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2025 has been the year of the "long-arm" jurisdiction at the UPC with an increasing number of injunctions covering patent infringement in non-UPC states.
In February 2025, the CJEU gave judgment in BSH Hausgeräte v Electrolux (BSH - see our blog post here), confirming that EU patent courts (in which category the UPC is included) had jurisdiction to decide infringement of both European Patents (EPs) and national patents of other EU states, without needing automatically to stay the action where invalidity arguments were raised in relation to those "other" EU patents. This had previously been an issue which had disrupted several sets of proceedings.
Prior to BSH, where, in cases before a national court involving infringement of EPs from that state plus other EU state patents, counterclaims of invalidity of those other state patents were raised, the courts held that although it could hear the infringement claims, only the national court of any particular patent could make a decision on validity and therefore the infringement proceedings needed to be stayed and the validity issue transferred back to the states of the "nationality" of each patent.
The CJEU's decision in BSH also covered infringement of non-EU patents which it considered could also be heard by EU national patent courts, but in their case the court could consider validity when analysing infringement, but only on an inter partes basis.
A robust illustration of the impact of this CJEU decision is the recent Munich Regional Court's award to Regeneron of an injunction over Formycon's aflibercept formulation in 22 countries, applying the CJEU's BSH reasoning (although here all the EPs involved were from within the EU). This has been followed by Onesta (an NPE) bringing three infringement actions against BMW in the same court in relation to automobile technology concerning manufacture in Germany but also sales in the US which Onesta claims infringe its US patents. The infringement of UK patents could be determined by EU national patent courts in the same way.
The Unified Patents Court (UPC) has absorbed the BSH principles into its jurisdictional assessments and this has added to the "long-arm" jurisdictional confidence of this new court, which provides a one-stop-shop patent litigation forum in relation to European patents (EPs). Prior to the BSH decision, the UPC was taking more tentative steps in this regard, although having already fully embraced its ability to draw in defendants which are in a commercial relationship with each other and involved in the same infringement.
There has been a marked increase in instances of the UPC taking "long-arm" jurisdiction to grant injunctions in respect of EPs for activities in states that are not members of the UPC, including the UK, Spain and Switzerland. This has a significant impact on patent enforcement across Europe, since any EP designation could be within the UPC's , not just those designated to UPC member states (EPs can be awarded by the EPO for any EU members state but also for several non-EU states such as Switzerland, the UK, Norway and Turkey).
UK based businesses not already familiar with the UPC should gain an understanding of how the UPC works as the long-arm jurisdiction could mean they may be drawn into its enforcement system as a defendant if accused of infringing a UK EP. Equally, UK businesses may wish to use the new court to enforce their EPs across the full extent of the territories over which the EPO has granted them patent rights (the EPC states which comprise the EU states, Albania, Iceland, Liechtenstein, Monaco, Montenegro, North Macedonia, Norway, San Marino, Serbia, Switzerland, Turkey, and the United Kingdom). Similarly non-UK entities holding UK EPs (or other non-UPC state designated EPs) should consider the UPC's jurisdiction over those as an alternative or additional forum for their patent disputes.
Read our briefing The UPC Two Years On and other UPC updates for more on the impact of BSH and the use of long-arm jurisdiction by the UPC. For background on the UPC including its member states and procedural approach visit our UPC and unitary patent hub.
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