2026-04-23 - LD Munich - Moderna v. Arbutus Biopharma - UPC_CFI_617/2025
- Aktenzeichen:
- UPC_CFI_617/2025
- Datum:
- Spruchkörper:
- Court of First Instance - Munich (DE) Local Division
- Art:
- Order
- Parteien:
- Advanced Standard Communication LLC v. XIAOMI Inc. a.o.
Kernaussage: ENGLISH:
2026-04-23 - LD Munich - Moderna
v.
Arbutus Biopharma - UPC_CFI_617/2025
ENGLISH:
A bank guarantee provided by a Defendant, as part of an objection of compulsory licence under antitrust law, as security for any potential licence payment obligations towards the Claimant and thus to avert an injunction claim asserted by the Claimant (“FRAND security”), does not, in principle, relieve the Claimant of the obligation to provide security for costs, even if the amount of the bank guarantee exceeds the amount of the security for costs.
Neither does the bank guarantee constitute a valuable asset of the Claimant to which the Defendant may have recourse for recovery of his costs, nor does the provision of the bank guarantee allow the conclusion that the Defendant is obliged to pay licence fees to the Claimant against which he could set off a claim for recoverable costs.
notable
LD Munich Panel 2 (Voß presiding + JR; Werner, Lopes, Sanchini TQJ) dismissed Advanced Standard Communication's R. 333 RoP application for review of the JR's 24 March 2026 order requiring it to provide EUR 300,000 security for costs in the patent infringement action against XIAOMI concerning EP 3 016 464. The Order is headnoted on the FRAND-security/costs-security interplay: a defendant's bank guarantee provided as 'FRAND security' under a compulsory-licence/antitrust objection does not relieve the claimant of the obligation to provide security for costs, even if the FRAND security amount exceeds the costs security amount; the bank guarantee is not a valuable asset of the claimant available to the defendant for cost recovery, nor does its provision allow the conclusion that the defendant must pay licence fees against which costs could be set off. The Court applied settled CoA case law on the burden of substantiation/proof for security-for-costs applications (NST/Audi UPC_CoA_217/2024; Chint/JingAO UPC_CoA_431/2025; Oerlikon/Bhagat UPC_CoA_8/2025; Syntorr/Arthrex UPC_CoA_890/2026): defendant must initially present credible reasons for concerns about recoverability; thereafter the claimant must substantiate why those concerns are unfounded. The claimant's ATE-insurance argument also failed: R. 158.1 RoP permits only bank guarantee or deposit, ATE insurance is not an alternative form, and in any event the claimant had not yet taken out any policy and could not require the Court to await the outcome of negotiations — ATE insurance has been on the table since September 2024 (ICPillar/Arm UPC_CoA_301/2024). Leave to appeal not granted; the decision applies settled CoA principles to the individual case. Aligns with prior LD Munich orders Asus v Oppo UPC_CFI_525/2025 and Crystal Clear Codec v Oppo UPC_CFI_498/2025.