Rule 172 – Duty to produce evidence

1. Evidence available to a party regarding a statement of fact that is contested or likely to be contested by the other party must be produced by the party making that statement of fact.

2. The Court may at any time during the proceedings order a party making a statement of fact to produce evidence that lies in the control of that party. If the party fails to produce the evidence, the Court shall take such failure into account when deciding on the issue in question.

Relation with Agreement: Article 53

Case Law

Court of Appeal

IPPT20240916, UPC CoA, ICPillar v ARM
A party has a duty to provide available evidence (R. 172(1) RoP). Court has a discretionary power to request the production of evidence but is not obliged to do so (R. 172(2) RoP). 

Court of First Instance

IPPT20250725, UPC CFI, LD Brussels, OrthoApnea
Costs claimed are ‘facts’, for which – if disputed – the claimant needs to provide evidence (Article 54 UPCA, R. 172.1 RoP). Same standard of proof. If the ‘facts’ (‘costs’) are disputed by the defendant and if the claimant has evidence to support the ‘facts’ (‘costs’) presented, the claimant is obliged to provide such evidence. Contrary to what R 156.1 RoP suggests, such evidence does not only have to be submitted if the Court requests it. R. 156.1. RoP merely states that the Judge-Rapporteur has the power (‘may’) to have written evidence submitted to him and does not relieve the claimant of his burden of proof as set out in Article 54 UPCA and R. 172.1. RoP. The Court may apply the ceiling (as a safety net) with regard to recoverable representation costs if the circumstances of the case justify this. Translation costs (including translations made in the light of the defence and communication between clients and their legal representatives (‘representatives’) (or translations concerning decisions taken in the language of the proceedings) as well as the travel and accommodation costs of the legal representatives (‘representatives’) fall under representation costs. R. 152.1. RoP should be interpreted broadly in this sense.

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. 

IPPT20241121, UPC CFI, LD Munich, Collomix v Lidl
Submission of evidence (R. 172 RoP). The Rules of Procedure do not contain any principle according to which evidence in support of factual allegations made by the claimant may no longer be submitted after the action has been filed.

IPPT20240430, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Plaintiff is upon its own request ordered to submit redacted licence agreements, subject to further to be determined confidentiality regimes under Rule 262 and 262A RoP. Order is based on the extensive case management powers vested in the Court (Article 43 UPCA) and the judge-rapporteur (Rules 101, 111 and 331 et al. RoP), not Rule 172 RoP or Rule 190 RoP.