Key takeaways
When assessing the requirement for a procedural security, namely the question whether the Claimant has “sufficient means” to compensate the Defendant for the legal costs incurred in the proceedings, only the financial situation of the Claimant should be taken into consideration, but not the financial situation of the holding company behind the Claimant.
7. The ratio behind Art. 69(4) UPCA, in assessing the mentioned threshold, is the protection of a defendant against a claimant, who initiates an action, without having sufficient means to compensate the defendant for the legal costs incurred in the proceedings the defendant was involved in at the initiative of the claimant (CoA Order of 20 June 2025, UPC_CoA_393/2025, AorticLab v Emboline, paras. 15 and 28). (§ 17 Syntorr v. Arthex). In assessing “sufficient means”, the Court should consider the facts and circumstances based on the actual financial situation of the claimant (cf. § 13 CoA Order of 30 October 2025, UPC_CoA_8/2025, Oerlikon v. Bhagat with reference to UPC_CoA_328/2024, Order of 26 August 2024, Ballinno BV v. Kinexon, para 25 ff and Order LD Paris 27 December 2024 (Microsoft v. Suinno, UPC_CFI_164/2024)).
8. The arguments put forward by SHINKYUNG (referring mainly to the financial situation of the holding company of the Claimant (CODI) and its implications for BOA) fail . In its assessment of financial means only the financial situation of BOA should be taken into consideration. The financial situation of CODI (not a party to these proceedings) does not need to be considered (UPC CoA Order of 29 November 2024, UPC_CFI_548/2024 Aarke v. Sodastream § 21). Making abstraction of the above as a sufficient reason for dismissal, BOA further convincingly argues the drop of the stock price of CODI is related to an internal investigation due to financing, accounting, and inventory practices irregularities in Lugano Holding Inc. (a separate subsidiary of CODI) and the outdated financial analysis . Instead BOA refers to the last financial analysis of 17 March 2026 including the fourth quarter of 2025 and demonstrates that CODI earned USD 64,3 million. Against this background the Court is not able to find that BOA has initiated the infringement action without having sufficient means to compensate SHINKYUNG for the legal costs incurred in this proceedings.
Division
LD Düsseldorf
UPC number
UPC_CFI_998/2025, UPC_CFI_1141/2025, UPC_CFI_996/2025
Type of proceedings
Request for procedural security pursuant to Rule 158.1 RoP
Parties
DEFENDANTS:
Shinkyung Inc. (Busan, South Korea) (APPLICANT)
Fla Europe NV (Oudenaarde, Belgium)
CLAIMANT (and RESPONDENT):
Boa Technologies Inc. (Denver, Colorado, USA)
Patent(s)
EP 3 777 595 B1, EP 2 805 639 B2, EP 3 003 087 B1
Body of legislation / Rules
Rule 158.1 RoP, Art. 69(4) (c) UPCA
