According to a recent ruling of the Court of Justice of the European Union, if an action for infringement of a European patent valid in several states is filed in the EU state of residence of the defendant, the court has cross-border jurisdiction on the infringement in spite of defensive invalidity actions brought by the defendant in a different state of validity of the patent.

On 25 February 2025 the Court of Justice of the European Union (CJEU) issued a ruling in case C-339/22, providing important guidance with regard to cross-border litigation concerning European patents.

The decision is of the utmost importance for patent litigation before European Union (EU) national courts, as its interpretation of certain EU provisions potentially enables right holders to enforce their European patent with a single action against acts of infringement taking place in any of the 27 EU member states plus Iceland, Norway and Switzerland, as well as in a few other states, if members of certain international agreements.

The ruling also makes it very clear that patent litigation in Europe requires not only knowledge of European patent laws, European Union regulations and international conventions, but also an understanding of how these may overlap and interact.

Facts in the case

German company BSH sued Swedish company Electrolux before a Swedish court in 2020.

BSH claimed that Electrolux had infringed its European patent on vacuum cleaner technology, and sought an order requiring Electrolux to cease using the patented invention in all states of validity of the patent: namely Sweden, six other EU member states (Austria, France, Germany, Italy, the Netherlands and Spain) as well as the United Kingdom and Turkey, that are not members of the EU.

Electrolux counterclaimed for invalidity of the BSH patent in Sweden as well as in all the other states it covered, and argued that while the invalidity action was pending the Swedish court had no jurisdiction to hear the patent infringement case in states other than Sweden.

The Swedish court agreed, finding that according to Article 24(4) of EU Regulation 1215/2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis Regulation), it had no jurisdiction over the infringement claims over the portions of the patent valid in other states.

BSH appealed against the decision, and the Swedish appeal court stayed proceedings in order to seek guidance from the CJEU on the interpretation of the above provision.

Main points of the CJEU’s ruling

On jurisdiction in EU member states

1.Under Article 24(4), the court of the EU state in which the defendant is domiciled has jurisdiction over infringement actions of a European patent, notwithstanding any invalidity actions against the patent. Invalidity actions, on the other hand, fall under the jurisdiction of the national courts of the EU states in which the patent is valid.

2.Where the court of the EU state hearing the infringement action finds that there is a reasonable, non-negligible possibility of that patent being declared invalid by the court that has jurisdiction, it may stay the proceedings.

On jurisdiction in non-EU member states

1.Article 24(4) does not apply to the courts of non-EU member states; therefore, EU courts do not have jurisdiction over invalidity actions in non-EU member states.

2.Courts in EU member states may rule on invalidity claims concerning third states filed in defence, but the effects of decisions will be limited to the parties in the proceedings, with no effect on national registers.

Effects of the decision on cross-border European patent litigation

Litigation before EU national courts

The CJEU’s decision not only clarifies that Article 24(4) enables jurisdiction on cross-border infringement across EU member states; it points out that the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters includes a provision that has the same effects on its member states as Article 24(4). Non-EU members Iceland, Norway and Switzerland are members of the Lugano Convention and of the European Patent Convention.

Hence an action for infringement of a European patent brought in the EU state in which the defendant is domiciled can potentially cover infringements taking place in any of the 27 EU member states plus Iceland, Norway and Switzerland as well as in states that are members of the New York Convention or have bilateral agreements in place.

Litigation before the Unified Patent Court

In a similar case, the UPC would have jurisdiction over both infringement and validity of the European patent in states that are members of the UPC; not all European patent states are members of the UPC, therefore the UPC would be competent solely for infringement, not also for validity, in the European patent states that are not members of the UPC but are members either of the EU (such as Spain and Ireland) or of the Lugano Convention (Iceland, Norway and Switzerland).

Regarding the United Kingdom and Turkey, that are part of the European Patent system but are not members of the EU or of the Lugano Convention and do not have bilateral agreements in place, the UPC could assess both infringement and validity but its decision would have effects only inter partes, leaving the national registers of the two countries unaffected.

Thanks to Mario Pozzi partner of SIB Lex for contributing to this news item.

Further information

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