UPC_CFI_1103/2026 – Essity v WEPA

Court
Local Division The Hague
Date
Outcome
Denied
Sector
Other
Decision Type
PROCEDURAL

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.

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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