Establishment Labs v GC Aesthetics Parentco (CFI, 14 April 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 14 April 2026 in the infringement action (UPC_CFI_1357/2025) and the counterclaim for revocation (UPC_CFI_629/2026), the Brussels Local Division orders the proprietor, Establishment Labs, to produce in part evidence on its own earlier ‘Motiva SilkSurface’ breast implant, which the GC Aesthetics companies rely on as prior art against EP 3 107 487 B1. The order applies Rule 190 in favour of the revocation counterclaimant, with a low plausibility threshold and a graduated mechanism: if the proprietor provides samples and declares that they were publicly available before the priority date, further production becomes disproportionate.

Question

Can a defendant relying on the prior public use of the proprietor’s own product obtain, under Art. 59 UPCA and Rule 190, the production of samples and documents held by the proprietor?

Decision

The application is not premature (paragraphs 21 to 25). The facts alleged (public availability without confidentiality, and lack of novelty or inventive step) are sufficiently supported by catalogues, securities filings and brochures, the threshold being low (paragraphs 26 to 37). The Division orders production within 21 days of sales figures, samples of each pre-priority generation (or witness statements on their unavailability), promotional material, test reports, technical specifications, regulatory documents and the design history file, but refuses post-priority samples (paragraphs 39 to 57). Confidentiality is secured by a Rule 262A order (paragraphs 59 to 62). A penalty of EUR 2,000 per day of delay is set and costs are reserved (paragraphs 69 to 73).

Key points for practice

• Rule 190 also serves a revocation counterclaimant who must prove prior use of the proprietor’s own product.
• The graduated mechanism lets the proprietor avoid broad production by acknowledging that its samples were publicly available before priority.

Provisions applied

Agreement on a Unified Patent Court

Art. 41(3), 42, 59 and 82(4)

Rules of Procedure

Rules 9, 172, 190, 262A and 354.3

Directive 2004/48/EC

Art. 6

Case law cited

Winnow v Orbisk, The Hague Local Division, 14 October 2024, Promosome v BioNTech, Munich Local Division, 3 April 2025, Dish v Aylo, Mannheim Local Division, 20 October 2024, Guangdong OPPO v Panasonic, Court of Appeal, 24 September 2024, 10x Genomics v Vizgen, Hamburg Local Division, 1 November 2024, Bostik v Henkel, Paris Local Division, 4 February 2026, Kodak v Fujifilm, Court of Appeal, 14 October 2025

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.