Can foreign manufacturers escape the long arm of the UPC’s jurisdiction?

In the three years since it became operational, the UPC has established itself as a leading forum for pan-European patent litigation, with a number of decisions raising important questions regarding the full reach of the court’s so-called long-arm jurisdiction.  With that in mind, manufacturers based outside Europe must now give careful consideration to their operations within Europe. The way in which they organise their European sales, supply chains, regulatory functions and group companies may allow one UPC action to encompass conduct in non-UPC countries such as Spain, Poland, Switzerland or the United Kingdom. Recent decisions show that a group’s corporate and operational structure can determine the geographical reach of the litigation, while the pending reference to the CJEU in Dyson v Dreame[1] means that a part of that picture remains unsettled.  In this article we discuss the key impacts that the UPC’s long-arm jurisdiction might have on companies based outside Europe, such as in the US or China.

Refresher: framework for the UPC’s long-arm jurisdiction

Following the CJEU’s landmark decision in BSH Hausgeräte v Electrolux[2], the UPC has readily embraced the principles in that decision. In the right circumstances, the UPC may determine infringement of national parts of a European patent outside the UPC territory (e.g., in the UK), and may grant relief (including damages and an injunction) affecting conduct in states that have not joined the UPC system. This is commonly referred to as the UPC’s long-arm jurisdiction.

To provide a brief refresher on the key aspects of the UPC’s long-arm jurisdiction, it is first worth recalling the different categories of European state:

• UPC states: these are EU states that have signed and fully ratified the UPC agreement (UPCA). There are 18 such states, and the UPC is in force only in those 18 countries at the time of writing. Examples include Germany, France, Netherlands and Italy.
• EU (or Lugano[3]), non-UPC states: these states include:
  • Lugano states outside both the EU and UPC, e.g., Iceland, Norway and Switzerland
  • EU states that are not signed up to the UPC, e.g., Spain, Poland, Croatia
  • EU states which have signed but not yet ratified the UPCA, e.g., Cyprus, Czech Republic, Greece, Hungary, Ireland and Slovakia.
• Non-EU, Non-UPC states: these are European states that are not part of the EU (or Lugano) and are not signed up to the UPC. Examples include the UK and Turkey.
• EPC states: these are the countries which participate in the European Patent Convention (EPC). A granted EP patent can be validated in any EPC states. EPC states include all of the above.

The main principle established in the CJEU’s decision in BSH Hausgeräte v Electrolux and adopted by the UPC is that an alleged infringer (“defendant”) can be sued in the courts of the state in which the defendant is domiciled[4].  Thus, where a defendant is domiciled in a UPC state, the UPC has international jurisdiction, and a single infringement action may encompass infringement claims concerning national designations of the same EP patent in multiple EPC states wherein the EP patent has been validated (i.e., not just UPC states but also EU/Lugano and non-UPC states like Spain and Switzerland, and non-EU and non-UPC states like the UK and Turkey).

However, it is worth noting that the UPC cannot revoke national parts of an EP patent outside the UPC territory. In particular, where the defendant raises a counterclaim of invalidity as a defence to the infringement action, the UPC may be blocked from ruling on the validity aspect for the parts of a European patent not relating to a UPC state. This is because the court of an EU Member State in which the patent is granted has exclusive jurisdiction to rule on a patent’s validity in that state[5]. For example, the Spanish court has exclusive jurisdiction on the validity of the Spanish designation of the EP patent. Therefore, when the UPC exercises its long-arm jurisdiction, infringement proceedings and invalidity proceedings are inherently bifurcated. When there is, more often than not, a squeeze between validity and infringement, it is expected that the long-arm jurisdiction may put an alleged infringer in a difficult position.

The various situations that arise from the interplay between these rules were clearly set out in the headnotes of the UPC’s court of appeal decision in Fujifilm v Kodak[6]. This decision has shifted the legal picture from whether the UPC possesses long-arm jurisdiction to how that jurisdiction should be exercised and constrained by principles of international comity. With this decision in mind, we can turn to its application in various situations involving US or Chinese companies operating in Europe.

Risk 1: a UPC-domiciled group company may open the door

The clearest route to extended jurisdiction is a defendant domiciled in a UPC state. If, for example, a German group company is responsible for sales across Europe, its German domicile may allow it to be sued before the UPC in respect of alleged infringement not only in UPC states, but also in non-UPC states in which it carries out relevant acts.

Alternatively, where a US or Chinese company is operating in Europe but not via a subsidiary based in a UPC state, the outcome is different. For example, the company could be operating in Europe through an Irish subsidiary. In this scenario, a proprietor would not be able to invoke the UPC’s long-arm under Article 4(1) the Brussels I bis Regulation (BR) so as to reach non-UPC states, because the alleged infringer (the US or Chinese company and its Irish subsidiary) is not domiciled in a UPC state[7]. While the proprietor may seek to construct jurisdiction by relying on Article 7(2) BR – jurisdiction based on the place where infringement actions occurred – the UPC’s jurisdiction established in this way would be strictly confined to the UPC territory. This was confirmed by the UPC’s Court of Appeal in Adobe v Keeex[8]: Keeex had brought an infringement action against a number of US and Irish defendants concerning infringement in UPC states and non-UPC states (Switzerland, Spain, the UK, Ireland, Norway and Poland). Because none of the defendants were domiciled in a UPC state, the Court of Appeal confirmed that the UPC did not have jurisdiction to hear the infringement case in respect of the non-UPC states.

For foreign companies operating in Europe, and in particular in non-UPC states such as the UK, Ireland, Spain, Switzerland, etc., it may therefore be worthwhile considering separating operations to ensure that activities in UPC states are carried out by a subsidiary based in the UPC territory while all activities in non-UPC states are carried out by a subsidiary based outside the UPC territory. This might help avoid any potential infringement case in relation to activities in non-UPC states becoming enjoined into a UPC infringement action via the UPC’s extended jurisdiction.

In this regard, it may be interesting to note that in Fujifilm v Kodak where Fujifilm attempted to utilize the UPC’s long arm to obtain a ruling on Kodak’s potential infringement in the UK, it was a UK subsidiary – Kodak Limited – that actually performed the potentially infringing acts in relation to the UK.  Kodak Limited was not a defendant in the UPC infringement action – Fujifilm had sought to sue three German Kodak entities, relying on their German domicile as the jurisdictional basis for invoking the UPC’s long-arm jurisdiction.  Because the potentially infringing acts in the UK were carried out by a Kodak entity that was not a defendant in the infringement case, the UPC court of appeal dismissed the infringement case in respect of the UK part.  The case accordingly reiterates the idea expressed above that, by performing operations in non-UPC states exclusively by subsidiaries not domiciled in a UPC state, it can potentially be more difficult to invoke the UPC’s long arm.

For multinational manufacturers, this creates both a risk and a possible means of containment. A European entity that centrally contracts, supplies or directs sales across the region may expose conduct in non-UPC states to UPC infringement proceedings. Conversely, genuinely separating activities in non-UPC states from those of UPC-domiciled entities may make it harder for a patent proprietor to invoke the UPC’s long arm jurisdiction.

Risk 2: an anchor defendant may draw in foreign entities

There are however certain situations where the UPC may establish jurisdiction to rule on infringement in non-UPC states in relation to defendants that are not domiciled in a UPC state. Accordingly, a third-country manufacturer cannot assume that the absence of its own domicile in the UPC territory keeps it outside a wider infringement action.

One such situation arises where there is an “anchor defendant” – a defendant based in a UPC state. The anchor defendant may pull a co-defendant that is not domiciled in a UPC state (“foreign defendant” hereinafter) into the UPC proceedings according to Article 8(1) BR. Under Article 8(1) BR, a company domiciled in one member state (i.e., the foreign defendant) may be sued in another member state where it is a co-defendant with a locally domiciled defendant (i.e., anchor defendant), provided the claims are so closely connected that it is expedient to hear them together to avoid irreconcilable judgements.

The question is whether and in what circumstances the UPC has jurisdiction with respect to the foreign defendant in a non-UPC state. Two different UPC local divisions have answered this question in their procedural orders, although this has not been confirmed by the Court of Appeal.

The first case relates to The Hague Local Division’s order in Genevant and Arbutus v Moderna[9] where Genevant and Arbutus had brought an infringement action against a mixture of Moderna entities based in UPC and non-UPC states, and in relation to infringement in a mixture of UPC and non-UPC states. Moderna objected on the basis that the UPC lacked jurisdiction in respect of Moderna Norway, Moderna Spain and Moderna Poland, each of which is based in a non-UPC state.

The Hague Local Division ruled that Moderna Netherlands acted as an “anchor defendant” – it was domiciled in a UPC state and was central in the sales and supply activities across all relevant European states, including Norway, Spain and Poland. The court further held that Moderna Netherlands acted jointly with each of Moderna Spain, Moderna Poland and Moderna Norway in their respective home countries. For example, Moderna Spain is the holder of the European market authorisation, facilitating commercialisation in certain European states. Accordingly, the court decided that the infringement case against Moderna Netherlands (the anchor defendant) was sufficiently connected to those against the Norwegian, Spanish and Polish entities such that the UPC had jurisdiction to rule on all the infringement claims, including those relating to non-UPC based entities acting in non-UPC states.

The second case relates to Nixu v Infoblox[10] in which Nixu initiated infringement proceedings against Infoblox Inc., a US-based entity, alongside its German subsidiaries. Nixu sought to utilize the German subsidiaries as anchor defendants under Article 8(1) BR to establish jurisdiction over the US parent company for alleged infringement occurring in the UK (as well as three UPC states – Germany, France, and Finland).

The Hamburg Local Division accepted jurisdiction over the US parent company for infringements within the UPC territories (Germany, France, and Finland), establishing that a UPC-domiciled anchor defendant can establish jurisdiction over a foreign co-defendant for the entirety of the UPC territory without requiring granular proof of joint infringement in every single member state.

However, the Hamburg Local Division dismissed the claims concerning the UK part of the patent. The Hamburg Local Division established that to reach a non-UPC territory via an anchor defendant, the claimant must substantiate that joint infringing acts between the anchor defendant and the foreign defendant occurring specifically within that targeted non-UPC country. Because Nixu failed to assert any facts which could allow the conclusion that the US parent company together with one of the German subsidiaries jointly infringe the UK part of the patent, the attempt to invoke the UPC’s long-arm by the claimant failed.

Risk 3: regulatory and compliance intermediaries may serve as anchor defendants

The most consequential unresolved issue for non-European manufacturers concerns intermediaries. In Dyson v Dreame, Dyson (the proprietor) sued a number of defendants including Dreame International, a Hong Kong-based manufacturer, and Eurep GmbH, a German company which acted as Dreame International’s authorised EU representative[11], alleging that Dreame International and Eurep were infringers in, inter alia, Spain.

Eurep was not a distributor or retailer. Its sole function was to act as Dreame International’s statutory “Authorised Representative”, a purely administrative role mandated by EU product safety regulations for non-EU manufacturers wishing to place regulated goods on the EU market. Similar structures arise for medical devices, pharmaceuticals, consumer products and other regulated goods. On the other hand, Dreame International manufactured and offered through its websites the allegedly infringing products.

Dyson sought to utilize Eurep’s German domicile as an anchor to establish jurisdiction over the Hong Kong-domiciled Dreame International for infringing acts occurring in Spain, a non-UPC state.

The Hamburg Local Division initially treated Eurep as an anchor defendant and granted provisional relief against Dreame International and Eurep in Spain. Both sides appealed.

On 6 March 2026, the Court of Appeal stayed parts of the proceedings that concern the action against Dreame International in Spain and the action against Eurep, and referred questions to the CJEU. Those questions concern, among other matters, whether claims against a third-country manufacturer for infringement in an EU member state which is a non-UPC state (i.e., Spain) and a UPC-domiciled intermediary whose services are used by the third-country manufacturer to conduct the infringement are capable of leading to irreconcilable judgements under Article 8(1) BR?

In other words, the Court of Appeal agreed with the Local Division that the UPC has international jurisdiction against Eurep in all EPC states including Spain because it is domiciled in a UPC state, and that the UPC also has jurisdiction against Dreame International within UPC states based on the fact that alleged infringement actions occurred within the UPC territory. The referred question focussed on whether Eurep can act as a valid anchor defendant to pull Dreame International into the UPC’s long-arm jurisdiction in Spain.

If the results of the referral lead to the decision of the Local Division being upheld, then non-EU manufacturers and their EU-based intermediaries, such as marketing authorization holders of medicinal products and authorized representatives for medical devices imported into the EU, must remain vigilant of potential exposure to wider infringement actions utilizing the UPC’s long-arm jurisdiction.

Regardless of the outcome of the CJEU referral, we should note that if, however, the foreign manufacturer is able to use an authorised EU representative that is not domiciled in a UPC state (e.g. in Spain or Ireland), then the EU representative would not be able to act as an anchor defendant for the foreign manufacturer under Article 8(1) BR.

Evidence gathering may have consequences beyond the UPC action

US or Chinese companies with manufacturing capabilities in UPC states should also be aware of the UPC’s powers to grant ex parte orders. The Brussels Local Division’s orders in Roche and Genentech v Organon[12] demonstrate the UPC’s willingness, in an appropriate case, to grant ex parte measures to preserve evidence at manufacturing premises. The orders authorised searches at Organon sites in the Netherlands and Belgium and the seizure or recording of material including samples, photographs, internal documents and manufacturing records relating to a pertuzumab biosimilar.

Although such measures do not themselves depend on long-arm jurisdiction, their effect may reach beyond the UPC’s borders. The order further noted that the evidence may be used in parallel national proceedings (“Allows the use of the outcome of the measures in other proceedings than the proceedings on the merits of the case”). Thus, while the order is not related to the UPC exercising its long-arm jurisdiction, there is a risk that the evidence obtained at a UPC-state facility may inform parallel disputes concerning the same product or manufacturing process in the United Kingdom, the United States or other jurisdictions, subject to the orders made and applicable rules governing use and confidentiality.

A further example of evidence gathering extending beyond the UPC’s territories can be found in the January 2026 penalty decision in Fujifilm Corporation v. Kodak[13]. The Mannheim Local Division had previously decided that Kodak infringed Fujifilm’s patent in Germany and granted relief accordingly, including ordering Kodak to provide information regarding infringing products manufactured in Germany.  In the penalty decision, the Mannheim LD ruled that Kodak had failed to comply with the earlier information orders and imposed a penalty of about €1.72 million on Kodak. A key aspect was that Kodak had only provided information relating to products sold in Germany, whereas the Mannheim LD held that the disclosure obligation also extended to infringing products manufactured in Germany and subsequently exported abroad, including to the UK, a non-UPC state. In this regard, the court reasoned that because the manufacturing activity infringed the German designation of the patent, information about the subsequent commercialisation of the products abroad was relevant to assessing the consequences of the German infringement and, in particular, the calculation of damages.

What non-European manufacturers could review now

In light of the developing case law on the UPC’s long-arm jurisdiction, non-European manufacturers may wish to review their operations in Europe and consider a number of questions:

• A first question is which entities perform potentially relevant acts in each country, including manufacture, importation, advertisement, sales, distribution, storage of concerned products. Contracts, invoices, website terms, regulatory filings and product labelling should be consistent with the intended corporate allocation of responsibilities.
• A second question is where European activities are coordinated. That is, to identify the entity that sets launch timing, manages distributors, controls digital sales, negotiates framework agreements, supplies product and directs national affiliates within the corporate network structure. Central coordination by a UPC-domiciled company as opposed to a non-UPC-domiciled company may carry a greater risk of the UPC’s long-arm jurisdiction being exerted against the corporate group.
• A third question is whether any authorised representative, central importer, marketing authorisation holder or other intermediary is established in a UPC state and could be moved to a non-UPC state. This may reduce the risk of the intermediary being relied on as a UPC-domiciled anchor defendant for claims against a non-European manufacturer, although it would not exclude other possible bases of UPC jurisdiction.
• A fourth question is whether dormant, legacy or low-activity companies domiciled in UPC states retain contractual, regulatory or operational functions that could make them plausible anchor defendants.
• A fifth question is whether the separation between UPC and non-UPC activities is documented and observed in practice. Shared personnel, common websites, cross-border stock and central contracting may undermine a formal separation.

For freedom-to-operate issues, companies could also consider whether pre-emptive proceedings in a non-UPC state may be useful. A UK revocation action or declaration of non-infringement may affect how the UPC exercises its long arm jurisdiction over an infringement claim concerning the UK designation, including whether the UPC will stay the claim or grant relief conditional on the outcome of the UK proceedings. Other proactive action could include filing protective letters in key states where manufacturing plants are based to mitigate the risk of search orders being granted ex parte – but such protective letters would likely only have an effect if there is a substantive argument to be made that there is no infringement and/or a patent is invalid.

This said, the practical effectiveness of the UPC’s long-arm jurisdiction remains uncertain. Enforcement of relief in a non-UPC state ordinarily depends on the recognition and enforcement rules of that state. For example, a UPC judgment concerning UK infringement would be treated as a foreign judgment by the UK courts and would not be directly enforceable in the UK. Recognition and enforcement would depend on the applicable UK rules and on the nature of the relief. It remains to be seen how, and to what extent, the UK courts and the courts of other non-UPC states will give effect to orders made pursuant to the UPC’s long-arm jurisdiction.

Nonetheless, foreign manufacturers should assume that the UPC will continue to test the outer boundaries of its jurisdiction. For the moment, the prudent response may simply be to understand where the group’s real jurisdictional connections lie and to ensure that its corporate documents, contracts and operational practices reflect the allocation on which it may later need to rely.

This article was prepared by Senior Patent Attorney Thomas Compton and Partner & Patent Attorney Minghui Sun

[1] UPC Court of Appeal, Dyson v Dreame, order for reference of 6 March 2026, UPC_CoA_789/2025 and UPC_CoA_813/2025

[2] CJEU, BSH Hausgeräte GmbH v Electrolux AB, Case C-339/22

[3] The Lugano Convention 2007 is an international treaty between the EU and Iceland, Norway and Switzerland which extends certain EU rules on jurisdiction to Iceland, Norway and Switzerland.

[4] This principle arises out of Article 4(1) BR[4] (Regulation (EU) No 1215/2012 (Brussels I bis). This provision governs jurisdictional issues relating to civil matters in EU states.  The Lugano Convention extends the jurisdictional rules to Iceland, Norway and Switzerland)

[5] Article 24(4) BR

[6] UPC Court of Appeal, Fujifilm v Kodak, decision of 2 June 2026, UPC_CoA_882/2025 and related appeals

[7] There are certain situations where the UPC might nonetheless have jurisdiction if the requirements of Article 71(3)b BR are fulfilled.

[8] UPC Court of Appeal, Adobe v KEEEX, Appeals Nos. UPC_CoA_922/2025 to UPC_CoA_925/2025

[9] The Hague Local Division, Genevant Sciences GmbH and Arbutus Biopharma Corp. v Moderna Inc. et al., UPC_CFI_191/2025 and UPC_CFI_192/2025, Order of 23 May 2025

[10] The Hamburg Local Division, Nixu FL IP Protection LLC v Infoblox Inc, Infoblox Germany Gmbh and Nomios Germany Gmbh, UPC_CFI_360/2026, Order of 8 June 2026

[11] Under EU safety protocols, consumer electrical products manufactured outside the EU must have an EU authorised representative

[12] Brussels Local Division, Genentech, Inc. and F. Hoffmann-La Roche AG v Organon Heist B.V. and N.V. Organon, UPC_CFI_407/2025 and UPC_CFI_408/2025, 12 November 2025

[13] Mannheim Local Division, Fujifilm Corporation v. Kodak, UPC_CFI_365/2023