Emboline v AorticLab (CFI, 16 April 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 16 April 2025 (UPC_CFI_628/2024, App_8962/2025), Judge-rapporteur Pichlmaier of the Munich Local Division ordered AorticLab, defendant to Emboline’s infringement action on EP 2 129 425 and counterclaimant for revocation, to provide security of EUR 200,000 for Emboline’s costs. The deadline is two weeks after service of any Court of Appeal decision upholding the order, or 31 May 2025 if no appeal is lodged. Leave to appeal was granted. The order accepts that an infringement claimant may obtain security in its capacity as defendant to the counterclaim.

Question

May the infringement claimant, as defendant to the counterclaim for revocation, obtain security for costs under Art. 69(4) UPCA, and does the defendant’s own statement that it fears insolvency justify it?

Decision

The judge left open whether the Düsseldorf practice, under which each party may request security, is consistent with Art. 69(4), which refers to a request « of the defendant ». In any event, Emboline is also a defendant: under the UPCA a claimant is also whoever brings a revocation action or a counterclaim for revocation (Art. 32(1)(d) and (e)), and Art. 33(8) calls the counterclaimant the applicant. Under the Court of Appeal’s test, AorticLab’s own statement that an injunction would drive it into insolvency gives rise to a legitimate and real concern that a costs order may not be recoverable, since the costs order would follow the injunction. The amount reflects the recoverable costs for a counterclaim value of up to EUR 2 million.

Key points for practice

• Practical point: a party’s own statement about its financial fragility in the face of an injunction may be turned against it in support of an application for security for costs.

Provisions applied

Agreement on a Unified Patent Court

Arts 32(1)(a), (d) and (e), 33(8) and 69(4)

Rules of Procedure

Rules 158, 220.2 and 355

Case law cited

Court of Appeal, UPC_CoA_217/2024

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.