Brussels LD orders production of evidence and samples in UPC soft tissue implant case

Applications in the UPC for Requests to Produce Evidence under r.190 RoP are rare beasts. An Order following one such application was made on 14 April 2026 by the Brussels LD (full panel) in the case of Establishment Labs S.A v GC Aesthetics (UPC_CFI_1357/2025 / UPC_CFI_629/2026). In challenging the validity of the patent in suit, GC Aesthetics relies on an Establishment Labs’ breast implant as a prior use and sought in this application an Order that Establishment Labs produce samples and various technical and regulatory documents relating to this allegation which concerned Establishment Labs’ own product. The Order was granted pretty much in the terms sought.

The Court considered various factors which the applicant needed to show on a prima facie basis, and which GC Aesthetics had met in this instance:-

1. Has the requesting party put forward reasonably available evidence supporting its case?
2. Has the requesting party specified the evidence sought?
3. Has the requesting party shown that the evidence lies within the control of the opposing party?
4. Are the requirements of proportionality, equity and fairness satisfied?

One observation from the Court’s reasoning in the Order is that a party cannot simply sit back and deny an allegation if it has relevant evidence in its control. A further observation is that the Court is keen to progress matters in line with the ‘procedural efficiency’ of the UPC proceedings and its timetable. Establishment Labs’ position was that the application was premature pending the conclusion of the written procedure or at least its Reply to GC Aesthetics’ counterclaim. The Court was clear that GC Aesthetics’ allegations on the prior use (availability to the public and whether the prior use had the features of the claims) were in dispute sufficiently at this stage such that an Order could be made but (as proposed by GC Aesthetics) pragmatically indicated that certain evidence would not need to be produced if Establishment Labs cooperated by providing relevant admissions on the prior use allegation.  

This is a useful reminder of the procedural tools available to parties litigating at the UPC, contrasted perhaps with the EPO or German national litigation.