Is the sky the limit? Long-arm jurisdiction – UPC vs EU national courts

In earlier posts we reported (here and here) on BSH v Electrolux (CJEU, decision of 25 February 2025, C-339/22 – BSH v Electrolux) and how it opens the door for more cross-border patent litigation in the EU. Many courts have walked through that open door since that CJEU landmark ruling, and this follow-up post takes a look at the status quo: how far the UPC’s long-arm really reaches compared to national courts of EU member states, and which questions are still unresolved and might be addressed by the ECJ in the first-ever UPC referral.

UPC – UPs and EPs only

In Kodak v Fujifilm (decision of 2 June 2026, UPC_CoA_312/2025), the UPC’s Court of Appeal (CoA) spelled out what BSH v Electrolux means for the UPC:

Unsurprisingly, the CoA follows BSH v Electrolux and concludes that the UPC’s jurisdiction is not limited to the UPC territory (which covers only countries where the UPCA is in force – i.e., not yet Cyprus, Czech Republic, Greece, Hungary, Ireland and Slovakia); the UPC is also competent to rule on EP designations outside the UPC territory under further conditions. The fact that Spain is not part of the UPC and the UK and Türkiye are not even part of the Lugano Convention (LC) or the EU does not stop the UPC from claiming jurisdiction over infringement of the EP designations in these countries if the defendant is domiciled in the UPC territory, according to the CoA in Kodak v Fujifilm. There is no forum non conveniens escape that would allow a defendant to show that another court is better suited to take on the case (following the CJEU’s decision Owusu and BSH v Electrolux), and TRIPS does not stand in the way either according to the CoA. In such cases, the UPC does not only apply the law applicable to the patent, but also international law principles such as comity.

The first limit of the UPC’s long-arm jurisdiction, however, is that the UPC lacks jurisdiction over non-EPs and non-UPs. There is no procedural hook to assert a US or Chinese patent at the UPC. That is (in principle) different for EU member state courts (see on that below).

The second limit of the UPC’s long-arm powers concerns the merits rather than jurisdiction : while the UPC's jurisdiction over a foreign designation does not depend on the plausibility of infringement in that territory, the patent holder must ultimately plead and prove infringement of the foreign EP designations and has to plead that under the applicable law. Blanket statements seeking to extend injunctions to the UK, Spain or Türkiye, simply because the patent is valid there as well, will not suffice.

To be, or not to be valid – Handling the validity defence

Now how will the UPC deal with the validity question of these patents outside the UPC territory? 

This will depend where precisely the patent is validated and what is at issue in the specific case. The UPC has no jurisdiction for revocation actions or counterclaims for revocation concerning non-UPC EPs (EU/LC or non-EU/non-LC EPs). The UPC cannot invalidate the English or Turkish designation of an EP. That is rather straightforward. For EU/LC EPs, Art. 24 Brussels I Recast and Art. 22 LC prevent the UPC from assessing validity, but – following BSH v Electrolux – it keeps jurisdiction over the infringement claim. For non-EU/non-LC EPs, the Court may assess validity inter partes and decide infringement on that basis.

Where the UPC-territory patent is held invalid but would be infringed if valid, the patentee will first be offered the option to withdraw its action for the non-UPC jurisdictions. If the patent holder does not do so, the court will dismiss the infringement action for non-EU/non-LC EPs (e.g. the UK part) unless specific reasons call for the court to go ahead with the foreign designations (such as narrower claims). Importantly, the CoA established that there does not have to be a pending national revocation action for the court to dismiss the infringement action for foreign designations. 

For EU/LC EPs (e.g. the Spanish or Swiss part), however, the defendant must file a national revocation action within a period set by the court to achieve a similar result according to the CoA: if it does that, the UPC may stay the infringement case; if it does not bring such national action to invalidate the patent within the set period, the UPC will treat the patent as valid and will decide accordingly.

Where the UPC-territory patent is held valid and infringed, the UPC does not need to await the foreign national court’s decision. To avoid undue delay, it may issue injunctions for the foreign designations under a “condition subsequent”: these injunctions take effect immediately and become permanent if the competent national court upholds the patent’s validity (and the decision is final).

Anchor defendants 

BSH v Electrolux was all about the defendant located in an EU member state – at least on the face of it. While many believe the premises of BSH v Electrolux go further, not all questions concerning so-called anchor defendants appear fully settled. While the CoA has made its first referral to the CJEU on what exactly makes for an anchor defendant, the CoA does not appear to question the principle as such: a co-defendant domiciled in a UPC member state can anchor jurisdiction under Art. 8 Brussels I Recast over a third-State defendant – even if committing its infringing acts outside the UPC territory (UPC CoA, order of 6 March 2026, UPC_CoA_789/2025 and UPC_CoA_813/2025 – Dyson v Dreame).

Which defendants are eligible to anchor jurisdictions over which patents?

Art. 8 Brussels I Recast, the legal basis for ‘anchor defendant jurisdiction’, applies only to defendants that are domiciled in an EU member state. National courts therefore cannot exercise jurisdiction over a defendant domiciled in the UK, even if they identify a suitable anchor defendant in the EU (e.g. the German affiliate). However, the situation is different for the UPC. Due to Article 71b Brussels I Recast, the UPC can use anchor defendants to extend its jurisdiction to e.g. Chinese defendants:

The Hamburg Local Division, for example, relied on that extended Art. 71b Brussels I Recast jurisdiction and enjoined a Hong Kong defendant for infringement of the Spanish part of an EP via an anchor defendant domiciled in the EU territory that acted as an importer for the Hong Kong defendant (the EU importer of the attacked embodiment) (UPC LD Hamburg, UPC_CFI_2255/2025 – Dyson v Dreame). An entity that only serves as a pure representative to ensure regulatory compliance but does not contribute to the actual infringement (e.g. an EU representative for Northern Ireland under the EU General Product Safety Regulation) was not considered a sufficient anchor.

While the territorial reach of the anchor defendant jurisdiction thus seems fairly clear by now, it is less clear which EP designations European courts have jurisdiction over in such anchor cases: In Dyson v Dreame, the Hamburg Local Division appeared to assume that such jurisdiction does extend to non-EU/non-LC EP designations such as the UK part of an EP. That follows from Art. 71b Brussels I Recast which only applies to a “court common to several Member States” such as the UPC. As a national court cannot invoke that jurisdiction, it seems questionable whether their jurisdiction in anchor cases extends to non-EU/non-LC EP designations such as the UK part of an EP as well or whether it is limited to designations of EU/LC member states. Judges from the Regional Court of Munich follow the latter view which would create a further limit to the long-arm jurisdiction of national courts.

In any event, an anchor defendant domiciled in UPC territory is required – at least for permanent injunctions; whether the same applies in PI proceedings is one of the questions referred to the CJEU. 

The national track

National courts apply the same BSH v Electrolux principles but are subject to slightly different limitations. Just like the UPC, the Munich I Regional Court will assume jurisdiction over defendants domiciled in Germany to grant injunctions for infringements in other EPC member states as it did in its VEGF-Antagonist III decision. The Regional Court of Munich also confirmed that, just like the UPC, it will use defendants subject to the universal jurisdiction under Art. 4 Brussels I Recast as an anchor to reach co-defendants seated in other EU or Lugano Member States under Art. 8 Brussels I Recast or Art. 6 LC respectively. 

There appear to be three main differences between the UPC’s long-arm and that of national courts, such as the Munich Regional Court: 

• First, the UPC is limited to EPs and UPs. The rationale of BSH v Electrolux, though,many say applies to Japanese, Chinese or US patents as well. Onesta v BMW was the first attempt to assert two US patents against a German-domiciled company in Munich. Whether the anti-suit injunction BMW obtained in Texas would have stopped Onesta, and whether the Munich Regional Court would have ruled on US patents, are questions that will, however, remain unanswered given the settlement between Onesta and Qualcomm. Judges of the Munich Regional Court have called for judicial restraint above all when it comes to asserting patents from fundamentally different legal systems (such as the US) while leaving the door open for long-arm reach to jurisdictions that are closer to European patent law such as certain Asian jurisdictions. While the national court’s jurisdiction might be more extensive than the UPC’s when it comes to non-EPC patents (e.g. Japanese, Chinese or US patents), first signs seem to indicate that these national courts might be hesitant to make use of that ‘longer arm’ and instead prioritize comity.
• Second, at least the Munich Regional Court seems willing to apply certain presumptions when it comes to the application of foreign patent law. At least in EPC member states, the Regional Court of Munich seems to take the position that a finding of infringement under German patent law is a strong indication that French, Spanish or Italian patent law will likewise find infringement of the national designation given the harmonization through the EPC. The UPC’s Kodak v Fujifilm decision does not indicate that the UPC will apply similar assumptions.
• Third, in anchor defendant cases national courts cannot reach defendants domiciled outside the EU and LC: Given that national courts cannot rely on Art. 71b Brussels I Recast, they cannot reach a Hong Kong-based defendant like the UPC could in Dyson v Dreame. Their jurisdiction is confined to entities domiciled in the EU or the LC. When it comes to the territorial reach in such anchor cases, it will remain to be seen whether other national courts follow the approach taken by the Munich Regional Court limiting their long-arm jurisdiction in anchor cases to EP designations in the EU/LC (e.g. the Spanish but not the UK part of an EP) or whether they will apply a more extensive approach of Art. 8 Brussels I Recast.

So – is the sky the limit?

Not quite. Which forum (UPC or EU national court) is the sweet spot for making the most of BSH v Electrolux is not a black-and-white decision. The UPC’s long-arm is quite extensive and can reach defendants located outside the UPC territory. But it is restricted to UPs and EPs. The national long-arm is longer on foreign patents and could extend to Japanese, Chinese or US patents in cases against a defendant domiciled in the court’s territory – though courts may prove hesitant to use that reach, especially for patents from legal systems as distinct as the US, in light of international comity. When it comes to anchor defendant cases, national courts might be more restricted, as they will not be able to reach defendants in China and elsewhere outside the EU/LC and might not be able to rule on the infringement of the UK or Turkish part of the EP – even if a national anchor allows them to draw a French, Spanish or Italian affiliate into the case.