Litigating SEPs in Europe Post-BSH v. Electrolux

In BSH v. Electroluxⁱ, the Court of Justice of the European Union (CJEU) ruled that courts of European Union (EU) member statesⁱⁱ can, in principle, serve as centralized venues for global patent litigation. Claimants can initiate infringement proceedings against a defendant domiciled in an EU member state in that member state’s courts regardless of where the alleged infringement occurred. A court of the EU member state hearing the infringement case does not lose international jurisdiction even if the defendant raises an invalidity defense.

However, for patents registered in an EU and/or a Lugano Convention member state, Article 24(4) of the Brussels I-bis Regulation prohibits the court hearing the infringement case to rule on validity, even if it is inter partes. If the decision on validity is reserved for the court of another state, the court hearing infringement may stay the proceedings to await the outcome of the validity case pending before the competent court (GRUR-RS 2025, 2373 at ¶ 51). The court may issue a stay if there is a non-negligible possibility that the patent will be found invalid (id.). But in BSH, the CJEU clarified that Article 24(4) does not apply to third-country patents (GRUR-RS 2025, 2373 at ¶ 57). This enables courts of EU member states to hear infringement actions involving such patents, including the ability to assess validity incidentally and inter partes without erga omnes effect or alteration of the foreign registry.

While the CJEU’s ruling did not explicitly address standard essential patents (SEPs), its implications for SEP litigation in Europe are profound.

Implications of BSH for SEP owners

An SEP owner can initiate infringement proceedings against an implementer domiciled in an EU member state before the courts of that state regardless of where the alleged infringing acts occurred. The court may need to apply foreign national law to assess infringement. Crucially, the assertion of an invalidity defense by the implementer does not jeopardize the court’s international jurisdiction. This means that, in principle, national courts within the EU can serve as centralized venues for conducting global SEP enforcement campaigns, offering SEP owners a strategic advantage in coordinating litigation across jurisdictions. The ability to consolidate enforcement across jurisdictions may increase pressure on implementers and accelerate licensing discussions.

However, there may be no free pass for targeting groups of corporate defendants in a centralized SEP enforcement campaign. Earlier case law (e.g., Roche v. Primusⁱⁱⁱ) prohibits artificial joinder of defendants to create jurisdiction. In Roche, the CJEU held that companies that belong to the same corporate group that may have acted in an identical or similar manner based on a unified business strategy developed by the main defendant may not be jointly sued in the anchor defendant’s EU domicile court. However, where there is joint infringement or coordinated conduct, courts may accept jurisdiction over multiple parties under Solvay v. Honeywell^iv. 

Implications of BSH for SEP implementers

For implementers, the BSH decision creates a litigation landscape that appears to favor SEP owners by enabling centralized infringement actions. While that may streamline patent enforcement for SEP owners, it may impose a disproportionate burden on implementers. For patents registered in EU and Lugano Convention member states, the implementer must challenge the validity of each asserted patent individually in every relevant jurisdiction. For European Patent Convention (EPC) member states outside the EU and/or outside the Lugano Convention (e.g., the UK and Turkey) and third countries (e.g., the U.S.), inter partes invalidity defenses within infringement proceedings remain available. However, this fragmented approach can escalate litigation costs and complexity, potentially deterring implementers from mounting full defenses and opening the door to strategic maneuvering by SEP owners.

In disputes where the court hearing the infringement case lacks jurisdiction to rule on patent validity per se, implementers may seek a stay of proceedings pending parallel revocation actions. However, it remains to be seen which threshold for granting a stay applies or whether concerns about one patent’s validity can affect proceedings involving multiple patents.

To counter centralized enforcement, implementers may consider anti-suit injunctions (ASIs). However, SEP and fair, reasonable, and non-discriminatory (FRAND) licensing jurisprudence shows that courts like those in Germany and the Unified Patent Court are willing to issue anti-ASIs, thus limiting the effectiveness of such strategies. Moreover, seeking ASIs may undermine implementers’ FRAND defenses, potentially branding them as unwilling licensees. 

As a proactive alternative, implementers may attempt to use the CJEU’s ruling to their advantage by initiating declaratory non-infringement actions in the SEP owner’s EU home jurisdiction, thereby seizing procedural initiative and potentially disrupting the SEP owner’s litigation timing.

Takeaways

BSH empowers SEP owners to launch centralized infringement actions in any EU member state where the defendant is domiciled regardless of where the alleged infringement occurred or whether foreign patents are involved.

For SEP owners:

• One court, many patents: EU courts can hear global SEP cases — even those involving U.S. or UK patents — without losing jurisdiction due to validity challenges.
• Strategic leverage: Easier coordination across jurisdictions can increase pressure on implementers and accelerate licensing negotiations.

For SEP implementers:

• Fragmented defenses: Validity must be challenged separately in each country, raising costs and complexity.
• Flip the script: Consider declaratory non-infringement actions in the SEP owner’s home jurisdiction to seize procedural initiative.

ⁱ CJEU (Grand Chamber), judgment of February 25, 2025 (Case C-339/22) – BSH Hausgeräte GmbH v. Electrolux AB; GRUR-RS 2025, 2373.

ⁱⁱ EU countries | European Union

ⁱⁱⁱ CJEU (First Chamber), judgement of July 13, 2006 (Case C-539/03) – Roche Nederland BV and others v. Primus and Goldenberg. 

^iv CJEU (Third Chamber), judgement of July 12, 2012, (Case C-616/10) - Solvay SA v. Honeywell Fluorine Products Europe BV and others.