2026-06-26 - LD Brussels - Establishment Labs v. GC Aesthetics et al. - UPC-CFI-0001357/2025

ENGLISH: In parallel national and UPC proceedings and based on the circumstances of the case, the UPC should endeavour as much as possible to align the means for obtaining evidence and specifically the submitted requests (in the UK, based on common law, in disclosure proceedings and at the UPC based (i.a.) on R. 190 RoP). Such alignment of requests will lead to a common evidence basis when assessing the infringement action and/or counterclaim for revocation and/or separate invalidity action. This approach is dictated by procedural efficiency and proportionality, balancing the respondent's burden of submitting evidence with the applicant's right to obtain it.

In an infringement action (UPC_CFI_1357/2025) with a counterclaim for revocation (UPC_CFI_629/2026) over a breast-implant surface-topography patent, the Brussels LD ruled on the revocation claimants' second R. 190 RoP application to compel the patentee to produce further evidence about its own pre-priority Motiva SilkSurface product. Applying the cumulative R. 190 conditions restated from its earlier Order I (reasonably-available supporting evidence, an evidential gap the requested material could close, specificity and control, confidentiality protection, and proportionality/equity/fairness), the Court dismissed the request for an additional blister-sealed 2011 sample (Category A) because the applicants already held and had tested three samples and had shown no genuine evidential gap, and because preserving the sealed sample keeps open the option of court-appointed expert testing. For the documentary categories the Court's controlling move was to align the UPC production with the parties' agreed disclosure regime in parallel UK High Court proceedings: it narrowed Category B to the agreed UK search request, and granted Categories C and D on the basis that the patentee had already undertaken to disclose the same material in the UK, adopting the UK order's timeframe. Compliance is reinforced by a €2,000/day penalty under Art. 82(4) UPCA and R. 354.3 RoP.