UPC Court Of Appeal Identifies Limits To "Long-arm" Jurisdiction

The UPC Court of Appeal (CoA) has found that the mere fact that damage occurs within the UPC territory as a result of the infringement of a European Patent does not give the UPC a basis to claim jurisdiction in respect of acts of infringement outside of the UPC territory. However the CoA left open the question of whether such jurisdiction might arise in other related situations.

Background

At first instance the claimant, Keeex, had alleged that a number of entities domiciled in the US and Ireland (i.e. outside of the UPC territory) infringed a European Patent in Switzerland, Spain, the UK, Ireland, Norway and Poland. The defendants are all based outside the UPC territory – the US has never been a party to the UPC Agreement (UPCA) which does not allow non-EU members – and Ireland has signed but not yet ratified the UPC Agreement and, as such, is considered to be outside of the UPC territory unless and until ratification occurs.

Keeex argued that the UPC had jurisdiction to hear these claims because the digital tools alleged to infringe the patent were available on websites accessible in (and thereby potentially giving rise to damage in) France i.e. within the UPC territory. The Paris Local Division (LD) agreed, holding that the principle established by the CJEU in BSH v Electrolux regarding jurisdiction over cross-border patent infringement could be extended to apply not only to situations where a defendant is domiciled within the UPC territory (as held by the CJEU in that decision), but also to any situation in which some damage arises from infringement of a patent within the UPC territory.

The CoA's decision

No jurisdiction under Art 7 Brussels Regulation: The UPC CoA's decision here (Adobe Inc. and OpenAI and others v KEEEX SAS, UPC_CoA_922/2025, 13.03.2026) is unequivocal in concluding that the first instance decision was wrong on this point. The Court acknowledged that Art. 7 of the Brussels Regulation does confer jurisdiction on (inter alia) the UPC to hear an action for patent infringement against a defendant domiciled outside the UPC territory where the act of infringement gives rise to damage within the UPC territory. However, crucially, the CoA referred to two previous CJEU decisions to conclude that in such a situation the UPC will only have jurisdiction in respect of damage that has occurred within the UPC territory. For this reason, it concluded, the grounds for the Paris LD's decision were "erroneous and rest on an incorrect interpretation of the applicable law".

The CoA's clarity on this point is particularly striking in light of its recent referral of certain questions to the CJEU regarding aspects of its so called 'long-arm' jurisdiction and the BSH decision relating to 'anchor defendants' and intermediaries, in respect of which it concluded that further guidance was needed (see our blog post The UPC's first referral to the CJEU).

Potential for jurisdiction under Art 71b Brussels Regulation: The CoA went on to consider an alternative basis for jurisdiction over entities domiciled outside of the EU under Art. 71b of the Brussels Regulation, which states that where a court has jurisdiction over such a defendant in a dispute concerning the infringement of a European Patent which has caused damage within the EU, that court may also exercise jurisdiction in respect of damage caused by that infringement outside of the EU. The CoA expressly left open the question of whether this provision would allow the UPC to take jurisdiction over damage caused by infringement of patents in other countries (as opposed to damage arising outside the UPC territory caused by infringement of a patent within the UPC territory). This might, however, indicate that it did not think the 'cross-border' interpretation of this provision was entirely self-evident.

In any case, the CoA also noted that there is a further condition to the exercise of such jurisdiction, being a requirement that the defendant owns property located in an EU Member State and a sufficient connection between the dispute and that Member State is established. It held that Keeex had failed to do this on the facts of the case in front of it.

The CoA's conclusion: As a result of its findings above, the CoA dismissed the claims relating to infringement of the Swiss, Spanish, British, Irish, Norwegian and Polish parts of the European Patent.

Comment

This decision significantly limits the long-arm jurisdiction of the UPC in certain respects, following a significant extension in the Paris LD's decision to include infringements by non-UPC based defendants in non-UPC territories. However, the scope of the UPC's jurisdiction over cross-border infringement remains uncertain in several respects, so further guidance from the CoA will be needed on these issues – keep watching this space.

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