Costs and security for costs: documents to prepare
Security for costs shifts financial risk before a patent dispute is decided on its merits. A defendant asks the court, or the Unified Patent Court, to order the claimant to deposit funds covering likely defence costs. A claimant, in turn, prepares evidence that no such order is justified. The file has to be ready before the first procedural deadline, not after it.
What changes once the application is filed
Once a party raises the question of security for costs, the main dispute does not stop, but a parallel timetable opens on this specific point. The court usually sets a short window for the other side to respond, and the substantive schedule can be adjusted around that window. Missing the response deadline is treated as if no objection was raised at all, which is why the supporting file needs to exist before the application is even filed.
For the defendant, the practical effect is leverage: an unfunded or thinly capitalised claimant faces a real choice between finding the deposit and reconsidering the claim. For the claimant, the effect is delay and cost exposure that has nothing to do with the underlying patent question yet still has to be answered properly.
Documents to prepare
The file differs depending on which side you are on, but both sides work from the same core structure: a reasoned request or rebuttal, evidence of financial standing, and a cost estimate that the court can actually assess.
| Stage | Document to prepare | Who prepares it |
|---|---|---|
| Filing the application | Reasoned request for security for costs, stating the grounds | Defendant, through counsel |
| Supporting evidence | Register extracts or accounts showing the claimant's asset position | Defendant, using public registers |
| Cost estimate | Itemised estimate of expected costs through the next procedural stage | Defendant, through counsel |
| Claimant's response | Evidence of solvency, an undertaking, or an alternative security proposal | Claimant |
| Decision | Order setting the amount, form and deadline for the deposit | Court or tribunal |
Three points are worth preparing for in advance:
- Register extracts age quickly. Pull them close to the filing date, not weeks before.
- The cost estimate should match the stage actually in dispute, not the whole case to trial.
- If the claimant is a group entity, ask early whether a parent guarantee could shorten the argument.
Who decides
The forum depends on where the claim was brought. In national proceedings, the assigned judge decides on the basis of the written file and, occasionally, a short hearing. In proceedings before the Unified Patent Court, the panel handling the case rules on the application as a separate procedural order, distinct from the decision on infringement or validity. Either way, the order is usually appealable on its own, separately from the main judgment, so a refusal at first instance is rarely the end of the argument.
Questions of decision-making authority are not unique to patents. A comparable question of who has the final say, and at what point, arises in disputes over digital assets too; see When the creator disputes the mint explained for how that authority question is resolved in a different setting.
Two or three scenarios
If the claimant is an operating company registered and trading in the EU, an application for security for costs is harder to justify and the court will look closely at the actual evidence of financial weakness, not just the fact that the claimant is foreign.
If the claimant is a shell entity, holds no visible assets, or was incorporated shortly before the claim was filed, the application has a stronger factual basis, and the file should lead with register evidence rather than argument.
If costs have already been incurred before the application is filed, ask the court to cover both past and forecast costs in a single order; splitting the request into two applications usually adds delay without adding strength.
What this page does not cover
This page sets out the procedure and the documents behind it. It does not estimate how large a deposit is likely to be, and it does not assess the merits of the underlying infringement or validity dispute; those depend on facts this page cannot see.
Assessing whether a claimant is genuinely a shell entity, rather than simply foreign, often starts with a structured background check on the counterparty. Our report layer covers that separately; see Counterparty in Estonia in detail for the sources, route and limits of that check.
If documents in your file are exchanged with us electronically, delivery follows the safeguards described in Subprocessors, including local delivery partners overview and its limits.
Related reading
A related procedural question, decided before the merits and on a similarly tight timetable, is covered in Stay pending validity step by step.
Verified
This page describes procedure and practice only. No statutory provision or article number is cited here, because the underlying national register for this topic is not yet complete enough to check such a reference reliably. The description above reflects how these applications are commonly structured and decided.
Frequently asked questions
How long does costs and security for costs take in practice?
The application itself is usually decided within weeks rather than months, since it is a preliminary question and not the main dispute. The exact pace depends on the court's own schedule and on how quickly the other side responds.
Which documents are needed to start?
A reasoned request or rebuttal, evidence of the claimant's financial standing, and an itemised cost estimate. Without these three, most courts will not process the application at all.
What happens if the other side does not respond?
A missed response deadline is usually treated as if no objection had been raised, and the court decides on the file as filed. This is one reason the supporting evidence has to be complete before filing, not assembled afterwards.
Next steps
If your situation matches a related pattern, these pages go further: When a former employee launches a similar product and, The claim covers only part of the range patent, and A warning letter arrives from a patent holder patent.