or the CJEU’s BSH v. Electrolux judgment of February 25, 2025
The Court of Justice of the European Union (CJEU), referred by a Swedish court, has ruled on the scope of a decision rendered by a national court concerning a European patent in countries other than Sweden—member states of the European Patent Organisation where this European patent also produces its effects.
1. The Brussels I bis Regulation and disputes involving a patent
The Brussels I bis Regulation (Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) governs the jurisdiction of courts in EU member states in cross-border disputes.
Under Article 4(1) of this regulation, persons domiciled in the territory of a member state are to be sued in the courts of that member state. This is the general rule that the courts of the Member State of the defendant’s domicile have jurisdiction.
However, this rule applies “subject to” other provisions of the regulation. In particular, Article 24(4) provides an exception to this general rule “in proceedings concerned with the registration or validity of patents.”
According to the first paragraph of point 4 of Article 24, the courts of the member state in whose territory the registration of the patent has been applied for, carried out, or is deemed to have been carried out under an EU instrument or an international convention, have exclusive jurisdiction “in proceedings concerned with the registration or validity of patents, whether the issue is raised by way of an action or a plea in objection.”
2. When BSH seeks to have the infringement of all national parts of a European patent judged by a court in a single EU member state
In this case, German company BSH holds European patent EP 1434512 protecting an invention in the field of vacuum cleaners. This patent has been validated in several member states of the European Patent Organisation, including Sweden (an EU member state) and Turkey (a third country outside the EU).
On February 3, 2020, BSH brought an infringement action against Swedish company Electrolux AB before the Swedish Patent and Market Court for all national parts of its European patent. The case was therefore brought before a court in the state where the defendant is domiciled, in accordance with Article 4(1) of the Brussels I bis Regulation.
Electrolux argued that the foreign patents (those other than Swedish) were invalid and that the infringement action should be considered a dispute “concerned with the validity of patents” under Article 24(4) of the Brussels I bis Regulation, since the issue of infringement was inseparable from that of the patents’ validity.
Electrolux thus relied on this exception to argue that the courts of the member states in which the foreign patents had been validated had exclusive jurisdiction to rule on their validity—and consequently on BSH’s infringement claims regarding those patents.
The Swedish court of first instance agreed with this argument and, on December 21, 2020, declared itself incompetent to rule on the infringement action concerning the patents validated in member states other than Sweden.
BSH appealed this decision before the Swedish Patent and Market Court of Appeal. The latter stayed proceedings and referred preliminary questions to the CJEU regarding the interpretation of Article 24(4) of the Brussels I bis Regulation.
A strict interpretation of Article 24(4)
In its judgment, the CJEU emphasized that a court of an EU member state may hear a patent infringement action involving other EU member states or third countries.
Regarding Article 24(4) of the Brussels I bis Regulation, the CJEU rejected Electrolux’s interpretation, which maintained that a court in the member state where the defendant is domiciled loses jurisdiction to hear an infringement case involving a patent granted in another member state, solely because the defendant incidentally challenges the validity of that patent.
The CJEU instead adopted a strict interpretation of Article 24(4) and criticized Electrolux’s reading. It particularly stressed that such an interpretation would lead to the generalization of the exception in Article 24(4), given that validity is very frequently raised as a defense in infringement actions.
Thus, the CJEU held that the court in the defendant’s domicile, seized of an infringement action, retains jurisdiction over that action even when the defendant challenges the patent’s validity by way of objection—while the jurisdiction to rule on the validity remains exclusively with the courts of the other member state.
Jurisdiction over a non-EU state?
But what about the jurisdiction of a court in an EU member state seized of an infringement action, when the validity of a patent having effect in a third country such as Turkey is incidentally contested?
In this case, the body responsible for interpreting EU law ruled that the court of the member state may assess the validity in order to clarify the situation regarding infringement. The CJEU held that such an assessment would not affect the existence or content of the patent in the third country and would not infringe the principle of non-interference.
Thus, on this final point concerning a patent with effect in a third country, the EU’s highest court confirms what arbitration had already suggested: that the incidental review of a patent’s validity may be addressed by the arbitral tribunal, provided the scope of its decision remains inter partes (Paris Court of Appeal, February 28, 2008: Société Liv Hidravlika, RG no. 05/10577).
3. Let the wise take heed !
This judgment of the EU’s highest court of February 25 follows by barely a month the decision of the Court of First Instance of the Unified Patent Court (UPC, Local Division of Düsseldorf) of January 28 in Fujifilm vs. Kodak companies. That UPC ruling (commented on [here]) established that the UPC’s territorial jurisdiction extends to the territories of non-EU states, such as the United Kingdom in that case.
The Brussels I bis Regulation and the UPC Agreement encourage claimants in patent disputes to bring their actions before a single forum, thereby particularly avoiding the risk of divergent decisions. But a growing principle of “long-arm jurisdiction” is making those instruments resonate far beyond what had initially been expected.