{"id":54513,"date":"2026-07-17T15:58:12","date_gmt":"2026-07-17T13:58:12","guid":{"rendered":"https:\/\/www.studiotorta.com\/?p=54513"},"modified":"2026-07-17T15:58:12","modified_gmt":"2026-07-17T13:58:12","slug":"cross-border-injunctions-in-european-patent-litigation","status":"publish","type":"post","link":"https:\/\/www.studiotorta.com\/en\/cross-border-injunctions-in-european-patent-litigation\/","title":{"rendered":"Cross Border Injunctions in European Patent Litigation"},"content":{"rendered":"

From GAT v. LuK to Dyson v. Dreame<\/strong><\/p>\n

 <\/p>\n

1. Introduction: the perennial tension\u2014territorial patents, cross\u2011border commerce<\/strong><\/p>\n

European patents (whether \u201cclassical\u201d bundle patents or unitary patents) operate in an economic environment where infringing conduct is frequently organized transnationally: centralized production, EU\u2011wide online offers, and distribution through pan\u2011European logistics.<\/p>\n

Yet patent rights remain, in core respects, territorial\u2014particularly regarding validity (revocation\/nullity) and the connection between a national designation and the national register. Cross\u2011border 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\u2019s courts or registers.<\/p>\n

2. The jurisdictional architecture: Brussels I\u2011bis, common courts, and the UPC<\/strong><\/p>\n

The modern EU jurisdiction framework for civil and commercial matters is Regulation (EU) No 1215\/2012 (Brussels I\u2011bis) amended by regulation Reg. (UE) 542\/2014.<\/p>\n

The Unified Patent Court (UPC) is a court common to UPCA Contracting Member States and, for jurisdictional purposes, is integrated into Brussels I\u2011bis via the special provisions on common courts (Arts. 71a\u201371d)[1]<\/a>. In practical terms, this means the UPC does not invent its own international jurisdiction rules; it applies Brussels I\u2011bis logic \u201cas a common court,\u201d 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).<\/p>\n

Two pillars are particularly relevant to cross\u2011border relief:<\/p>\n

    \n
  1. General jurisdiction<\/strong> at the defendant\u2019s domicile (Art. 4(1) Brussels I\u2011bis).<\/li>\n
  2. Exclusive jurisdiction<\/strong> for \u201cregistration or validity\u201d of patents (Art. 24(4) Brussels I\u2011bis), reserving erga omnes<\/em> validity decisions to courts of the state of registration\/validation.<\/li>\n<\/ol>\n

    3. The foundational break: GAT v. LuK (Case C-4\/03)<\/strong> and the \u201cvalidity barrier\u201d<\/strong><\/p>\n

    The CJEU\u2019s decision in GAT v. LuK is the cornerstone for modern limits on cross\u2011border 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 \u201cvalidity barrier\u201d 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<\/em> belongs to the courts of the state of registration\/validation.<\/p>\n

    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.<\/p>\n

    4. A second constraint: Roche v. Primus (C-539\/03) and limits to multi\u2011defendant consolidation<\/strong><\/p>\n

    Alongside the validity barrier, the CJEU jurisprudence on multi\u2011defendant joinder constrained cross\u2011border 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 \u201cirreconcilable judgments\u201d if heard separately. The jurisprudential background (as summarized in the EPO training manual[2]<\/a>) explains why \u201cspider\u2011in\u2011the\u2011web\u201d theories against separate entities infringing different national designations historically struggled under the Brussels system.<\/p>\n

    Together, GAT (validity exclusivity) and Roche\u2011type reasoning (restrictive joinder) contributed to a period where broad cross\u2011border injunctions were perceived as largely incompatible with the Brussels regime for patents.<\/p>\n

    5. Provisional measures and the \u201ccross\u2011border\u201d question: Solvay v. Honeywell<\/strong> (C\u2011616\/10)<\/strong><\/p>\n

    The CJEU\u2019s decision in Solvay v. Honeywell reopened space for cross\u2011border effects\u2014especially 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<\/em> validity determination.<\/p>\n

    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.<\/p>\n

    6. BSH v. Electrolux (C\u2011339\/22, 25 Feb 2025): Swedish reference, CJEU Grand Chamber\u2014not a UPC case<\/strong><\/p>\n

    It arose from Swedish litigation and resulted in a CJEU preliminary ruling on the interpretation of Brussels I\u2011bis.<\/p>\n

    6.1 Intra\u2011EU aspect: infringement forum retained, validity remains exclusive<\/strong><\/p>\n

    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<\/em> because Art. 24(4) reserves that to the courts of the state of registration\/validation. This preserves the predictability of the defendant\u2011domicile forum while maintaining the territorial anchor for validity.<\/p>\n

    6.2 Third\u2011state aspect and the \u201cinter partes invalidity\u201d concept<\/strong><\/p>\n

    The judgment goes further for patents validated in a third state: Art. 24(4) does not grant exclusive jurisdiction to third\u2011state 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\u2014hence effects are inter partes.<\/p>\n

    6.3 Why it matters for the UPC debate<\/strong><\/p>\n

    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\u2011bis consistently with the CJEU\u2019s 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<\/em> validity ruling.<\/p>\n

    7. The UPC \u201clong arm\u201d: Brussels I\u2011bis (Arts. 71a\u201371d) and Art. 71b(3)<\/strong><\/p>\n

    When the UPC commenced operations, the debate shifted from \u201cwhether cross\u2011border relief exists\u201d to \u201chow far it may reach and on what basis.\u201d The Brussels I\u2011bis amendments add a special property\u2011based subsidiary jurisdiction for common courts (Art. 71ter(3)): where a common court has jurisdiction over a third\u2011state defendant under Art. 71ter(2) in an EU\u2011damage 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.<\/p>\n

    Two practical constraints are emphasized in the literature and training materials:<\/p>\n