If you have anything to do with European patents, you are no doubt aware of the Unified Patent Court (UPC)—the new forum for patent disputes across much of Europe. But did you know the UPC’s reach might extend well beyond its member countries? And that this question is now before Europe’s highest court?
Why This Matters
The UPC was created to streamline patent litigation across European countries. But recent cases—and a major referral to the Court of Justice of the European Union (CJEU)—are testing whether the UPC can decide disputes involving countries that haven’t signed up, like the UK, Spain, Norway, or Switzerland. This could mean a single lawsuit in the UPC might affect patent rights in places you didn’t expect.
The Legal Landscape: How Did We Get Here?
For the past year, the UPC’s Court of First Instance (CFI) judges have leaned toward a “long-arm” approach, accepting cases that involve patent infringement in non-member countries. This trend is rooted in a landmark CJEU ruling (BSH Hausgeräte v Electrolux[1]) that clarified how European courts can handle cross-border patent disputes—even when some countries aren’t part of the UPC system.
The UPC’s own rules (including the UPC Agreement and Brussels I bis Regulation) don’t clearly limit its jurisdiction to member states. Instead, they’ve been interpreted at CFI level to allow the UPC to decide cases involving European patents validated in countries outside its territory, as long as certain legal connections exist[2], [3], [4], [5]. However, the UPC’s Court of Appeal has not had the opportunity to consider these issues yet.
Recent Developments: The CJEU Referral
The debate reached a new level in March 2026, when the UPC Court of Appeal referred key questions to the Court of Justice of the European Union (CJEU) in the Dyson v Dreame case[6]. The court is asking the CJEU to decide whether the UPC can grant provisional measures (like injunctions) against defendants in non-UPC, non-EU member countries, especially when those defendants are linked to companies in UPC states.
The referral also explores whether “authorised representatives”—companies handling regulatory compliance for foreign manufacturers—can be treated as intermediaries and sued in the UPC for patent infringement in places like Spain (an EU country not in the UPC).
The specific questions referred to the CJEU are:
- Whether Article 8(1) read with Article 71b(2) Brussels I bis can support UPC jurisdiction over a third-state (non-EU) defendant for infringement in a non-UPCA EU Member State (Spain) based on the presence of a co-defendant in a UPCA state who is alleged to be an “intermediary,” on the basis that separate proceedings risk “irreconcilable judgments.”
- Whether Article 71b(2) (second sentence) must be interpreted to mean that the UPC has jurisdiction for cross-border provisional measures against a third-state (non-EU) defendant that is alleged to have infringed an EP in a non-UPCA EU Member State (Spain); and whether using the services of a company established in a UPCA state is relevant to that analysis.
- Whether, under Article 9(1)(a) of the Enforcement Directive (2004/48/EC) and/or other EU law, a patent injunction may be granted against an “authorised representative” performing tasks under the EU General Product Safety Regulation (EU) 2023/988 and the Market Surveillance Regulation (EU) 2019/1020 on behalf of a third-state (non-EU) manufacturer — i.e., whether such an authorised representative can be treated as an “intermediary” for enforcement purposes.
The referral to the CJEU signals that, while the basic proposition of long-arm infringement jurisdiction is now well-settled in UPC first instance practice, the Court of Appeal of the UPC is looking for resolution regarding the precise contours to be applied — particularly in provisional measures proceedings and where complex multi-party structures or non-EU defendants are involved.
What Does This Mean for Patent Owners and Defendants?
- Patent Owners: The UPC is increasingly offering pan-European enforcement, potentially covering non-UPC countries like the UK, Spain, Norway, and Switzerland in one go. We wait to see if the CJEU decides that this broad interpretation is correct.
- Defendants: The UPC’s power to revoke patents (invalidate them) in non-UPCA states is more limited—revocation actions are generally confined to UPCA states. For now, challenges to validity in non-UPCA countries should be raised as defenses.
What’s Still Unclear?
There are other jurisdiction issues that have been decided at first instance and which this referral to the CJEU does not address. These, at least for now, will remain without appellate authority. Examples are:
- Will the UPC’s “long-arm” reach survive, especially for final relief and multi-party cases involving non-EU defendants?
- How should infringement and validity disputes be handled for patents in non-EU, non-UPC states, like the UK for instance?
- How should the Lugano Convention (covering Norway and Switzerland) interact with UPC practice?
These questions will remain unanswered, at least for now.
The Bottom Line
The UPC’s ability to decide patent disputes beyond its borders has become a defining feature of European patent litigation. But the boundaries are still shifting, and the CJEU’s response to this referral will be pivotal—especially for cross-border injunctions and cases involving complex international business structures.
If you’re considering UPC litigation, or defending against it, keep a close eye on these developments. The next two years will likely bring clarity—and possibly new opportunities or risks for patent enforcement across Europe.
This article is for informational purposes only and does not constitute legal advice. Please seek specific advice for your situation. Please contact your usual contact at Bird & Bird or email us at upc@twobirds.com
For further information, please contact:
Juliet Hibbert, Bird & Bird
juliet.hibbert@twobirds.com
[1]Court of Justice of the European Union (CJEU) Case C-339/22 – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62022CJ0339 Summary https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:C_202502042&qid=1773065435823
[2]Fujifilm Corporation v Kodak Holding GmbH (UPC_CFI_355/2023, 28 January 2025): The LD Düsseldorf was the earliest UPC decision to affirm long-arm jurisdiction, holding it had jurisdiction over the UK designation of the patent in suit where the defendant was domiciled in Germany, reasoning that Article 71b Brussels I bis incorporates the UPC into the Brussels I bis system and that Article 34 UPCA does not exclude decisions having effect beyond UPC territory
[3]Alpinestars S.p.A. v Dainese S.p.A. (UPC_CFI_792/2024, 15 April 2025): With the defendant domiciled in Italy, LD Milan confirmed jurisdiction over infringement of the Spanish validation of the EP Patent, applying the BSH framework and treating the UPC as the defendant’s domicile court with “universal” jurisdiction at that stage, noting that no revocation action or dispute about validity/registration for Spain had been raised
[4]HL Display v Black Sheep (UPC_CFI_386/2024, 10 October 2025): LD The Hague explicitly assumed competence for hearing infringement claims regarding all EP-designated countries, even where they are not UPC Contracting Member States, listing Liechtenstein, Ireland, Norway, Poland, Switzerland and the United Kingdom as examples of countries outside UPC territory covered by the long-arm jurisdiction.
[5]Hurom v NUC Electronics (UPC_CFI_162/2024, 2 October 2025): Where the defendant was domiciled outside the EU, LD Mannheim held that jurisdiction for alleged infringement in Poland, Spain and the UK followed in principle from Article 71b(2) and Article 7(2) Brussels I bis. The court concluded it had jurisdiction for Poland, Spain and the UK, identifying no Lugano Convention or bilateral treaty basis requiring a stay or dismissal for the UK.
[6]Dyson Technology Limited v. Dreame International (Hongkong) Limited & Eurep GmbH (UPC_CoA_789/2025 & UPC_CoA_813/2025, 6 March 2026) [Court of Appeal]
