UPC_ CFI_2228/2025; UPC_ CFI_1546/2026 – BMSI v BYD

Court
Local Division The Hague
Date
Outcome
Granted
Sector
Other
Decision Type
PROCEDURAL

Expert Commentary

Security for costs Facts 1. BYD requests the Court to order BMSI (a US company) to provide security for costs (€ 400,000). 2. BMSI does not object, but argues that € 300,000 would be sufficient and, instead of 3 weeks, it should be given 7 weeks to provide the security. The JR 1. The JR orders a security for costs of € 350,000. 2. To be provided within 4 weeks. Comment Do you really have to bother the JR with this? One telephone call and reasonable representatives would have cut the cake in the middle!

Full Decision Text

1 Order of the Court of First Instance of the Unified Patent Court issued on 27/05/2026 Regarding: R.158 RoP Claimant: BMS Innovations, LLC 1900 K Street, NW, Suite 725 Washington, D.C 20006 United States of America, “BMSI” represented by Christian Dekoninck, Christopher Thornham, Thomas Witte and Laura Coucke (Taylor Wessing) Defendants: 1) BYD Company Ltd No. 3009, BYD Road, Pingshan 518100 Shenzhen, Guangdong Province People's Republic of China 2) BYD Auto Co., Ltd No.1 Qinling Avenue West, Caotang Science and Technology Industry Base 710311 Xi'an, Shaanxi People's Republic of China 3) BYD Europe B.V. 's-Gravelandseweg 256 3125 BK Schiedam The Netherlands 4) BYD France SAS 8 rue Leonard de Vinci 60000 Beauvais France The Hague - Local Division UPC-CFI-2228/2025 UPC-CFI-1546/2026 2 5) BYD Automotive GmbH Albert-Dulk-Str. 9 70327 Stuttgart Germany 6) BYD Mobility GmbH Albert-Dulk-Str. 9 70327 Stuttgart Germany 7) BYD Sweden AB c/o United Spaces Elektrogatan 10 171 54 Solna Sweden 8) BYD (U.K.) Co., Ltd. Building 5, Arc Uxbridge Sanderson Road Denham, Uxbridge UB8 1DH United Kingdom 9) BYD POLSKA SPÓŁKA Z OGRANICZONĄ ODPOWIEDZIALNOŚCIĄ ul. Domaniewska 48 02-672 Warszawa Poland Defendants 1-9, collectively “BYD”, are represented by Rien Broekstra, Elard Schenck zu Schweinsberg, Rik Lambers, Chia-Jung Hu and Eveline Lots (Brinkhof) PATENT AT ISSUE: EP3393001 DECIDING JUDGE This order is issued by the judge-rapporteur. LANGUAGE OF THE PROCEEDINGS: English Subject-matter of the proceedings: Infringement action Summary of facts and procedure 1. Claimant filed a statement of claim on 23 December 2025 at the LD The Hague of the UPC to initiate an infringement action against BYD. By order of 3 February 2026, the date of service on all Defendants was aligned on 5 February 2026, the deadline for filing the Preliminary Objection (“PO”) on 5 March 2026 and the deadline for filing the Statement of Defence (“SoD”) on 5 May 2026, at the request 3 of the parties. 2. Defendants filed a preliminary objection (“PO”), which was partly successful. The court decided (by order or 19 May 2026) does not have jurisdiction to hear the case against BYD UK, defendant 8. 3. By application of 14 April 2026, BYD filed a “R.158 Application”, to which BMS responded. REQUESTS 4. BYD requests the Court to: i. order BMSI, within three weeks of the date of service of the order, to provide security for legal costs and other expenses incurred and to be incurred by BYD in the amount of at least EUR 400,000, or an amount to be determined by the Court in good justice; ii. issue a decision by default against BMSI if BMSI fails to provide the ordered security within the time set by the Court, dismissing all of BMSI’s claims and holding BMSI liable for BYD’s legal costs. 5. BMSI does not oppose the provision of security for costs, but it submits that it is reasonable and appropriate to order: (a) EUR 300.000 security (not EUR 400.000); and (b) provided by BMSI within 7 weeks (not 3 weeks) of the date of service of the order of the Court GROUNDS 6. The application is admissible and well-founded. BMSI is right not to oppose the provision of security for legal costs pursuant to R.158 RoP. 7. The amount of the security to be provided will be set at 50% of the value of the proceedings. The values of the infringement and counterclaim actions have not yet been determined. The difference between the amount of security requested by BYD (EUR 400,0000) and that suggested by BMSI (EUR 300,000), is due to different assessments of the value of the counterclaim action (the parties agree on the value of the infringement action). As the Court cannot currently determine the correct value, it will set the value at EUR 350,000. 8. BMSI requests seven instead of three weeks to provide the security. As some time has elapsed since BMSI responded to the R.158 application on 28 April 2026, and BMSI could have been expected to prepare to provide security from that date, it is considered reasonable to order BMSI to provide security within four weeks of this order. ORDER Having heard the parties, the Court 4 I. Orders BMSI to provide security for the legal costs and other expenses of BYD relating to the infringement action and counterclaim for revocation in the amount of EUR 350,000 (three hundred and fifty thousand euros). II. The security must be provided by either depositing the required amount into the UPC account dedicated to security deposits (listed on the UPC website), or by providing a bank guarantee issued by a bank licensed in the European Union, chosen by BMSI. III. The security must be provided within four weeks of the date of service of this order. IV. BMSI is informed that, if it fails to provide the aforementioned security within the stated timeframe, a default decision may be issued in accordance with Rule 355 RoP. On behalf of the Registry: The JR:

Key Holdings

  • A request for security for costs was granted against a US company.
  • The Judicial Rapporteur (JR) ordered security for costs in the amount of €350,000.
  • The security was to be provided within 4 weeks.
  • The JR's decision was a compromise between the parties' initial requests (€400,000 vs €300,000 and 3 weeks vs 7 weeks).

Tags

  • Costs
  • Security for costs
  • Procedural

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