In its procedural order of 14 April 2026, the Brussels Local Division of the Unified Patent Court (UPC) provided important guidance on Requests to Produce Evidence under Rule 190 RoP in the case Establishment Labs S.A. v GC Aesthetics Group (UPC_CFI_1357/2025 / UPC_CFI_629/2026). The defendants, who are represented by Bristows, supported by Withers & Rogers, successfully sought extensive disclosure from the claimant in the context of an infringement action and counterclaim for revocation relating to EP 3 107 487 B1.
This decision made clear that Rule 190 RoP is not an exceptional remedy, but rather a central procedural instrument in UPC litigation. A request may be granted once the requesting party has put forward reasonably available evidence supporting its case, has specified the evidence sought and shown that it lies within the control of the opposing party. The assessment is expressly prima facie: a party is not required to prove lack of novelty or inventive step conclusively before obtaining disclosure. Importantly, the Court rejected the argument that the request was premature merely because the written procedure had not yet been completed. Where the relevant facts are clearly identified and disputed, timing alone will not bar a Rule 190 application.
In Establishment Labs v GC Aesthetics, this led to a broad production order covering sales figures, pre‑priority physical samples, marketing materials, third‑party test reports, internal technical and validation documents, regulatory filings and parts of the design history files.
Particularly noteworthy is the Court’s pragmatic approach to proportionality: The Court designed the disclosure order so that the claimant can significantly reduce its disclosure burden by cooperating early and clarifying key facts, but made clear that any refusal to do so would justify broader access to evidence needed by the defendants to prove invalidity. To ensure effectiveness, the Court imposed a daily penalty payment of €2,000 for non‑compliance after the set deadline for disclosure.
The decision highlights a significant procedural difference from German patent litigation. While German law provides for limited inspection or information claims (such as under § 140c PatG), there is traditionally no broad, court‑driven disclosure obligation comparable to Rule 190 RoP. The UPC model goes further by allowing access to internal technical, regulatory and commercial materials at an early stage of the proceedings, subject to proportionality and confidentiality safeguards. For parties accustomed to German proceedings, this represents a markedly more disclosure‑friendly environment, more akin, for example, to the specific disclosure process of English civil procedure PART 31 and complementary to the Saisie-like provisions of Rules 192-199 RoP”.
Overall, the Brussels order underscores – again – that UPC litigation requires early strategic consideration of evidence control and documentation. Requests to Produce Evidence are likely to play a decisive role, particularly in technically complex cases or where pre‑priority products are central to the dispute.
Ute Pfaller
Partner
© Withers & Rogers LLP April 2026
