fiskaly v Swissbit (CFI, 7 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 7 September 2026 (UPC_CFI_1332/2026), the Düsseldorf Local Division, on a request for review under Rule 197.3 RoP by SwissBit AG and Swissbit Germany AG, upheld in substance the order for inspection and preservation of evidence granted without hearing the respondents on 27 April 2026 in favour of fiskaly, concerning the European patent with unitary effect EP 4 285 308 and the Swissbit Cloud-TSE 2 product. It supplemented the order only on an auxiliary request concerning the deposit of the seized material with the Registry. The order clarifies the plausibility threshold for infringement, the relevance of non-infringing alternatives and the effect of a protective letter that is silent on non-infringement.

Facts and procedure

The patent was granted without opposition and has had unitary effect since 2 September 2024 (paragraphs 1 and 2). Seised on 20 April 2026, the division granted the measure without hearing the respondents on 27 April 2026, the inspection took place on 19 May 2026 at the Munich site and the appointed expert reported on 15 June 2026 (paragraphs 5 to 10). The respondents requested a review on 18 June 2026, within the thirty-day period, arguing that features 6.4b and 6.6 were not met and that alternatives existed (paragraphs 11 to 37 and 51). The oral hearing took place on 25 August 2026.

The applicable law

The measure falls under Art. 60 UPCA and Rules 192, 194 and 197 RoP. The review proceeds in two stages, first whether proceeding without a hearing was justified and then the merits and scope of the measure, assessed as at the date it was ordered (paragraphs 53 to 57). Infringement must be made plausible, which rules out a fishing expedition without requiring the standard of proof applicable on the merits (paragraphs 58 to 60).

Question

Was the order granted without a hearing based on plausible infringement, justified by a risk that evidence would be lost, and proportionate?

Decision

Plausibility followed from fiskaly’s party expert opinion and the regulatory framework. The outcome of the inspection report was disregarded, the assessment being ex ante (paragraphs 61 and 62). The respondents had refused a review by a neutral expert during licence negotiations (paragraph 63), and their protective letter contained no non-infringement arguments, which reinforced plausibility (paragraph 64). Possible alternatives bar the measure only if they deprive the infringement case of plausibility, since establishing whether the patented teaching is used is the very purpose of the proceedings (paragraphs 65 to 67). No less intrusive means, such as a test purchase or public research, would have clarified the disputed features (paragraphs 68 to 70). Proceeding without a hearing was justified by the risk of destruction or unavailability of evidence, heightened by the group’s cross-border structure (paragraphs 71 to 77). Rule 194.2(a) RoP imposes no requirement of urgency in time (paragraphs 78 and 79). An order to produce source code was not an equivalent measure, given the risk of self-incrimination and the need to observe the runtime environment. The licence negotiations were irrelevant absent an agreement precluding legal action (paragraphs 80 to 83). The uncontested auxiliary request was granted (paragraph 84), confidentiality issues were reserved (paragraph 85).

Key points for practice

• The plausibility threshold for an inspection order is lower than the burden of proof on the merits. A party expert opinion may suffice.
• A protective letter that does not dispute infringement may count against its author.
• Refusing a review by a neutral expert during negotiations weighs in favour of the measure.
• Practical point: a party exposed to an inspection order should set out its technical non-infringement arguments in its protective letter.

Provisions applied

Agreement on a Unified Patent Court

Arts 59, 60(1) and (3) and 73(2)(a)

Rules of Procedure

Rules 192.3, 194.1(d), 194.2, 197.1, 197.3, 197.4, 220.1(c) and 224.1(b)

Case law cited

Centripetal v Palo Alto, Court of Appeal, 28 May 2025, Ecovacs v Roborock, Düsseldorf Local Division, 4 September 2025 and 19 December 2025, Organon Heist v Genentech, Brussels Local Division, 12 November 2025, Progress Maschinen & Automation v AWM, Court of Appeal, 23 July 2024, Valinea v Tiru, Court of Appeal, 15 July 2025.

Related decisions

• fiskaly v SwissBit, 27 April 2026, ex parte order for inspection and preservation of evidence under 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.