SYPOX v Topsoe (CFI, 27 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 26 August 2026 (UPC_CFI_894/2026), the judge-rapporteur of the Munich Central Division, hearing SYPOX’s revocation action against Topsoe’s EP 3 802 413, settled four financial issues: SYPOX is an SME under Rule 370.8 RoP and the reduced fee it paid is adequate, the provisional value of the proceedings is EUR 2,000,000, the request to lower the ceiling for recoverable costs is rejected, and so is Topsoe’s request for security for costs.

Question

Do veto rights granted to an investor under the articles of association deprive the claimant of SME status, and is SME status enough to justify a lower costs ceiling or to rule out security?

Decision

European Energy’s veto rights do not give it a right to exercise dominant influence over SYPOX under Recommendation 2003/361/EC, SYPOX is an SME whether or not those rights are time-limited (paragraphs 15 to 17). The value is provisionally set at EUR 2,000,000, given the patent’s remaining term (to 2039) and its six UPC Contracting Member States, which puts the ceiling at EUR 200,000, the final value will be set after the interim conference (paragraphs 18 and 19). SME status is relevant but not sufficient: SYPOX did not show that paying up to the ceiling would threaten its economic existence (paragraphs 20 and 21). Finally, SYPOX’s own statement did not discharge Topsoe’s burden, Topsoe itself accepting that assets and equity of over EUR 1,000,000 made payment up to the ceiling feasible (paragraphs 22 and 23).

Key points for practice

• An investor’s veto right does not, on its own, amount to dominant influence excluding SME status.
• Lowering the costs ceiling under Rule 152.3 RoP requires proof of a concrete threat to the party’s economic existence. SME status alone is not enough.

Provisions applied

Agreement on a Unified Patent Court

Art. 69(4)

Rules of Procedure

Rules 104(j), 152.3, 158.1, 333, 370.6 and 370.8

Other provisions

Commission Recommendation 2003/361/EC, Annex, Arts. 2, 3 and 6, Administrative Committee decision of 24 April 2023 on the scale of ceilings for recoverable costs, Art. 2(2)

Case law cited

La Siddhi Consultancy v Athena Pharmaceutiques, Court of Appeal, 1 June 2026 (UPC_CoA_48/2026), Volkswagen v NST, Court of Appeal, 17 September 2024 (UPC_CoA_218/2024), Audi v NST, Court of Appeal, 17 September 2024 (UPC_CoA_217/2024), *** v Amycel, Court of Appeal, 2 July 2026 (UPC_CoA_935/2025)

Related decisions

• SYPOX v Topsoe, 27 July 2026, earlier order in the same revocation action.

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.