UPC_CFI_998/2025; UPC_CFI_738/2026; UPC_CFI_743/2026; UPC_CFI_996/2025; UPC_CFI_737/2026; UPC_CFI_742/2026; UPC_CFI_1141/2025; UPC_CFI_736/2026 – Boa v Shinkyung
- Court
- Local Division Düsseldorf
- Date
- Outcome
- Denied
- Sector
- Other
- Decision Type
- PROCEDURAL
Expert Commentary
Security Facts 1. In the Statements of defence and counterclaim for revocation in these cases, defendant 2 requests for a security for costs of € 200,000. 2. The claimant, Boa, is a US company. 3. Defendant 2 focuses in its request on an alleged bad financial state of the holding company. The JR 1. The JR discusses the request, stating that the financial situation of the holding company is irrelevant, and that only the financial situation of Boa itself is relevant. 2. Boa (also) provides evidence showing that the fall in stock price of the holding company was due to special circumstances. It showed that the holding company earned USD 64.3 million in the last quarter of 2025. 3. The JR dismisses the request. Comment 1. Although one can put a question mark behind the consideration that only the financial situation of Boa (and not of the holding company) is relevant, the decision is correct as Boa showed that the information submitted was not up to date, and that it was good for its money. 2. This is a case without any German party that was filed in the very busy Düsseldorf Division. This is not helpful for an equal division of the workload over the whole Court. The claimant should not be surprised if such a busy Court will not render a judgment within 12-14 months.
Full Decision Text
Düsseldorf - Local Division UPC CFI 998/2025 UPC CFI 738/2026 UPC CFI 743/2026 Order (R.158 RoP) of the Court of First Instance of the Unified Patent Court Issued on 1 June 2026 Concerning EP 3 777 595 B1 APPLICANT R. 158 ROP APPLICATION Shinkyung Inc. Hereafter referred to as “Defendant 2” or “SHINKYUNG RESPONDENT R. 158 ROP APPLICATION Boa Technologies Inc. Hereafter referred to as “Claimant” of “BOA” RELATED TO THE ACTIONS CLAIMANT (UPC CFI 996/2025 AND UPC CFI 998/2025) DEFENDANT (UPC CFI 737/2026, UPC CFI 742/2026 AND UPC CFI 738/2026, UPC CFI 743/2026 Boa Technologies Inc. 3575 Ringsby Court Suite 200, Denver, CO 80216, United States of America Represented by : Co-Represented by: (legal team) Dr. Benjamin Grzikmek (CASALONGA DEUTSCHLAND GMBH Königsallee 19, 40212 Düsseldorf, Germany) Dr. Jörn Peters (CASALONGA DEUTSCHLAND) Julien Thon (CASALONGA SAS, Centre Regus - 26 avenue Jean Kuntzmann, 38330 Montbonnot - Saint-Martin, France) Floriane Codevelle (CASALONGA SAS) Electronic address for servicing: b.grzimek@casalonga.com j.peters@casalonga.com Hereafter referred to as: Claimant or BOA DEFENDANTS (UPC CFI 996/2025 AND UPC CFI 998/2025) CLAIMAINTS (UPC CFI 737/2026, UPC CFI 742/2026 AND UPC CFI 738/2026, UPC CFI 743/2026 (1) FLA Europe NV Lindestraat 58, 9700 Oudenaarde, Belgium Represented by: Co-Represented by: (legal team) Dr. Richard Schlötter, Heumann Intellectual Property Law Oettingenstraße 25, 80538 Munich, Germany Felix Daul, HGF Munich Neumarkter Str. 18, 81673 Munich, Germany Francois Herpe, Cornet Vincent Ségurel 251, boulevard Pereire, 75852 Paris Cedex 17, France Electronic Address for servicing: Hereafter referred to as: r.schloetter@heumannlaw.com Defendant 1 or FLA (2) Shinkyung Inc., 6, Ecodae-ro 37beon-gil, Gangseo-gu, Busan, South Korea Represented by: Co-Represented by: (legal team) (Collaborating Patent Attorneys) Dr. Martin Köhler, Hyong Rokh Monegier, Stein Straße 20, 40212, Düsseldorf, Germany Dr. Mirko Weinert (HOYNG ROKH MONEGIER, Düsseldorf) Joscha Torweihe (HOYNG ROKH MONEGIER, Düsseldorf) Simon Heilmann (HOYNG ROKH MONEGIER, Düsseldorf) Dr. Andreas Pfund, Dreiss Patentanwälte, Friedrichstrasse 6, 70174 Stuttgart, Germany UPC CFI 998/2025 - UPC CFI 738/2026 - UPC CFI 743/2026 2 Electronic Address for servicing: Hereafter referred to as: Dr. Johannes Maurer (Dreiss Patentanwälte) martin.koehler@hoyngrokh.com Defendant 2 or SHINKYUNG PATENT AT ISSUE Number Proprietor(s) EP 3 777 595 B1 Boa Technology, Inc LANGUAGE OF THE PROCEEDINGS: English SUBJECT MATTER: R. 158.1. RoP (Application for Security) PANEL - LOCAL DIVISION Panel 2 of the Local Division in Düsseldorf Presiding Judge Bérénice Thom Judge-Rapporteur /Legally Qualified Judge Samuel Granata Legally Qualified Judge Ingo Rinken Technically Qualified Judge Giorgio Chiccacci DECIDING JUDGES: Order issued by the Judge-Rapporteur I. REQUEST AND POSITION OF THE PARTIES 1. Integrated in Defendants’ “Statement of Defence and Counterclaim for Revocation” (hereafter referred to as “SoD”), Defendant 2 (SHINKYUNG) (on pages 135-137) introduces a “Request for Security for Costs (R. 158 RoP)” by formulating the following actual request: “I. to order Claimant to provide to Defendant 2) security for costs in the amount of EUR 200,000, which may also be in the form of a bank guarantee (Art. 82 (2) UPCA, RoP 158.1); 2. SHINKYUNG focuses on the “severe financial state” of the holding company (CODI) behind BOA “since almost a year” . Reference is made to the fallen stock price of CODI (-62%) in 2025 compared to the year before. Further, SHINKYUNG holds the reasons for this “crash” are structural. SHINKYUNG refers to the negative growth estimates for 2026, which would call for an increased cash drain from BOA either directly (higher extraction of dividends) or indirectly (increased intercompany loans). For these reasons SHINKYUNG concludes it would be uncertain that BOA would be able to meet cost claims. 3. BOA requests as follows: “I. to dismiss the Application for security for costs; II. as an auxiliary request, in the event the Court orders security for costs, the amount should not exceed EUR 75.000,00; III. as a further auxiliary request, in the event the Court orders security for costs, to allow the Claimant to deposit the security by deposit or bank guarantee within eight weeks from the date of service of the order to provide the security”. UPC CFI 998/2025 - UPC CFI 738/2026 - UPC CFI 743/2026 3 4. Regarding its first request BOA argues that its financially stability stressing that (a) the stock price of CODI is irrelevant for the assessment of the financial situation of BOA and (b) BOA is financially well. Regarding its auxiliary request, and should the Court follow the arguments made by SHINKYUNG, BOA argues that the requested amount is too high as no proof has been provided regarding already incurred costs for legal representation. II. Grounds 5. The admissible request is unfounded and therefore has to be dismissed. 6. In essence SHINKYUNG bases its security request on alleged legitimate concerns that any future costs order in their favour may not be recoverable (cf. UPC CoA Order of 18 February 2026, UPC CoA 890/2025 (Syntorr v. Arthex) §19). 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. III. Order The Court dismisses the request for security introduced by Defendant 2 (SHINKYUNG Inc.). Issued by the Judge-Rapporteur on 1 June 2026 UPC CFI 998/2025 - UPC CFI 738/2026 - UPC CFI 743/2026 4 Samuel GRANATA Judge- Rapporteur Legally Qualified Judge
Key Holdings
- For security for costs, the claimant's direct financial situation is primarily relevant, not that of its holding company.
- Claimants can successfully oppose security for costs requests by providing up-to-date evidence of financial solvency.
- The court dismissed the request for security for costs after the claimant demonstrated sufficient financial health.
- The decision highlights the importance of current financial information in assessing a party's ability to pay costs.
- The commentary notes potential workload distribution issues in busy UPC divisions.
Tags
- Security for Costs
- Procedural Law
- Financial Assessment
- Court Administration