Topsoe v SYPOX (CFI, 10 December 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 10 December 2025 (UPC_CFI_1849/2025), made without hearing the defendants, the Düsseldorf Local Division allowed Topsoe A/S, before bringing any action on the merits, to have inspected an electrically heated steam reforming hydrogen plant found at the site of biogas producer Josef Kerner Energiewirtschafts during an earlier inspection. The order also targets SYPOX GmbH, which allegedly designed the reactor, and HyGear B.V., whose name appears on the container. It shows how two inspection measures can follow each other: a plant discovered while executing a first order may justify a second ex parte order, without security, where the defendant concerned was not party to the first proceedings.

Facts and procedure

Topsoe owns EP 3 802 413 B1, entitled « Hydrogen production by steam methane reforming », in force in Germany, France and the Netherlands among others, and withdrew its opt-out on 21 November 2025 (paragraph 2). On the basis of a first order of 25 November 2025 (UPC_CFI_1696/2025), an inspection took place on 26 November 2025 at the second defendant’s site. Topsoe’s representative found a second plant bearing the words « www.hygear.com », which the SYPOX managing director said contained a reactor designed by SYPOX within the EU « ERe Tech » consortium, and to which he gave only very brief access (paragraphs 14 to 18). The plant is not yet in operation but could be started at any time (paragraph 19). Topsoe filed its application on 4 December 2025 (paragraph 1).

The applicable law

Inspection and preservation of evidence fall under Article 60 UPCA and Rules 192, 194, 196, 197 and 199. The division’s competence follows from Articles 32(1)(c) and 33(1)(b) UPCA (paragraph 24). The applicant must make a possible infringement plausible, show urgency and, for an order without a hearing, a risk that evidence will disappear (Rule 197.1).

Question

Can a second inspection, of a plant found while executing a first order, be ordered without hearing the defendants and without security, and on what terms?

Decision

Topsoe plausibly explained why the plant and its operation might reproduce claims 1 (plant) and 22 (process), relying on the SYPOX managing director’s statements, LinkedIn posts, a press article and application WO 2021/209509, an inspection is still needed to reach a conclusion (paragraphs 25 to 29). All three defendants may be concerned: HyGear for the plant, SYPOX for the reactor and the site operator for using the plant and the process (paragraphs 30 and 31). Validity is not examined, absent clear indications such as an adverse validity decision (paragraph 32).

Urgency is shown: the plant has neither been exhibited nor marketed, the brief access on 26 November did not allow a proper examination, and the application was filed eight days after the discovery (paragraphs 34 to 38). Proceeding without a hearing is justified by the risk that relevant parts would be removed. The fact that two defendants knew of the first inspection does not prevent this, since the new plant is different and HyGear was not party to the first proceedings (paragraphs 39 to 41). The balance of interests favours Topsoe, the confidentiality measures protecting the defendants (paragraphs 42 to 44).

The inspection covers external examination, opening the reactor, access to the control systems and export of process data. Shutting down the plant is ordered only in the alternative, and the inspection must then follow without delay (paragraphs 46 and 47). A patent attorney is appointed as expert, assisted by a bailiff and, if the defendants do not open the reactor themselves, by a specialist firm engaged at Topsoe’s expense. Only one of Topsoe’s lawyers may attend, its officers and employees being excluded (paragraphs 48 to 52). The expert’s report, due within three weeks, may only be used in proceedings on the merits against the defendants (paragraph 54). No security is required: the inspection causes at most minor harm, as the defendants remain free to operate and market the plant (paragraph 58). The operative part orders these measures, imposes secrecy obligations, provides that the court will decide on disclosure of the report after hearing the defendants, sets penalty payments according to the circumstances, puts the costs of the inspection on Topsoe and otherwise dismisses the application. The panel was presided over by Judge Thomas.

Key points for practice

• A plant discovered while executing a first inspection order may found a new ex parte application, in particular against a company that was not party to the first proceedings.
• Validity is not examined at the inspection stage, save for clear indications such as an adverse decision (paragraph 32).
• A specialist firm may open a reactor only if the defendants do not do so themselves, for reasons of proportionality (paragraph 50).
• Practical point: the division allows only one of the applicant’s lawyers on site and dispenses with security where the inspection does not restrict use of the product.

Provisions applied

Agreement on a Unified Patent Court

Arts 32(1)(c), 33(1)(b), 60 and 73(2)(a)

Rules of Procedure

Rules 192, 194.2, 196, 197, 199 and 220.1(c)

Case law cited

Maguin v Tiru, Court of Appeal, 15 July 2025, OTEC Präzisionsfinish v STEROS, Düsseldorf Local Division, 26 March 2025, myStromer v Revolt, Düsseldorf Local Division, 22 June 2023 (UPC_CFI_177/2023)

Related decisions

• Topsoe v SYPOX, 25 November 2025, first inspection order (UPC_CFI_1696/2025).
• HyGear v Topsoe, 20 March 2026, change of the language of proceedings.

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.