The United Patent Court’s Court of Appeal has limited the authority of bailiffs and technical experts when they carry out evidence‑preservation measures in a patent dispute between tissue‑paper makers Essity and WEPA.
Court narrows evidence‑preservation powers
Essity, which markets the Tempo brand, asked the UPC to preserve evidence at WEPA’s production site in Swalmen, Netherlands. The lower division had allowed bailiffs to interview WEPA staff about whether the patented technology was used. The appeal panel, chaired by President Klaus Grabinski, reversed that part of the order.
According to the judges, Article 60 of the UPC Agreement does not give a bailiff or an expert the right to question a defendant’s personnel on technical aspects of products or processes. Any statements from employees must be taken under direct court control, not through a bailiff’s inspection.
The ruling confirms that preservation measures may still include “any relevant evidence,” such as promotional or commercial material, because the text of Art. 60(1) mentions “any relevant evidence in respect of the alleged infringement.”
Patent at the centre of the dispute
The conflict revolves around European patent EP 3 289 139, which covers tissue paper made with pulp fibres from Miscanthus giganteus and a specific manufacturing method. The patent is active in eight UPC contracting states: Germany, France, Italy, the Netherlands, Spain, Switzerland, the United Kingdom and Turkey.
Essity, part of the larger Essity Group, holds the Tempo and Zewa brands. WEPA, a family‑owned company, runs fourteen paper factories across six European countries and is a major private‑label player.
In the appeal, the panel consisted of President Grabinski, judge‑rapporteur Peter Blok, and third legal judge Paolo Catallozzi, with technical judges Marc van der Burg and Max Tilmann.
The court ordered the technical expert to rewrite the report within two weeks, removing any sections that contain answers given by WEPA staff or conclusions that rely solely on those answers. All copies of the original report must be destroyed, and if any were already shared with the company, it must also eliminate them.
Implications for expert reports
This decision draws a clear line: bailiffs can collect documents and digital data, even request passwords, but they cannot conduct interviews that probe the technical implementation of a patent. The court stressed that such questioning belongs to the judicial process, not to the inspection team.
Essity must now instruct its expert, bailiff and representatives to destroy the original report. The move could affect how parties prepare evidence in future UPC cases, as the scope of Art. 60 is now interpreted more narrowly regarding personnel questioning.
Meanwhile, the UPC’s technical judges will review the revised report to ensure it complies with the new limits. Its guidance may lead to more careful drafting of preservation orders, especially where technical staff are involved.
The European Patent Office’s Opposition Division upheld EP 3 289 139 in November 2025. WEPA appealed that decision, and the Boards of Appeal have set an oral hearing for 20 November 2026. A preliminary opinion is expected in September.
Separately, WEPA launched a revocation action before the UPC’s Paris central division in December 2025 (case UPC_CFI_1898/2025). Essity responded with a defence that includes 13 auxiliary requests, and the central division scheduled a hearing for 6 October 2026.
Parallel proceedings and legal teams
WEPA’s team from Meissner Bolte, led by litigator Andreas Kabisch, joined forces with UK firm Withers & Rogers. Patent attorney Tilman Pfrang heads the revocation case in Paris. This marks the first engagement of Meissner Bolte with WEPA.
Essity’s representation comes from Hoyng ROKH, with attorney‑at‑law Frank Eijsvogels leading the effort, supported by Hoffmann Eitle partners. In the Paris revocation proceedings, Hoffmann Eitle partner Clemens Tobias Steins leads the defence.
According to JUVE Patent research, the company has not yet filed an infringement suit or sought a preliminary injunction before the UPC, and no other national‑court actions are on record.
Given the court’s clarification, parties in UPC disputes may need to adjust their evidence‑preservation strategies, focusing on document collection rather than employee interviews. This could streamline future proceedings but also place greater responsibility on courts to manage any necessary testimony.
The next steps include the revised expert report, the upcoming oral hearings in both the UPC and the EPO Boards of Appeal, and the Paris central division’s decision later this year.
