Litigation insurers and funders follow first case of new Court of Appeal panel

Orthopedic device manufacturer Syntorr must provide €2 million in security for cost reimbursement claims in two UPC lawsuits against competitor Arthrex. Syntorr seeks to deposit this substantial amount via an insurance policy. However, the local division rejected this approach at first instance. The third panel of the Court of Appeal must now examine the matter.

The panel, which only began its work in January, will hear the case this afternoon in what marks its first ever hearing.

Ulrike Voß as presiding judge, Nathalie Sabotier and Bart van den Broek joined the Court of Appeal at the start of the year. The patent community awaits this inaugural hearing with interest. But the underlying legal question particularly concerns insurance companies and litigation funders.

Higher security deposits for claimants make it less attractive to secure or finance UPC claims. If only cash deposits or bank guarantees are permissible, rather than insurance policy coverage, cases become more difficult to pursue with litigation funders.

Syntorr aims to provide security through an “insurance undertaking”, citing the general provision in Rule 352.1 of the UPC Agreement.

Appeal enforced

Syntorr filed two suits with the local division Munich in spring 2025. The plaintiff accuses three Arthrex companies of infringement of its EP 2 670 898 and EP 3 835 470 (case IDs: UPC_CFI_114/2025 and UPC_CFI_358/2025).

Both patents protect variable denier yarn and suture used in surgical and medical instruments. Arthrex countered with revocation claims. The local division Munich has not yet ruled on the main claims, as it first addresses the matter of security for litigation costs.

Judge rapporteur Tobias Pichlmaier ruled at first instance that Syntorr must provide €2 million security in both proceedings. He stated, “According to Rule 158(1) RoP, Claimant’s insurance policy is no adequate security.” He initially denied permission to appeal.

However, Syntorr lodged a bank guarantee alongside the insurance and applied to the Court of Appeal for a review under Rule 333, which the court granted.

The UPC Administrative Council approved funding for the third panel last summer. The three judges’ nomination followed at year-end. Like the other two panels, the third maintains high international standards. Presiding judge Ulrike Voß is German, Nathalie Sabotier is French and Bart van den Broek is Dutch.

Voß is perhaps the most prominent of the three new judges. She previously worked full-time for the UPC, serving as presiding judge at the Court of First Instance, dividing her time between the central division in Munich and the second panel at the local division Munich.

She brings extensive experience in appeal proceedings from her years as presiding judge of one of the two senates at the Higher Regional Court Düsseldorf. As a judge at the Regional Court Düsseldorf, she was instrumental in the referral to the CJEU that led to the landmark Huawei vs ZTE decision, which continues to shape FRAND case law in Europe today.

Esteemed French judge

Renowned French judge Nathalie Sabotier joins as the second panel member. Until late last year, she was a judge at the French Cour de Cassation in Paris, where she long served as a patent judge in the chamber of commerce, finance and economy. She moved there in September 2023 after five years at the Judicial Court Paris.

In her former role as first vice president and presiding judge of the 3rd chamber of the first instance court, which handles IP cases, she gained extensive experience in complex mobile communications disputes such as Nokia vs Oppo. This was in addition to pharmaceutical cases like Teva vs BMS and medical device cases including Insulet vs Medtrum. Sabotier presided over the multi-party infringement proceedings in the Intellectual Ventures SEP case, one of France’s largest patent battles.

This track record established her as one of France’s most respected patent judges. Her standing in the international patent community was further confirmed when the French government seconded her to the expert committee for establishing the UPC’s judicial structures. To many observers’ surprise, she was not among the judges selected for the UPC’s launch but now joins directly at Court of Appeal level.

Move from private practice

Today marks a particularly significant moment for Bart van den Broek as his first hearing as a judge. Until the start of the year, he was a partner in the Amsterdam office of Hoyng ROKH Monegier and one of the Netherlands’ most prominent patent litigators.

Van den Broek worked alongside Willem Hoyng for many years. Together, they were founding partners of the internationally established IP boutique. Van den Broek assumed the role of senior partner when Willem Hoyng began to step back from legal practice a few years ago. Hoyng currently serves as Chair of the UPC’s Advisory Committee.

Although Bart van den Broek’s appointment came as a surprise to many, he enjoys an outstanding legal reputation. A competitor recently described him as an ‘extremely good patent litigator’. He has handled cases concerning life sciences, electronics and mobile communications, including for Regeneron, Netflix and Signify.

Van den Broek is the second lawyer to transition to a UPC judgeship. András Kupecz, who presides over the central division in Munich, was also formerly a Dutch lawyer in private practice. The next to make this career change will be Thomas Adocker, currently still a partner at Taylor Wessing, who will soon move to the UPC full-time.

The lawyers

McDermott Will & Schulte filed the lawsuits for Syntorr, led by Düsseldorf partner Henrik Holtzapfel. The US firm also represents Syntorr in US proceedings. Meanwhile, Simmons & Simmons advised Syntorr on a revocation action by Arthrex. Those proceedings have concluded (case ID: HP-2025-000016).

Arthrex relies on a Munich team from Noerr in the UPC proceedings, led by partner Ralph Nack. The team includes associated partner Armin Kühne and senior associate Bettina Bujnakova. Arthrex works with Gaskey Olds for US proceedings. Powell Gilbert handled the UK proceedings.