No. 149 - 22 September 2026
WEPA v Essity – UPC Court of Appeal, 3 September 2026, UPC_CoA_113/2026
Measures for the preservation of evidence and inspection of premises under Art. 60 UPCA are among the most intrusive tools available to a patentee at the UPC. They are typically ordered ex parte and executed by a bailiff and independent experts at the defendant's premises. In WEPA v Essity, the Court of Appeal has drawn an important boundary: the Court may order the defendant to provide practical information needed to execute the measures, such as passwords, but Art. 60 UPCA provides no legal basis for allowing the bailiff or expert to question the defendant's personnel on the technical details of its products or processes.
In the case at hand, where such questioning had taken place, the resulting expert report must be redrafted and the original destroyed. The order also clarifies the scope of Art. 60 UPCA with regard to promotional and commercial documentation, the role of validity in evidence preservation proceedings, and the limited relevance of an alleged prior use right at this stage.
Essity is the proprietor of EP 3 289 139 B1, relating to tissue paper comprising pulp fibers originating from Miscanthus Giganteus. The patent had been maintained as granted by the EPO Opposition Division in November 2025. WEPA appealed that decision and, in addition, filed a revocation action before the Paris Seat of the Central Division (UPC_CFI_1898/2025).
By order of 17 April 2026, the Local Division The Hague granted, ex parte and largely as requested, measures for the preservation of evidence and inspection of WEPA's production facility in the Netherlands. The order was executed on 21 April 2026. Among other things, it allowed Essity to ask WEPA's directors, officers, employees and other persons acting on its behalf "direct questions" as to whether the teachings of the patent are implemented in WEPA's products and processes, while noting that under Dutch law they were not obliged to answer under pain of penalty.
WEPA applied for review under R. 197.3 RoP. The Local Division confirmed the ex parte order (orally on 9 June 2026, in writing on 22 June 2026, UPC_CFI_1103/2026). WEPA appealed, requesting that both orders be set aside, that Essity be prohibited from using the information obtained, and that compensation be awarded.
The Court of Appeal first confirmed that the Local Division could, without error, decide Essity's application without hearing WEPA. Under Art. 60(5) UPCA and R. 197.1 RoP, measures may be ordered ex parte in particular where there is a demonstrable risk of evidence being destroyed. Essity had plausibly submitted that a large part of the evidence was in digital form and easily removable, that samples and raw materials could be destroyed or moved, and that several group entities were involved in the trade in WEPA's products. This was sufficient.
WEPA's argument that it would not move its entire manufacturing site was beside the point: the relevant risk concerns specific documentation and production materials, not the site as a whole. Nor did an alleged lack of urgency matter. Referring to Valinea v Tiru (UPC_CoA_002/2025), the Court of Appeal reiterated that urgency is not a requirement for an order to preserve evidence.
WEPA complained that the order extended to promotional and commercial documentation. The Court of Appeal disregarded this complaint and rejected it: Art. 60(1) UPCA speaks of any "relevant evidence in respect of the alleged infringement", and R. 196.1(d) RoP expressly allows the preservation of "digital media and data" without any limitation to technical documentation. This broad scope reflects the objective of Art. 7 of Directive 2004/48/EC, which Art. 60 UPCA implements. Evidence of alleged acts of infringement contained in promotional and commercial documentation may therefore be covered.
On the central point of the appeal, the Court of Appeal found in WEPA's favor. 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 obtaining statements from the defendant's personnel were necessary to preserve evidence in a specific case, this would have to take place under the Court's control, as is the case for evidence taking under Art. 53 UPCA. Such questioning must therefore not be conducted by a bailiff or expert as part of a description under Art. 60(2) UPCA or an inspection under Art. 60(3) UPCA.
The Court of Appeal distinguished this from practical information necessary for the execution of the measures, such as passwords required to access digital data (cf. R. 196.1(d) RoP). The Court may order the defendant to have its personnel provide such information. It does not constitute evidence in itself; it merely enables the preservation of evidence or the inspection in situ. The Local Division's order had addressed such practical cooperation in a separate paragraph, and the parties agreed that the disputed permission instead concerned the technical details of WEPA's processes and products. For that permission there was no legal basis.
Notably, the Local Division's statement that WEPA's personnel were not obliged to answer under Dutch law did not cure the defect. The Court had exceeded its powers regardless. Moreover, personnel could reasonably have been under the impression that they were obliged to answer and that a refusal might have negative consequences, because the questions were asked by a bailiff, a public authority, on the basis of an express authorization by the Court.
The Court of Appeal revoked the ex parte order and the review order to the extent they permitted the questioning of WEPA's personnel and rejected Essity's application to that extent. Since the bailiff and expert had been allowed to ask questions, the Court of Appeal considered it sufficient to conclude that the expert report may contain technical information based solely on answers given by WEPA personnel. The technical expert was therefore ordered to submit a redrafted report within two weeks, excluding any parts that record answers to substantive questions or contain findings relying exclusively on such answers. Essity was ordered to instruct the expert, the bailiff and its representatives to destroy all copies of the original report and, to the extent it had been disclosed to Essity, was prohibited from using it. The access conditions of the ex parte order and the time limit for starting proceedings on the merits apply to the redrafted version.
The Court of Appeal confirmed that a division is not required to assess the validity of the patent when deciding on an application for preserving evidence. Where the presumption of validity is clearly called into question, for example by a decision of the Opposition Division, this may be taken into account (Maguin v Tiru, UPC_CoA_327/2025). Here, the Opposition Division had maintained the patent. That its decision was not final and that a parallel revocation action was pending did not alter the assessment; remaining "uncertainties and points of contention" are insufficient to deny the applicant the right to preserve evidence, particularly since the procedure contains safeguards for confidential information. The Court of Appeal also found no breach of the applicant's duty of full and frank disclosure under R. 206.4 RoP.
WEPA's reliance on an alleged right of prior use under Art. 28 UPCA was disregarded under Art. 73(4) UPCA and R. 222.2 RoP because it was raised for the first time on appeal. On the merits, the Court of Appeal set a high threshold: as a general rule, the applicant's interest in preserving evidence prevails even where the defendant believes it has a prior use defense. The proper forum for that defense is the infringement action. Only where it is clear on a summary examination that the infringement action has no prospect of succeeding in light of the alleged prior use right must the application be dismissed. WEPA had not even set out the relevant national law, and the parties disputed whether the prior use embodied all claim features, where it took place and whether it was commercial in nature.
As the review application and appeal succeeded only in part, each party bears its own costs of the review proceedings at both instances.
