Xingi v Avient Protective Materials (CoA, 27 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 27 August 2026 (UPC_CoA_76/2026), the Court of Appeal dismissed the appeal of Xingi Technology and Jiangsu Jiuzhou Xingji High-Performance Fiber Products against the order of The Hague Local Division of 11 May 2026 which, under Rule 190 RoP, had required them to produce fabric samples and a company video in Avient Protective Materials’ infringement action on EP 2 791 402 (UHMWPE multifilament yarns and ballistic panels). Avient’s conditional cross-appeal was held inadmissible. The order, with seven headnotes, clarifies the production regime: a claimant who considers its evidence sufficient may still seek more, the request need not accompany the statement of claim, and appellate review of necessity and proportionality is limited.

Facts and procedure

The defendants disputed infringement of claims 13 to 15, arguing that only ballistic testing could establish it. After the statement of defence, Avient applied for production of samples, saying that only small quantities, insufficient for testing, were commercially available. The judge-rapporteur limited production to two fabric variants, 30 kg each, to be delivered in the Netherlands, and ordered the English version of a company video. The Court of Appeal had granted partial suspensive effect on 26 May 2026, extended on 14 July 2026.

The applicable law

Art. 59 UPCA and Rule 190 RoP, read with Art. 6 of Directive 2004/48, allow an order to produce evidence on the basis of reasonably available evidence making the request plausible, subject to specificity, necessity and proportionality, and excluding fishing expeditions. The assessment lies with the first instance. The Court of Appeal intervenes only for an error of law, a manifest error of assessment or a failure to respect the limits (paragraph 30).

Question

Was the production order flawed as to the necessity of the samples, the timing of the request, the place of delivery and the video, and is a cross-appeal conditional on a merits assessment admissible?

Decision

That Avient had tested some samples did not show that it could obtain the quantities and variants required. Commercial unavailability had not been effectively challenged, and the new argument based on a Chinese distributor was disregarded under Rule 222.2 RoP (paragraphs 36 to 45). A party may seek further evidence while considering its own sufficient where the opponent argues the fact can only be proven that way (paragraphs 49 to 53). Neither Art. 59 UPCA nor Rule 190 RoP requires the request to be filed with the statement of claim (paragraphs 56 to 58). Rule 190.4(a) RoP allows the Court to set practical arrangements, including the place of delivery (paragraphs 61 to 65). Referrals to the full Court of Appeal and to the CJEU were refused, the questions being irrelevant to the outcome (paragraphs 73 to 78). The cross-appeal was inadmissible because its condition required a merits assessment outside the appeal (paragraphs 84 to 86). Suspensive effect ends on service. Implementation is for the judge-rapporteur (paragraph 87).

Key points for practice

• Arguing that infringement can only be proven by testing exposes a party to a request to produce the products needed for that test (paragraphs 44 and 50).
• A Rule 190 RoP request may be made during the proceedings, in response to objections raised in the statement of defence (paragraphs 56 to 58).
• A cross-appeal cannot be made conditional on an assessment reserved to the court deciding the merits (paragraph 86).
• Practical point: new facts raised on appeal without justification for their lateness are disregarded under Rule 222.2 RoP, the case on availability of evidence must be fully argued at first instance (paragraphs 42 and 69 to 71).

Provisions applied

Agreement on a Unified Patent Court

Arts. 21, 59 and 73(2), Statute, Art. 21(2)

Rules of Procedure

Rules 190, 190.4(a) and (b), 190.7, 220.1(c), 222.2, 223, 238A and 266

Directive 2004/48/EC

Art. 6(1)

Other provisions

TFEU, Art. 267, Directive 2014/104/EU, Art. 5

Case law cited

Polytechnik v Dall, Court of Appeal, 29 June 2026 (UPC_CoA_57/2026), Guangdong OPPO v Panasonic, Court of Appeal, 24 September 2024 (UPC_CoA_298/2024), Occlutech v Lepu, Court of Appeal, 18 June 2026, CJEU, 28 April 2022, Phoenix Contact, C-44/21, CJEU, 25 January 2017, Stowarzyszenie Oławska Telewizja Kablowa, C-367/15, CJEU, 27 April 2023, Castorama Polska, C-628/21, CJEU, 17 June 2021, Mircom, C-597/19, CJEU, 29 January 2026, Meliá Hotels International, C-286/24

Related decisions

• Avient Protective Materials v Xingi, 11 May 2026, the production order under appeal.
• Xingi v Avient Protective Materials, 26 May 2026, order on suspensive effect.
• Xingi v Avient Protective Materials, 14 July 2026, extension of 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.