UPC_CFI_1103/2026 – Essity v WEPA

Expert Commentary

Evidentiary seizure Facts 1. The Court granted an ex parte evidentiary seizure based on EP 3 289 139. 2. WEPA asked for a revision. The Court 1. The Court states that WEPA’s complaint that its employees would have to answer questions during the seizure is not justified, as the order clearly spells out that the employees do not have to answer. 2. WEPA states that the order should have mentioned the TRIPS deadline for starting proceedings. The Court does not agree, as this follows automatically from R. 198.1 RoP and the lawyers who were present could have explained what paragraph 7.15 of the order meant. 3. WEPA argues that the patent is invalid and that basing an ex parte evidentiary seizure order on a decision of the OD is insufficient. In principle a granted patent is sufficient. In this case there was a positive decision of the OD. So WEPA’s complaint is not justified, according to the Court. 4. WEPA argues that there was no urgency. In general, there is no requirement for urgency, only that there be a risk that the evidence will be destroyed. In this case it was very easy to remove digitally stored evidence. So the order was justified. 5. The Court confirms the order. Comment 1. This (may I say) desperate attempt to ensure that the collected evidence could not be used was bound to fail. 2. However, you wonder whether it is wise to put in the order that the bailiff can ask questions but that they do not have to be answered if it is true that employees etc. do not have to answer questions. On the other hand, I think there are different types of questions. Questions about where certain evidence can be found on the premises (so reasonable cooperation with the seizure) are different from questions about a production method. With regard to the latter, employees etc. can and should be heard during the litigation if relevant. A completely non-cooperative attitude with respect to the former may lead to negative inferences in the proceedings or other measures to obtain evidence.

Full Decision Text

Local Division of The Hague UPC-CFI-0001103/2026 Order of the Court of First Instance of the Unified Patent Court delivered on 9 June 2026 (orally) and in writing on 22 June 2026 concerning: review of an order for preservation of evidence HEADNOTES: 1. Review of an order to preserve evidence denied (R. 197.3) is unsuccessful. 2. No obligation for employees to answer questions could have been derived from the order. 3. It is clear from the rules of procedure, R. 198.1 RoP, that the order is revoked or ceases to have effect, upon request of the defendant, if within the time limit set, no proceedings on the merits have started. Order under 7.15 was clearly intended to set this time limit. Neither the action that the Defendant is required to take nor the conse- quences need to be specified in the Order. Furthermore, lawyers were present at the seizure from 12:00 onwards, capable of explaining to their client what action to take. 4. According to established case law, urgency is not a pre-requisite for an order to preserve evidence. It can however be a factor in determining whether the order should be given ex parte. Court assumes urgency as many documents to be seized are/were likely stored digitally, which can easily and promptly be deleted or moved elsewhere. In addition, the applicant for review is part of a group of companies, facilitating easy movement of products, intermediates or pulp-fibres as well as any physical documents as envisaged in the order. Furthermore, this review is being conducted inter partes. No convincing arguments have been put forward to justify rejection of the application to preserve evidence, had it been conducted inter partes. KEYWORDS: review of order for preservation of evidence; obligation to answer questions; ex parte; urgency CLAIMANT 1) ESSITY HYGIENE AND HEALTH AKTIEBOLAG (Applicant) - Bäckstensgatan 5, 40503 Göteborg, Sweden (hereinafter also ‘Essity’) Represented by Frank Eijsvogels, Amandine Métier and Pien Haase DEFENDANT 1) WEPA NEDERLAND B.V (Defendant) - Boutestraat 125, 6071JR Swalmen, The Netherlands (hereinafter also ‘WEPA’) Represented by Andreas Kabisch, Moritz-Melchior Bloser, Ernst-Ulrich Wittmann and Simon Bradbury PATENT AT ISSUE Patent no. Proprietor EP3289139 Essity Hygiene and Health Aktiebolag DECIDING JUDGE COMPOSITION OF PANEL - SINGLE JUDGE Presiding judge Edger Brinkman Decided on 31 March 2026 that pursuant to R. 194.3 he will act as single judge: Single judge Edger Brinkman LANGUAGE OF PROCEEDINGS: English SUBJECT-MATTER OF THE PROCEEDINGS Review of the order for preservation of evidence (R. 197.3 RoP) PROCEDURE 1. The following documents are in the case file: - The order of 17 April 2026, and the documents mentioned therein, (hereinafter ‘the Order’), - The request to review an ex parte order (R. 197.3 RoP) dated 21 May 2026, with exhibits, - The summons to an oral hearing dated 27 May 2026. 2. On 9 June 2026 the oral hearing was held online, to which parties did not object. The Court gave its decision immediately after closure of the oral hearing. The reasons may be found in this order. SUMMARY OF FACTS 3. The application is based on the following facts: 3.1. Parties 3.2. Applicant 3.2.1. Applicant, hereinafter also “Essity”, forms part of the Essity Group, a leading global and innovative company active in the field of hygiene and health products. The Essity Group markets its products in approximately 150 countries. Essity markets a wide range of hygiene and paper products which includes, inter alia, toilet paper, hand towels, household towels and other tissue products for consumer use 3.3. Defendant 3.3.1. Defendant, hereinafter also “WEPA”, is part of the WEPA Group, a European family- owned manufacturer of hygiene paper products, including toilet paper, tissues, napkins and related hygiene solutions. It is one of the largest hygiene paper producers in Europe and supplies both consumer markets and professional customers. The company operates a network of 14 paper production facilities across six European countries and has around 4,300 employees in six countries. WEPA is the Dutch subsidiary of the group. Its premises in Swalmen (The Netherlands) inter alia accommodate a production facility of tissue paper and tissue paper products. 3.4. The patent 3.4.1. Essity is the proprietor of European patent EP 3 289 139 B1, entitled “Tissue paper comprising pulp fibers originating from Miscanthus and method for manufacturing the same” (the "Patent" or "EP139"). Miscanthus is a type of tall, perennial grass. The application for the Patent was filed on 29 April 2015. The grant of the Patent was published on 28 August 2023. The Patent is valid and in force in the UPC territories Austria, Belgium, Finland, France, Germany, Italy, the Netherlands and Romania but also in non-UPC territories such as Switzerland, Spain, United Kingdom and Turkey. 3.4.2. The Patent was not opted out of the competence of the UPC. 3.4.3. The Patent is subject to opposition proceedings. On 23 May 2024, WEPA filed an opposition against EP139. By a decision of 11 November 2025, the Opposition Division decided to maintain the Patent as granted. On 8 January 2026, WEPA filed a notice of appeal at the EPO. WEPA also filed a revocation action of the Patent at the Central Division Paris of the UPC on 8 December 2025 (UPC-CFI0001898/2025). Essity filed its Statement of Defence on 3 March 2026. In the revocation action, Essity has filed 13 auxiliary requests (AR1 to AR13, see exhibit A13 to the application). 3.5. Subject matter of the patent 3.5.1. The Patent concerns tissue paper webs and tissue products (e.g. toilet paper, hand towels, household/kitchen towels and facial tissues) and their manufacturing process. As set out in the Patent, tissue papers are widely used consumer goods ([0001]-[0002]), typically manufactured from papermaking pulp comprising mixtures of hardwood and softwood fibres ([0002]). 3.5.2. As explained in the Patent, tissue products must satisfy a number of functional requirements. In particular, they must combine sufficient strength, especially in wet and dry states, with a high degree of softness and good absorbency ([0003]-[0004]). These requirements are often application-specific. For example, household towels must retain strength when exposed to moisture, whereas toilet paper must maintain sufficient strength during use but also disintegrate appropriately after disposal ([0004]). 3.5.3. The Patent identifies a persistent problem in tissue technology: strength and softness are generally conflicting properties. Increasing fibre-to-fibre bonding increases strength but makes the tissue stiffer and less soft; conversely, increasing softness typically reduces strength because bonding is reduced ([0006]). This trade-off is recognised as a general problem in the art, in that improving one property tends to be detrimental to another ([0015]). 3.5.4. One known solution involves multi-layer tissue structures in which short fibres (e.g. hardwood) are used in outer layers for softness, while long fibres (e.g. softwood) provide strength in inner layers ([0008]). Another approach relies on the addition of chemical strengthening agents and/or softening compositions ([0009]-[0011]). However, the Patent explains that such chemical additives may counteract each other’s effects and may introduce disadvantages, including stiffness, skin irritation or environmental concerns ([0011]-[0012]). 3.5.5. In addition to product property challenges, the Patent identifies a manufacturing issue: in some tissue-making processes, "primary" fibrous webs containing eucalyptus pulp fibres may show insufficient adhesion to the Yankee cylinder during final drying and creping, which is an important step influencing tissue properties ([0016]). 3.5.6. Against this background, the Patent sets out the objective of providing tissue paper webs and products with improved properties – particularly improved strength while maintaining good softness ([0017]). It further states an objective to provide a manufacturing process in which the "primary" fibrous web exhibits improved adhesion to the Yankee cylinder during final drying and creping ([0018]). 3.5.7. According to Essity, the present invention provides a soft and strong tissue paper web composed of one or more layers, wherein at least one of these layers comprises pulp fibers originating from the plant Miscanthus Giganteus. The present invention also relates to tissue paper products such as toilet paper, hand towels, household towels, handkerchiefs, napkins and facial tissues manufactured from said tissue paper web. 3.5.8. The patent description shows through various examples of implementation, that paper or tissue that contains Miscanthus Giganteus pulp show: } for toilet paper: an increase in tensile strength without concomitant loss of softness (or only a minor loss of softness) while the fibrous webs showed a better adhesion to the Yankee cylinder during the final drying and creping steps of the process when compared to the use of eucalyptus fibers; } for hand towels: an increase in tensile strength when compared to the use of eucalyptus fibers as well as a surprising better adhesion to the Yankee cylinder during the final drying and creping steps of the process; } for household towels: an increase in tensile strength without significant loss of softness and a better adhesion to the Yankee cylinder during the final drying and creping steps of the process when compared to the use of eucalyptus fibers. 3.5.9. The Patent also covers a process for the manufacture of a tissue paper web. 3.5.10. Independent product claim 1 of the Patent reads as follows: “Tissue paper web composed of one or more layers wherein at least one layer comprises pulp fibers originating from Miscanthus Gigantheus wherein the pulp fibers are selected from chemical pulp fibers, mechanical pulp fibers subjected to a chemical pretreatment and mixtures thereof; and wherein the pulp fibers originating from Miscanthus Gigantheus are present in an amount of 5 wt.-% to 90 wt.-% based on the total weight of the tissue paper web.” 3.5.11. The Patent also contains 16 dependent claims among which one process claim. These dependent claims are the following: No. Dependent claims 2. Tissue paper web according to Claim 1 wherein the pulp fibers, which origi- nate from Miscanthus Gigantheus, are present in an amount of 10 wt.-% to 90 wt.-%, preferably 15 wt.% to 80 wt.-%, more preferably 20 wt.-% to 70 wt.- %, based on the total weight of the qssue paper web. 3. Tissue paper web according to Claim 1 or 2 wherein the web is composed of two or three layers made from different pulps wherein at least one of these layers is made from pulp comprising the pulp fibers originaqng from Miscan- thus Gigantheus. 4. Tissue paper web according to any of Claims 1 to 3 wherein the remaining fi- bers present in said qssue paper web are selected from pulp fibers comprising hardwood fibers, such as eucalyptus, beech, aspen, acacia or birch fibers; sos- wood fibers such as pine, spruce, red cedar, douglas fir, hemlock, and larch fi- bers; and non-wood fibers such as coton, bagasse, hemp, linen, sisal, straw or flax fibers. 5. Tissue paper web according to Claim 3 or 4, wherein the web is composed of two layers wherein (i) the first layer is made from pulp fibers (i-a) consisqng of fibers originaqng from Miscanthus Gigantheus, and opqonally hardwood fibers, or from pulp fi- bers (i-b) comprising, or consisqng of, fibers originaqng from Miscanthus Gi- gantheus, soswood fibers, and opqonally hardwood fibers, and (ii) a second layer is made from pulp fibers comprising, or consisqng, of soswood fibers. 6. Tissue paper web according to Claim 5, wherein (i) the first layer is made from pulp fibers (i-a), wherein the weight raqo of fibers originaqng from Miscanthus Gigantheus, to hardwood fibers, if present, is 100/0 to 10/90, preferably 100/0 to 20/80, and (ii) the second layer is made from pulp comprising, or consisqng of, soswood fi- bers, and wherein the weight proporqon of pulp fibers originaqng from Mis- canthus Gigantheus, based on the total weight of the qssue paper web is pref- erably 10 to 90 wt.%, more preferably 10 to 80 wt.-%, in parqcular 25 to 75 wt.-%, such as 40 to 70 wt.-%. 7. Tissue paper web according to Claim 5, wherein (i) the first layer is made from pulp fibers (i-b) consisqng of fibers originaqng from Miscanthus Gigantheus (MG), soswood fibers (SW), and opqonally hard- wood fibers (HW), wherein the weight raqo MG / HW / SW in %, based on the total weight of pulp fibers (i-b), is 10 to 90 / 0 to 50 / 10 to 90, preferably 20 to 80 / 0 to 50 /20 to 80, and (ii) the second layer is made from pulp fibers comprising, or consisqng of, sos- wood fibers, and wherein the weight proporqon of pulp fibers originaqng from Miscanthus Gigantheus, based on the total weight of the qssue paper web is preferably 10 to 50 wt-%, such as 10 to 30 wt.-%. 8. Tissue paper web according to any of claims 1 to 7, wherein the pulp fibers originaqng from Miscanthus Gigantheus are obtained in a chemical, chemo- mechanical or high yield chemical pulping process, preferably the soda pro- cess or the CTMP process (Chemo-Thermomechanical pulping). 9. Tissue paper web according to any of claims 1 to 8, wherein the hardwood pulp fibers originate from eucalyptus and/or the soswood pulp fibers are Northern Bleached Soswood Kras (NBSK) fibers, wherein the NBSK fibers are preferably refined to a degree of fineness of 19 to 35°SR. 10. Tissue paper web according to any of claims 1 to 9, wherein (i) all fibers pre- sent in the web are primary pulp fibers, or (ii) a mixture of primary and sec- ondary (recycled) pulp fibers wherein the proporqon of secondary (recycled) pulp fibers does not exceed 90 wt.-% based on the qssue paper web. 11. Tissue paper web according to any of claims 1 to 10 which is composed of one or more layers wherein the pulp fibers originaqng from Miscanthus Gigan- theus fulfil the following requirements: (i) average fiber length of from 0.5 to 1.2 mm, preferably from 0.8 to 1.0 mm; (ii) average fiber diameter of from 10 to 25 mm; and (iii) average fiber wall thickness of from 3.0 to 5.0 mm. 12. Tissue paper product comprising at least one ply made from the qssue paper web according to any of claim 1 to 11. 13. Tissue paper product according to claim 12, wherein the qssue paper product is selected from toilet paper, hand towel, household towel, handkerchiefs, napkins and facial qssues. 14. Tissue paper product according to claim 12 or 13 wherein the qssue paper product is a toilet paper composed of 2 to 5 plies, wherein preferably at least one outer ply, more preferably both outer plies, is/are made from the qssue paper web of claim 6, and the outer ply/plies is/are arranged such that, in the toilet paper, the first layer thereof (i), which comprises the pulp fibers origi- naqng from Miscanthus Gigantheus, is located on the outer surface of the toi- let paper. 15. Tissue paper product according to claim 12 or 13 wherein the qssue paper product is a hand towel or household towel composed of 2 to 5 plies, wherein preferably at least one ply, opqonally all plies, is/are made from the qssue pa- per web of claim 6 or the qssue paper web of claim 7. 16. Tissue paper product according to any of claims 12 to 15 wherein the qssue paper product is free of a sosener and/or is free of a strengthening resin. 17. Process for the manufacture of a qssue paper web according to any of Claims 1 to 11, comprising the steps of: (a) providing chemical pulp fibers comprising fibers originaqng from Miscanthus Gigantheus; (b) forming an aqueous suspension of said pulp fibers; (c) feeding the suspension to a qssue-making headbox; (d) deposiqng the suspension onto a wire to form a wet web; (e) dewatering the wet web; and (f) drying and creping the web; wherein the amount of pulp fibers originaqng from Miscanthus Gigantheus in the obtained qssue paper web is from 5 wt.-% to 90 wt.-% based on the total weight of the qssue paper web. 3.5.12. Upon Essity’s application, in the order of 17 April 2026 the Court allowed the preserva- tion of evidence, largely as requested. The Order contains the following passages: “HEADNOTES: 1. Application for preservation of evidence (description, documents and samples) allowed for patent on certain tissue paper. 2. Specific Dutch national rules and practice for seizure applied, inter alia on how documents are to be seized and on how to deal with documents on passwordprotected drives or “in the cloud”. Representatives of the Applicant may not be present during the seizure. Defendant’s personnel may be asked questions but not obliged to answer under pain of penalty. (….) STATEMENT OF FORMS OF ORDER SOUGHT BY THE APPLICANT 3. After amendment, Claimant is seeking the following order to: (…) 12. to order WEPA, including its directors, officers, employees, agents, representatives, contractors and other persons acting on behalf of WEPA, to fully cooperate with the bailiff and independent experts by: a. providing full and unrestricted access to any building, room, cabinet or safe at the WEPA Premises or at any other location in the Netherlands; b. providing full and unrestricted access to any device, digital file or document stored at or accessible from the WEPA Premises or at any other location in the Netherlands; and to the data stored on WEPA’s servers; and in particular, to the extent that any device or digital file may be encrypted, password-protected or otherwise be inaccessible, by providing all cooperation to the bailiff and independent experts to gain entry and to decrypt and/or make any such device or digital file accessible in a format which is sufficient for the purposes of aiming to prove infringement; c. directly, completely and truthfully answer any questions the bailiff and/or experts may have during the execution of the measures; 13. to determine that WEPA forfeits an immediately payable penalty of € 10,000 for each hour that they fail to cooperate with the order under 12. (…) 15. to determine that the preservation of evidence and/or inspection shall not take place between 8:00 p.m. and 8:00 a.m., nor on weekends or on a generally recognized public holiday, provided that the preservation of evidence and/or inspection once commenced during those days or hours may be completed; (…) GROUNDS FOR THE ORDER 4. Ex parte 4.1. This order was adopted without the defendant having been heard since any delay is likely to cause irreparable harm to the applicant and there is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available. (…) 6. Substantive assessment (…) 6.15. While the bailiff and experts may ask questions to personnel from Defendant, under Dutch law they are not obliged to answer (under pain of penalty). The Court further suggested to add some text to the order to bring it in line with Dutch national law and practice, to which the claimant equally did not object. ORDER 7. The Court: 7.1. allows Essity to have inspect and make a detailed description (where applicable including photos, videos and photocopies) based on (…) and allows Essity to ask directors, officers, employees, agents, representatives, contractors and other persons acting on behalf of WEPA direct questions in that regard; (…) 7.12. orders Defendant, including its directors, officers, employees, agents, representatives, contractors and other persons acting on behalf of defendant, to fully cooperate with the bailiff and independent experts by: a. providing full and unrestricted access to any building, room, cabinet or safe at the Defendant’s Premises or at any other location in the Netherlands; b. if there are reasonable grounds to suspect that digital files to which this seizure order applies are stored elsewhere in an external server, Defendant must make these files accessible to the bailiff by providing the necessary passwords and login codes; 7.13. determines that Defendant immediately forfeit a penalty of € 10,000 for each hour that they fail to cooperate with the order under 7.12, up to a maximum of € 200,000, payable to the Court after a specific order; (…) 7.15. sets the time limit for Essity to start proceedings on the merits to 31 calendar days or 20 working days, whichever is longer, from the date that Essity shall have access (as referred to under 7.11) to the Reports under 7.8, or from the date on which the Court has made a final decision not to grant Essity access to the Reports; (…) 7.25. stipulates that the defendant be free to call in the assistance of a lawyer or other trusted person, but that the seizure may commence even without the presence of that lawyer or trusted person. If the defendant informs the bailiff within one hour of the commencement of the seizure that a lawyer or trusted person wishes to attend the seizure on his behalf, the bailiff will not be allowed to close the seizure before the lawyer or trusted person has been able to form an opinion about the course of events during the seizure. If the arrival of the lawyer or trusted person has been announced, but he or she is not yet present at the time the bailiff has completed his/her work (insofar as it can take place on site), then there is no need to wait longer than an hour for the arrival of the lawyer or trusted person; (…) 7.28. rejects the more or otherwise requested.” STATEMENT OF FORMS OF ORDER SOUGHT BY THE APPLICANT FOR REVIEW 4. WEPA requests the order be set aside in its entirety, the applicant be prohibited from using, in these or any other proceedings, the findings, documents, and data obtained during the inspection on April 21, 2026 and the secured documents, records, samples and/or data be returned by the expert and bailiff to Defendant. As an auxiliary request (cumulative): a) The order of the Local Division The Hague dated April 17, 2026, UPCCFI- 1103/2026, be modified in Sections 7.1 and 7.15, by removing the following part from Section 7.1 12 and by adding the following part to Section 7.15: “[…] access to the Reports”; The Court shall ensure that the aforementioned order is revoked or otherwise ceases to have effect upon request of the Defendant, without prejudice to the damages which may be claimed, if, within the aforementioned time period of 31 calendar days or 20 working days, the Applicant does not start proceedings on the merits of the case before the Court. b) The expert report be kept confidential, not to be released to Applicant’s representatives or Applicant personally and the expert and bailiff are to be instructed to destroy all seized samples and documents or return them to Defendant. GROUNDS FOR THE ORDER 5. No right to interrogate employees 5.1. WEPA alleges that the Order did not make clear that its employees need not answer the questions asked to them, under pain of penalty. Cooperation by WEPA (employees) should have been limited to what is necessary for the inspection to be concluded. WEPA refers to Article 206(2) of the Dutch Code of Civil Procedure (‘DCCP’), the Explanatory Memorandum to Articles 205 DCCP et seq., as well as the Molenbeek judgment by the Dutch Supreme Court1. Neither the UPC system nor the Dutch system allow for the interrogation of employees of the Defendant to disclose information about the manufacturing process or materials that are utilized by Defendant during manufacturing, formulation choices, fiber blending, process parameters, refining or additives or Defendant’s manufacturing know-how. Such questions go beyond the purpose of a preservation order and are not in line with governing law. 5.2. In addition, still according to WEPA, the Court pointed out in a communication to the Applicant dated April 10, 2026 (the “Communication”), that there is no duty to answer. Applicant did not address this issue in its reply of 13 April 2026. Nonetheless, in the operative part it is stated that Essity is allowed to ask questions, and it is not mentioned that the Defendant does not have to comply to this part of the Order. During the gathering of the digital data, the bailiff stated that a lack of cooperation would lead to penalties to be imposed. In the impression of the Defendant’s employees, these “penalties imposed due to a lack of cooperation” would also apply to other aspects of the order, including Section 7.1. Against the background of repeated references to penalties for non-cooperation by the bailiff and the Order specifying nothing to the contrary, employees assumed that penalties can be imposed for a lack of cooperation in showing where the relevant machines and data is located as well as answering questions about the same machines, processes and data. The unlawfully and lawfully obtained information has now become inextricably intermingled with the expert’s observations and can no longer be distinguished in the expert report. 5.3. The Court finds that WEPA’s reading of the order is incorrect. In the headnotes (mn. 2) and in the Order itself (m.n. 6.15), see 3.5.12 above, it is clearly stated that personnel from Defendant was not obliged to answer the questions (under pain of penalty). Also, 1 ECLI:NL:HR:2013:BZ9958 Hoge Raad 13 september 2013 13 while Essity had requested so (see Order, para 3, under 12.c: ‘directly, completely and truthfully answer any questions the bailiff and/or experts may have during the execution of the measures’, to be enforced by a penalty, under 13), in the operative part of the order 12.c was not included (see Order, 7.12). The penalty of 7.13 does hence not apply. Furthermore, in 7.28 of the Order, ‘the more or otherwise requested’ was rejected, including therefore 12.c in combination with 13 of the request. This should have been clear to any person reading the Order, the more so as it was even in the headnotes. The fact that WEPA and its employees did not read this properly, is entirely their own responsibility. Moreover, they were entitled to call in the assistance of a lawyer (7.25). The facts that the lawyers arrived well over 3 hours later (around 12 o’clock, while the seizure started around 8-8.30 AM, and equally did not pick up above point, are again WEPA’s responsibility. At any rate, the Order was clear and needs no modification or be set aside for this reason. 6. Rule 198.1 6.1. WEPA asserts that the possibility for Defendant to file a request to revoke the Inspection Order after a lapse of the deadline, is missing in the Order, even if a main proceeding is not filed: Stipulating these legal recourses for Defendant in the Inspection Order is essential and an omission leads to significant, inadmissible deprivation of Defendant’s statutory rights. 6.2. The Court cannot accept this reasoning. It is clear from the rules of procedure, R. 198.1 RoP, that the Order is revoked or ceases to have effect, upon request of the defendant, if within the time limit set, no proceedings on the merits have started. Order under 7.15 was clearly intended to set this time limit. Neither the action that the Defendant is required to take nor the consequences need to be specified in the Order. Furthermore, WEPA indicated that it had lawyers present at the seizure from 12:00 onwards. The present UPC representatives are also perfectly capable of explaining to their client what 7.15 means, and this time limit has not yet passed. 7. Validity 7.1. WEPA asserts that the patent is invalid. It is insufficient to base the Order on the decision by the Opposition Division of the EPO of 11 November 2025 to maintain the patent. The Court disagrees. As indicated by the Court of Appeal, the Court is not required to assess the validity of the patent at issue. This matter remains solely within the competence of the judge ruling on the merits or on provisional measures, except where the presumption of validity can clearly be called into question, for example, following a decision of an Opposition Division or a Board of Appeal of the European Patent Office in a parallel opposition procedure, or in revocation proceedings before another court in respect of the same patent.2 In this case, the exception does not apply. On the contrary, the Opposition Division maintained the patent, enforcing the presumption of validity. The Court need not go into more detail of the invalidity arguments at this point in time, given that Essity contests them. Essity also did not violate its obligation of candour by not mentioning in 2 UPC CoA 15 July 2025, Valinea v Tiru, PC_CoA_002/2025, m.n. 42 14 more detail the differences between the invalidity argument in the pending revocation proceedings in UPC’s Central Division in Paris. Even if the alleged differences were already known to Essity at the time of filing of the application, they did and do not materially influence the decision. 8. Urgency/risk of evidence being destroyed or otherwise ceasing to be available 8.1. WEPA asserts that Essity took more than 9 months to file the request, which constitutes undue delay. Therefore, the request should have been dealt with inter partes and not ex parte. WEPA further states there was no demonstrable risk of evidence being destroyed or otherwise ceasing to be available. 8.2. Parties agree that as such urgency is not a pre-requisite for an order to preserve evidence.3 It can however be a factor in determining whether the order should be given ex parte. Regardless, the Court is with Essity of the opinion that there is a risk of evidence being destroyed or otherwise ceasing to be available. First, Essity rightly points to the fact that many documents to be seized are/were likely stored digitally, which can easily and promptly be deleted or moved elsewhere.4 Second, WEPA is part of a group of companies, facilitating easy movement of products, intermediates or pulp-fibres as well as any physical documents as envisaged in the Order. 8.3. In addition, this review is being conducted inter partes. No convincing arguments have been put forward to justify rejection of the application to preserve evidence, had it been conducted inter partes. ORDER 9. The Court: 9.1. confirms the order of 17 April 2026. INFORMATION ABOUT APPEAL [Art. 60(6) UPCA, R. 220.1.c RoP] Defendant may appeal the present order, together with the order to preserve evidence, within 15 days after service of the order. Presiding Judge and Single Judge For the Deputy Registrar 3 UPC CoA 15 July 2025, Valinea v Tiru, PC_CoA_002/2025, m.n. 35 4 UPC LD Milan 5 December 2025, UPC CFI No. 342/2025 (AGA v Sigma), section 3; UPC LD Paris 14 November 2023, UPC_CFI_397_2023 (C-Kore Systems v Novawell), section 4.2; UPC LD Milan 25 September 2023, UPC_CFI_286/2023 (PMA v AWM), section 4.2.

Key Holdings

• An ex parte evidentiary seizure order can be based on a granted patent, even if its validity is challenged.
• Urgency is not a general requirement for evidentiary seizure; a risk of evidence destruction is sufficient.
• Employees are not obliged to answer questions during an evidentiary seizure, but reasonable cooperation in locating evidence is expected.
• The Court confirmed the evidentiary seizure order, rejecting WEPA's arguments for revision.
• The TRIPS deadline for starting proceedings does not need explicit mention in the order if it follows automatically from the Rules of Procedure.

Tags

• Evidentiary Seizure
• Ex Parte Order
• Procedural
• Evidence
• Patent Validity

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