Cross-border patent litigation: testing the boundaries of long-arm jurisdiction following BSH v Electrolux

The CJEU’s landmark ruling in BSH Hausgeräte v Electrolux (C-339/22) (BSH), handed down in February 2025, has significant implications for the jurisdictional framework of cross-border patent litigation, which we are starting to see play out in European litigation. BSH makes clear that EU national courts (and, although limited to EPs, the UPC) may now proceed with infringement actions even when validity is contested, including for non-EU patents, provided the defendant is domiciled in the forum state. The courts may also rule on the validity of foreign patents, though only with inter partes effect (meaning such rulings do not affect the status of the patent in the country of origin’s register).

The impact of this decision has already been seen in numerous cross-border actions, including before the UPC. The extent of this jurisdiction can be seen by looking at a few of those cases by way of example. In Fujifilm v Kodak, the UPC’s Mannheim Local Division issued a preliminary injunction (PI) covering the UK, a non-UPC state. In Dyson v Dreame, Dyson leveraged an anchor defendant domiciled in Germany to secure injunctive relief against international defendants from the UPC’s Hamburg Local Division which also extended to Spanish designations of the EP patent. 

Beyond the UPC, the Munich Regional Court recently granted Regeneron and Bayer a PI covering 22 European countries in a single action. The German court relied on BSH to assert jurisdiction despite pending national validity challenges, noting that the defendants were domiciled within the jurisdiction and a first-instance decision from the German Federal Patent Court had upheld the patent in a limited form. It has since been reported that Regeneron and Bayer have been granted permanent injunctions in 20 Member States, although the written decision is still pending. The jurisdictional long arm is even longer outside of the UPC. This has been seen in recent infringement actions brought by Onesta IP, a US-based non-practicing entity, against BMW in the German national courts, including claims based on infringement of US patents. Onesta IP alleges that BMW’s manufacturing of car head units in Munich for export to the US constitutes infringement. It asserts that the Munich Regional Court has jurisdiction under the Brussels Recast Regulation, with BMW’s German domicile serving as the jurisdictional hook. This is the first post-BSH case involving US patents and, while it has been brought in Germany, is likely to indicate how far European courts may be willing to extend their reach in international patent disputes. 

The CJEU’s decision in BSH supports an interesting shift in global patent strategy. If national courts, (such as in the UK, Germany and elsewhere) accept jurisdiction, it provides a single cost-effective forum for global relief of patent litigation disputes, with wider scope than the UPC. The application of BSH does, however, raise complex questions about how courts will interpret applicable law, procedural fairness and comity. If the action against BMW is successful, the scope and enforceability of any granted relief remains unclear. We expect that national penalty payments for breach of cross-border injunctions may prove to be a commercially viable mechanism; however, the question arises as to whether there will be any reactive measures from foreign courts or governments seeking to curb extra-territorial reach into their jurisdictions. As cases such as Onesta v BMW unfold, both claimants and defendants will welcome clarification on this long-arm jurisdiction.