No international jurisdiction – no UPC case. As a common court of the majority of EU Member States, the UPC determines its international jurisdiction – notwithstanding prevailing agreements – in accordance with Brussels I recast (Regulation (EU) No 1215/2012; see especially Art. 71a (2) lit. a) and 71b thereof). The Court of First Instance applies Brussels I recast in a rather “dynamic” way – it remains to be seen, whether the Court of Appeal will follow this dynamic pace:
International long-arm jurisdiction over non-EU (co-)defendants
Art. 71b no. 2 of Brussels I recast opens up the possibility to apply its rules on jurisdiction regardless of the defendant’s domicile. Thus, according to the LD Hamburg (UPC_CFI_387/2025 – Dyson v. Dreame), the UPC has jurisdiction over a co-defendant domiciled in Hong Kong regarding acts of infringement committed in Spain (non-UPCA) together with an anchor defendant domiciled in Germany under Art. 8 no. 1 Brussels I recast.
Because Spain is part of the EU, the LD Hamburg did not have to touch upon the possible necessity of a “close connection” to the European Union being an additional requirement (cf. recital 6 of Regulation (EU) 542/2014 amending Brussels I recast). It therefore remains to be seen whether the UPC will extend this approach to non-EU EPC Member States as well.
According to the LD Mannheim, jurisdiction over infringements outside UPC territory may, however, also arise from acts committed within the same. Based on the distinction between the “place of action” and the “place of its harm” under Art. 7 no. 2 Brussels I recast, the LD Mannheim holds in its decision of October 2nd, 2025 (UPC_CFI_162/2024 – Hurom v. NUC) that export by an entity from within UPC territory to Poland, Spain and the UK which may be attributable to a Korean defendant leads to the jurisdiction of the UPC over the latter with regard to the damage arising within these three non-UPC countries.
Especially against the backdrop of territoriality, it seems questionable, however, whether this distinction can, at least in any case, be made regarding patent infringement.
Infringement despite non-negligible chance of invalidation?
What if the UPC was convinced that the patent-in-suit is infringed but invalid? Upon a counterclaim for revocation, it can revoke the patent for UPC territory and – following BSH v. Electrolux (C‑339/22, judgement of February 25, 2025) – decide on validity as a preliminary question with inter partes effect for (simplifying) non-EU countries, thus rendering the infringement action unfounded. Regarding EU Member States outside UPC territory, however, the UPC can’t decide on validity in any way. The only option would be to stay the infringement proceedings if there was a non-negligible chance of invalidation given that national nullity proceedings would be pending. But what happens if there aren’t any?
Unfortunately, the UPC did not have to decide on such a constellation yet: in HL Display v. Black Sheep, the Court did not see a non-negligible chance of invalidation (LD The Hague, Decision of October 10th, 2025, UPC_CFI_386/2024), in Fujifilm v. Kodak the EU parts outside UPC territory already lapsed before the entry into force of the UPCA (LD Mannheim, Decision of April 2nd, 2025, UPC_CFI_359/2025). Would the UPC be inclined to stay the proceedings for a reasonable time during which the defendant would have to file a national revocation action (e.g. if defendant was asked in the oral hearing whether it would be prepared to file such national revocation action within a reasonable time period)?
Conclusion
In summary, the question of the UPC’s international jurisdiction is in flux and many aspects of it require the UPC Court of Appeal shedding further light on it. Anyway: what topic could be more intriguing for the most important UPC event of the year 2026?
By Tobias Wuttke
