Who Can Keep a Secret? Mapping Trust and Trustworthiness in the UPC’s Transparency and Confidentiality Decisions

How do specialised courts such as the Unified Patent Court (UPC) navigate concerns about transparency and confidentiality, and how do these concepts affect trust in the UPC? This article offers content regarding the conceptualisation of transparency, drawn from social science literature on trust, by considering the UPC’s growing case-law concerning public access to the register [Rule 262.1(b) the UPC’s Rules of Procedure (RoP)] and the protection of confidential information (Rule 262A RoP). Building on the concepts of trust, trustworthiness and the trust-and-control relationship, and situating the UPC against the transparency cultures of the EPO and national European courts, we analyse the case-law of the UPC and construct distinct trust relationships. Our analysis presents the UPC’s emerging transparency culture as open in principle and conditioned in practice and shows the mechanisms through which the court is balancing competing interests of different types of trustors. A framework is offered as a tool for interpreting, and possibly guiding, the UPC’s future decisions.