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Analysis & trends
How far does the extraterritorial jurisdiction (“long arm”) of the new Unified Patent Court extend?
Patent litigation has traditionally been strictly territorial: when a dispute arose, each national designation of a European patent triggered separate, parallel proceedings before the competent national courts.
Since the entry into force, on June 1, 2023, of the Agreement on a Unified Patent Court (UPCA), an international treaty applicable in eighteen Member States of the European Union, the Unified Patent Court (UPC) has had exclusive jurisdiction to hear disputes relating to European patents with unitary effect and European patents[1].
The BSH v. Electrolux judgment of the Court of Justice of the European Union (CJEU) of February 25, 2025, marked a major shift in patent law regarding the international jurisdiction of national courts. The UPC quickly drew conclusions from the judgment to extend its own extraterritorial jurisdiction, now commonly referred to as the UPC’s “long arm“.
BSH v. Electrolux[2]
Prior to BSH v. Electrolux, Article 4(1) of the Brussels I-bis Regulation already allowed foreign patent infringement cases to be brought before the courts of the defendant’s domicile.
However, as soon as the validity of the patent was challenged, most national courts considered that they lost this jurisdiction, on the basis of the GAT[3] judgment and Article 24(4) of the Brussels I-bis Regulation, which grants exclusive jurisdiction to the courts of the State in which the patent was granted to rule on its invalidity, including when raised as a defense.
BSH v. Electrolux provides important clarification: the court of the Member State of the domicile of the defendant remains competent to rule on the infringement of a foreign patent even when the defendant raises its invalidity.
In the latter case, there are two possibilities. If the patent was granted by an EU Member State or a party to the Lugano Convention, the court cannot rule on its validity but has the option of staying proceedings. If the patent was granted by a State that is not an EU Member State or a party to the Lugano Convention[4], the court may rule on validity, but its decision will only have an inter partes effect.
Extension of the UPC’s jurisdiction as the court of the defendant’s domicile (Article 4(1) of the Brussels I-bis Regulation)
The UPC bases its international jurisdiction on Article 31 of the UPCA, which refers to the Brussels I-bis Regulation and according to Article 71 bis of that Regulation, the UPCA is considered a court of a Member State.
These grounds enabled the UPC to adopt the contribution of BSH v. Electrolux and extend its jurisdiction when it is the court of the defendant’s domicile under Article 4(1) of the Brussels I-bis Regulation. Less than a month after that judgment, the Paris local division of the UPC, the court of the French defendant’s domicile, recognized its jurisdiction to rule on the infringement of the Spanish, Swiss, and English parts of a European patent (the UPCA is not in force in Spain, Switzerland, or the United Kingdom)[5].
On the issue of validity, the UPC considered that:
- Regarding the English title (a third State to the EU and the Lugano Convention), it would have jurisdiction to rule on its validity, with a simple inter partes effect;
- Regarding the Spanish (EU Member State) and Swiss (party to the Lugano Convention) titles, it could stay proceedings if there was a reasonable, non-negligible possibility of the patent being declared invalid by the Spanish or Swiss national courts.
This decision, which specifies that, in the latter case, a stay of proceedings is not mandatory, sends a strong signal to patent holders. An alleged infringer can no longer be certain of freezing infringement proceedings by invoking the invalidity of a foreign patent.
This position was followed by all the other divisions of the UPC. Mannheim was the first to effectively order prohibition measures in the territory of the United Kingdom, even though it is not part of the UPC[6].
However, some questions remain: one of them concerns the definition of the “defendant’s domicile ” within the UPC, as not all local divisions take the same approach. Some consider the UPC to be a single, unified territory: the local divisions of Mannheim and The Hague have ruled that they have jurisdiction respectively over the domicile of Austrian defendants[7] and German defendants[8]. Other divisions favor a state-based interpretation of domicile, such as those of Hamburg and Düsseldorf, which respectively ruled that they did not have jurisdiction over the domicile of Swedish defendants[9] and Italian and French defendants[10]. Clarification from the Court of Appeal of the UPC is expected on this point and will be decisive for future forum shopping strategies by patent holders.
Rejection of extension of the UPC’s jurisdiction as the court of the place where the harmful event occurred (Article 7(2) of the Brussels I-bis Regulation)
The UPC sought to go beyond the framework established by the BSH judgment by extending its “long‑arm” jurisdiction to situations in which its jurisdiction is based not on Article 4(1) of the Brussels I bis Regulation (place of the defendant’s domicile), but on Article 7(2) thereof (place where the harmful event occurred).
In October 2025, the Mannheim local division held that it had jurisdiction to hear claims against a Korean defendant for acts of infringement relating to the Polish, Spanish and UK designations of a European patent, on the ground that the acts of its German subsidiary and its French distributor were attributable to it[11].
One month later, the Paris local division considered that it had jurisdiction to hear claims against US defendants for acts of infringement relating to the Swiss, Spanish, UK, Irish, Norwegian and Polish designations of a European patent, on the ground that the disputed digital tools were accessible within French territory[12].
However, the Court of Appeal of the UPC has just put a stop to this extension of the “long arm” and overturned that decision[13]. It refers to the settled case law of the CJEU, according to which, where jurisdiction is established pursuant to Article 7(2) of the Brussels I-bis Regulation, the court’s jurisdiction is limited to the territory in which the damage occurred and does not extend beyond that territory[14].
Questions about the extension of the UPC’s jurisdiction in cases involving multiple defendants and the risk of irreconcilable judgments (Article 8(1) of the Brussels I-bis Regulation)
Relying on Article 8(1) of the Brussels I-bis Regulation, the local division of Hamburg further extended the UPC’s “long arm” by agreeing to hear a case against a defendant domiciled outside the UPC (a Chinese defendant) for acts of infringement of a patent issued by a State also outside the UPC (Spain). This extension of jurisdiction was made possible by the presence of an “anchor” defendant, domiciled within the UPC, linked to the other two and committing acts of infringement of the same Spanish patent in relation to the same product[15].
Such a decision implied the finding of the same situation of fact and law, a decisive criterion for the emergence of a risk of irreconcilable judgments resulting from separate proceedings against the defendants. This requirement of a same situation of fact and law stems from the CJEU’s Roche[16] and Solvay[17] judgments, which had framed, so as to restrict, the Dutch doctrine of “the spider in the web“.
Nevertheless, in March 2026, the Court of Appeal of the UPC made its first referral to the CJEU, raising questions concerning, among other things, the interpretation of Article 8(1) of the Brussels I-bis Regulation and the concept of irreconcilable judgments[18]. Perhaps the CJEU will allow the spider to return officially to its web?
