the same material in a London rate case or a German action. Any transfer requires every applicable order to be checked and, where necessary, consent or judicial clarification. A change of employer, a replacement reader and overlapping undertakings should be provided for expressly, in the order itself. The questions the case law leaves open are questions of implementation, and none of them amounts to a freedom to reuse.

The map: person, bar, perimeter

The orders yield a working map for every agreement a party may rely on, usable by the party disclosing a licence as much as by the party asked to receive one.

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, advisory roles and upcoming renewals included, which an organisation chart rarely shows. Fewer readers, or a suitable external person, may preserve effective participation at a lower operational cost. 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 the risk and the burden with evidence instead of borrowing two or five years from another case. The recipient should list the negotiations that would have to be reassigned; the discloser should identify the counterparties and the information that need protection. 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. Experts and support staff should be written into the regime by name. Public versions under R. 262.2 are a separate exercise. A legal team working before several courts needs a record of which source permits which use, because membership of one circle confers nothing in another.

The stock you already hold

The same map should be run across the licences already signed. Confidentiality clauses may require notice, consent or a production order, and amendments or side letters may contain terms that change the apparent comparison. In Philips v. TCL, production extended to every agreement within the specified category of cellular SEP licences with handset manufacturers, together with related documents. The breadth of that order has to be read alongside the parties’ own positions on disclosure, and it does not mean that every licensor must produce its entire licence book in every FRAND case.

Before any proceedings, identify for each potentially comparable agreement the governing clause and law, the notice process, and the documents needed to understand it. Weigh its commercial exposure against its evidential value, most-favoured-licensee provisions included where they exist.19 The purpose is a defensible position on production. Selecting only favourable agreements, or withholding material the court requires, would defeat it, and the strongest rate argument may well rest on the agreement whose disclosure needs the most planning.

Take a recipient whose proposed reader also leads next year’s renewal with one of the disclosed counterparties. A two-year bar would require another negotiator or the counterparty’s consent. Identified before nomination, the overlap leaves options. Discovered after access, it leaves only the cost of reorganising the negotiation.

Sequence, restated

The comparables a party relies on shape the rate it can defend, and the regime under which they are disclosed shapes what defending it costs. I have argued in these columns that the FRAND undertaking has to be understood before its performance is reduced to a number.20Confidentiality adds a procedural question to that sequence: who may test the evidence, and on what terms. The Munich guidelines discussed in my previous piece concern a national court, yet they too turn on the comparables selected.21By the time a licence becomes an exhibit, the cost of exposing it should already have been weighed against what it proves. The person and the bar should be settled before the comparables are chosen, and the comparables before the court.

• 1UPC Court of Appeal, 26 January 2026, UPC_CoA_631/2025 and 632/2025, Ericsson v. ASUSTeK, paras 31 and 32. See also Art. 58 UPCA and R. 262A.3 RoP on protection and the timing of the application.
• 2

  For the indexed corpus and its coverage, see the statistical overview (2,302 decisions and orders recorded as at 5 October 2026) and the confidentiality selection (107 entries when checked on 5 October 2026).

• 3UPC Court of Appeal, 12 February 2025, UPC_CoA_621/2024 (APL_58177/2024), Daedalus Prime v. Xiaomi, paras 12 to 18; Ericsson v. ASUSTeK (Court of Appeal), n. 1 above, paras 14 to 21; Art. 58 UPCA; R. 262A.5 and 262A.6 RoP.
• 4UPC CFI, Milan Local Division, 28 April 2025, UPC_CFI_318/2024 and 730/2024, ORD_20073/2025 (App_5416/2025), Ericsson v. ASUSTeK, pp. 5 to 7. The dismissal of the request for panel review on 20 June 2025 is recorded in the Court of Appeal’s order of 26 January 2026, n. 1 above, paras 5 and 6.
• 5Ericsson v. ASUSTeK (Court of Appeal), n. 1 above, para. 24.
• 6UPC Court of Appeal, 26 January 2026, UPC_CoA_755/2025, 757/2025, 791/2025 and 793/2025, Sun Patent Trust v. Vivo, paras 2 to 4 and 21 to 33; on the licensing bar, paras 34 to 39; on settlement and the legal team, paras 40 to 47; on representatives and penalties, paras 48 to 51; and operative part.
• 7Ericsson v. ASUSTeK (Court of Appeal), n. 1 above, paras 28 to 35 and operative part, points III to VIII; Sun Patent Trust v. Vivo, n. 6 above, paras 34 to 39 and 48 to 51, and operative part, points I(ii) and II(iii).
• 8Court of Appeal (England and Wales), 17 February 2023, InterDigital Technology Corporation v. OnePlus Technology (Shenzhen) Co., [2023] EWCA Civ 166, paras 7 to 11, 20 and 23 to 30; the wide undertaking and its settlement exception appear at paras 9 and 10.
• 9UPC CFI, The Hague Local Division, 9 April 2026, UPC_CFI_1079/2025 and 1080/2025, Philips v. TCL, paras 3.4.1 to 3.4.3 and operative part, 3.5.9 to 3.5.11. Para. 3.4.3 concerns a possible later amendment and grants no employee access.
• 10UPC CFI, Düsseldorf Local Division, 17 August 2026, UPC_CFI_1034/2025 and UPC_CFI_931/2026, Yangtze Memory v. Micron, order of the judge-rapporteur, paras 16 to 21. The order concerns technical information and is cited for its distinction between a party’s own waiver and an exclusion imposed on that party.
• 11The indexed selections can be checked by combining R. 262A with SEP/FRAND (17 documents) or R. 262A with the Court of Appeal (9 documents), as checked on 5 October 2026. The counts depend on the recorded procedural labels; relevant rulings may be indexed under another type.
• 12UPC CFI, Mannheim Local Division, 13 January 2026, UPC_CFI_850/2024, ZTE v. Samsung, reasons 3 and 4 and operative part, points IV to VII.
• 13UPC CFI, Mannheim Local Division, 19 January 2026, UPC_CFI_481/2025, Huawei v. HMD Global, reasons 1 to 3 and operative part, points I to IV.
• 14For verification, see the indexed selections for R. 262.1(b) (58 documents) and appeal proceedings under that label (11 documents), as checked on 5 October 2026. These count documents under the selected label, not distinct disputes or every ruling addressing public access.
• 15UPC Court of Appeal, 17 February 2026, UPC_CoA_926/2025 and 927/2025, Huawei v. TP-Link, paras 14 to 19 and 21 to 24, in particular para. 17 on R. 262.3 RoP and para. 19 on requests made in the access proceedings.
• 16UPC Court of Appeal, 29 June 2026, UPC_CoA_53/2026, Huawei v. Quinn Emanuel, paras 31 to 33 and 35 to 46, in particular para. 45 on the additional redactions made during the access proceedings.
• 17UPC Court of Appeal, 20 January 2025, UPC_CoA_835/2024, ORD_68818/2024 (App_68644/2024), Amazon v. Nokia, paras 7 to 11; on the identification of the material, paras 10 and 11.
• 18Ericsson v. ASUSTeK (Court of Appeal), n. 1 above, para. 31.
• 19For a criterion-by-criterion check of the agreements and missing information, see the comparability grid for licences relied upon.
• 20M. Dhenne, “FRAND Is Not a Number: The Prior Question About Standard-Essential Patents”, Kluwer Patent Blog, 28 May 2026.
• 21M. Dhenne, “Munich’s FRAND Guidelines: A Compass Drawn Too Finely”, Kluwer Patent Blog, 1 October 2026.