1. Key takeaways
Under R. 190 RoP and Art. 59(1) UPCA, evidence production orders require four cumulative conditions: plausible evidence, specified evidence within the other party’s control, confidentiality protection, and proportionality
The Court grounded this framework in prior UPC case law, specifically Winnow v Orbisk (LD The Hague, UPC_CFI_327/2024) and Oppo v Panasonic (CoA, UPC_CoA_298,299,300/2024). The conditions derive from R. 190.1 RoP, Art. 59(1) UPCA, Art. 6 of the Enforcement Directive (2004/48/EC), and the general principles of Arts. 41(3) and 42 UPCA.
A prima facie infringement case and patent validity presumption are indispensable thresholds for any R. 190 RoP evidence production order
The requesting party need not be conclusive on the precise features for which evidence is sought, requiring this would be circular. For validity, a granted European patent carries a presumption of validity following EPO examination. Only a clear-cut case of invalidity would displace this at the R. 190 RoP stage.
Necessity and proportionality under Arts. 41(3) and 42 UPCA limit evidence requests: establishing infringement with one product generally suffices
The claimant’s primary request for six UD Fabric variants (30 kg each) was reduced to two, namely the variants already requested in the alternative, as one product generally suffices to demonstrate infringement. The 30 kg per variant was upheld as necessary for in duplo ballistic testing. The defendants’ argument that the fabrics were commercially obtainable was dismissed as they are only accessible via B2B supply chains and not in sufficient quantities through ordinary commercial channels.
Physical samples may be ordered under R. 190 RoP to enable direct ballistic testing where test-dependent infringement cannot otherwise be verified
Where the defendants argued that infringement under claims 13–15 can only be established by actual testing – and not by the claimant’s expert’s mathematical extrapolation – ordering physical samples to enable precisely that testing is both necessary and internally consistent. The Court advised the claimant to use an independent testing institution and to invite the defendants’ representatives to observe the testing process.
Marketing materials removed from public access during proceedings may be ordered produced under R. 190 RoP to establish infringing acts in UPCA territory
The defendants removed an English-language promotional video from their website during the proceedings. The Court ordered production of all English versions of the video available on or after the patent grant date (28 November 2018), finding this necessary to establish acts of infringement directed at UPCA territory. By contrast, related internal communications about the removal decision were dismissed as disproportionate at this stage.
Non-compliance triggers a daily penalty of EUR 1,000 under R. 190.4(b) RoP and adverse inference under R. 190.7 RoP – appeals must be filed within 15 calendar days
The confidentiality club sought by the defendants under R. 190.1, R. 262, and R. 262A RoP was rendered moot by the dismissal of the internal documentation requests to which it related. Separately, the Court stipulated that non-compliance with the production order would be taken into account when deciding on the substantive issues. Appeals may be lodged within 15 calendar days of notification pursuant to Art. 73(2)(a) UPCA and R. 220.1 RoP (per R. 190.6 RoP).
2. Division
Court of First Instance, UPC
3. UPC number
UPC-CFI_478/2025, UPC_CFI_585/2026
4. Type of proceedings
Application for production of evidence (R. 190 RoP) within infringement proceedings
5. Parties
Claimant / Applicant: Avient Protective Materials B.V.
Defendants / Respondents: Xingi Technology Co., Ltd.; Jiangsu Jiuzhou Xingji High-Performance Fiber Products Co., Ltd. (collectively: the “Xingi Group”)
6. Patent(s)
EP 2 791 402
7. Jurisdictions
UPC
8. Body of legislation / Rules
R. 190 RoP, R. 190.1 RoP, R. 190.4(a) RoP, R. 190.4(b) RoP, R. 190.6 RoP, R. 190.7 RoP, R. 262 RoP, R. 262A RoP, R. 262.2 RoP, R. 220.1 RoP
Art. 59(1) UPCA, Art. 41(3) UPCA, Art. 42 UPCA, Art. 73(2)(a) UPCA
Art. 6 Enforcement Directive (2004/48/EC), Art. 3 Enforcement Directive (2004/48/EC)
