Polytechnik Luft- und Feuerungstechnik GmbH v. Dall Energy ApS

This case concerns an application for suspensive effect under Rule 223 RoP filed by Polytechnik Luft- und Feuerungstechnik GmbH (Austria) against an order of the Copenhagen Local Division of the Unified Patent Court dated 10 April 2026, issued in patent infringement proceedings (UPC_CFI_513/2025) brought by Dall Energy ApS (Denmark) regarding European Patent EP 2 334 762.

The impugned order, issued by the judge-rapporteur following an interim conference, required Polytechnik (the Defendant) to produce within two weeks, subject to a penalty payment of up to EUR 1,000 per day of delay, the following documents: (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 (O&M) manuals and other materials provided to customers relating to the Polyheld. The order restricted access to the information to Dall's legal representatives and their team members, who were required to treat the information as strictly confidential.

The Local Division granted Dall's Application for Production of Evidence under Rule 190 RoP, finding that Dall had provided reasonably available and plausible evidence of infringement. Polytechnik had contended that the Polyheld device was technically incompatible with the claimed features, asserting it did not reach the 400°C threshold during drying and that its lateral combustion stage prevented heat transfer. The Local Division found the requested disclosure essential for Dall to rebut Polytechnik's new technical narrative.

On 20 April 2026, Polytechnik filed an appeal and sought suspension of the order's effect, arguing: (1) immediate enforcement would cause irreparable harm by permanently exposing core technical know-how; (2) the protective measures were insufficient because patent attorneys and lawyers involved in Dall's patent prosecution should be excluded, and decision-makers should also be barred; (3) the order would result in a factual pre-judgment of the case by compelling disclosure typically only available after a finding of liability; and (4) granting suspensive effect was indispensable to preserve the effectiveness of appellate proceedings without comparable prejudice to Dall.

Dall opposed the application, arguing it failed to state specific reasons, that the impugned order was not manifestly erroneous, and that Polytechnik misinterpreted the order.

The Court of Appeal (Panel 1b: Klaus Grabinski, Paolo Catallozzi, Emmanuel Gougé) found the application admissible under Article 73(2) UPCA and Rule 220.1(c) RoP, but rejected it on the merits. The Court applied settled case law holding that suspensive effect is only granted in exceptional circumstances that justify an exception to the principle in Article 74(1) UPCA, with particular force for procedural orders. The Court identified two categories of circumstances justifying suspensive effect: (1) where the appeal would be rendered devoid of purpose because consequences cannot be effectively reversed, and (2) where the impugned order is manifestly wrong based on clearly untenable factual or legal considerations.

Regarding serious and irreparable harm, the Court found that the confidentiality protections in the order were adequate. The Court clarified that the reference to 'legal representatives and their team' unambiguously refers to lawyers authorized to practise before a court of a Contracting Member State and European Patent Attorneys entitled to act as professional representatives before the EPO under Article 134 EPC holding appropriate qualifications such as a European Patent Litigation Certificate, who may represent parties under Article 48 UPCA. The order therefore prohibits sharing confidential information with the Claimant itself. The Court also noted that Rule 262A.6 RoP governs the size of the confidentiality club, and Polytechnik made no specific submissions on this point.

Regarding the alleged risk of factual pre-judgment, the Court found that Polytechnik failed to clarify precisely why disclosure would prejudice its rights or why such prejudice would necessitate a stay. The Court held that the alleged prejudice did not meet the threshold of a breach of fundamental procedural rights, noting that the UPC procedural system follows the opposite principle—that all facts and evidence must be adduced as early as possible, ideally during the written procedure—to ensure fair proceedings. This is further confirmed by Rule 222 RoP, which limits appeal proceedings to the subject-matter of the first-instance proceedings.

The Court concluded that Polytechnik's interest in avoiding enforcement did not outweigh Dall's interest in having the documents adduced as evidence, and rejected the application for suspensive effect.