WEPA Nederland v Essity Hygiene and Health (CoA, 3 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 3 September 2026 (UPC_CoA_113/2026), the Court of Appeal, on WEPA Nederland’s appeal against the review order of The Hague Local Division, upheld in substance the measures to preserve evidence and for inspection obtained ex parte by Essity under EP 3 289 139 (tissue paper comprising Miscanthus pulp fibres), but set aside the permission given to the applicant to question WEPA’s personnel. Art. 60 UPCA covers promotional and commercial documents. It does not allow the defendant’s personnel to be questioned on technical matters. The expert report must be redrafted and the original destroyed. The order draws the line between preserving evidence and interrogation.

Facts and procedure

WEPA filed an opposition at the EPO, where the patent was maintained on 11 November 2025 (appeal pending), and brought a revocation action before the Paris Central Division (UPC_CFI_1898/2025). On 17 April 2026 The Hague Local Division ordered preservation and inspection measures without hearing WEPA, executed on 21 April 2026 at WEPA’s Dutch premises. The order allowed Essity to put direct questions to personnel. The order was confirmed on review (oral decision on 9 June 2026, written reasons on 22 June 2026). On appeal WEPA sought to have both orders set aside, use of the information obtained prohibited and compensation.

The applicable law

The measures fall under Art. 60 UPCA, read with Art. 7 of Directive 2004/48, and Rules 192 to 197 RoP. New grounds on appeal are subject to Art. 73(4) UPCA and Rule 222.2 RoP. The risk that evidence will cease to be available is enough to justify ex parte measures. Urgency is not required (paragraphs 13 to 17).

Question

Could the division proceed ex parte, extend the measures to promotional and commercial documents, allow the defendant’s personnel to be questioned, and set aside objections based on validity and prior use?

Decision

Proceeding ex parte was justified (paragraphs 13 to 17). The complaint about commercial documents, raised for the first time, was inadmissible and would in any event have failed: Art. 60(1) UPCA covers any relevant evidence of the alleged infringement (paragraphs 18 and 19). By contrast, Art. 60 UPCA does not allow the bailiff or expert to question the defendant’s personnel on technical details. The court may only order practical assistance, such as providing passwords (paragraphs 20 to 23). The Dutch-law caveat that answers were not compulsory did not cure the error, since personnel could reasonably have believed they were obliged to answer (paragraph 25). Validity need not be assessed at this stage, the presumption of validity not having been clearly undermined (paragraphs 26 to 29). The prior use argument was inadmissible and, on the merits, the threshold for dismissal was not met, the infringement action not being clearly without prospect of success (paragraphs 30 to 32). The new and unsubstantiated compensation request was inadmissible (paragraph 33). The expert must file within two weeks a report redacted of the personnel’s answers, and all copies of the original are to be destroyed (paragraphs 34 to 38). Each party bears its own costs (paragraph 39).

Key points for practice

• Promotional and commercial documents may be the subject of preservation measures just as technical documentation may.
• Questioning the defendant’s personnel on technical substance is excluded. Only practical assistance may be ordered.
• An alleged prior use right bars the measure only if the infringement action clearly has no prospect of success.
• Practical point: applicants should confine their requests to seizure and description, and defendants should raise every objection at the review stage, since new grounds are inadmissible on appeal.

Provisions applied

Agreement on a Unified Patent Court

Arts 28, 53, 60 and 73(4)

Rules of Procedure

Rules 192, 194.1(d), 194.2, 196.1(d), 197.1, 197.3, 206.4 and 222.2

Directive 2004/48/EC

Art. 7(1) and Recital 20

Case law cited

Valinea v Tiru, Court of Appeal, 15 July 2025, Maguin v Tiru, Court of Appeal, 15 July 2025.

Related decisions

• Essity v WEPA, 17 April 2026, ex parte order to preserve evidence.
• Essity v WEPA, 22 June 2026, review order under appeal.

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.