Key takeaways
Modification of security requires genuinely new and unforeseeable developments
R. 158 RoP allows security for costs to be modified “at any time” but only where new circumstances have arisen that were neither present nor foreseeable when the original order was made. Common litigation developments – such as a counterclaim for revocation or a responsive patent amendment – do not justify a modification of the security on the grounds of unforeseeable new circumstances. Nor can a party rely on procedural complexity it caused itself.
A claim for provisional damages may be considered a legitimate reason for increase of security
The claimant’s introduction of a €120M interim damages claim in its reply brief was accepted as a genuine new element, as it forced the defendants to develop additional defence arguments and thus generated real additional costs attributable to the claimant.
SME status and proportionality cap the amount
Security for costs must not unreasonably restrict access to justice (Art. 47 EU Charter). The claimant’s status as a small/micro enterprise must be factored in, and an automatic application of the recoverable costs ceiling is not appropriate.
Division
Paris Local Division
UPC number
UPC_CFI_530/2025
Type of proceedings
Infringement action – procedural order on modification of security for costs (R. 158 RoP)
Parties
Claimant: KEEEX SAS, Marseille, France
Defendants: Adobe Systems Software Ireland Limited / Adobe Inc.; OpenAI OpCo LLC / OpenAI Ireland Ltd; Truepic Inc.; Joint Development Foundation Projects LLC / Coalition for Content Provenance and Authenticity (C2PA)
Patent(s)
EP 2 949 070
Body of legislation / Rules
R. 158 RoP
R. 152 RoP
Art. 69 UPCA
Art. 47 EU Charter of Fundamental Rights
Directive 2004/48/EC (Enforcement Directive)
Administrative Committee Decision of 24 April 2023 (Scale of Ceilings for Recoverable Costs)
