Observations on the decision of the Court of Appeal (Luxembourg), 18 March 2026, EOFlow v. Insulet (UPC_CoA_930/2025)
The functioning of the Unified Patent Court (UPC) continues to become more refined through case law that now favours procedural certainty over subjective fairness. In a recent judgment delivered on 18 March 2026, the Luxembourg Court of Appeal provided fundamental clarification regarding the protection of trade secrets and the conditions governing the implementation of confidentiality measures during the evidentiary phase.
The case opposed EOFlow and Insulet in the context of a cross-border dispute relating to medical devices. Following an order by the Milan Local Division requiring the production of strategic accounting documents, EOFlow transmitted the requested materials to the opposing party. It was only at a later stage that the appellant applied to the Court for a restriction measure aimed at limiting the use of that information to the sole purposes of the pending litigation, arguing that there was an implicit procedural limitation inherent in any measure for the taking of evidence.
The question before the Court of Appeal was whether, in the absence of a prior express request, documents disclosed pursuant to a judicial order benefited automatically from protection against extra-procedural use.
In reasoning free from any ambiguity, the Court of Appeal rejected that approach. It stated that there is no provision in the UPC Rules of Procedure providing for an implied restriction on the use of disclosed evidence. The Court emphasised that the UPC system rests on a balance between the claimant’s right to information and the protection of the defendant’s trade secrets, a balance which must imperatively be organised by the judge, upon a party’s request, in accordance with Rules 262 and 262a.
The late nature of the request had serious consequences. The Court held that, once disclosure has taken place without reservation and without any concomitant request for protection, the confidential nature of the information gives way to the principle of free use by the receiving party. This judgment therefore establishes a form of irreversibility in the case of unprotected disclosure. The Court refused to endorse the theory of an implied duty of confidentiality, often invoked in other common law systems, preferring instead a strict and predictable reading of European patent law.
This decision sounds as a warning to practitioners. It requires increased vigilance from the stage of interim measures or document production onwards. It confirms that the UPC is a court of speed and precision, where a party’s silence regarding its strategic interests is interpreted as a waiver. From now on, placing information under seal or restricting access to a circle of experts cannot serve as a remedial solution, but must instead constitute the indispensable prerequisite to any disclosure of sensitive data.
By refusing to remedy the parties’ strategic failings through automatic protection mechanisms, the Court of Appeal strengthens the predictability of European litigation, while placing greater responsibility on companies in the management of confidential information.
April 2026
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