New References From the UPC on Brussels I bis Soon Heading to the CJEU?

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University and Linköping University.

The Unified Patent Court (UPC) has already made its first referral (see here for a review) to the Court of Justice of the European Union (CJEU) concerning the interpretation of the Brussels I bis Regulation, but new questions are continuing to arise.

On 13 March 2026, the Court of Appeal (CoA) of the UPC set aside the Paris Local Division’s (CFI) order accepting jurisdiction, on the basis of Article 7(2) Brussels I bis Regulation, over third state defendants for the alleged infringement of a European patent in states not bound by the UPC Agreement (UPCA).

However, the CoA left open the question whether jurisdiction might be possible on the “long arm”, asset-based provision in Article 71b(3) Brussels I bis.

As a court common to several Member States, the UPC is bound by EU law, including Brussels I bis and the Lugano Convention. The Brussels I bis was therefore amended to provide for UPC jurisdiction in situations where a defendant is not domiciled in an EU or Lugano state.

Article 71b(2) extends Brussels I bis rules to third state defendants “as appropriate.” Article 71b(3) introduces accessory jurisdiction, allowing the UPC to hear claims for damage outside the EU where it already has jurisdiction for EU damage, provided the defendant has property in a UPC state and the dispute is sufficiently connected to it.

Background

Keeex SAS, owner of a European patent on a method for verifying the integrity and authenticity of digital data blocks, sued several defendants before the CFI for infringements taking place both within and outside the UPC territory. The defendants were mostly companies based outside the EU, such as Adobe Inc., OpenAI LP, and Truepic Inc.

To establish international jurisdiction, Keeex’s statement of claim stated: “The acts of infringement are taking place in France (…) lt should be noted that the damage resulting from the acts of infringement is global and therefore covers all the territories protected by [the] European Patent[]”. In addition, the statement of claim included a list of the designated states, including non-UPC Member States (Spain, Poland and Ireland), Lugano Convention states (Switzerland and Norway) and a third state (United Kingdom).

Despite the defendants’ objections, the CFI accepted jurisdiction over all the claims based on Article 7(2) in conjunction with Article 71b(2) Brussels I bis Regulation, noting in particular that the CJEU’s decision in BSH Hausgeräte (C-339/22) made it possible to rule on damage occurring outside the UPC territory.

The defendants appealed arguing that the CFI lacked jurisdiction over acts allegedly committed on the territory of the non-UPC states because jurisdiction under Article 7(2) Brussels I bis is limited to the territory of the UPC. They maintained that BSH was not relevant to the case at hand.

Keeex, in turn, argued that the CFI had jurisdiction, additionally invoking Article 71b(3) Brussels I bis and Article 14 of the French Civil Code in conjunction with Article 6(1) Brussels I bis.

Court of Appeal

The CoA set aside the CFI’s decision exercising jurisdiction over the alleged infringement of the patent outside the UPC territory. The CoA held that the CFI erred when it relied on BSH to assert jurisdiction over patents with effect in the non-UPC states. Referring to the CJEU case law in Pez Hejduk (C-441/13) and Shevill (C-68/93), the CoA held that the damage head of Article 7(2) was limited to damage occurring in the forum territory. As it was uncontested that Keeex relied only on the occurrence of damage within the UPC territory to establish jurisdiction, Article 7(2) Brussels I bis did not provide a basis of jurisdiction over the alleged infringements in the non-UPC states.

The CoA also noted that neither Article 6 Brussels I bis nor Article 14 of the French Civil Code were applicable before the UPC.

Additionally, the CoA held that the statement of claim must set out sufficient facts and legal arguments to enable the defendant to assess, and, where appropriate, challenge, the CFI’s jurisdiction, and to allow the CFI to determine whether jurisdiction is established.

The CoA found that Keeex’s statement of claim was insufficient because it neither explained that it was relying on Article 71b(3) Brussels I bis nor asserted that the defendants owned property in a UPC state.

The CoA noted, however, that it remains an open question whether Article 71b(3) Brussels I bis can be interpreted, as Keeex contends, to mean that the reference to damage caused outside the EU, means the infringement of other national parts of the patent in those states.

Comment

The relevance of the BSH Hausgeräte Judgment?

The BSH Hausgeräte judgment is relevant only where a court is exercising infringement jurisdiction over a foreign patent, clarifying that even if the defendant challenges the validity of that patent, a Member State court does not lose jurisdiction over the infringement action.

By contrast, as the CoA held, the CFI had jurisdiction only over the alleged infringement of UPC-states. These patents are not “foreign” patents, as they have effect within the UPC territory.

The question remains however whether BSH Hausgeräte applies where a Member State court exercises jurisdiction under Article 7(2) Brussels I bis over a third state defendant for infringement of non-UPC patents based on a causal act within the territory of the UPC. In UPC LD Mannheim, Hurom v NUC, 2 October 2025, UPC_CFI_162/2024, the Mannheim Local Division accepted such jurisdiction over a Korean defendant for alleged infringements in Poland, Spain, and the UK, based on its involvement in acts of its German subsidiary and French distributor.

This goes beyond BSH. It is one thing to accept jurisdiction over a defendant who is “at home” in the forum for the infringement of foreign patents. However, it is not clear whether it is “appropriate” to exercise jurisdiction over a third state defendant, not only for infringements of non-UPC patents within the EU, but even for non-UPC patents with effect in third states.

Article 73b(3) Long Arm Jurisdiction

The CoA has already indicated that the meaning of Article 71b(3) remains unclear. In particular, it is uncertain how to interpret the provision on accessory jurisdiction, which allows the UPC—where it has jurisdiction under Article 71b(2) for infringement causing damage within the Union—to also exercise jurisdiction over “damage arising outside the Union from such an infringement.”

Does this text refer to damage as a result of an infringement committed within the territory of the EU or as a result of an infringement committed outside the territory of the EU? See UPC LD Mannheim, Hurom v NUC, 11 March 2025, UPC_CFI_162/2024., para 47.

The first interpretation is difficult to reconcile with the territorial nature of patents and finds no support in the legislative history of the amendment, unlike the second interpretation. However, the latter would amount to a far-reaching long-arm basis, potentially allowing jurisdiction over a third-state defendant acting outside the EU but causing damage within the UPC territory, and extending, by way of accessory jurisdiction, to infringement of other national parts of the same European patent in third states.

The amendments to the Brussels I bis Regulation, extending its rules to the jurisdiction of the UPC in cases involving defendants not domiciled in an EU or Lugano state, raise novel and complex jurisdictional questions that will undoubtedly require clarification by the CJEU.