UPC CFI 260/2025 – OTEC Präzisionsfinish GmbH v STEROS GPA INNOVATIVE S.L. et al.

Expert Commentary

Full Decision Text

1 Düsseldorf local division UPC CFI 260/2025 Order of the Court of First Instance of the Unified Patent Court issued on 26 March 2025 concerning EP 2 983 864 B1 APPLICANT: OTEC Präzisionsfinish GmbH, Heinrich-Hertz-Straße 24, 75334 Straubenhardt Conweiler, Germany represented by: Attorney Klaus Haft, Attorney Joscha Torweihe, Attorney Antonia Wilhelm, HOYNG ROKH MONEGIER, Steinstraße 20, 40212 Düsseldorf and Theatinerstr. 7 / Maffeigasse entrance, 80333 Munich, Germany European Patent Attorney Steffen Lenz, Lichti Patentan- wälte Partnerschaft mbB, Bergwaldstraße 1, 76227 Karls- ruhe, Germany electronic delivery address: klaus.haft@hoyngrokh.com RESPONDENTS: 1. STEROS GPA INNOVATIVE S.L., Calle Maracaibo 1, 08030, Barcelona, Spain Exhibition address: Hall 2.2, D018 E019, Cologne Trade Fair Centre, Messeplatz 1, 50679 Cologne, Germany 2. Exhibition address: Köln Messe, Messeplatz 1, 50679 Cologne, Germany APPLICATION PATENT: EUROPEAN PATENT NO. EP 2 983 864 B1 PANEL/CHAMBER: Panel of the Düsseldorf local division2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 2 PARTICIPATING JUDGES: This Order was issued by presiding judge Thomas as judge-rapporteur, legally qualified judge Dr Schumacher and legally qualified judge Dr Schober. LANGUAGE OF THE PROCEEDINGS: German SUBJECT: Art. 60 UPCA, R. 194 (d), 196, 197, 199 RoP - Application for inspection and preservation of evidence SUMMARY OF THE FACTS: On 25 March 2025, the applicant filed an application for an order to inspect and preserve evidence at the defendants' exhibition stands in advance of an action on the merits. The applicant is the sole proprietor of European patent 2 983 864 B1 (Annex HRM 2; hereinafter referred to as the patent applied for), which was filed on 26 March 2014 in the German language of the proceedings, claiming the priority of two German patent applications (DE 102013006010 and DE 102013016053) dated 9 April 2013 and 27 September 2013 respectively. The patent application was published on 26 April 2017 and is currently in in Austria, Belgium, Switzerland and Liechtenstein, the Czech Republic, Germany, Spain, France, the UK, Ireland, Italy, Luxembourg, Poland and Turkey. The opt-out initially declared was withdrawn by application dated 24 March 2025 (App 14363/2025). No opposition was filed against the grant of the patent application. Furthermore, no nullity proceedings were instituted after the expiry of the opposition period. The patent application is entitled "Method and apparatus for the surface treatment of workpieces". Its patent claim 1 is worded as follows: "Method for surface treatment of workpieces by moving the workpiece relative to a bed of an abrasive and/or polishing granulate, wherein the workpiece is rotated (P4) about at least one axis relative to the bed of the abrasive and/or polishing granulate, wherein the workpiece accelerated to different rotational speeds (R1, R2) in relation to the bulk of the grinding and/or polishing granulate, characterised in that the workpiece and/or a container (11) receiving the bulk of the grinding and/or polishing granulate is or are rotated at continuously different rotational speeds under continuous acceleration. are rotated." Defendant 1) develops, manufactures and sells machines and technologies for mass finishing and electropolishing. Its range of services includes the precise smoothing, polishing, rounding and deburring of workpieces. Defendant 1) is the parent company of the GPAINNOVA Group. Defendant 2) is a specialised dealer and customer of defendant 1), which offers and sells the products of defendant 1), among others.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 3 Defendant 1)'s product portfolio includes electropolishing machines for various applications, including for the dental market. It offers these machines on its website https://www.dlyte.com/de/produkte/ , including in Germany. The products offered by defendant 1) under the trade mark "DLyte" for the dental market include the products "DLyte 1D", "DLyte 10D" and "DLyte 100D"all of which to defendant 1)'s "Compact Series". Defendant 2) also offers these machines on its website. With regard to the content of these websites, reference is made to Annexes HRM 7 to HRM 9. The defendants are currently exhibiting at the trade fair "Interdental Show 2025" (hereinafter: IDS 2025), which will take place in Cologne from 25 March 2025 to 29 March 2025. The applicant states that all of the aforementioned "Compact Series" products are currently being exhibited at the "IDS 2025" trade fair. It is hardly possible for the applicant to gain access to these machines. Firstly, the prices of between EUR 30,000 and EUR 50,000 were too high to purchase them just for the sake of a test. Secondly, it is a personalised business. In the parties' industry, machines are only sold via "known" distribution channels, an exclusive dealer network. There is usually only and in larger countries two permanent resellers of the defendant's machines per country.) The resellers have a very close relationship with the respective manufacturer of the machines, so that the applicant would not be supplied. An anonymous purchase of the machines in question is also not possible because the buyers of these machines want to ensure that the machines bring the desired added value to their business due to the enormous financial burden of a purchase. Normally, trial machining takes place at the manufacturer's premises or customers are first given a test machine. During the test phase, the test buyer or his exclusive resellers would maintain close contact. It would therefore be noticeable if this close contact lacking in individual cases, for example if the applicant only wanted to purchase the machine for test purposes. The sale would probably be stopped. The applicant only gains access to the defendants' machines for testing purposes in individual cases via dissatisfied customers. A complete verification of the offences in question is therefore not possible. Among other things, the applicant had purchased the "DLyte 10D" second-hand from a mutual customer for test purposes. However, this was done by chance and at that time not yet with regard to the application patent. In addition, the applicant had succeeded in examining the "DLyte 100D" at a joint customer Turkey, although it was unclear whether the machine found in Turkey was identical to corresponding machines sold in the UPC Agreement contracting states. The investigations had shown, among other things, that the "DLyte 10D" and the "DLyte 100D" found in Turkey - if they were identical to those in the UPC Agreement contracting states - would infringe the application patent. Please refer to Annex HRM 14 for the detailed results of the investigation. However, the applicant's efforts to also investigate the third member of the "Compact Series", the "DLyte 1D", were unsuccessful. The same applies to an investigation of the "DLyte 100D" in a version marketed in the UPC Agreement member states. Information on the website and product videos on the defendant's website would suggest that the "DLyte 1D" and the "DLyte 100D" are, as far as relevant for the infringement of the patent applied for, identical to the "DLyte 10D".2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 4 On 25 March 2025, one of the applicant's legal representatives submitted the "DLyte 1D" and the "DLyte 100D" at the exhibition stand of respondent 1). The inspection confirmed the assumption that the "DLyte 1D" and the "DLyte 100D" were identical to the "DLyte 10D" insofar as this was relevant to the infringement of the patent applied for. In addition, the "DLyte 1D" and the "DLyte 100D" were illuminated and switched on. Finallya "DLyte" machine, presumably from the "Compact Series", was on display at the stand of defendant 2). Reference is also made to the photographs submitted as Annexes HRM 16 to HRM 17 and to an affidavit. APPLICATIONS OF THE APPLICANT: I. To grant the applicant: 1. to inspect a DLyte 1D and DLyte 100D in working condition on site at the IDS trade fair, which will take place from 25 to 29 March 2025 inclusive in Cologne Messe, Messeplatz 1, 50679 Cologne, Germany, at the trade fair stand of the defendant 1), by an expert and a bailiff, in particular a. to the DLyte 1D and the DLyte 100D into operation, whereby the application opponent is instructed to enter any required passwords, b. to attach a smartphone to the workpiece holder for the purpose of and for the duration of the measurements of the movement sequence and the rotation speed of the workpiece holder of DLyte 1D or DLyte 100D, c. make suitable settings on the machine to avoid falsifying the measurement result, in particular deactivating the vibration unit of the container, d. select and switch on a programme on the DLyte 1D or DLyte 100D that sets the workpiece holder in motion for the purpose of measurement, e. If provided by the DLyte 1D or DLyte 100D, you can configure and switch on a programme yourself that sets the workpiece holder in motion for the purpose of measurement, f. perform the measurement during operation of the DLyte 1D or DLyte 100D, g. repeat the measuring process until a sufficient measurement of the rotational speed and the movement of the workpiece holder of the DLyte 1D or DLyte 100D has been achieved, 2. or use a comparative measurement method; 3. alternatively, in the event that application I.1 and I.2 are impossible.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 5 a. with regard to DLyte 1D, the measures requested under application no. I.1 and I. 2 during the IDS, which will take place from 25 to 29 March 2025 inclusive at Köln Messe, Messeplatz 1, 50679 Cologne, Germany, at the stand of the defendant 2), b. and in relation to the DLyte 100D, to physically seize one DLyte 100D and all technical, promotional and commercial documentation in one copy each in relation to the DLyte 100D during IDS, which takes place from 25 to 29 March 2025 inclusive at Köln Messe, Messeplatz 1, 50679 Cologne, Germany, by a bailiff or to physically seize the DLyte 100D at any other location in Germany; c. to prepare a detailed description of the DLyte 100D, including a detailed description of the features of the DLyte 100D and the relevant technical, advertising and commercial documentation on the DLyte 100D, at all locations mentioned in Section I.1; 4. in the extreme alternative, in the event that application I.1., I.2. and I.3. are not possible. to physically seize one DLyte 1D and one DLyte 100D each and all technical, advertising and commercial documents in one copy each in relation to the DLyte 1D and the DLyte 100D during the IDS, which will take place from 25 to 29 March 2025 inclusive in Köln Messe, Messeplatz 1, 50679 Cologne, Germany, by a bailiff or to physically seize the DLyte 1D and the DLyte 100D at any other place in Germany; 5. to prepare a detailed description of the DLyte 1D and the DLyte 100D, including a detailed description of the features of the DLyte 1D and the DLyte 100D as well as the relevant technical, advertising and commercial documentation on the DLyte 1D and the DLyte 100D, at all locations mentioned under I.1; II. to appoint Mr Stephan Freischem, Patent Attorney, Salierring 47-53, 50677 Cologne, as an expert and to determine that he may be replaced by a European Patent Attorney working in the same law firm as Stephan Freischem; III. the bailiff, Ms Cologne, that she may be assisted by the expert in carrying out the measures to preserve evidence in accordance with the order to be issued in this case and to determine that she may be replaced by any other competent expert if she is unavailable; IV. that Mr Joscha Torweihe, UPC Agreement representative and legal representative of the applicant appointed in this matter from the law firm Hoyng ROKH Monegier, Steinstrasse 20, 40212 Düsseldorf, may be present at the measures requested under Section I, or another lawyer from the law firm Hoyng ROKH Monegier if Mr Torweihe is not available;2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 6 V. that Mr Steffen Lenz, patent attorney, UPC Agreement representative and patent attorney of the patent law firm Lichti, Bergwaldstraße 1, 76227 Karlsruhe, who is involved in this case, may be present at the measures requested under Section I, or another patent attorney of the patent law firm Lichti if Mr Lenz is not available; VI. order that the defendant's employees and directors may not be present during the enforcement of the order to be issued in this case and that the judicial officer is not authorised to make an exception to this in accordance with the applicable national law; VII. order that the persons involved in the implementation of the measures to preserve evidence in accordance with the order to be issued, such as the bailiff, the expert and/or the party representative, may not provide the defendant or third parties with any information about these measures and may not provide an opportunity to inspect or examine the DLyte 1D and the DLyte 100D or the respective detailed reports, unless the defendant agrees or on the basis of a further Order of the UPC Agreement; VIII. order the defendants to co-operate in the execution of the measures for the inspection and preservation of evidence in accordance with the order to be issued in this matter and to assist the bailiff and the expert at their request, - unrestricted access to the DLyte 1D and DLyte 100D, including the entry of passwords, - grant access to a part of the DLyte 1D and the DLyte 100D, and/or - to put the DLyte 1D and the DLyte 100D into operation and bring them into various operating states; IX. order the defendants to instruct their managing directors and employees to comply with the requests of the bailiff and/or the expert in accordance with section VII; X. to impose a penalty payment of EUR 2,500 per 15-minute period that elapses between the bailiff's or expert's request to grant access to the inspection in accordance with Section I and the actual granting of the requested access; XI. order the bailiff of the defendants to submit a copy of the order to be issued in this matter, together with a copy of the application, to at least one representative of the defendants present at the place where the respective measures are carried out; XII. order that the Order to be issued in this way is immediately enforceable; XIII. order that the Order to be so issued shall be enforceable on all days and at all hours;2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 7 XIV. Order that service be effected by the bailiff in cooperation with Mr Joscha Torweihe, attorney-at-law, as in section IV, or another attorney-at-law from the law firm Hoyng ROKH Monegier if Mr Torweihe is not available; XV. suspend all cost decisions for the time being. REASONS FOR THE ORDER: The application for an Order for an inspection and preservation of evidence (R. 192, 199 RoP) is successful to the extent tenorated. I. The Düsseldorf local division has jurisdiction pursuant to Art. 32(1)(c), 33(1)(b), 60 UPCA. The application has filed in an admissible manner pursuant to R. 192 RoP. In particular, the petitioner has submitted that she intends to bring an action on the merits against the respondents before the Düsseldorf local division. II. Furthermore, the applicant has credibly demonstrated that the application patent may be infringed by the opponents of the application (Art. 60 (1) UPCA). In view of the circumstances of the case described above, it is possible that the products "DLyte 1D" and "DLyte 100D", as exhibited at the IDS in Cologne, make use of the technical teaching of the application patent. The applicant, as the owner of the patent in suit, has comprehensibly demonstrated on the basis of a product brochure (Annex HRM 21), a product video available on YouTube, the description of the Dental Series products (Annex HRM 23) and on the basis of the examination of the Compact Series sister "DLyte 10D" (Annex HRM 14) why it assumes that all features of the patent in suit are realised in the "DLyte 1D" product. In addition, it has already analysed the "DLyte 100D" model at one of its customers in Turkey and submitted a corresponding test report as Annex HRM 14. On the basis of this analysis, the applicant has comprehensibly explained why it assumes that the technical teaching protected by the application patent is also realised in this embodiment. III. The applicant has also shown that the application is urgent (R. 194.2 a) RoP). In addition, it has shown reasons for issuing an ex parte Order (R. 194.2 b), c), 197 RoP). 1. The inspection or preservation of evidence is urgent. a) The fact that the "DLyte 1D" product exhibited at the "IDS 2025" trade fair in Cologne may have been developed by2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 8 of the technical teaching of patent claim 1 of the application patent has been comprehensibly demonstrated by the applicant. However, sufficient substantiation can only be provided by examining the product exhibited at the aforementioned trade fair, in the course of which measurements are carried out on the machine's motion sequences and in particular on the rotational speed and acceleration behaviour. According to the applicant, machines such as the "DLyte 1D" are not readily available and companies that have purchased and use such machines are generally not prepared to grant "outsiders" (patent holders) access to their premises or machines. The "IDS 2025" trade fair therefore offers the applicant the opportunity to gather evidence for the alleged infringement of the patent applied for. With regard to the product "DLyte 100D", the applicant has already examined a machine at one of its customers in Turkey. On the basis of this investigation report, it has comprehensibly explained why it assumes that this embodiment also makes use of the technical teaching of patent claim 1. However, since the applicant must prove patent infringement within the UPC Agreement contracting member states, an examination of the product exhibited at the "IDS 2025" trade fair can provide certainty as to whether it corresponds to the product examined in Turkey in the features relevant to a possible infringement of the patent applied for. As the applicant has comprehensibly explained, the extremely difficult possibility of procuring such machines due to the lack of availability of the machines on the free market leaves it with no other option than to carry out the inspection at the "IDS 2025" trade fair in Cologne. b) The Order had to be issued ex parte in accordance with R. 192.3, 197 RoP. Otherwise, there would be a demonstrable risk that evidence would be destroyed or no longer be available for other reasons (R. 197.1 Alt. 2 RoP). As the applicant has comprehensibly explained, there is a serious risk that the "DLyte 1D" and the "DLyte 100D" could be removed from the exhibition site at short notice or individual polishing processes pre-programmed by the defendant 1) could be de-activated by means of a software update. This could result the loss of evidence that could be used to confirm the infringement. Due to the special market conditions already described in detail, it would be almost impossible for the applicant to obtain evidence of it considers to be an infringement of the application patent by the aforementioned products. IV. In the context of the discretionary decision, the interests of the applicant prevail. On the basis of the information available to it to date, the applicant has comprehensibly explained why it assumes that all features of claim 1 of the patent applied for are realised in the products exhibited at the "IDS 2025" trade fair in Cologne. It has also comprehensibly explained the reasons why, due to the particular circumstances in the relevant market, it no other means of providing evidence what it considers to be an infringement of the patent applied for by the products "DLyte 1D" and the "DLyte 1D". "DLyte 100D", which is why it relies on an examination of the products exhibited at the "IDS 2025" trade fair to secure evidence.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 9 Against this background, the present Order is necessary in order to do justice to the overriding interests of the patent proprietor in this respect. The respondents are not unreasonably burdened by the ordered measures. The secrecy protection orders included in the Order take sufficient account of their confidentiality interests. V. The applicant has paid the court fee for the application for inspection/protection of evidence, R. 192.5 RoP. VI. According to R. 196.4, .5 RoP, the Order provides for an expert to be appointed to carry out the measures. In order to support the expert in carrying out the securing of evidence, the Chamber made use of the option granted by R. 196.5 sentence 2 RoP to the support of a bailiff. The involvement of the bailiff was particularly necessary for the seizure in rem applied for in the alternative, which is the responsibility of the bailiffs under national law (UPC CFI 539/2024 (LD Düsseldorf), Order of 18 October 2024 - Bekaert Binjiang Steel v. Siltronic). Pursuant to R. 196.5 RoP, members or representatives of the applicant itself were to be excluded from the inspection and preservation of evidence. With regard to proportionality and the protection of confidential information, the number of persons authorised to represent the applicant during the inspection was also to be limited (Art. 60 (1) UPCA, R. 196.1 RoP). The secrecy protection measures also ordered with regard to the authorised representatives, the expert and the bailiff take into account the confidentiality interests of the defendants as well as the procedure described after receipt of the detailed description. It was also ordered that the detailed description to be prepared by the expert may only be used in main proceedings against the defendants (R. 196.2 RoP). claimant must pay the costs of the inspection and preservation of evidence to be carried out by the expert, including the detailed description to be prepared by the expert, in any case until further notice, as she is requesting the inspection. Insofar as the expert does not waive the payment of an advance for his costs, the claimant must pay the expert a reasonable advance to be determined by the expert before the start of the inspection. This Order shall be served together with the documents mentioned in section XVI. by the court executor in co-operation with the applicant's legal representative present at the inspection and preservation of evidence pursuant to section IX.1 in accordance with R. 197.2 RoP. VII. The general threat of coercive measures included in the Order gives the Board the necessary flexibility to react to any violations of this Order, taking into account the interests of both parties and the severity of the violation. In this specific case, was not necessary to order the provision of security. The special circumstances required for an ex parte Order (R. 196.6 RoP) are present. In contrast to an injunction, the defendants are threatened by the inspection.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 10 and preservation of evidence at most minor damage. They are also still authorised to offer and sell the products to be inspected (differentiation from: UPC CFI 177/2023 (LD Düsseldorf), Order of 22 June 2023 - myStromer v. Revolt). Based on this and taking into account the short duration of the trade fair, ordering a security deposit would unreasonably delay the securing of evidence and inspection, which justifies refraining from ordering a security deposit in the present case. VIII. Insofar the applicant alternatively requested authorisation to seize the products to be examined "at any other location", this could not be complied with either in terms of certainty or proportionality. These aspects also stand in the way of authorising the enforceability of this Order on "all days and hours". The description of the authorised measures in the Order also takes into account the requirement of certainty. There are no apparent reasons for excluding representatives and employees of the defendants from participating in the inspection. The fact that the employees and managing directors of the defendants must follow the requests of the bailiff and/or the expert, in accordance with the applicant's request, already stands in the way of such an exclusion requested by the .2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 11 ORDER: The following inspection and preservation of evidence order is issued without prior hearing of the defendants: I. The applicant is permitted to inspect a "DLyte 1D" and "DLyte 100D" a functional condition on site at the IDS trade fair, which will place from 25 to 29 March 2025 in Cologne Messe, Messeplatz 1, 50679 Cologne, Germany, at the stand of the defendant 1) by an expert and a bailiff and, in doing so, to inspect the "DLyte 1D" and "DLyte 100D" at the stand of the defendant 1) by an expert and a bailiff. 1. to put the "DLyte 1D" and the "DLyte 100D" into operation, whereby the application opponent is instructed to enter any required passwords; 2. to attach a smartphone to the workpiece holder for the purpose and duration of measuring the movement sequence and the rotational speed of the "DLyte 1D" or "DLyte 100D" workpiece holder; 3. make suitable settings on the machine to avoid falsifying the measurement result, in particular deactivating the vibration unit of the container; 4. select and switch on a programme on the "DLyte 1D" or the "DLyte 100D" that sets the workpiece holder in motion for the purpose of measurement; 5. If provided by the "DLyte 1D" or the "DLyte 100D", you can configure and switch on a programme yourself that sets the workpiece holder in motion for the purpose of measurement; 6. carry out the measurement during operation of the "DLyte 1D" or the "DLyte 100D"; 7. repeat the measuring procedure until a sufficient measurement of the rotational speed and the movement of the workpiece holder of the "DLyte 1D" or the "DLyte 100D". II. If an on-site inspection in accordance with Section I. is not possible, the applicant shall be authorised, 1. with regard to "DLyte 1D", to carry out the measures described in Section I.1. during the IDS, which takes place from 25 to 29 March 2025 inclusive at Köln Messe, Messeplatz 1, 50679 Cologne, Germany, at the exhibition stand of the application opponent 2) and 2. with regard to the "DLyte 100D" such and all technical, advertising and commercial documents in one copy each with regard to the "DLyte 100D" during the IDS, which will be held from 25 to 29 March 2025 in Cologne, Germany.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 12 Messe, Messeplatz 1, 50679 Cologne, Germany, to be physically seized by a bailiff and then inspected by an expert as described in Section I. III. If the inspection referred to in items I. and II.1. is not possible, the applicant is authorised, in the extreme alternative, in addition to the confiscation of the "DLyte 100D" pursuant to item II.1. to also confiscate a "DLyte 1D" and all technical, advertising and commercial documents in one copy each relating to the "DLyte 100D". "DLyte 1D" during the IDS, which takes place from 25 to 29 March 2025 inclusive at Köln Messe, Messeplatz 1, 50679 Cologne, Germany, to be physically seized by a bailiff and then inspected by an expert as described in Section I. IV. The expert shall provide a detailed description of the measures mentioned under I. to III. within a period of 2 weeks after completion of the measures mentioned under I. to III. "DLyte 1D" and the "DLyte 100D", which contains a detailed description of the characteristics of the "DLyte 1D" and the "DLyte 100D" relevant for an assessment of an infringement of the application patent. V. The description prepared in accordance with section IV. and all other results of the inspection and preservation of evidence may only be used in proceedings on the merits against the defendants. VI. The person who carries out the aforementioned measures is appointed as an expert: Patent attorney Stephan Freischem, Salierring 47-53, 50677 Cologne. He can be replaced by a European patent attorney working in the same law firm. VII. To support the expert, the bailiff is appointed as an assistant to the expert. Cologne. ordered. In the event that the bailiff is prevented from carrying out the inspection and the measures to preserve evidence, he/she may be replaced by a locally competent bailiff to be commissioned by the applicant. VIII. The expert and the bailiff are ordered to maintain confidentiality both towards the applicant personally and towards third parties in the interest of protecting the defendants' business secrets that might come to light during the inspection and preservation of evidence.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 13 IX. During the execution of the present Order, the following representatives of the applicant are authorised to be present in addition to the expert and the bailiff: 1. Mr Joscha Torweihe, attorney-at-law, UPC Agreement representative and legal representative of the applicant in this matter from the law firm Hoyng ROKH Monegier, Steinstraße 20, 40212 Düsseldorf, or another attorney-at-law from the law firm Hoyng ROKH Monegier if Mr Torweihe is not available; 2. Mr Steffen Lenz, patent attorney, UPC Agreement representative and patent attorney of the patent law firm Lichti, Bergwaldstraße 1, 76227 Karlsruhe, who is involved in this case, may be present at the measures requested under Section I, or another patent attorney of the patent law firm Lichti if Mr Lenz is not available. Representative bodies, employees or other staff of the applicant may not be present during the execution of this Order with regard to the inspection and preservation of evidence. X. The defendants are ordered to co-operate in the implementation of the measures for inspection and preservation of evidence in accordance with this Order and, at the request of the bailiff and the expert, to provide the bailiff and the expert with the following information 1. to allow them and the persons authorised to be present in accordance with Section IX. to enter the Defendants' exhibition stands at the IDS trade fair, which will take place from 25 to 29 March 2025 inclusive at Köln Messe, Messeplatz 1, 50679 Cologne, Germany, in order to carry out the inspection and preservation of evidence in accordance with this Order; 2. unrestricted access to the "DLyte 1D" and the "DLyte 100D", including the entry of passwords; 3. access to part of the "DLyte 1D and the "DLyte 100D"; 4. to put the "DLyte 1D" and the "DLyte 100D" into operation and bring them into various operating states and to instruct its managing directors and employees to comply with the requests of the bailiff or the expert. XI. The persons involved in the execution of the inspection and the preservation of evidence and in particular the bailiff, the expert and the party representatives of the applicant are obliged to maintain secrecy towards third parties as well as towards the applicant with regard to facts that come to their knowledge in the course of the execution of the entire Order.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 14 In addition, the aforementioned persons may not offer the applicant or third parties the opportunity to inspect the "DLyte 1D" and the "DLyte 100D", any documents and products seized and the detailed description to be prepared by the expert until a release order has been issued by the Unified Patent Court. XII. The defendants are to be requested to comment on any confidentiality interests they may have after the expert appointed to carry out this Order has submitted the detailed description to be prepared in accordance with section IV. The above-mentioned representatives of the applicant, who were allowed to be present during the inspection and preservation of evidence, shall be heard. Only then will the court decide whether and to what extent the detailed description will be brought to the applicant's attention in person and whether the duty of confidentiality will be lifted for the applicant's representatives. XIII. The applicant is obliged to bear the costs of the inspection and preservation of evidence, including the preparation of the detailed description. The applicant is instructed to the expert an appropriate advance on costs to be determined by the expert before the inspection begins, unless the expert waives such an advance on costs. XIV. In the event of culpable violation of this Order, the court may impose a penalty payment for each violation by each party, the amount of which the court may determine taking into account the circumstances of the individual case. XV. inspection and evidence preservation measures shall be cancelled or otherwise cease to have effect at the request of the Respondents if the Applicant has not brought an action against the Respondents within a period not exceeding 31 calendar days or 20 working days, whichever is the longer, after the written description to be prepared pursuant to subparagraph IV. has been disclosed to the Applicant or the Court has decided by final decision not to grant access to that description. XVI. This Order shall be served personally on the Applicant by one of the representatives named in Section IX, together with a copy of the application for this Order, including the evidence and other documents on which the application is based prior to or upon execution of this Order, and the Notice of Interim Measures and Instructions for Access to Proceedings (to be provided by CMS) promptly at the time of execution of the measures. These will be served by the bailiff in co-operation with the applicant's legal representative present at the inspection and preservation of evidence in accordance with Section IX.1. XVII. In all other respects, the application for inspection and preservation of evidence is rejected.2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com 15 INFORMATION ON REVIEW AND APPEAL: The respondents may request a review of the present Order within 30 days of the enforcement of the measures (Art. 60 (6) UPCA, R. 197.3 RoP). The party adversely affected may appeal against this Order within 15 days of its notification (Art. 73(2)(a) UPCA, Rule 220.1(c) RoP). DETAILS: Main file reference: ACT 14438/2025 UPC number: UPC CFI 260/2025 Type of procedure: Application for preservation of evidence and inspection Issued on 26 March 2025 NAMES AND SIGNATURES Presiding judge Thomas Ronny Digital signed from Ronny Thomas Thomas Date: 2025.03.26 12:37:52 +01'00' Legally qualified judge Dr Schumacher Jule Kathrin Digitally signed from Jule Kathrin Schumache Schumacher Date: 2025.03.26 r 13:10:01 +01'00' Legally qualified judge Dr Schober Walter Digitally signed from Walter Schober Rick 12:45:51 +01'00' Date: 2025.03.26 for the Deputy Chancellor Strysio HEIKE. Digitally signed by HEIKE BETTINA BETTINA ELVIRA Strysio ELVIRA Strysio Date: 2025.03.26 13:24:52 +01'00'2025-03-26 LD Dusseldorf UPC CFI 260-2025 ACT 14438-2025 ORD 14757-2025 en-GBDeepL machine translation provided by www.veron.com

Key Holdings

• Application for ex parte inspection and preservation of evidence granted due to credible patent infringement and urgency.
• Ex parte order justified by the demonstrable risk of evidence destruction or removal, especially at a trade fair.
• Specific measures for on-site inspection of 'DLyte 1D' and 'DLyte 100D' at the IDS trade fair, including operation and measurement, are ordered.
• Confidentiality measures are imposed on the expert, bailiff, and applicant's representatives to protect the defendants' business secrets.
• The court rejected broad requests for seizure at 'any other location' and enforceability on 'all days and hours' for lack of certainty and proportionality.

Tags

• Evidence
• Ex Parte Order
• Infringement
• Inspection
• Trade Fair
• UPC

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