UPC_CoA_113/2026 – WEPA v Essity

Expert Commentary

Evidentiary seizure Facts 1. On 17 April 2026, the Local Division The Hague granted a request for an evidentiary seizure and inspection order at the premises of WEPA. 2. The ex parte order contained the possibility for the bailiff and expert to ask questions. 3. The order was confirmed by the Local Division after review. 4. WEPA appealed. The Court of Appeal 1. The Court of Appeal dismisses WEPA’s complaint that it should have been heard before the order was given. The Local Division has discretion when ordering ex parte and should take into account: a. the urgency of the action; b. whether the reasons for not hearing the other party are well founded; c. the probability that evidence may be destroyed or otherwise cease to be available. 2. In this case, there was a risk that the evidence would cease to be available, which is sufficient for granting an ex parte order. 3. The scope of an evidentiary seizure is not limited to technical evidence. It may also encompass evidence of acts of infringement. 4. WEPA’s complaint about the questioning of its employees is well-founded. While the Local Division The Hague had allowed the bailiff and the expert to ask questions, it indicated that the WEPA employees were not obliged to answer. The Court of Appeal states that questioning the technical details of the product has to be conducted under the control of the Court. 5. However, practical questions necessary for executing the order are permitted, such as those relating to passwords required to access digital data. 6. The Local Division is not obliged to assess the validity of the patent. 7. Essity did comply with its duty to disclose relevant facts. 8. A prior user right does not play a role in these proceedings. That will be decided in the main proceedings. 9. WEPA’s request for compensation was not made during the review proceedings and, therefore, cannot be raised on appeal. 10. The Court of Appeal orders the destruction of the original expert report and instructs the expert to file a new report within two weeks of the order of the Court of Appeal. Comment 1. An understandable decision by the Court of Appeal, as an evidentiary seizure/inspection order cannot be used to hear witnesses. Such hearings are conducted by the Court. 2. However, this does not mean that the bailiff and/or expert cannot ask questions which are necessary for carrying out the seizure and inspection. Employees cannot, for instance, refuse to answer a question about the location of certain documents or about a password. 3. The rest of the decision confirms what we already know. I only miss one aspect: necessity. Is the seizure necessary for obtaining the evidence? Such seizures are an excellent means to disturb a competitor’s business, especially during exhibitions. So, I am of the opinion that such an order should not be granted if it is clear that the evidence can be obtained in a different way (for example, if the product is on sale and easily obtainable and it is clear where it is sold).

Full Decision Text

Court of Appeal of the Unified Patent Court UPC-CoA-113-2026 Order 3 September 2026 EP 3 289 139 **HEADNOTE** 1. The scope of application of Art. 60 UPCA is not limited to technical documentation. It may also encompass evidence of alleged acts of infringement contained in promotional and commercial documentation. 2. Art. 60 UPCA does not confer on the Court the power to allow a bailiff or expert to question the defendant's personnel on technical details relating to the defendant's products or production processes. Even if, in a specific case, obtaining statements from the defendant's personnel were necessary for preserving evidence, this would have to take place under the Court's control (cf., in the context of evidence taking, Art. 53 UPCA). Such questioning must therefore not be conducted by a bailiff or expert in the context of a description within the meaning of Art. 60(2) UPCA, or as part of an inspection under Art. 60(3) UPCA. In contrast, under Art. 60 UPCA, the Court may order a defendant to require its personnel to provide practical information necessary for the execution of measures for the preservation of evidence or the inspection of premises, such as passwords necessary to access digital data (cf. R. 196.1(d) RoP). 3. Where the preservation of evidence is necessary for the applicant to bring an infringement action, the applicant's interest in the preservation of evidence, as a general rule, prevails over the interests of the defendant, even if the defendant believes it can defend itself against the allegation of infringement on the basis of a prior use right within the meaning of Art. 28 UPCA. The proper procedure for determining the alleged prior use rights is the infringement action that the applicant intends to bring. The purpose of measures for the preservation of evidence is merely to ensure that all relevant evidence is available for the infringement proceedings. Only where it is clear, on the basis of a summary examination, that the infringement action has no prospect of succeeding in light of the alleged prior use right must the application for preserving evidence be dismissed. **KEYWORDS** Appeal; measures for the preservation of evidence and inspection; questioning of personnel; prior use right **APPELLANT (DEFENDANT BEFORE THE COURT OF FIRST INSTANCE)** WEPA NEDERLAND B.V., Swalmen, The Netherlands represented by Andreas Kabisch, attorney-at-law, Meissner Bolte Patentanwälte Rechtsanwälte Partnerschaft mbB, and other representatives of that firm and of the firm of Withers & Rogers LLP (hereinafter referred to as “WEPA”) **RESPONDENT (APPLICANT BEFORE THE COURT OF FIRST INSTANCE)** ESSITY HYGIENE AND HEALTH AKTIEBOLAG, Gothenburg, Sweden represented by Frank Eijsvogels, attorney-at-law, HOYNG ROKH MONEGIER, and other representatives of that firm and of the firm of HOFFMANN EITLE (hereinafter referred to as “Essity”) **PATENT AT ISSUE** EP 3 289 139 **PANEL AND DECIDING JUDGES** Panel 1c Klaus Grabinski, President of the Court of Appeal Peter Blok, legally qualified judge and judge-rapporteur Paolo Catallozzi, legally qualified judge Marc van der Burg, technically qualified judge Max Tilmann, technically qualified judge **LANGUAGE OF THE PROCEEDINGS** English **DATE OF THE ORAL HEARING** 19 August 2026 **IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE** Order of Local Division The Hague of 9 June 2026 (orally) and 22 June 2026 (in writing) Number attributed by the Court of First Instance: UPC-CFI-1103/2026 **FACTS AND REQUESTS OF THE PARTIES** The parties 1. Essity is part of the Essity Group. Essity markets a range of hygiene and paper products, including toilet paper, hand towels, household towels and other tissue products for consumer use. 2. WEPA is part of the WEPA Group, a manufacturer of hygiene paper products, including toilet paper, tissues, napkins and related hygiene solutions. The company operates a network of fourteen paper production facilities across six European countries. WEPA is the Dutch subsidiary of the group. Its premises in Swalmen, The Netherlands, house a production facility for tissue paper and tissue paper products. The Patent 3. Essity is the registered proprietor of European patent EP 3 289 139 B1, relating to tissue paper comprising pulp fibers originating from Miscanthus and a method for manufacturing the same (“the Patent”). The application for the Patent was filed on 29 April 2015. The grant of the Patent was published on 23 August 2023. The Patent is in force in the UPCA Contracting States of Austria, Belgium, Finland, France, Germany, Italy, the Netherlands and Romania, as well as in other countries such as Spain, Switzerland, the United Kingdom and Turkey. 4. Claim 1 of the Patent reads as follows: 1. 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. 5. On 23 May 2024, WEPA filed an opposition to the grant of the Patent. By decision of 11 November 2025, the Opposition Division of the European Patent Office (“EPO”) decided to maintain the Patent as granted. On 8 January 2026, WEPA filed a notice of appeal against the decision of the Opposition Division. At the request of WEPA, the Board of Appeal of the EPO accelerated the appeal proceedings. The Board scheduled the oral hearing for 20 November 2026 and indicated that a preliminary opinion could be expected in September 2026. 6. In addition, WEPA brought an action for revocation of the Patent before the Paris Seat of the Central Division of this Court on 8 December 2025 (UPC CFI 1898/2025). On 3 March 2026, Essity filed a Statement of Defence together with an Application to amend the Patent, including 13 auxiliary requests. The Central Division scheduled the oral hearing for 6 October 2026. The proceedings 7. By order of 17 April 2026 (“the Ex parte order”), the Hague Local Division granted, upon Essity’s application, measures for the preservation of evidence and inspection of premises against WEPA, largely as requested. The Ex parte order was issued without WEPA having been heard. 8. The Ex parte 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 password protected 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. 9. The Ex parte order was executed at WEPA’s premises in the Netherlands on 21 April 2026. 10. WEPA lodged an application for review of the Ex parte order pursuant to R. 197.3 RoP. By order pronounced orally on 9 June 2026 and issued in writing on 22 June 2026 (“the Review order”), the Hague Local Division confirmed the Ex parte order. 11. WEPA filed an appeal against the Review order, requesting that the Court of Appeal: - set aside the Ex parte order and the Review order in their entirety; - reject the application for preserving evidence; - prohibit Essity from using – in summary – all information obtained during the inspection and order that all such information be returned to WEPA; and - order Essity to provide appropriate compensation for any injury caused by the measures, including the costs of the proceedings. 12. Essity responded to the appeal, requesting that the Court of Appeal reject the appeal and order WEPA to bear the costs of the appeal proceedings. **GROUNDS FOR THE ORDER** Ex parte order 13. WEPA’s complaint that the Hague Local Division should have heard WEPA before deciding on Essity’s application for preserving evidence and inspection must be dismissed. There was a sufficient basis for issuing an ex parte order. 14. Under Art. 60(5) UPCA and R. 197.1 RoP, measures for the preservation of evidence shall be ordered, if necessary without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the proprietor of the patent or where there is a demonstrable risk of evidence being destroyed (cf. Art. 7(1) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights). Pursuant to R. 194.1(d) RoP the Court shall have the discretion to decide the Application without having heard the defendant. In exercising its discretion, the Court shall take into account: (a) the urgency of the action; (b) whether the reasons for not hearing the defendant appear well-founded; (c) the probability that evidence may be destroyed or otherwise cease to be available (R. 194.2 RoP). 15. In its Application, Essity submitted that a large part of the evidence is in digital form, such as technical, promotional and commercial documentation. It argued that this type of evidence could be easily removed. In addition, it pointed out that the requested measures included the description and taking of samples of tissue paper webs and products, as well as components, ingredients and raw materials. Essity maintained that these materials could easily be destroyed or moved elsewhere. Furthermore, it explained that WEPA is part of a group of companies and that multiple entities are involved in the trade in WEPA’s products. It argued that there was therefore a probable risk that evidence would be transferred to other entities and consequently cease to be available. In the circumstances of this case, these submissions were plausible and sufficient to demonstrate a risk of evidence being destroyed or otherwise ceasing to be available. The Hague Local Division could therefore, without error, exercise its discretion to decide Essity’s application without having heard WEPA. 16. These findings are not called into question by WEPA’s submission that there is no risk that it would move its entire manufacturing site. The risk of evidence ceasing to be available concerns specific documentation and production materials, not the manufacturing site as a whole. 17. WEPA’s submissions on an alleged lack of urgency of the action can be disregarded. The decision of the Local Division to not hear WEPA was not based on the urgency of the action, but on the risk of evidence ceasing to be available. That risk is in itself a sufficient basis for not hearing WEPA. Urgency is not a requirement for an order to preserve evidence (UPC CoA 002/2025, order of 15 July 2025, Valinea v Tiru, para. 36). Promotional and commercial documentation 18. WEPA’s complaint that the Ex parte order covers not only technical documentation but also promotional and commercial documentation must be disregarded pursuant to Art. 73(4) UPCA and R. 222.2 RoP. WEPA did not raise this argument or the facts underlying it in the proceedings before the Court of First Instance and failed to provide any reasons for not doing so. 19. Moreover, the complaint would have been dismissed if it were admissible. The complaint is based on the incorrect assumption that the Court’s power under Art. 60 UPCA to order measures to preserve evidence is limited to technical evidence, i.e. evidence concerning the technical details of the defendant’s product or process. The scope of application of Art. 60 UPCA is not limited to technical documentation. It may also encompass evidence of alleged acts of infringement contained in promotional and commercial documentation. This follows from the wording of Art. 60(1) UPCA, which makes clear that orders for the preservation of evidence may cover any “relevant evidence in respect of the alleged infringement”. In addition, R. 196.1(d) RoP expressly allows the Court to order the preservation of “digital media and data”, without any limitation to technical documentation. This broad scope is also in line with the objective of the provision, which is to ensure effective means of preserving evidence of alleged infringements (see recital 20 of Directive 2004/48; Art. 60 UPCA implements Art. 7 of this directive). Questioning of employees 20. WEPA’s complaint regarding the questioning of its employees is well-founded. 21. The Hague Local Division rejected Essity’s request to order WEPA, including its directors, officers, employees, agents, representatives, contractors and other persons acting on behalf of WEPA (“WEPA personnel”), to fully cooperate with the bailiff and the experts by answering directly, completely and truthfully any question the bailiff and/or the experts may have during the execution of the measures (request 12(c) in Essity’s application; para. 7.28 of the operative part of the Ex parte order). However, it did allow Essity to ask WEPA personnel “direct questions” as to whether – in summary – the teachings of the Patent are implemented in WEPA’s products and processes (para. 7.1, last sentence, of the operative part of the Ex parte order), stating that, while the bailiff and experts may ask questions to WEPA personnel, under Dutch law they are not obliged to answer on pain of penalty (para. 6.15 and headnote 2 of the Ex parte order). 22. Art. 60 UPCA does not confer on the Court the power to allow a bailiff or expert to question the defendant’s personnel on technical details relating to the defendant’s products or production processes. Even if, in a specific case, obtaining statements from the defendant’s personnel were necessary for preserving evidence, this would have to take place under the Court's control (cf., in the context of evidence taking, Art. 53 UPCA). Such questioning must therefore not be conducted by a bailiff or expert in the context of a description within the meaning of Art. 60(2) UPCA, or as part of an inspection under Art. 60(3) UPCA. 23. In contrast, under Art. 60 UPCA, the Court may order a defendant to require its personnel to provide practical information necessary for the execution of measures for the preservation of evidence or the inspection of premises, such as passwords necessary to access digital data (cf. R. 196.1(d) RoP). Such information does not constitute evidence in itself. It merely enables the preservation of evidence or the inspection of products, devices, methods, premises or local situations in situ. 24. It follows that there was no legal basis for allowing the bailiff and experts to question WEPA personnel, as the Local Division did under 7.1 of the Ex parte order. The questions permitted under this part of the order did not concern any practical information necessary for the execution of measures for the preservation of evidence. Another paragraph of the operative part of the Ex parte order specifically addresses such practical information (see paragraph 7.12). The parties agree that paragraph 7.1 instead concerns information on the technical details of WEPA’s processes and products. 25. The fact that the Ex parte order expressly states that, under Dutch law, WEPA personnel are not obliged to answer the bailiff’s or expert’s questions on pain of a penalty, does not alter this assessment. The fact remains that the Court exceeded its powers by allowing the bailiff and expert to question WEPA personnel. Furthermore, even if the WEPA personnel took note of that statement, they could still reasonably have been under the impression that they were obliged to answer and that a refusal to answer questions might have negative consequences for them or WEPA other than penalty payments. This is because the questions were asked by a bailiff, which is a public authority, on the basis of express authorisation by the Court. Validity of the Patent 26. As correctly observed by the Hague Local Division, the Court is not required to assess the validity of the Patent when examining an application for preserving evidence and for inspection of premises. Where the presumption of validity of the Patent can clearly be called into question, for example following a decision of the EPO’s Opposition Division, the Court may take that fact into account in its decision on the application (UPC CoA 327/2025, order of 15 July 2025, Maguin v Tiru, para. 43). 27. The Hague Local Division did not err in finding that, in the present case, no facts had been submitted that clearly called the presumption of validity of the Patent into question and that the presumption of validity was in fact confirmed by the decision of the Opposition Division maintaining the Patent. The Local Division was not required to examine WEPA’s invalidity arguments in greater detail. 28. The assessment is not altered by the fact that the decision of the Opposition Division is not final and does not take into account certain objections and evidence raised in the parallel revocation proceedings. Admittedly, as WEPA submits, there are still “uncertainties and points of contention” regarding the validity of the Patent. However, those uncertainties and disputes are insufficient to deny Essity the right to preserve the evidence necessary for the infringement action it intends to bring. Essity’s interest in preserving the evidence prevails over WEPA’s interest, taking into account that the procedure for preserving evidence contains safeguards for the protection of confidential information. 29. Nor did the Hague Local Division err in concluding that Essity complied with its duty to disclose any material fact known to it which might influence the Court in deciding whether to make an order without hearing the defendant (R. 206.4 RoP). Contrary to WEPA’s contention, Essity did not present the material facts relating to validity incorrectly or incompletely in its application. WEPA takes issue with Essity’s observation in the application that none of the invalidity arguments WEPA presented in its revocation action before the Central Division “substantially deviate” from the arguments it put forward in the opposition proceedings. However, Essity also presented a summary of all WEPA’s arguments in the application and annexed WEPA’s Statement for revocation to the application (Exhibit A11). Taken together, this provided the Court with sufficient information on the parties’ debate on the validity of the Patent. Furthermore, WEPA’s allegation that Essity’s presentation of the validity issues was incorrect and incomplete is based in part on WEPA’s Statement of Reply to the Defence to revocation (Exhibit MB 1, part 2). WEPA lodged this Statement of Reply on 4 May 2026, after Essity had filed its application for preserving evidence and inspection. Essity could therefore not have included any information concerning this reply in its application. Prior use right 30. WEPA’s reference to an alleged right of prior internal use must be disregarded pursuant to Art. 73(4) UPCA and R. 222.2 RoP. WEPA did not raise that argument or the facts and evidence on which it is based in the proceedings before the Court of First Instance and failed to provide any reasons for not doing so. 31. Moreover, the argument would not succeed if it were admissible. Where the preservation of evidence is necessary for the applicant to bring an infringement action, the applicant’s interest in the preservation of evidence, as a general rule, prevails over the interests of the defendant, even if the defendant believes it can defend itself against the allegation of infringement on the basis of a prior use right within the meaning of Art. 28 UPCA. The proper procedure for determining the alleged prior use rights is the infringement action that the applicant intends to bring. The purpose of measures for the preservation of evidence is merely to ensure that all relevant evidence is available for the infringement proceedings. Only where it is clear, on the basis of a summary examination, that the infringement action has no prospect of succeeding in light of the alleged prior use right must the application for preserving evidence be dismissed. 32. This relatively high threshold for allowing a prior use defence in an action for the preservation of evidence has not been met in the present case. WEPA failed to set out the relevant national law. For that reason alone, WEPA’s submissions are inconclusive. In addition, the parties dispute i) whether the technology used embodied all the features of any claim of the Patent, ii) where the use took place, and iii) whether the alleged use was of a commercial nature. In view thereof, on the basis of a summary examination, it is not clear that the infringement action has no prospect of succeeding in light of the alleged prior use right. Compensation 33. WEPA’s request for compensation for any injury caused by the measures for the preservation of evidence must be disregarded pursuant to Art. 73(4) UPCA and R. 222.2 RoP. WEPA did not make that request before the Court of First Instance and failed to present any reasons for not doing so. In addition, WEPA failed to substantiate that is had suffered any damage as a result of questioning its personnel. Therefore, even if the request were admissible, it would have been rejected. Conclusion 34. It follows that the Ex parte order and the Review order must be revoked to the extent the Ex parte order allowed Essity, and the Review order confirmed that Essity was permitted, to ask WEPA personnel direct questions, as specified in paragraph 7.1 of the operative part of the Ex parte order, and that Essity’s application must be rejected to that extent. 35. WEPA submits that the technical expert made extensive use of the permission to question WEPA personnel and that a substantial part of the information in the expert report was obtained through this questioning. Essity has not had the opportunity to verify this submission, since, at the time of the oral hearing in the appeal proceedings, it had not yet been given access to the expert report. However, the fact that the bailiff and technical expert were allowed to ask questions, as requested by Essity, is sufficient to conclude that the expert report may contain information on the technical details of WEPA’s products or processes based solely on answers given by WEPA personnel. The technical expert must therefore redraft his report, excluding any parts that record WEPA personnel’s answers to substantive questions or contain findings by the technical expert that rely exclusively on such answers. Findings that the expert would have made on the basis of information collected during the execution of the measures other than such answers can remain in the report, subject to the protection of confidential information. 36. WEPA requests that all secured documents, records and/or data and/or copies thereof “be returned [...] to WEPA”. In respect of the expert report, the Court of Appeal understands this to mean that the expert, bailiff and the representatives of Essity are to be instructed to destroy all copies of the report, since the report was not secured from WEPA and therefore cannot be returned to WEPA. The Court of Appeal will grant the request to that extent. If the original version of the report has been disclosed to Essity, Essity must destroy any copy of it and must be prohibited from using it. 37. The conditions under which access to the preserved evidence was granted in the Ex parte order (para. 7.10, 7.11 and 7.21) also apply to the redrafted version of the report. The time limit for Essity to start proceedings on the merits (para. 7.15) must be understood as referring to the redrafted version of the report. 38. The Court of Appeal notes that any further request relating to the preserved evidence, including any request for confidentiality in respect of the redrafted version of the expert report, must be filed with the Court of First Instance, since this order concludes the review and appeal proceedings. 39. As WEPA’s review application and appeal succeed only in part, the parties must bear their own costs of the review proceedings at both instances. **ORDER** The Court of Appeal I. Revokes the Ex parte order and the Review order to the extent they allowed Essity, or confirmed that Essity was permitted, to ask WEPA personnel direct questions, as specified in paragraph 7.1 of the operative part of the Ex parte order; II. Rejects Essity’s request to be permitted to ask WEPA personnel direct questions as to whether the teachings of the Patent are implemented in WEPA’s products or processes (request 1, last sentence); III. Orders Essity to instruct the technical expert, the bailiff and its representatives to destroy all copies of the original version of the technical expert’s report; IV. If the original version of the technical expert’s report has been disclosed to Essity, prohibits Essity from using it and orders Essity to destroy any copy of it; V. Determines that the technical expert must submit to the Sub-Registry of the Hague Local Division, no later than two weeks after the date of this Order, three copies of a redrafted version of his report, including the relevant attachments, setting out the findings of the measures to preserve evidence and inspection with regard to the alleged infringement of the Patent, excluding any parts that record WEPA personnel’s answers to substantive questions or contain findings by the technical expert which rely exclusively on such answers; VI. Determines that the conditions under which access to the preserved evidence was granted in paragraphs 7.10, 7.11 and 7.21 of the Ex parte order also apply to the redrafted version of the report; VII. Declares WEPA’s request for compensation inadmissible; VIII. Rejects the appeal in all other respects; IX. Orders the parties to bear their own costs of the review proceedings at both instances. This order was issued on 3 September 2026. Klaus Grabinski President of the Court of Appeal In his absence, signed by Peter Blok on his behalf Peter Blok Legally qualified judge and judge-rapporteur Paolo Catallozzi Legally qualified judge Marc van der Burg Technically qualified judge Max Tilmann Technically qualified judge

Key Holdings

• Ex parte evidentiary seizure orders are justified if there's a risk of evidence destruction or unavailability, and the Local Division has discretion.
• The scope of evidentiary seizure extends beyond technical evidence to include evidence of acts of infringement.
• Questioning of employees during an evidentiary seizure must be conducted under court control, not by bailiffs/experts, except for practical questions (e.g., passwords).
• The Local Division is not obliged to assess patent validity during evidentiary seizure proceedings.
• A request for compensation related to seizure must be made during review proceedings, not on appeal.

Tags

• Evidentiary seizure

Related Cases

• UPC_CoA_113/2026 – WEPA v ESSITY
• UPC_CFI_1103/2026 – Essity v WEPA