Key takeaways
There is a basis for concern regarding an expert’s bias if – from the perspective of a knowledgeable and reasonable observer – certain circumstances give rise to justified doubts as to the expert’s impartiality or independence i.e., there is a likelihood that the expert’s decision will be influenced by factors other than the aforementioned duties.
The expert shall guarantee expertise, independence and impartiality (R. 196.4, 196.5, 199 RoP). The expert has an overriding duty to assist the court impartially on matters relevant to his area of expertise. He is to be independent and objective, and shall not act as an advocate for any party to the proceedings (R. 186.7 RoP). There is a basis for concern regarding an expert’s bias if certain circumstances, from the perspective of a knowledgeable and reasonable observer, give rise to justified doubts as to the expert’s impartiality or independence. Such doubts are justified if a knowledgeable and reasonable observer concludes that there is a likelihood that the expert’s decision will be influenced by factors other than the aforementioned duties. (mn. 90-92)
The content of the expert opinion as such is not sufficient to raise doubts about the expert’s impartiality. There must be additional circumstances that suggest an unobjective attitude.
If the concern regarding bias is based on the performance of the expert’s assignment itself, it must be taken into account that the content of the expert opinion as such is not sufficient to raise doubts about the expert’s impartiality. Even an erroneous expert opinion or a lack of expertise does not make the expert appear biased. Rather, there must be additional circumstances that suggest an unobjective attitude. (mn. 93)
In the review proceedings, the court examines the initial order for any (manifest) errors in issuing the order applying a 2-step test:
– 1) Was it correct to issue an ex parte order for inspection and preservation of evidence?
– 2) Should the order for inspection and preservation of evidence be modified, revoked, or confirmed?
The review does not extend to the execution of the order or its results.
The review proceedings serve solely to examine the order for any (manifest) errors of the court in issuing the order (CoA, order of April 16,
2025, UPC_CFI_539/2024, para. 23 — Bekaert Binjiang Steel Cord v. Siltronic). The Düsseldorf Local Division concurs with the principles established by the
Brussels Local Division in the order of November 12, 2025 (UPC CFI 407/2025 – Organon Heist v. Genentech; LD Düsseldorf, order of December 19, 2025, UPC CFI 834/2025, para. 34 et seq. – Ecovacs Robotics v. Roborock):
First, the court must examine whether it was correct in deciding to issue an ex parte order for inspection and preservation of evidence (R. 194.1(d), R. 194.2 RoP). In making this assessment, the court must consider the facts and evidence (i) that were presented in the request for an order for inspection and preservation of evidence, and (ii) that, if not disclosed to the court, are either publicly known or are deemed to be reasonably known to the applicant. If facts and evidence have not been disclosed, the court must determine whether this failure constitutes a breach of the applicant’s duty under R. 192.3 RoP. Under this provision, the
applicant must disclose all facts known to him that could influence the court’s decision on whether to issue an order without a hearing of the respondent.
The court must then determine whether the order for inspection and preservation of evidence should be modified, revoked, or confirmed, R. 197.4 RoP. In making
this assessment, the evidence to be considered is not limited to that which is either publicly available or reasonably known to the applicant. Rather, this review
encompasses all facts and evidence presented by the parties, R. 197.3(b) RoP. The assessment relates to the substantive review of the requirements for issuance (Art. 60(1) and (3) UPCA) as well as the scope and conditions set forth in the order for inspection and preservation of evidence.
The aforementioned assessment steps must be carried out as of the date of issuance of the order to be reviewed. The review therefore does not extend to the execution of the order for inspection and preservation of evidence, the result of such execution, or any information (evidence) gathered during the execution. (mn. 126-130)
Division
Local Division Düsseldorf
UPC number
UPC_CFI_1696/2025
Type of proceedings
Review of the order to preserve evidence, request for the expert’s recusal
Parties
Applicant: Topsoe A/S
Defendants: SYPOX GmbH, Josef Kerner Energiewirtschafts-GmbH
Patent(s)
EP 3 802 413
Body of legislation / Rules
R. 197.3 RoP
