fiskaly v SwissBit (CFI, 27 April 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 27 April 2026 (UPC_CFI_1332/2026), the Düsseldorf Local Division grants, without hearing the respondents, fiskaly’s application for inspection and preservation of evidence concerning the « Swissbit Cloud-TSE 2 » service of SwissBit AG and Swissbit Germany AG (EP 4 285 308). The reasons justify access to both German sites, to the source code and to passwords, reduce the number of representatives attending and require security. The order is useful for software patents whose implementation cannot be seen from outside: a public certification may make infringement plausible, and the inspection fills the gap.

Facts and procedure

Fiskaly, proprietor of the unitary patent, learned in 2025 that SwissBit AG had been offering in Germany since 1 April 2025 a cloud-based technical security device for cash registers. A licence inquiry of September 2025 and the ensuing talks led nowhere. On 14 November 2025, the respondents filed a protective letter disputing infringement and validity. Fiskaly applied on 20 April 2026, with no merits action pending, stating that it intends to sue before the division (paragraph 59).

The applicable law

Article 60 UPCA and Rules 192 to 199 RoP allow inspection and evidence preservation where the applicant makes infringement plausible, if necessary without hearing the respondent in case of urgency or a risk that evidence will disappear (Rules 194.2 and 197). Under Rule 196.6, an order made without a hearing is as a rule conditional on security. Validity is reviewed only summarily, absent clear indications to the contrary (paragraph 67).

Question

Can an ex parte inspection be ordered for a software service whose internal workings are not accessible, despite a protective letter and knowledge of the product dating back to 2025?

Decision

The division finds that the product’s BSI certification and its conformity with technical guideline TR-03153 make it plausible that several features are met, the others being provable only through inspection (paragraphs 61 to 64). The protective letter, which criticises the patentee for giving no concrete explanations, confirms the need for evidence (paragraph 66). The time elapsed since 2025 does not matter: urgency under Rule 194.2(a) differs from urgency for provisional measures, and the interest in preservation has not lapsed (paragraph 73). The risk of evidence being moved to the Swiss site justifies proceeding ex parte (paragraphs 74 and 75). The reasons allow access to the sites, source code, logs and passwords, appoint the proposed expert, limit attendance to one lawyer and one patent attorney per site and confine use of the results to merits proceedings against the respondents (paragraphs 80 to 90). Security is required, since no reason to waive it was put forward (paragraph 94), and the request for an interim reimbursement of costs is rejected, Rule 211.1(d) RoP applying only to provisional measures (paragraph 95).

The order authorises inspection, at the Berlin and Munich premises, of the BSI certification documents, source code, documentation, configuration files, logs and operating data, with disclosure of passwords, seizure of copies in case of refusal, and a detailed description by the expert within one month, usable only in proceedings on the merits against the defendants. It appoints the expert, assisted by an IT forensic specialist and the bailiffs, imposes secrecy on all participants pending a decision on disclosure, makes fiskaly bear the costs of the inspection with an advance to the expert, provides that the measures lapse if no action on the merits is brought within 31 calendar days or 20 working days of disclosure of the description, and makes the order conditional on security of EUR 10,000.

Key points for practice

• A public certification or regulatory conformity may suffice to make infringement plausible for software features (paragraphs 61 and 62).
• Delay by the patentee does not bar evidence preservation, Rule 211.4 RoP not applying, unless the interest in the evidence has lapsed (paragraph 73).
• Security remains the rule for an ex parte order. An applicant seeking a waiver must argue for it (paragraph 94).
• Practical point: for a software process, document what public sources reveal, then target the application at the code, logs and access credentials required, proposing a limited number of attending representatives.

Provisions applied

Agreement on a Unified Patent Court

Arts 32(1)(c), 33(1)(b) and 60

Rules of Procedure

Rules 192, 194, 196, 197, 199, 209.2, 211.1 and 211.4

Case law cited

Maguin v Tiru, Court of Appeal, 15 July 2025, Centripetal v Palo Alto Networks, Court of Appeal, 28 May 2025, Progress Maschinen & Automation v AWM, Court of Appeal, 23 July 2024, Organon Heist v Genentech, Brussels Local Division, 12 November 2025, Van Loon Beheer v Inverquark, Düsseldorf Local Division, 23 January 2026, Valinea v Tiru, Court of Appeal, 15 July 2025, OTEC Präzisionsfinish v STEROS, Düsseldorf Local Division, 26 March 2025, myStromer v Revolt, Düsseldorf Local Division, 22 June 2023

Related decisions

• fiskaly v Swissbit, 7 September 2026, review upholding the order.

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.