GXD-Bio Corporation v Myriad, UPC Court of First Instance, Munich Local Division, 26 November 2024, Case No. UPC CFI 437/2024
The Unified Patent Court (UPC) witnessed its first biotech non-practicing entity (NPE) lawsuit when GXD-Bio Corporation initiated litigation against the US biotech firm Myriad Genetics. The infringement complaint, filed in late July 2024 at the Munich Local Division, targets Myriad Genetics and seven European affiliates, including Eurobio Scientific, which recently acquired the EndoPredict genomic test from Myriad. The test, used to predict breast cancer recurrence, allegedly infringes GXD-Bio’s patent EP 3 346 403, covering a gene expression test method for human breast cancer tissues.
GXD-Bio, incorporated in 2024, is one of several subsidiaries of the Korean NPE Intellectual Discovery. Originally a government-supported sovereign patent fund, Intellectual Discovery has transitioned to the private sector, with the Korean government now holding only a minor stake. GXD-Bio’s business model focuses on securing intellectual property (IP) in the biotechnology and Healthcare sectors, enhancing its value through various monetization strategies such as IP transactions, licensing and consulting.
On November 3, 2024, Myriad Genetics requested the provision of security for legal costs, citing concerns about GXD-Bio’s financial capacity and the potential difficulty in recovering costs. They also asked the Court to issue a default decision against GXD-Bio if they failed to provide adequate security within the time limit set by the Court. GXD-Bio agreed to provide the requested security of EUR 112,000 but requested a deadline of January 15, 2025, due to the upcoming Christmas holidays.
The Munich Local Division found Myriad’s request well-founded and entered a security order against GXD-Bio.
The Court has a discretion to order a security for legal costs and other expenses under Article 69(4) UPCA and RoP 158.1. In balancing the interests of both parties – including a consideration of substantiated information on GXD-Bio’s financial resources and assets provided by Myriad and uncontested by GXD-Bio – the Court found there were significant doubts as to whether GXD-Bio would be able to pay Myriad’s costs if it lost the action, and agreed to the amount requested by Myriad and the deadline requested by GXD-Bio. The request for a default decision against GXD-Bio was rejected as premature.
The order is here.
