Life After Electrolux: A New Era of Global Patent Enforcement

How European courts are redrawing the map of cross-border patent litigation

Need to know

European courts are reshaping global patent enforcement after Electrolux, as the UPC and national courts compete to offer centralized cross-border relief. Meanwhile, U.S. forums may become less attractive due to limited injunctive leverage.

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The Court of Justice of the European Union (CJEU) — the European Union's highest court, whose interpretations of EU law bind every national court in the bloc — has redrawn the map of cross-border patent litigation in Europe. In the landmark decision BSH Hausgeräte GmbH v. Electrolux AB¹ (Electrolux), the CJEU held that a court of the EU Member State where a defendant is domiciled keeps jurisdiction over an infringement action on a patent granted in another Member State, even when the defendant raises that patent's invalidity as a defense — a move that, before Electrolux, would have forced the court to stay or splinter the case designation-by-designation.

By freeing the infringement forum from the validity bar, Electrolux set European courts on a path toward a new model of patent enforcement — one in which a single European forum can reach defendants and patent rights well beyond its own borders and even beyond the EU. The question is no longer whether a European court can reach that far, but which one will: the Unified Patent Court (UPC) or a national court.

Against that backdrop, global enforcement strategy may tilt toward Europe. Because U.S. district courts are reluctant grant the injunctions that generate settlement pressure, and the U.S. International Trade Commission (ITC) offers only a partial substitute through exclusion orders, patentees increasingly anchor enforcement in Europe. The first move in choosing the forum often decides the leverage that follows, and, as such, Europe is emerging as the venue of choice for global patent enforcement.

How the pre-Electrolux rule constrained cross-border cases

A classical European patent operates as a bundle of national rights, each taking effect under the law of the validating state and, generally, is enforced and challenged on a country‑by‑country basis. Challenging one national designation does not halt infringement proceedings over another because each designation is a separate legal right.

Prior to Electrolux, the constraint arose when a patentee tried to litigate infringement across several national designations in a single forum. In GAT v. LuK², the CJEU held that exclusive jurisdiction over validity belongs to the courts of each state of registration and that it applies however a validity challenge is raised — including as a mere defense with no separate revocation action required to trigger it. So once a defendant in a cross-border case put the validity of a foreign designation in issue, the given forum itself could not decide that question, as validity had to be litigated before the courts of the state of registration. The natural course was for the forum to stay the infringement claim tied to that designation until the registration state ruled on validity or to decline the claim altogether. Thus, disputes often fragmented into parallel national proceedings on a designation-by-designation basis.

What Electrolux decided and what it left in place

Electrolux works by separating two questions the old rule had bound together. Jurisdiction over infringement follows the defendant’s domicile, while the authority to revoke a patent stays with the courts of the state of grant. The court of the defendant’s domicile in which a complaint is filed keeps the infringement action even after an invalidity defense is raised. Once invalidity is raised, the infringement court must decide how to account for that defense; whether it may assess validity depends on where the asserted designation is registered. As a safety valve, the infringement court may stay the case where a reasonable, non-negligible chance exists that the grant state will hold the patent invalid.

The reach this opens turns on the limited effect of that ruling. An invalidity decision by the grant state carries erga omnes effect — it binds everyone and can strike the patent from the register. An EU court’s assessment of a foreign designation in an Electrolux-style cross-border infringement lawsuit, by contrast, cannot extend to validity for designations registered in EU Member States or in Member States of the Lugano Convention.³ For such designations, validity remains exclusively within the competence of the courts of the state of registration. Only with respect to designations in states that are neither EU Member States nor members of the Lugano Convention may an EU court assess validity, and then only with inter partes effect, i.e., it binds only the parties to the case and leaves the patent, and the foreign register, untouched. (For more details thereon, please see “Cross-Border Patent Litigation in the EU Post-BSH v. Electrolux: A New Era of Flexibility.”)  

The UPC is building its long-arm jurisdiction on the heels of Electrolux

Electrolux, though not itself a UPC decision, applies to the UPC as it would to a national court of an EU Member State. On that footing, the UPC has begun to assert jurisdiction over infringement of European patent designations in states outside the Agreement on a Unified Patent Court (the “UPCA”), such as Spain, and even outside EU Member States, such as the U.K.

For example, Fujifilm v. Kodak⁴, a UPC case filed in Mannheim, shows how a patentee can wield Electrolux to widen the UPC’s reach. Fujifilm asserted a classical European patent validated in both Germany and the U.K. and pressed the court to hear infringement of the U.K. designation, even though the U.K. now sits outside the UPC system and even outside the EU. The argument tracked Electrolux: The UPC need not be able to revoke the U.K. patent to adjudicate its infringement; it can decide a validity defense inter partes and leave the foreign register untouched.  

On appeal⁵, the UPC’s Court of Appeal agreed that jurisdiction existed. Because the UPC is a court common to its Contracting Member States, it inherits the jurisdiction a national court would have had over the German-domiciled defendant; the Unified Patent Court Agreement (UPCA) does not confine the court to its own territory, so it permits infringement claims over the U.K. designation. And Electrolux confirms that an invalidity defense does not strip that jurisdiction away.

The Court of Appeal did not stop at jurisdiction. It operationalized Electrolux, making clear that the UPC is prepared to exercise broad long-arm jurisdiction over non-UPC designations, including U.K. designations, where the defendant is domiciled in a UPC Contracting Member State.  

The court introduced a structured framework to reconcile this expansive jurisdiction with the exclusive competence of national courts over validity of non-UPC designations:  

1. Standalone revocation actions directed solely at non-UPC designations fall outside UPC jurisdiction.  
2. Where the corresponding UPC designation is found invalid, the UPC generally will refrain from deciding infringement of non-UPC designations without affording national courts the opportunity to rule on validity. For the non-UPC EU states⁶ (e.g., Spain, Hungary, and Poland) and the Lugano Convention countries (Switzerland, Norway, and Iceland), the UPC will stay the proceeding. For non-EU/non-Lugano Convention states, such as the U.K., the UPC will dismiss the infringement claims absent specific reasons to proceed.  
3. Where the UPC designation is found valid and infringed, the court may proceed to decide infringement of corresponding non-UPC designations and grant conditional injunctive relief (thereby safeguarding international comity). 

This latter point is particularly significant, as it limits the ability of defendants to forestall foreign infringement determinations merely by raising validity challenges. Where the patent is in force within the UPC territory and is found valid and infringed, the court may, where appropriate and in order to avoid undue delay, proceed on the basis that there is a reasonable, non-negligible possibility that the patent will likewise be upheld by the competent national court. In such circumstances, the court may grant conditional injunctive relief (which safeguards international comity). Crucially, such relief is not merely interim in character: it crystallizes into a permanent injunction upon final confirmation of validity by the competent national court. This underscores the UPC’s willingness to deliver effective pan-European relief in a single action.

European national courts are competing with the UPC for cross-border relief

European national courts are applying Electrolux too, turning the post-Electrolux landscape into a contest among forums rather than a single new venue. At the same time, the UPC’s jurisdictional reach remains limited in that it cannot hear infringement actions based on national rights. Therefore, where a patent holder seeks to proceed against a defendant domiciled in an EU Member State on the basis of both a European bundle patent and, for example, a U.S. patent in a single forum, the UPC is not suitable; instead, the courts of the EU Member State in which the defendant is domiciled may provide the appropriate forum. The competition is therefore no longer only the UPC against the rest of the world; it is also the UPC against national courts inside Europe.

Indications of a broader “long-arm” approach by European national courts after Electrolux can be seen in proceedings concerning claims based on non-European national patent rights. In Onesta v. BMW,⁷ Onesta filed infringement actions before the Regional Court Munich I in October 2025 based on both U.S. patents and a European patent. BMW responded by filing a declaratory judgment action in the U.S. and obtained an anti-suit injunction from the U.S. District Court for the Western District of Texas in January 2026, ordering termination of the German proceedings. Following a written decision in February 2026 and an appeal, Onesta withdrew all German actions in March 2026 and waived its claims, bringing the first German “long-arm” proceedings based on U.S. patents to an end. This case illustrates both the potential reach of national courts beyond European patents and the practical constraints imposed by parallel proceedings and anti-suit relief.

The emerging trend is a new forum-selection dynamic. European national courts may become attractive venues where domicile-based jurisdiction allows patentees to combine European patent claims with claims based on national (and even non-European) rights, while the UPC remains a powerful option for disputes falling within its competence. The practical significance of Electrolux is that patentees now have a broader strategic choice of venues for centralized cross-border cases, although the extent to which courts will grant cross-border relief will continue to depend on questions of validity, infringement, proportionality, and international procedural coordination.

The enforcement gap: Why national judgments may travel farther than the UPC’s

Asserting jurisdiction over a foreign designation is one thing; enforcing the result on foreign soil is another. The UPC’s enforcement machinery runs only in its Contracting Member States, and whether a non-participating state will recognize a UPC judgment is untested. A national court may hold an edge here: its judgments travel on the well-worn rails of the settled Brussels-Lugano regime governing court jurisdiction and cross-border judgment enforcement, whereas recognition of a UPC judgment in a state that never joined the UPC is far less certain.  

Why U.S. courts sit on the defensive in the forum contest

Part of what pushes parties toward European enforcement is that U.S. courts do not often grant the injunctions that generate settlement pressure. In Collision Communications, Inc. v. Samsung Electronics Co.⁸, the court denied a permanent injunction even after a jury found every asserted claim infringed, valid, and willfully infringed, and awarded a running royalty. Applying eBay Inc. v. MercExchange, L.L.C., the court held that patent cases carry no presumptive remedy. The patentee cleared the first two eBay factors — irreparable harm and inadequate damages, the court refusing to treat a non-practicing entity as categorically barred — but failed on the balance of hardships and the public interest and lost the injunction on that ground.

U.S. courts’ reluctance to grant injunctions may prompt patentees to increasingly anchor enforcement in Europe. However, the landscape may be shifting: The RESTORE Patent Rights Act (S. 708) would amend 35 U.S.C. § 283 to give a patentee holding a final infringement judgment a rebuttable presumption that an injunction should issue. For now, the bill sits in the U.S. Senate Committee on the Judiciary, and eBay remains the law. 

The ITC is a partial exception: Because eBay does not apply to Section 337 remedies, the ITC routinely issues Customs-enforced exclusion orders on a finding of violation — relief that functions as an injunction.⁹ But it is structurally weaker than a European injunction: It awards no damages, reaches only imported goods rather than foreign markets, and is gated by a domestic-industry requirement, public-interest considerations, and Presidential review.

Takeaways

Electrolux reopened the infringement forums to validity defenses, setting the UPC and national courts on competing paths to decide cross-border disputes. The UPC has begun exercising long-arm jurisdiction over non-UPC designations while managing the limits imposed by national competence over validity. National courts of an EU Member State can take a parallel path on the basis of domicile, reaching further still by combining European patent claims with claims on national rights the UPC cannot hear. With U.S. courts still largely withholding injunctions, they trail in the emerging contest over where cross-border patent disputes are decided.