UPC Weekly brings you timely, thoughtful and joined-up insight into the evolving landscape of patent litigation at the Unified Patent Court.
2026 Week 28
UPC evidence is back in the spotlight this week, and specifically how and when to prise evidence from your opposing party in the absence of general discovery obligations on each side. All three cases mentioned below have featured, for different reasons, in previous UPC Weekly articles, and now we are back for more from them.
More evidence, please
An early stage of the Establishment Labs v. GC Aesthetics case was the focus of UPC Weekly 2026 w18, the Brussels LD ordering the patentee (claimant) to provide a slew of physical and documentary evidence, this being requested by the defendant to try to prove public prior use. The court’s order was cleverly structured, allowing the claimant the opportunity to sidestep the need to provide different categories of evidence by making targeted admissions.
In Establishment Labs v. GC Aesthetics (UPC LD Brussels, 26 June 2026), the case had moved on. The patentee had supplied the material that it considered complied with part I of the evidence production order, which was the most wide-ranging.
The defendants then filed a further application under R. 190 RoP, seeking disclosure of further evidence from the claimant. This was apparently related to parallel UK patent litigation, in which there was an order for specific disclosure agreed between the parties. The evidence sought was along similar lines to the original request, relating to physical samples and various documents and testing data. The court agreed that further specific testing data, if in existence, should be provided, but not a further physical sample.
In their original order, the LD set out a four step test to assess whether a R. 190 RoP application should be granted. In this more recent order, the LD further elaborated on this with further sub-conditions. The formatting of the conditions is a work of art in itself. However, we are not reproducing them here because it seems likely that the four stage test set out by the CoA (see below) will be used in preference in subsequent first instance proceedings.
Overall, the outcome of this case is that, even at an early stage in the proceedings, the court is willing to order the production of evidence that is adequately specified (even if voluminous) and directly relevant to the facts that a party seeks to prove.
Court of Appeal sets out the framework for evidence production requests
A previous order from the CoA on the dispute Polytechnik v. Dall was merely concerned with whether the appeal should have suspensive effect (no) but also set out some general discussion of the need for and intended workings of an order for producing evidence under R190 RoP.
In Polytechnik v. Dall (UPC CoA, 29 June 2026), the CoA returned to the case to decide on the appeal against the Copenhagen LD’s decision to grant the evidence production order. The LD had ordered the defendant to provide details of a gasification and combustion furnace, in the light of their dispute of the patentee’s assertions of infringement based on public information about the furnace contained in a brochure. The evidence produced was to be the subject of confidentiality restrictions between the parties.
In the appeal, the defendant argued that the evidence production order was not proportionate because the scope of the evidence ordered to be produced was too-wide ranging and some of it would not be relevant to the issues of the case.
Following from its explanations in the previous appeal order, the CoA further explained that a R.190 evidence production order:
… serves to safeguard the principle of equality of arms. It does not merely regulate a procedural power but contributes to rebalancing the position of the parties within the proceedings. The possibility of obtaining the production of evidence held by the opposing party is essential to ensure the effective enforcement of substantive law, in particular in the field of patent law.
…
This mechanism does not alter the allocation of the burden of proof, which remains governed by the applicable substantive law, but facilitates its discharge by granting access to evidentiary material otherwise unavailable to the party bearing that burden.
Patent attorneys and patent litigators love a structured test and the CoA duly obliged by setting out four cumulative constraints on the UPC’s power to order evidence production:
First, such measures may be granted only on the basis of specific and substantiated allegations and cannot serve exploratory or speculative purposes. R. 190 RoP does not permit fishing expeditions but requires a concrete link between the requested measure and the facts relied upon by the requesting party. This reflects the structured nature of the UPC system, which does not provide for general disclosure or discovery, but only for targeted and justified access to specific evidence.
Secondly, the requested evidence must be strictly necessary (id est, relevant) to the issues in dispute. The taking of evidence serves the adjudication of the case and must not give rise to unnecessary procedural dispersion or delay; accordingly, only those evidentiary measures that are genuinely necessary for the resolution of the dispute should be ordered. In this context, the Court exercises an active role in the management of the proceedings, ensuring that evidentiary measures are limited to what is necessary for the proper resolution of the dispute.
Thirdly, the requested measure must be proportionate, in the double sense that the evidence cannot reasonably be obtained by the requesting party through less burdensome means and that the burden imposed on the responding party be justified in the light of the interests at stake.
Finally, the Court must ensure a fair balance between competing rights, including the protection of confidential information, trade secrets and personal data. In that regard, the CJEU has held that the instruments provided for by Directive 2004/48/EC must not be used abusively and must remain subject to safeguards ensuring that they are justified, proportionate and non-abusive (see CJEU 17 June 2021, C‑597/19, Mircom).
In this case, the CoA agreed with the LD that it was right for the defendant to be ordered to produce evidence. However, the CoA considered that the scope of the evidence that had been ordered was more than what was strictly necessary and proportionate for the proof of the specific contested facts. Some of the evidence was narrowly specified but was not necessary in the dispute. Other parts of the order were formulated too broadly. Therefore the LD’s order went too far in view of the second and third legs of the CoA test.
The CoA also considered that it is not necessary for a piece of requested evidence to amount to a smoking gun for a particular asserted fact in order for it to be relevant enough to be disclosed. It may assist, cumulatively or indirectly, with proving part of a case.
The outcome of the case was that the CoA agreed that the LD had been right in principle to order disclosure, but that the range of documents was too broad. The documents ordered to be produced were specified more narrowly by the CoA, but the other features of the LD order were left unchanged, notably including a penalty payment warning in case of non-compliance by the defendant within a specific period.
There is such a thing as too early
Even robo vacuum cleaners are getting in on the evidence production act. The last we reported on the case in Ecovacs v. Roborock (UPC LD Düsseldorf, 03 July 2026) was that an ex parte saisie application had been revoked by the Düsseldorf LD for failure by the patentee to disclose material facts to the court.
Full infringement proceedings were started in February 2026 and in the Statement of Claim (the SoC, i.e. the document starting off the litigation), the patentee included a conditional request under R. 190 RoP for the court to order production of limited source code relevant to understanding whether there is infringement. The condition for activating this request would be that the defendant denies that the relevant features are present in the alleged infringement.
Considering the R. 190 request, the court stepped through more or less the same test as by the Brussels LD in Establishment Labs v. GC Aesthetics (see above). But in this case, the court denied the request for evidence. There was no specific fact that was contested at the time of filing the request. Although in principle it is possible to file a R. 190 request as early as the SoC, in the sense that it is not inadmissible, it can be dismissed if the court deems it too early in circumstances of the case.
Bringing it all together - getting evidence at the UPC
The Court of Appeal guidance is the main news here. Although their four-stage test clearly will need to be adhered to, the foundational explanations from the CoA (see paragraphs 19-32 of the decision) on the balance to be struck in ordering evidence production are equally important to understand how, when and why the UPC will order evidence production.
However, the LD cases reported here also give useful insight into the timing of evidence production requests. You want to have the relevant evidence as early as possible in order to avoid falling foul of the UPC’s strict approach to front loading. However, pre-emptively requesting disclosure of evidence in the event that the other side denies your assertions could well be dismissed as not being necessary at that stage, and not specific or substantiated enough. This points to a sweet spot in terms of timing: request evidence once you have seen the other side’s first response to the allegations. But beware that this will lead to further complexity and moving parts in an already compressed written procedure.
.png)
