Long-arm jurisdiction: when one court's patent injunction covers other countries

The assumption that no longer holds

A European patent is granted once, by the European Patent Office, and then becomes a bundle of national patents. For most of the last twenty years each one was enforced in its own country. An originator that wanted to stop a generic in Germany, Spain and Poland sued three times, and the three courts could and did reach different results. Planning followed the same pattern: each country was its own fight, on its own timetable.

That pattern rested on two rulings of the EU’s Court of Justice from 2006. The first said that only the courts of the country that granted a patent may decide whether it is valid, even when invalidity is raised as a defence in an infringement case. The second said that sister companies infringing the same European patent in different countries could not be gathered before one court merely because they belonged to one group. Since nearly every defendant argues that the patent is invalid, a court asked to rule on a foreign patent had to stop almost as soon as it started.

The Unified Patent Court (UPC) changed this in 2023 for the countries that joined it. The change described here goes further, and reaches countries that did not.

What the Court of Justice decided in 2025

In BSH Hausgeräte v Electrolux, decided on 25 February 2025, the Court of Justice reversed the practical effect of the first 2006 ruling. A Swedish court had been asked to rule on infringement of the German, French, Spanish, Turkish and other national parts of one European patent, by a defendant based in Sweden. The Court held three things.

• The court at the defendant’s home keeps the infringement case. Under the Brussels I Regulation a defendant can always be sued where it is domiciled. That court does not lose the infringement claim over a foreign patent because the defendant says the patent is invalid.
• Validity stays with the country of grant. The home court cannot revoke the foreign patent. If it sees a reasonable, non-negligible possibility that the foreign court would revoke it, it may pause its own case and wait.
• For patents of countries outside the EU, the home court may go further. The exclusive rule on validity protects only EU member states. For a Turkish or UK patent the home court may assess validity itself, with effect only between the parties and no effect on the register.

Switzerland, Norway and Iceland sit under a parallel treaty, the Lugano Convention, with the same rule on validity, and courts treat them like the EU states.

The three things an order depends on

1. A defendant based in the court’s territory. For a German court that means a German company. For the UPC it means a company based in any of the eighteen participating states, because the UPC counts as a court common to all of them. Once that link exists, the court’s power over that defendant is not limited to acts in its own territory.

2. A way to bring in the rest of the group. A company based in Spain or Switzerland can be joined as a co-defendant if the claims against it are closely connected with those against the home-based company, called the anchor defendant. The second 2006 ruling still applies: belonging to the same group is not enough. What has worked is showing that the companies handle the same product in the same countries as one operation, with shared manufacturing, one marketing authorisation holder and central decisions.

3. The validity position in each country. For EU and Lugano countries the court asks whether there is a real chance the national court would revoke the patent. If not, it grants the order on the condition that it lapses in any country where the national court does revoke. For countries outside both, it decides validity between the parties and grants the order outright.

The cases so far

Court and date	Product	What was ordered
Munich Regional Court, September 2025	Aflibercept biosimilar	Preliminary injunction for Germany and twenty-two further countries; a permanent cross-border injunction followed
UPC, Hague Local Division, 2025	Shelf fittings (HL Display v Black Sheep)	Permanent injunction for every country where the patent was in force, including non-UPC EU states, Lugano states and the UK
UPC Court of Appeal, 2 June 2026	Printing plates (Kodak v Fujifilm)	Set the UPC’s test: grant the order on the condition that it falls away if the national court revokes
District Court of The Hague, October 2026	Subcutaneous pembrolizumab	Injunction for eight countries including Switzerland, each lapsing if the patent is revoked there
UPC, Hague Local Division, 10 November 2026	Comirnaty	Injunction for 35 countries: the 18 UPC states plus 17 others including Spain, Poland, Switzerland, Norway and Turkey, with enforcement deferred

Two points stand out. The power is not confined to the UPC: the Munich and Hague national courts used it on patents the UPC was not hearing, so opting a patent out of the UPC does not avoid it. And courts do not always grant it. In October 2025 the District Court of The Hague enjoined an aflibercept biosimilar for the Netherlands only and refused cross-border relief.

One question has gone back to the Court of Justice. In March 2026 the UPC Court of Appeal, in Dyson v Dreame, asked whether a company based outside the EU can be reached for acts in a non-UPC country through an EU-based intermediary such as its authorised representative. Until that is answered, the outer limit of the anchor route is unsettled.

How to read a cross-border order

• The country list. It is in the operative part of the order and it is the only reliable guide. In the Comirnaty decision GSK did not ask for the UK or Ireland, so they are not covered.
• The condition. For EU and Lugano countries, look for wording that the order applies unless the national court holds the patent invalid. A country can drop out later.
• The defendants. The order binds the named companies. A supplier outside the group is not caught by it.
• Enforceability. An order may be immediately enforceable, enforceable on notice, or deferred. The Comirnaty injunction cannot be enforced until the decision is final and three further months have passed without a licence.
• Whether there is a patent to enforce. The order applies only where the patent is in force. In a country where it was never validated, has lapsed or has expired, there is nothing to enjoin, whatever the order says. That is a question for each national register.

How such an order would be enforced on the ground in a country outside the EU has not been tested. In practice it works on the defendant, which is based in the court’s territory and faces penalties there.

What it changes

For a generics or biosimilar launch planner. Spain, Poland, Czechia, Switzerland, Norway and in some cases the UK can no longer be assumed to run on their own timetable. If any company in your supply chain is based in a UPC state, Germany or the Netherlands, one court may decide for all of them. The defence the courts themselves point to is a revocation action in the national court, filed early: it gives the infringement court a reason to wait, and a win removes that country from the order. In the Comirnaty case no national revocation action had been filed in the countries the order covers.

For a parallel trader or wholesaler. A headline that a product has been enjoined “in Germany” or “at the UPC” may now describe an order for twenty or thirty countries, or for one. Read the list before assuming a market is open or closed, and expect it to change if a national court revokes.

For anyone tracking exclusivity dates. None of this moves an expiry date. It changes how many countries one judgment can close at once, and it makes the country-by-country status of the patent matter more, not less: the order reaches only as far as the patent is in force.

The UPC explainer covers which countries are inside the court’s own territory, and clearing the path and launching at risk covers how injunctions are fought.