GC Aesthetics v Establishment Labs S.A. , UPC Brussels Local Division, 26 June 2026, Case nos. UPC CFI 1357/2025 and UPC_CFI_629/2026
Order II (R.190 RoP)
The UPC Brussels Local Division demonstrates that the UPC will not shy away from granting second disclosure orders, where merited. This decision confirms a pragmatic approach to gathering evidence and highlights the Court’s willingness to align evidence-gathering measures across parallel proceedings. Whilst the Court accepted that a second application for production of evidence was permissible in principle, it scrutinised the application carefully and granted only three of the four categories sought.
Background to application: further evidence required
The proceedings comprise an infringement action and a counterclaim for revocation concerning EP 3 107 487 B1, which covers soft tissue breast implants. The central legal issue concerns the application to produce evidence under Rule 190 of the UPC Rules of Procedure (R.190 RoP) in the context of parallel UPC and third-country proceedings, in this case UK disclosure proceedings.
The Defendants/Claimants in the counterclaim, the “GC Aesthetics” group in the infringement action (the claimants in the counterclaim) argue that the breast implant materials “Motiva SilkSurface”, allegedly produced, marketed and sold by the Claimants/Defendants in the counterclaim, Establishment Labs (“LABS”) since 2010 (thus before the Patent’s priority date of 17 February 2014), already met the parameters indicated in the claims.
The Defendants argue that, to conclusively prove a lack of novelty and/or inventive step, the Motiva SilkSurface breast implants must be tested (and/or results need to be deduced from other evidence/information), particularly using the “unusual parameters” mentioned in the patent. The claims in question are challenged on the grounds of novelty and/or inventive step, as they are deemed to be anticipated by two products sold prior to the priority date (the Motiva SilkSurface and the Cereform) and by the Bommarito patent publication.
The Defendants argue that LABS possesses all the evidence and information requested (which is not publicly available), and that this evidence and information would assist them and the Court in determining the counterclaims of lack of novelty and/or inventive step. This specifically relates to the pre-priority date samples of the “Motiva SilkSurface”.
In response to a R.190 application (“Application I”) by the Defendants, the court issued a R.190 order (“Order I”) on 20 March 2026. On 5 May 2026, LABS produced the material which it believed to be in line with Order I, comprising seven categories of evidence in the form of an electronic upload of various documentary materials and by transporting three physical implant samples to the offices of the Defendants’ legal representatives.
On 16 June 2026, the Defendants introduced a second R.190 RoP request (Application II). Having considered and reviewed all of the evidence provided by LABS under Order I, in combination with LABS’s own case on validity as set out in the Defence to Counterclaim dated 24 April 2026, the Defendants considered that it had become apparent that there was further evidence in LABS’s control relevant to aspects of LABS’s pleaded case. The Defendants argued that the evidence made available as a result of Order I was not sufficient to conclusively prove the Defendants’ assertions.
The Defendants also claimed that the additional evidence addressed the amended claims, which they could not have raised prior to the auxiliary requests only advanced on that date.
LABS argued that the Defendants had not identified any genuine evidential gap arising from the material already disclosed as part of Order I.
The parties were given an opportunity to update the Court in respect of parallel UK disclosure proceedings, where LABS noted that there was overlap with Application II.
Partial success
The Court revisited the four cumulative conditions that must be satisfied for a production of evidence order to be granted under R.190 RoP:
- Condition 1: The requesting party must have presented evidence “reasonably available” in support of its claims, assessed by two sub-conditions:
- (a) whether the requesting party has presented such reasonably available evidence to support its underlying assertions; and
- (b) as an implied condition, whether the requested evidence could enable the requesting party to conclusively prove those assertions.
- Condition 2: The requested evidence must be “specified” and lie within the control of the other party.
- Condition 3: The other party’s confidential information must be protected.
- Condition 4: The order must satisfy the requirements of proportionality, equity and fairness, assessed both
- (a) in terms of the overall timing of the application having regard to the stage of proceedings, and
- (b) for each individual item of requested evidence.
Whilst, the Court accepted that a second application was permissible it scrutinised the application by reference to the four conditions, resulting in partial success only. The Court looked at the various categories in turn.
Category A, request for an additional blister: the Court dismissed the application for a further sealed implant sample on the basis that LABS had already provided three samples under Order I. The Court noted that the Defendants appeared to have conducted testing and submitted results in the parallel UK case and expressed surprise that these results were not mentioned in Application II. The Court held it could not assess whether the existing test would be insufficient, nor ascertain why a second 2011 implant would alter the outcome of such testing.
Further, considering the destructive nature of cutting up samples already used for testing, the Court noted that it was prudent to preserve the remaining sample to retain it for later testing, if necessary.
Category B, surface topography measurement data: the Court granted the request but amended its scope to align with the search parameters agreed between the parties in the parallel UK disclosure proceedings, on the basis of procedural efficiency and proportionality.
Category C, further clinical follow-up reports: the Court granted the request, noting LABS’s own expressed willingness to search for and provide additional clinical reports. This was confirmed in the Confidential Annex to the UK Disclosure Order dated 23 June 2026.
Category D, documents already agreed for production in the UK proceedings: the Court granted the request in full, on the basis that LABS had already agreed to provide these documents as additional disclosure in the parallel UK proceedings, as reflected in the relevant annexes to the UK Donsent Order.
LABS was ordered to comply with Categories B and C within 28 days of the UK Disclosure Order dated 23 June 2026, and with Category D within the same period. Regarding Category D, LABS had already agreed to comply with these requests within 14 days of the date of the UK order. A recurring penalty payment of €2,000 per day of delay was imposed for non-compliance. Costs were reserved to be assessed together with the costs of the main proceedings.
Practical implications of this decision
This decision shows a willingness by the UPC to manage the production of evidence in a practical manner when parallel proceedings are ongoing in non-EU jurisdictions. This approach is procedurally efficient and proportionate. It means that parties to the UPC should consider that the UPC will look carefully at what has been agreed or ordered in national proceedings when approaching R190 applications and vice versa.
The decision also highlights the UPC’s preference for avoiding duplication of disclosure exercises and ensuring consistency across related proceedings. Parties involved in parallel litigation should therefore consider disclosure strategies holistically, as steps taken in one jurisdiction may have a direct bearing on evidence-gathering measures before the UPC.
The dismissal of Category A establishes an important practical threshold that goes beyond the mere fact that samples had already been provided. The Defendants did not sufficiently identify the evidential gap arising from the tested samples and therefore proved insufficiently to have exhausted reasonably available avenues to substantiate their allegations.
The Court’s deliberate decision to preserve the 2011 blister-sealed sample is novel. This also signals the UPC’s willingness to take an active role in the management of technical evidence. This approach potentially significant implications for how parties approach physical evidence and testing strategies in UPC proceedings.
The combined order can be read here.
