ESSITY HYGIENE AND HEALTH AKTIEBOLAG v WEPA NEDERLAND (CFI, 22 June 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 22 June 2026, following a hearing on 9 June 2026 (UPC_CFI_1103/2026), the single judge of The Hague Local Division, on WEPA Nederland’s request for review (Rule 197.3 RoP), confirms the ex parte order of 17 April 2026 that had allowed Essity to carry out a saisie (description, documents and samples) at WEPA’s premises on the basis of EP 3 289 139, which concerns tissue paper made from Miscanthus fibres. The order makes three useful points: personnel at the inspected site are not required to answer questions under penalty, the lapse of the order if no action on the merits is brought follows from Rule 198.1 RoP without having to be restated in the order, and urgency is not a requirement for the measure.

Facts and procedure

On 17 April 2026 the division largely granted Essity’s ex parte application. The saisie took place on 21 April 2026 and the order set a time limit for bringing the action on the merits (paragraph 7.15). A revocation action against the patent is pending before the Paris Central Division, and the EPO Opposition Division maintained the patent on 11 November 2025, a decision under appeal by WEPA. WEPA sought the setting aside of the order, a ban on using the findings and the return of the seized material, and in the alternative a modification of the order and confidentiality of the expert report. It relied on the questioning of its employees under threat of penalty, the failure to mention the revocation mechanism, the invalidity of the patent and a delay of more than nine months before the application (sections 4 to 8).

The applicable law

A request for review of an ex parte order to preserve evidence is governed by Rule 197.3 RoP. Rule 198.1 RoP provides that the order is revoked or ceases to have effect, at the defendant’s request, if proceedings on the merits are not started within the time limit. On validity, the judge need not assess it unless the presumption of validity can clearly be called into question, for instance by an EPO decision or parallel revocation proceedings, in line with the Court of Appeal’s order in Valinea v Tiru (paragraph 7.1).

Question

Should the ex parte saisie order be set aside or modified on account of the questioning of staff, the failure to mention the revocation mechanism, the challenge to validity or the proprietor’s delay?

Decision

No. The original order stated, in its headnote and at paragraph 6.15, that staff were not obliged to answer questions. Essity’s request for answers under penalty had been rejected. Any misreading by employees is WEPA’s responsibility, and it could have called in its lawyers, who arrived around noon although the saisie had started between 8:00 and 8:30 (paragraph 5.3).

The revocation mechanism follows from Rule 198.1 RoP and need not be spelled out, paragraph 7.15 setting the time limit, which has not yet expired (paragraph 6.2). Maintenance of the patent by the Opposition Division supports the presumption of validity, so the exception does not apply. The absence of a detailed explanation of the invalidity arguments before the Central Division is no breach of the duty of candour (paragraph 7.1). Urgency is not a requirement for the measure. A risk of loss of evidence is found, since digital documents can be quickly deleted or moved and WEPA belongs to a group able to move products and documents (paragraph 8.2). WEPA does not show that the application would have been refused had it been heard inter partes (paragraph 8.3). The order of 17 April 2026 is confirmed (paragraph 9.1).

Key points for practice

• An order that does not require staff to answer questions cannot be challenged on the ground that staff believed they had to (paragraph 5.3).
• An Opposition Division decision maintaining the patent strengthens the presumption of validity before the judge ordering a saisie, even if an appeal is pending (paragraph 7.1).
• A delay of more than nine months does not bar an ex parte measure where a risk of loss of digital evidence is shown (paragraph 8.2).
• Practical point: the inspected company should bring in its counsel from the outset of the inspection and remind its staff of the exact scope of their obligations.

Provisions applied

Agreement on a Unified Patent Court

Art. 60(6)

Rules of Procedure

Rules 194.3, 197.3, 198.1 and 220.1(c)

Case law cited

Valinea Energie v Tiru, Court of Appeal, 15 July 2025, C-Kore Systems v Novawell, Paris Local Division, 14 November 2023, AGA v Sigma, Milan Local Division, 5 December 2025 (UPC_CFI_342/2025), PMA v AWM, Milan Local Division, 25 September 2023 (UPC_CFI_286/2023)

Related decisions

• Essity v WEPA Nederland, 17 April 2026, ex parte saisie order confirmed on review.

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.