Polytechnik Luft- und Feuerungstechnik GmbH v. Dall Energy ApS, Order of the Court of Appeal of the UPC, 29 June 2026, Case no. UPC-COA-57/2026
In an order issued on 29 June 2026, the UPC Court of Appeal methodically applied the conditions governing orders for the production of evidence under Article 59 UPCA and Rule 190 RoP, addressing in turn the requirements of specificity, necessity, proportionality and confidentiality.
Background
The proceedings relate to a patent infringement action brought by Dall Energy ApS against Polytechnik Luft- und Feuerungstechnik GmbH before the Copenhagen Local Division. The patent in suit concerns a method for the production of clean hot gas based on solid fuel, with the Claimant alleging that the Defendant indirectly infringes claim 1 by offering and supplying a gasification and gas combustion furnace marketed under the designation “Polyheld”.
The Defendant contested infringement, arguing that the Polyheld furnace is not suitable for carrying out the claimed method, in particular with respect to specific features, arguing notably that the gas combustion stage was arranged laterally rather than above the updraft gasifier, and that the drying stage temperature did not reach the level required by the claim. The Claimant disputed such reasoning, relying in particular on the Polyheld brochure, which would indicate that it is capable of operating in line with the claimed process.
The Order of the Copenhagen Local Division
In light of those competing technical positions, the Claimant sought the production of internal technical documentation held by the Defendant, submitting that such material was necessary to substantiate its infringement allegations and to rebut the Defendant’s technical defence, in particular as regards the structural configuration and operational characteristics of the furnace underlying the disputed features.
Following the interim conference, the judge-rapporteur issued an order dated 10 April 2026 directing the Defendant, within two weeks and subject to a penalty payment of up to EUR 1,000 per day of delay, to produce:
a) complete construction drawings of the furnace at the Oberpullendorf site;
b) complete construction drawings of Polyheld furnaces supplied to other sites; and
c) operation and maintenance manuals and other materials provided by the Defendant to its customers relating to the Polyheld.
Access was restricted to the Claimant’s legal representatives and their team members, subject to strict confidentiality and limited to use for the purposes of the present proceedings.
In its reasoning, the judge-rapporteur found that the Claimant’s pleadings provided reasonably available and plausible evidence of infringement. Although the Defendant had submitted an affidavit claiming its marketing materials were technically inaccurate, the Court deemed the requested disclosure essential for the Claimant to rebut the Defendant’s new technical narrative, and accordingly held that the production of construction drawings and manuals was reasonable, proportionate and relevant to the determination of infringement.
Polytechnik filed an appeal on 20 April 2026 and concurrently sought suspension of the order’s effect, which was denied on 24 April 2026.
The Appellant argued that the disclosure order was disproportionate and exceeded what was necessary to assess infringement. It submitted that the order covered a broad range of construction drawings, many of which were irrelevant to the issues in dispute, and that the Court had failed to explain why such disclosure was necessary or why less intrusive evidence would not have sufficed.
Polytechnik further contended that the order required the disclosure of sensitive technical, commercial and customer-related information, effectively anticipating issues that should only have been addressed at a later stage of the proceedings. It also argued that the Court had failed to properly consider the burden imposed on the Defendant, the privilege against self-incrimination, and the Claimant’s burden of proof.
Finally, Polytechnik submitted that the order did not adequately protect confidential information and trade secrets, as it granted overly broad access to sensitive material without sufficient safeguards and without properly balancing the parties’ competing interests.
The Court of Appeal’s decision
Legal framework
The Court of Appeal opened its analysis with a careful restatement of the legal framework governing access to evidence under Rule 190 RoP and Article 59 UPCA. These provisions allow the Court to order the production of specific evidence held by an opposing party or a third party where the requesting party has provided reasonably available evidence making its claims plausible, while ensuring appropriate protection for confidential information.
The Court emphasized that this mechanism is particularly important in patent litigation, where relevant technical or commercial information often lies exclusively within the control of the opposing party. It serves to address information asymmetries, safeguard equality of arms and enable a claimant to discharge its burden of proof without requiring it to establish infringement in full at the preliminary stage.
Referring to the Enforcement Directive (Directive 2004/48/EC) and CJEU case law, the Court recalled that access to evidence is intended to ensure effective judicial protection but remains subject to safeguards. The Court’s power to order disclosure is therefore limited by requirements of specificity, necessity and proportionality, and cannot be used for broad discovery or fishing expeditions. Against that background, the Court proceeded to examine whether those conditions were met in the present case.
Assessment of the Court of Appeal
The Court of Appeal confirmed that the Local Division was entitled, in principle, to order the production of technical documentation under Article 59 UPCA and Rule 190 RoP. Given that the parties disputed whether the Polyheld furnace implemented specific features, and that the relevant technical information was largely under the Defendant’s control, a disclosure order was justified.
However, the Court held that the Local Division had gone too far in the scope of the disclosure requested. While construction drawings relating to the Oberpullendorf installation and relevant operation and maintenance manuals related to said installation could reasonably assist in assessing the disputed features, there was no convincing justification for extending the order to construction drawings of furnaces installed at other sites or to the broad category of “other materials” supplied to customers. The Court emphasized that Article 59 UPCA does not permit broad discovery and that any disclosure order must remain strictly linked to the disputed facts and limited to what is necessary and proportionate.
The Court also rejected the Defendant’s argument that the requested documents could not be relevant because the disputed issue concerned a process parameter, namely temperature. It explained that disclosure under Article 59 UPCA is not limited to evidence that conclusively proves a fact. Technical documentation may still contribute to determining disputed process features by shedding light on the design, operation and functioning of a product. In this case, both parties relied on arguments concerning the furnace’s design and operation, making the requested technical documents evidentially relevant.
The Court further dismissed the contention that the disclosure order amounted to a fishing expedition or improperly anticipated post-liability remedies. The Claimant had advanced a concrete infringement theory supported by expert evidence and technical arguments, and the requested documents were directed at proving infringement rather than obtaining accounting information or evidence relevant only to damages.
Likewise, the Court rejected the argument based on the privilege against self-incrimination. It held that Article 59 UPCA does not prevent a party from being ordered to produce pre-existing technical or commercial documents merely because they may support the opposing party’s case.
As regards confidentiality, the Court upheld the Local Division’s protective measures. It found that granting access to confidential documents to the opposing party’s external counsel and patent attorneys was consistent with Rule 262A RoP and with existing UPC case law. Professional confidentiality obligations and judicial supervision provided adequate safeguards, and excluding legal representatives from access would have unduly impaired the other party’s rights of defence.
The Court therefore concluded that, while the Local Division had been entitled in principle to order the disclosure of technical documentation, it had exceeded the requirements of necessity and proportionality in defining the scope of that disclosure. The order was accordingly set aside in part and limited to the construction drawings of the Polyheld furnace installed at the Oberpullendorf site, together with the operation and maintenance manuals relevant to that installation.
Practical implications
Overall, the decision provides useful guidance on the balance the UPC seeks to strike between effective access to evidence and the protection of confidential information, while emphasizing that disclosure orders must remain narrowly tailored to the issues in dispute.
The judgment is particularly significant in confirming that technical documents may be ordered even where they do not directly prove a disputed feature. Evidence can be disclosed if it is capable of contributing to the assessment of the issue, for example by shedding light on a product’s design or operation. This will be especially relevant in cases involving process claims, where direct evidence of operating conditions may be unavailable.
At the same time, the Court drew a clear line against overly broad requests. Disclosure cannot be extended to additional products, installations or document categories without a concrete showing of necessity. Parties seeking disclosure should therefore carefully define the documents sought and explain why narrower alternatives would not suffice.
The order can be read here.
