Background
BSH Hausgeräte and Electrolux have been litigating since 2007 over a European patent (EP 1 434 512) covering vacuum cleaning technology. The European patent was granted by the EPO and was then validated, in the usual way, into national parts in nine EU and non-EU jurisdictions (Germany, Austria, Spain, France, UK, Italy, the Netherlands, Greece, and Turkey). BSH brought a single infringement action in Sweden — Electrolux’s home jurisdiction — covering all nine national parts. Electrolux raised invalidity defenses to all of them.
The Swedish court of first instance dismissed the infringement claim concerning the German, Austrian, Spanish, French, UK, Italian, Dutch, Greek, and Turkish parts of the patent on the ground that Article 24(4) of Regulation 1215/2012 confers exclusive jurisdiction over patent validity disputes on the courts of the registering state, and that Electrolux’s invalidity defenses brought the entire infringement claim within Article 24(4). The Svea Court of Appeal referred the question to the CJEU.
The case had been pending for over a decade by the time it reached the Grand Chamber. The Advocate General delivered two opinions (the second after a chamber-level decision was deemed insufficient and the case was reassigned to the Grand Chamber for the most authoritative possible ruling).
The Court’s Holding
The Grand Chamber held that:
(1) Article 4(1) Brussels I-bis grants jurisdiction over cross-border infringement claims. A court of the EU member state in which the defendant is domiciled has jurisdiction to hear infringement actions concerning a European patent validated in another member state, even where the defendant raises invalidity defenses. The seized court must decline to rule on the validity of the foreign-state national patent (validity remains the exclusive preserve of the registering state’s courts under Article 24(4)), but the seized court can — and must — adjudicate the infringement claim, treating the patent as valid for purposes of the infringement analysis or, where appropriate, staying the infringement action while the patentee or defendant litigates validity in the registering state.
(2) Article 24(4) does not extend to non-EU patents. Where the cross-border infringement claim concerns the national part of a European patent validated in a non-EU member state (here, Turkey), Article 24(4)’s exclusive-jurisdiction rule does not apply at all. The seized court can adjudicate both infringement and validity of that non-EU national part as a free-standing matter, subject to ordinary private international law rules and any applicable convention obligations. (The Court noted that this position requires care to avoid irreconcilable judgments with the registering state’s courts.)
(3) The Lucasfilm framework is preserved but narrowed. The Court distinguished the prior Lucasfilm v. Ainsworth framing under which member-state courts treated cross-border patent infringement as functionally outside their jurisdiction whenever validity was contested. Under the new framework, infringement remains adjudicable in the defendant-domicile member state; only validity is reserved.
Key Takeaways
- Cross-border patent litigation in the EU is back. Until BSH, member-state courts had effectively refused to adjudicate infringement of foreign national patent parts whenever validity was raised — which is essentially always. BSH reverses that practice for the infringement question.
- Validity remains exclusively the registering state’s business. The defendant’s invalidity defense is litigated separately in the patent’s home country, while the infringement claim proceeds at the defendant’s domicile.
- Non-EU patents (UK, Turkish, Swiss, Norwegian national parts of European patents) can be adjudicated in full — including validity — in the EU member state where the defendant is domiciled, subject to risk of conflicting judgments with the home country.
- The Unified Patent Court has read BSH as supporting its own long-arm jurisdiction over non-UPC-state national patent parts when the defendant is domiciled in a UPC contracting state, dramatically expanding the UPC’s geographic reach. (See TGI v. AIM at the UPC Court of Appeal.)
- Forum-selection strategy in EU patent litigation is materially different post-BSH. Plaintiffs may sue in the defendant’s home court for cross-border infringement; defendants face the prospect of consolidated infringement adjudication across multiple national parts.
Why It Matters
The BSH ruling reopens cross-border patent litigation in the EU after roughly two decades during which member-state courts (notably the UK’s Lucasfilm-line and the Dutch courts’ similar reluctance) had largely abandoned multi-jurisdictional infringement claims when invalidity was contested. The decision is foundational for the post-2023 era of EU patent litigation and is doing real doctrinal work at the UPC: the UPC Court of Appeal in TGI v. AIM (2025) cited BSH as the basis for asserting jurisdiction over Spanish national patent parts when the defendant was domiciled in a UPC state, even though Spain is not a UPC member.
For European patentees, the practical playbook is now: identify the defendant’s home jurisdiction, and consider filing a single infringement action in that home jurisdiction covering all national parts of the European patent — including UPC, EU non-UPC, and non-EU validations. For defendants, the playbook is the converse: validity defenses must be litigated in each registering state separately (and in parallel), and the home-court infringement action will not stay automatically just because validity is contested.
The longer-term consequence is consolidation: a smaller number of forums will hear larger, multi-national-part infringement actions. That is good for procedural efficiency and bad for forum-shopping defense strategies that relied on jurisdictional fragmentation. BSH, together with the UPC’s long-arm reading of it, may be the most significant European patent jurisdictional shift since the Brussels Convention itself.