Physical Samples Over Internal Data: The Hague Local Division on Rule 190 RoP Evidence Orders
The Hague Local Division clarifies the boundaries of evidence production under Rule 190 RoP. The judge-rapporteur ordered the production of physical ballistic sheets for testing but denied access to internal test data.
The doctrinal framework governing the production of evidence under Rule 190 RoP requires a delicate balance between a claimant's need to prove infringement and a defendant's right to avoid broad discovery expeditions. In UPC_CFI_478/2025, the Hague Local Division has refined this balance, specifically addressing how the Unified Patent Court should handle requests for physical samples and internal testing data when patent claims are defined by performance parameters rather than intrinsic structural features.
Why did the judge-rapporteur grant access to physical ballistic sheets but deny internal test data?
The patent at issue, EP 2 791 402, claims panels comprising ultra-high molecular weight polyethylene multifilament yarns. Claims 13 to 15 define these panels by their "ballistic performance" and "back face deformation" against specific projectiles, such as an AK47 or a .357 Magnum, at specific areal densities. Avient requested 30 kg samples of six variants of Xingi UD Fabrics, alongside Xingi's internal ballistic test reports and calculations.
Xingi argued that performance characteristics depend on external variables and test setups, not inherent product properties, and that their internal testing did not use the patent's specific conditions. The judge-rapporteur agreed with Xingi regarding the documents, finding that because the internal testing was not performed according to the specific conditions required by the patent, the provision of internal testing data is not necessary for deciding the case (reasons 22). However, precisely because infringement requires actual testing under the claimed conditions, the judge-rapporteur ordered the production of physical samples so Avient could conduct those tests itself.
How did the Court assess proportionality for the physical sample request?
Avient initially requested 30 kg of six different sheet variants, which would total 180 kg of material. Xingi objected to this volume as an attempt to obtain extensive material to develop and refine the claimant's case. The judge-rapporteur found that testing six different fabrics was disproportionate, noting that to justify the requested measures in the infringement action, the establishment of infringement with one product generally suffices (reasons 18).
Consequently, the order was limited to the two alternative variants requested: J300_120H_2UD and J300_130S_4UD. The 30 kg quantity per variant was maintained because Avient successfully substantiated that this amount is necessary for a proper testing in duplo of the ballistic performance according to the methods of the patent (reasons 20).
Does the removal of online marketing material justify an order to produce the original files?
Avient also sought the production of an English-language company introduction video that had been removed from Xingi's website during the proceedings, arguing it was necessary to prove infringing acts directed at the UPCA territory. The judge-rapporteur found it plausible that the video is necessary to establish acts of infringement in UPCA-territory (reasons 24) and ordered its production. However, Avient's broader request for all internal communications concerning the removal or replacement of this video was dismissed as unnecessary at this stage of the proceedings and disproportionate (reasons 26).
What must claimants demonstrate to secure physical samples for performance testing under Rule 190 RoP?
This order clarifies that when patent claims rely on test-dependent behaviour rather than intrinsic characteristics, claimants cannot use Rule 190 RoP to force defendants to disclose internal data generated under different testing conditions. Instead, the appropriate remedy is securing physical samples to conduct the testing independently. Claimants should limit their sample requests to the minimum number of product variants necessary to establish infringement, as broad requests across an entire product portfolio will be rejected as disproportionate. Furthermore, claimants must precisely substantiate the exact volume or weight of the requested material by linking it directly to the testing methodology required by the patent claims.