UPC CoA, 16 March 2026: Duty to disclose and proportionality in case of ex parte evidence preservation requests
09-05-2026 Print this page
Revocation of ex parte inspection order confirmed.
Duty to disclose any known material fact which might influence the Court (R. 192.3 RoP).
Is there so that the Court can take due account of the interests of both parties, in spite of having to rely only on the facts presented in the Application. Representatives are generally obliged not to misrepresent facts (R. 284 RoP).
Imposes a heightened requirement where the applicant must disclose, and not leave out, any material facts that might be relevant for an ex parte order.
This includes (for example) facts that may be relevant for the proportionality assessment. Ex tunc review: Omissions and distorted accounts of material facts which might be of central importance for the Local Division’s assessment on whether to allow the request at all cannot be compensated or circumvented by later submissions. The possibility that other grounds might have existed cannot retroactively justify the Application. Facts introduced later by the applicant in support of the Application shall be disregarded on review.
Proportionality of ex parte preservation of evidence (R. 1971. RoP). When R. 197.1 RoP is applied, it entails a proportionality test in the strict sense; meaning that a balancing is conducted with reference to the facts of the case. This involves weighing opposing interests. The weighing will normally come down to determining whether the requests are within a meaningful range, or if the operative part of the order must be limited in relation to what is requested to ensure proportionality. In rare cases this could result in denying the measures altogether, for example if the evidence to be preserved can be obtained in a less intrusive manner, rendering the sought measures disproportionate. Similarly, requests that are of a more speculative nature (fishing expeditions) in relation to the reasonably available evidence in support of the claim that the patent has been infringed or is about to be infringed, should be denied.
Subject matter of appeal (R. 222.1 RoP). As regards submissions in other proceedings, such as proceedings on the merits, the Court is under no obligation to consult other casefiles.
No CJEU referral possible (Article 21 UPCA). The UPC cannot ask the CJEU to interpret the UPCA or the RoP. A request for a preliminary ruling must concern the interpretation or validity of EU law, not the interpretation of rules of national law or issues of fact raised in the proceedings. The RoP are procedural rules that can be equated with national procedural law in this respect.
