Cross Border Injunctions in European Patent Litigation
From GAT v. LuK to Dyson v. Dreame
1. Introduction: the perennial tension—territorial patents, cross‑border commerce
European patents (whether “classical” bundle patents or unitary patents) operate in an economic environment where infringing conduct is frequently organized transnationally: centralized production, EU‑wide online offers, and distribution through pan‑European logistics.
Yet patent rights remain, in core respects, territorial—particularly regarding validity (revocation/nullity) and the connection between a national designation and the national register. Cross‑border injunctions sit at the fault line of these two realities: they promise procedural efficiency and effective enforcement, but risk overreach into matters reserved to another state’s courts or registers.
2. The jurisdictional architecture: Brussels I‑bis, common courts, and the UPC
The modern EU jurisdiction framework for civil and commercial matters is Regulation (EU) No 1215/2012 (Brussels I‑bis) amended by regulation Reg. (UE) 542/2014.
The Unified Patent Court (UPC) is a court common to UPCA Contracting Member States and, for jurisdictional purposes, is integrated into Brussels I‑bis via the special provisions on common courts (Arts. 71a–71d)[1]. In practical terms, this means the UPC does not invent its own international jurisdiction rules; it applies Brussels I‑bis logic “as a common court,” including the special rule that, where the defendant is not domiciled in an EU Member State, Chapter II may still apply for common courts under Art. 71b (2).
Two pillars are particularly relevant to cross‑border relief:
- General jurisdiction at the defendant’s domicile (Art. 4(1) Brussels I‑bis).
- Exclusive jurisdiction for “registration or validity” of patents (Art. 24(4) Brussels I‑bis), reserving erga omnes validity decisions to courts of the state of registration/validation.
3. The foundational break: GAT v. LuK (Case C-4/03) and the “validity barrier”
The CJEU’s decision in GAT v. LuK is the cornerstone for modern limits on cross‑border patent litigation. The ourt interpreted the predecessor of Art. 24(4) to mean that exclusive jurisdiction for validity applies even when invalidity is raised as a defence. This “validity barrier” sharply curtailed attempts to bundle infringement and validity disputes for multiple national designations before a single forum, because any ruling that effectively decides validity erga omnes belongs to the courts of the state of registration/validation.
The effect was not simply procedural; it shaped strategy. Plaintiffs could still pursue infringement in convenient fora (e.g., defendant domicile), but defendants could force fragmentation by launching or insisting upon validity proceedings where Art. 24(4) points.
4. A second constraint: Roche v. Primus (C-539/03) and limits to multi‑defendant consolidation
Alongside the validity barrier, the CJEU jurisprudence on multi‑defendant joinder constrained cross‑border injunctions. In European patent disputes, efforts to sue multiple related companies in one forum under joinder provisions were limited by the requirement that the claims be so closely connected as to risk “irreconcilable judgments” if heard separately. The jurisprudential background (as summarized in the EPO training manual[2]) explains why “spider‑in‑the‑web” theories against separate entities infringing different national designations historically struggled under the Brussels system.
Together, GAT (validity exclusivity) and Roche‑type reasoning (restrictive joinder) contributed to a period where broad cross‑border injunctions were perceived as largely incompatible with the Brussels regime for patents.
5. Provisional measures and the “cross‑border” question: Solvay v. Honeywell (C‑616/10)
The CJEU’s decision in Solvay v. Honeywell reopened space for cross‑border effects—especially for provisional measures. It clarified, in essence, that the exclusive validity jurisdiction rule does not automatically preclude provisional measures under the Brussels regime, even where validity is contested, provided the measure does not amount to an erga omnes validity determination.
This matters because provisional injunctions often drive settlement and market outcomes. The EPO manual explains that interim relief can operate even where final merits jurisdiction is complex, subject to EU law conditions. The result is a conceptual split: final validity is territorially anchored, but interim measures may have broader practical impact depending on the jurisdictional basis and the nature of the relief sought.
6. BSH v. Electrolux (C‑339/22, 25 Feb 2025): Swedish reference, CJEU Grand Chamber—not a UPC case
It arose from Swedish litigation and resulted in a CJEU preliminary ruling on the interpretation of Brussels I‑bis.
6.1 Intra‑EU aspect: infringement forum retained, validity remains exclusive
The CJEU held that a court seised under Art. 4(1) (defendant domicile) remains competent to hear an infringement action even if the defendant raises invalidity as a defence; however, it must not rule on validity erga omnes because Art. 24(4) reserves that to the courts of the state of registration/validation. This preserves the predictability of the defendant‑domicile forum while maintaining the territorial anchor for validity.
6.2 Third‑state aspect and the “inter partes invalidity” concept
The judgment goes further for patents validated in a third state: Art. 24(4) does not grant exclusive jurisdiction to third‑state courts, yet a Member State court seised under Art. 4(1) may address invalidity by way of defence only to the extent that its decision does not affect the existence/content of the foreign right or the foreign register—hence effects are inter partes.
6.3 Why it matters for the UPC debate
Even though BSH/Electrolux is not UPC jurisprudence, it directly shapes UPC practice because the UPC, as a common court, must interpret and apply Brussels I‑bis consistently with the CJEU’s authoritative readings. The ruling provides a doctrinal bridge: it explains how infringement adjudication can proceed in a consolidated manner without collapsing into a forbidden erga omnes validity ruling.
7. The UPC “long arm”: Brussels I‑bis (Arts. 71a–71d) and Art. 71b(3)
When the UPC commenced operations, the debate shifted from “whether cross‑border relief exists” to “how far it may reach and on what basis.” The Brussels I‑bis amendments add a special property‑based subsidiary jurisdiction for common courts (Art. 71ter(3)): where a common court has jurisdiction over a third‑state defendant under Art. 71ter(2) in an EU‑damage infringement dispute, it may also exercise jurisdiction for damage arising outside the EU, subject to (i) the presence of defendant property in a participating Member State and (ii) a sufficient connection of the dispute with such participating Member State.
Two practical constraints are emphasized in the literature and training materials:
- The “long arm” is conceptually tied to enforceability and sufficient connection, and its concrete reach is uncertain and case‑dependent.
- Defendants domiciled in Lugano Convention states (CH/NO/IS) are generally protected by a “Lugano shield,” limiting the long‑arm effect in those scenarios.
Importantly, the “long arm” discourse is not only about where infringement occurred, but also about how jurisdiction is constructed (domicile, joinder, provisional measures, property‑based jurisdiction).
Fujifilm v. Kodak (Düsseldorf LD): The UPC asserted jurisdiction for infringement in the UK, relying on Art. 4 Brussels I‑bis, but acknowledged it could not decide validity for UK patents.
8. The newest chapter: UPC Court of Appeal referral in Dyson v. Dreame (6 March 2026)
The UPC Court of Appeal’s Dyson v. Dreame referral is a major escalation in the long‑arm conversation because it targets a scenario that combines: (i) a third‑state primary actor, (ii) an EU‑based “intermediary,” and (iii) requested effects in an EU Member State not party to the UPCA (Spain).
8.1 The factual‑procedural frame
Dyson sought provisional measures regarding a Unitary Patent in force in UPCA states and also in Spain. The Hamburg Local Division issued a preliminary injunction in the UPC territory and extended parts to Spain, prompting appeals and a partial stay. The Court of Appeal stayed the case for the Spain‑related claims and for the action against the German authorised representative (Eurep), referring questions to the CJEU.
8.2 The four questions: joinder, provisional measures beyond UPCA, and the “intermediary” concept
The referral asks, in essence:
- Whether Art. 8(1) (multiple defendants; irreconcilable judgments) together with Art. 71b(2) can allow the UPC to assert jurisdiction over a third‑state defendant for infringement in a non‑UPCA EU Member State (Spain) by anchoring on an EU‑based “intermediary” defendant domiciled in a UPCA state.
- Whether Art. 71b(2), second sentence supports cross‑border provisional measures (i.e., measures extending beyond UPCA territory), particularly where offers are organized via near‑identical country websites.
- Whether the use of an EU‑based intermediary is a relevant connecting factor for such cross‑border provisional measures.
- Whether EU law on IP enforcement (Directive 2004/48) precludes granting an injunction against an authorised representative performing tasks mandated by EU product‑compliance regulations (Reg. 2019/1020; Reg. 2023/988) as an “intermediary.”
8.3 Why this is qualitatively new
Unlike “classic” long‑arm discussions centered on property‑based jurisdiction (Art. 71ter(3)), Dyson/Dreame tests whether joinder logic and provisional‑measures logic can functionally generate effects in non‑UPCA EU territory—not through UPCA, but through Brussels I‑bis rules applied by a common court.
It also probes a novel intermediary category: the authorised representative who enables market access in law (regulatory compliance), not necessarily in fact (physical or digital facilitation of infringing acts).
9. Where the doctrine now stands: three takeaways for cross‑border injunctions
9.1. Validity is still the immovable object
Across the entire line—from GAT to BSH/Electrolux—erga omnes validity remains territorially anchored to the state of registration/validation (for Member States) and, by principle of non‑interference, to the third state where register changes would occur.
9.2. Infringement and interim relief are the movable force
Courts seised under defendant‑domicile jurisdiction can proceed on infringement even when invalidity is pleaded, while keeping validity consequences limited (inter partes, no register effect). Provisional measures remain a key lever, but their permissible territorial reach—especially for a common court like the UPC—depends on the connecting‑link conditions and the CJEU’s forthcoming clarifications.
9.3. Dyson/Dreame is the boundary test for “non‑UPCA EU territory
The referral squarely raises whether a non‑UPCA EU Member State (Spain) is effectively shielded from UPC‑issued provisional measures, or whether Brussels I‑bis can support an exception in tightly connected, cross‑border commercial scenarios—particularly when an EU‑based intermediary is alleged to be the functional hinge.
10. Conclusion: from “no cross‑border” to “cross‑border under strict functional constraints”
The arc from GAT v. LuK to Dyson v. Dreame is not a simple story of expansion. Rather, it is the progressive construction of a framework in which cross‑border injunctions may exist, but only if they respect the hard limits of (a) exclusive validity jurisdiction and (b) non‑interference with foreign registers—while allowing effective infringement adjudication and interim protection through Brussels I‑bis mechanisms.
Dyson/Dreame is the current frontier: it asks the CJEU to decide whether the UPC—precisely because it is a common court embedded in EU jurisdiction law—can, in exceptional circumstances, issue provisional measures with effects in EU territory outside the UPCA. The answer will determine whether the “long arm” remains primarily property‑based and territorially cautious, or evolves into a more functional, enforcement‑driven doctrine under Brussels I‑bis.
[1] English version
[2] The jurisdiction of European courts in patent disputes
