LD, The Hague, February 13, 2024, Order, UPC_CFI_239/2023LD

• Published date: 12 March 2024
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: Bardehle Pagenberg
• Author: Wolfgang Flasche

1. Key takeaways

Each party must bear its own legal costs until a final decision and cost order is made

Even if both parties are start-ups or SMEs, both parties have a limited cash-flow, are competitors of each other and the claimant has limited financial capacities, each party must bear its own legal costs until a final decision and cost order is made.

Only exceptional circumstances, such as an abuse of rights, would warrant a cautio.

Imposing a cautio would effectively prevent SMEs and start-ups from enforcing their patent rights through the UPC, whereas it could enforce its right in several national courts within the EU without a cautio (such as in The Netherlands). This does not appear to be in line with one of the stated objectives of the UPCA to facilitate the...