Case Law
Rule 172: Duty to produce evidence

Court of First Instance – Milan (IT) Central Division – Section, Order dated 11/04/2025, EOFLOW Co., Ltd. v. Insulet Corporation (Case/Registry number: ACT_56003/2024, ORD_69191/2024)
Example of decision on late evidence and the front-loaded nature of the procedure: "24. According to Art. 54 UPCA, the burden of proof is on the party who puts forward the facts, a rule which is specified by Rules 171 and 172 RoP, according to which the party who puts forward a fact which is disputed or likely to be disputed by the other party must indicate the means of proving it.
25. This means that whenever a party proposes to bring an action before the UPC, it must take care to collect in advance the documents supporting the claim. The procedure before the UPC is in fact a front-loaded procedure, where the written procedure allows the parties to confront with replies and rejoinders based on a wealth of knowledge and documents that are supposed to be stable and consolidated from the very moment the claim is filed. In general, the parties are obliged to present their complete case as early as possible (RoP Preamble, para. 7, last sentence).
26. Art. 76 UPCA provides for the admissibility of new evidence in the appeal only if such evidence “could not reasonably have been expected during the proceedings before the court of first instance”. The same may apply to the stages of the first instance proceedings; also LD Mannheim (UPC_CFI_218/2023 Order of the Court of First Instance of the Unified Patent Court, Mannheim Local Chamber, issued on 30 April 2024 App_14035/2024) observed to this regard: “in the present context it is not a matter of proving disputed facts, It is a matter of making submissions – often for the first time – on facts which are the only legally controversial subject of discussion, but which of course cannot actually be in dispute due to lack of knowledge of the intended submission. In proceedings before the Unified Patent Court, too, a distinction must be made between the submission of facts, the disputed submission of facts, the need for evidence and different legal arguments, as Rules 171 and 172.1 of the Rules of Procedure show (see only Tilmann/Plassmann/Ahrens, R. 171 VerfO para. 2)
27. This means that when a party files an action before this court, it must take care to show and possess the evidence in support of the claim in advance.
28. Therefore, in a revocation action, prior art (potentially detrimental to the patent or not) cannot be filed at a later stage."