Smith & Nephew Plc v Convatec Technologies Inc & Anor

Confidentiality orders in patent proceedings must reconcile the protection of commercially valuable secret information with the fundamental principle of open justice. A court may restrict public access to documents or hold part of a trial in private only where this is strictly necessary to achieve justice, and the degree of privacy is kept to a minimum. The value and secrecy of the information must be assessed in the context of its role in the proceedings. General assertions of confidentiality are insufficient. Specific evidence is required to show why disclosure would reveal commercially valuable secret information or cause real commercial harm. Technical manufacturing information and commercial strategy may justify protection, but documents merely recording dealings with regulatory authorities will not necessarily do so.

The proceedings concerned alleged infringement of a patent relating to silverised wound dressings. During the patent trial, the claimant and third parties disclosed detailed information about the manufacture and development of their Durafiber Ag product under a confidentiality scheme. The court also made an interim order under CPR r31.22(2), and parts of the trial were heard in private.

After judgment on liability and relief, the claimant sought permanent orders restricting the use or public access of specified documents. The central issues were whether the evidence established that the documents contained sufficiently valuable and secret information, and whether documents concerning regulatory approval should receive the same protection as technical manufacturing information and commercial strategy.

1. Open justice and confidentiality. The court held that privacy at trial and restrictions under CPR r31.22(2) are exceptional measures. Commercially valuable secret information may justify them, but material used at trial should remain confidential only where justice would not otherwise be done. Any privacy must be strictly necessary and kept to the minimum required. The assessment depends on the nature, secrecy and commercial value of the information, considered in light of its role in the proceedings.
2. Evidence required. Bare assertions of confidentiality do not suffice. The party seeking a permanent order must provide sufficiently specific evidence identifying the information and explaining why disclosure would reveal valuable know-how or cause commercial harm. The later witness evidence in this case met that requirement for documents concerning manufacturing processes and equipment and commercial strategy.
3. Application to the documents. The court made permanent orders for the documents which contained manufacturing or process information, development-testing information, or commercial strategy. The fact that some documents had played a crucial role at trial did not prevent protection where the judgment could be understood without disclosing the information.
4. Regulatory material. Documents merely recording dealings with regulatory authorities were treated differently. Although they reflected accumulated experience, the evidence did not establish that their disclosure would reveal commercially valuable know-how or cause damage. Those documents were therefore excluded from the permanent order, save where they also contained manufacturing, testing or commercial-strategy information.
5. Transcript. The judge provisionally considered that the transcript of part of a private cross-examination should be treated as a public hearing because it did not appear to disclose information requiring continued confidentiality, subject to further submissions.

High Court (Patents Court): Following a patent trial and judgment handed down on 12 December 2013, the court determined the claimant’s application for permanent confidentiality orders at a hearing on 17 January 2014. Orders were made for specified documents, while other regulatory documents were excluded.