Syntorr LP v Arthrex (CoA, UPC_CoA_890/2025, 18 February 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 18 February 2026 (UPC_CoA_890/2025), the Court of Appeal, on discretionary review, set aside the Munich Local Division’s orders requiring Syntorr, claimant in an infringement action on EP 2 670 898 against three Arthrex companies, to provide security for costs of EUR 2,000,000. It dismissed the request for security and ordered the release of the bank guarantee provided. The decision matters for funded claimants: litigation insurance with an anti-avoidance endorsement may remove any legitimate concern that costs will not be recovered.

Question

Must an insurance policy covering the defendant’s costs, made non-cancellable and non-voidable by a specific endorsement, be taken into account when assessing the claimant’s financial position under Art. 69(4) UPCA and Rule 158.1 RoP?

Decision

Security is meant to protect a defendant against a claimant without sufficient means (paragraph 17), the court asks whether the claimant’s financial position gives rise to a legitimate and real concern that a costs order may not be recoverable, or only in an unduly burdensome way (paragraph 19), the burden of substantiation lying on the applicant (paragraph 20). The insurance policy forms part of that financial position (paragraph 25). Syntorr sufficiently established its validity, with a limit of EUR 4,000,000 (paragraphs 26 to 28), the endorsement makes the policy non-voidable and non-cancellable up to that limit and the defendants can enforce it directly (paragraphs 29 and 30), the payment procedure is straightforward (paragraph 31) and the insurer, established in the Union, is subject to Solvency II (paragraph 34). There was no legitimate concern, so security was not necessary (paragraph 35), and the guarantee was released by analogy with Rule 352.2 RoP (paragraph 37).

Key points for practice

• Insurance covering adverse costs, non-cancellable and directly enforceable by the defendant, may defeat an application for security (paragraphs 25 to 35).
• Whether insurance is itself a permissible form of security under Rule 158.1 RoP remains open (paragraph 36).

Provisions applied

Agreement on a Unified Patent Court

Art. 69(4)

Rules of Procedure

Rules 158.1, 220.3, 220.4, 333 and 352

Other provisions

Directive 2009/138/EC (Solvency II)

Case law cited

ICPillar v ARM, Court of Appeal, 16 September 2024, AorticLab v Emboline, Court of Appeal, 20 June 2025, Audi v Network System Technologies, Court of Appeal, 17 September 2024, Volkswagen v Network System Technologies, Court of Appeal, 17 September 2024, Chint v JingAo, Court of Appeal, 9 July 2025, Suinno v Microsoft, Court of Appeal, 12 July 2025, Oerlikon v Bhagat, Court of Appeal, 30 October 2025

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.