Rule 171 – Offering of evidence

1. A party making a statement of fact that is contested or likely to be contested by the other party shall indicate the means of evidence to prove it. In case of failure to indicate the means of evidence regarding a contested fact, the Court shall take such failure into account when deciding the issue in question.

2. A statement of fact that is not specifically contested by any party shall be held to be true as between the parties.

Case law

Court of Appeal

IPPT20260330, UPC CoA, Sinocare v Abbott
Claim construction (Article 69 EPC. R. 171.2 RoP). Claim construction is a matter of law, not a matter of fact […]. R. 171.2 RoP is therefore not applicable here. In general, a claim is not limited to the embodiments described in the patent. Embodiments are included in the patent description to explain and clarify the claimed invention, not to limit the claim to the specifics of the described embodiment. 

IPPT20250417, UPC CoA, Kodak v Fujifilm
Incorrect understanding of the scope of R. 171.2 RoP regarding uncontested facts. If there is an uncontested fact, this does not imply that the legal consequence for which this fact was submitted automatically follows. It still falls upon the Court to decide whether the facts advanced justify such a legal consequence. 

Court of First Instance

IPPT20260421, UPC CFI, LD Milan, Dainese v Alpinestars Inventive step and evidence ((R. 171(2) RoP, Article 56 EPC). Documents are facts, how these are interpreted interpretation for the purpose of assessing inventive step is a question of argument. 

IPPT20260416, UPC CFI, LD Mannheim, Corning v TCL
Infringement must be specifically contested. A blanket statement that current products do not infringe does not amount to a proper contestation of specific allegations. To rebut infringement, defendants must substantiate that none of their products fall within the claim scope. If a party does not specifically contest alleged facts, the Court shall treat them as established without requiring proof. In this case it does not need to be examined whether evidence meets procedural requirements. R. 171.1 RoP does not apply in that case. It was sufficient that infringement in the past was not disputed; current infringement did not need to be decided.
 

IPPT20251205, UPC CFI, LD Mannheim, Centripetal v Keysight Technologies
Infringement action dismissed due to insufficient substantiation by the Claimant. (Article 25 UPCA, Rule. 171 RoP). Inadmissible counterclaim for revocation (subject to intra-procedural condition). (Rule 25 RoP ). It is upon the claimant to substantiate why it is of an opinion and point to specific facts (Article 25 UPCA, Rule. 171 RoP) and,  if contested by Defendants - to offer adequate proof for such factual statements. In the absence of such statement, the Infringement Action has to be dismissed. 

IPPT20250708, UPC CFI, CD Milan, Maschio Gaspardo v Spiridonakis Bros
Direct and indirect patent infringement (Article 25 UPCA, Article 26 UPCA), decision by default (R. 355. RoP). Level of evidence required and burden of proof for an in absentia decision. Rule 355.2 has a broader scope than Rule 171.2 and deals with a general non-contestation of all facts phrased in the statement of claim. Rule 355.2 requires that non-contestation be accompanied by facts justifying the remedy to prevent the claimant from gaining an unfair advantage [...]. Whether it is a declaration of infringement or a patent revocation, a decision cannot be issued 'by default' merely by acknowledging the absence of a defence. Rule 355.2 must be interpreted in light of the burden of proof principle set out in Rules 171.1 and 172.1, [...]  In any case he claimant must put forward all elements in its possession to justify the legal requests. These elements constitute the de minimis requirements for a statement of claim to be considered complete and admissible. Rule 355.2, therefore, imposes de minimis factual allegations for a decision to be issued in absentia, namely those set out in Rules 12 and 13 RoP. It is not necessary to take a stand on patent invalidity, as the court does not raise the issue of patent validity ex officio, even in a decision by default. 

IPPT20250710, UPC CFI, LD Düsseldorf, Aesculap v Shanghai International
Undisputed facts (R. 171.2 RoP). Only if the respondent disputes the allegation made by the applicant is it considered to be substantially disputed. If, as in this case, it does not do so and merely makes general statements about the applicant's burden of proof, the corresponding submission of the opposing party is deemed to be undisputed. 

IPPT20250616, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Extent of protection – burden of proof of non-infringement (Article 69 EPC, R. 171 RoP). It is for the Defendant to work out in each case in relation to the individual features of the claim, how specifically the technical design of the challenged embodiment differs in each case from the description in the article and to explain why this is relevant for the question of infringement. Rebuttable presumption of infringement (Article 25 UPCA). By offering and placing the challenged embodiment on the market, the Defendant gives rise to a rebuttable presumption that it also uses it or imports or possesses it for the purposes of offering, placing on the market, or using it. 

IPPT20250523, UPC LD Paris, Hurom v NUC
Long-arm jurisdiction concerning Poland: HUROM's claim concerning alleged acts of infringement on Polish territory is admissible in light of the decision handed down by the CJEU in BSH v Electrolux, as has already been stated by several divisions of the UPC concerning non-contracting States of the UPC Agreement. However, on the merits, the Claimant bears the burden of proof for the alleged facts in accordance with R. 13m and R. 171.1RoP. [...]. Consequently, HUROM's claim for infringement based on the national part of the patent as granted for Poland cannot be considered as well-founded. 

IPPT20250513, UPC CFI, LD Düsseldorf, Sanofi v Amgen

Objections based on pleading ignorance are in principle disregarded (R. 171.2 RoP). When a party pleads ignorance, the fact is not specifically contested as required by R. 171.2 RoP. Defendants apparently derive this objection from German procedural law, ignoring that the Rules of Procedure contain no corresponding provision. 

IPPT20250424, UPC CFI, LD Paris, Seoul Viosys v Laser Components

Territoriality of the acts infringement (Article 34 UPCA, R. 13.1(m) RoP, R. 171.1 RoP); only in France - no evidence of sales in Germany, the Netherlands, and the United Kingdom.

IPPT20241220, UPC CFI, LD Mannheim, Pohl-Boskamp v pharma-aktiva
Preliminary injunction and provisional measures granted (article 62 UPCA). Must be assumed that the features of claim 1 are realized (Article 25 UPCA, R. 171.2 RoP). The respondents have not specifically contested the realisation substantiated by the applicant, who bears the burden of proof in this respect (Rule 171.2 RoP). It is not sufficient to dispute the proper performance of the analyses carried out by the applicant on the weight proportions and viscosities. 

IPPT20241104, UPC CFI, LD Milan, Oerlikon v Bhagat
Patent infringement uncontested. No basis for staying the action for infringement because of pending revocation proceedings, where the defendant has not contested the validity of the patent nor the infringement (R. 295 RoP, R. 171(2) RoP). Interim award of € 15.000 reputational damages because of exhibition at trade fair (Article 68 UPCA, R. 119 RoP). he ITMA trade fair was held for seven days and is the most important trade fair in the world, organised every four years, with the participation of more than 1,600 exhibitors from 44 countries and over 100,000 visitors. These circumstances are not contested and must therefore be deemed proven, pursuant to Rule 171(2) RoP.