Polytechnik Luft- und Feuerungstechnik v Dall Energy (CoA, 29 June 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 29 June 2026 (UPC_CoA_57/2026), the Court of Appeal partly reverses the order for the production of evidence issued on 10 April 2026 by the judge-rapporteur of the Copenhagen Local Division in Dall Energy’s infringement action against Polytechnik (EP 2 334 762). Production is maintained for the complete construction drawings of the furnace at the Oberpullendorf site and for the operation and maintenance manuals relating to that furnace, but it is removed for drawings of furnaces supplied to other sites and for the open-ended category of « other materials » provided to customers. The order matters in practice because it sets out in general terms the framework of Art. 59 UPCA and Rule 190 RoP (plausibility, specificity, strict necessity and proportionality, paragraphs 19 to 32) and rejects two recurring objections: self-incrimination and the exclusion of external counsel from access to the documents.

Facts and procedure

Dall Energy, proprietor of a patent for a method of producing clean hot gas from solid fuel, sued Polytechnik for infringement before the Copenhagen Local Division (UPC_CFI_513/2025). On 10 April 2026 the judge-rapporteur ordered the defendant to produce, within two weeks and subject to a penalty, the complete drawings of the Oberpullendorf furnace, those of furnaces supplied to other sites, and the manuals and other materials given to customers, with access limited to the claimant’s representatives and their team. Polytechnik appealed on 20 April 2026, its request for suspensive effect was refused on 24 April 2026. It argued that the order was overbroad, unnecessary for a process feature (the drying-stage temperature), a fishing expedition, contrary to the privilege against self-incrimination and insufficiently protective of confidentiality (paragraphs 33, 45, 53, 55 and 62).

The applicable law

The Court recalls that Rule 190 RoP, read with Art. 59 UPCA and Art. 6 of Directive 2004/48, allows the production of specified evidence where the applicant presents reasonably available evidence supporting the plausibility of its claims, without having to prove infringement in full (paragraphs 19 and 25). The mechanism addresses information asymmetry without shifting the burden of proof (paragraphs 22 to 26). It excludes fishing expeditions (paragraph 27), requires evidence that is strictly necessary (paragraph 28) and a proportionate measure where no less burdensome means is available (paragraph 29), and calls for a fair balance with confidentiality (paragraphs 30 and 31). The appeal is admissible under Art. 73(2) UPCA and Rule 220.1(c) RoP (paragraph 18).

Question

Could the judge order production of the defendant’s entire technical documentation, including for installations other than the one at issue, and did the privilege against self-incrimination or the protection of confidential information stand in the way?

Decision

The Court accepts that an order for technical documents was justified in principle: the claimant relied on expert evidence and the defendant’s marketing material, and features F2.1.2, F7 and F7.1 of claim 1 were disputed (paragraph 35). The order was, however, excessive as regards other sites, since no relevant difference had been shown, and as regards « other materials », an indeterminate category (paragraphs 37 to 40). The defendant’s failure to produce counter-evidence cannot justify broader disclosure, as the burden of proof stays with the claimant, and confidentiality measures do not cure overbreadth (paragraphs 43 and 44). Drawings remain relevant to a process feature: evidence need not be conclusive on its own (paragraphs 46 to 52).

The self-incrimination ground fails: Art. 59(1) UPCA does not bar production of pre-existing documents merely because they may be adverse, the Court relying on the CJEU judgments in Otto and Orkem (paragraphs 56 to 59). Access by the opposing party’s representatives, with safeguards, complies with Art. 58 UPCA and Rule 262A RoP, excluding external lawyers and patent attorneys would impair the rights of the defence (paragraphs 64 to 70). Paragraph 1 of the operative part is replaced by an order limited to the drawings and manuals of the Oberpullendorf furnace. The order is otherwise upheld.

Key points for practice

• Production must be calibrated to the disputed features: the reference installation is enough where no relevant variation is shown (paragraphs 37, 38 and 72).
• In civil proceedings, the privilege against self-incrimination does not shield pre-existing technical documents (paragraphs 57 and 58).
• The confidentiality club may include the opposing party’s external counsel, subject to safeguards, and misuse is not to be presumed (paragraphs 65 to 68).
• Practical point: a party seeking production should tie each category of documents to a disputed feature and explain why less intrusive means would not do (paragraphs 39 and 40).

Provisions applied

Agreement on a Unified Patent Court

Arts 54, 58, 59(1) and 73(2)

Rules of Procedure

Rules 190, 220.1(c) and 262A

Directive 2004/48/EC

Art. 6

Case law cited

Guangdong OPPO v Panasonic, Court of Appeal, 24 September 2024, Sun Patent Trust v Vivo, Court of Appeal, 26 January 2026, Ericsson v ASUSTeK, Court of Appeal, 26 January 2026, Daedalus Prime v Xiaomi, Court of Appeal, 12 February 2025, CJEU, Phoenix Contact (C-44/21), Castorama Polska (C-628/21), Mircom (C-597/19), Otto (C-60/92), Orkem (C-374/87), Varec (C-450/06), Meliá Hotels International (C-286/24)

Related decisions

• Polytechnik v Dall Energy, 24 April 2026, Court of Appeal order refusing suspensive effect.

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.