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Protection of secrets

before

Court.

13. November 2025

from

Clemens Pfitzer

When may companies place sensitive information under special protection in court proceedings – and where does the protection of secrets end in court? And when and how must trade secret protection be applied for in court?

Patent dispute over paper towel dispenser

A manufacturer of paper towel dispensers was faced with a patent infringement suit. The patent holder relied on the European patent EP 2 313 243, which protects a specific dispenser housing.

After a lengthy legal dispute between the instances, the Düsseldorf Higher Regional Court ordered the defendant company to cease and desist, provide information, render accounts, recall and pay damages. However, the company only wanted to hand over the information and calculations to be provided in accordance with the ruling under special confidentiality measures – for example, with limited inspection rights or locked data rooms. However, the court rejected the application.

When the company tried to challenge the decision at the Federal Court of Justice, it was finally rejected. The judges in Karlsruhe decided on 13.10.2025 – Ref. X ZR 106/24 that the Federal Court of Justice cannot review the rejection of an application for secrecy protection that was only filed in the second instance.

Background: Protection of secrets in patent proceedings

In patent disputes , disclosure and accounting are regularly sensitive issues. The losing manufacturer must disclose detailed information about suppliers, customers, sales volumes and profits to the opposing party, i.e. data that is often among the most sensitive trade secrets. Since the Trade Secrets Act came into force, courts have had the option of restricting access to such data, for example by only allowing authorized persons to view it or by keeping it in protected data rooms. However, the prerequisite is that the party concerned must explain specifically and in good time why certain information is confidential and what protective measures appear necessary.

This is precisely where the company failed in the present case. It had only filed the application for special confidentiality measures during the appeal proceedings, i.e. late in the course of the trial, after comprehensive disclosure had already been ordered at first instance. The Düsseldorf Higher Regional Court rejected the application and considered the orders already issued to be sufficient.

The decision of the Federal Court of Justice

The Federal Court of Justice confirmed this view and clarified that the rejection of an application for the protection of secrets that was only filed at second instance cannot be challenged in the context of an appeal against denial of leave to appeal. This means that the Federal Court of Justice no longer carries out any substantive review at this stage. The decision of the Court of Appeal therefore remains final.

Significance for practice

The decision makes it clear that anyone wishing to protect trade secrets must file the corresponding confidentiality applications in a timely and precisely substantiated manner at first instance and not for the first time on appeal. It is not enough to simply refer to “sensitive company data”. What is needed is a clear description of what information is affected, how it is protected within the company and what economic value it has. Only if the court can understand the need for protection will it order special measures.

Conclusion

The protection of secrets in the process is not a tactical afterthought in an appeal that is only used after the first instance has been lost. Rather, secrecy protection is part of the early litigation strategy.

Anyone who runs the risk of having to disclose confidential information should prepare for this in good time and submit appropriate, well-founded applications in good time during the proceedings.

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