Key takeaways
UPC refers to CJEU for guidance on whether jurisdiction over a non-EU defendant can be based on a UPC-domiciled co-defendant for acts in a non-UPC Member State (Art. 8(1) in conjunction with Art. 71b(2) Reg. 1215/2012).
The CoA questions if an alleged direct infringer and an alleged intermediary are in the “same situation of fact and law” required to establish a risk of irreconcilable judgments. The full first referral question reads:
1. Must Article 8(1) in conjunction with Article 71b(2) of Regulation 1215/2012 be interpreted as meaning that a situation where, in proceedings before a common court within the meaning of Article 71a(2) of Regulation 1215/2012, a first company that is established in a third State is alleged to have committed an infringement of a national part of a European patent which is in force in an EU Member State that is not party to the instrument establishing the common court, and a second company that is established in an EU Member State that is party to the instrument establishing the common court is alleged to be an intermediary whose services are used by the first company to infringe in the EU Member State that is not party to the instrument establishing the common court, is capable of leading to “irreconcilable judgments” resulting from separate proceedings as referred to in Article 8(1) Regulation 1215/2012?
UPC asks CJEU if it has jurisdiction for provisional measures against a non-EU defendant for acts in a non-UPC state based on a “real connecting link” (Art. 71b(2) second sentence Reg. 1215/2012).
In case the first referral question is answered in the negative, the CoA asks whether it can derive jurisdiction for provisional measures against a non-EU defendant based on Art. 71b(2) second sentence Reg. 1215/2012 and a “connecting link”. Such a link may exist where the defendant offers identical infringing products across the UPC territory and the non-UPC state, using a UPC-domiciled intermediary for all territories. The full second and third referral questions read:
2. Must Article 71b(2), second sentence, of Regulation 1215/2012 be interpreted as meaning that a common court has jurisdiction in relation to an action for provisional measures against a company established in a third State that is alleged to have infringed a European patent in force in an EU Member State that is not party to the instrument establishing the common court, and in some or all EU Member States that are party to the instrument establishing the common court by offering the same products in all those EU Member States through websites that are identical apart from the language?
3. Is the fact that the company uses the services of a company that is established in an EU Member State that is party to the instrument establishing the common court in order to infringe a relevant circumstance in answering this second question?
UPC refers question to CJEU on whether an “authorised representative” under EU product safety law is an “intermediary” subject to injunctions under Art. 62(1) UPCA and Art. 9(1)(a) of Directive 2004/48.
The Court questions if the concept of an intermediary, which enables infringement in fact, extends to a party whose services merely enable legal market access in law. The full fourth referral question reads:
4. Does Article 9(1)(a) of Directive 2004/48 or any other provision of Union law preclude case-law of a national or common court under which an interlocutory injunction aimed at preventing or prohibiting infringement of a patent by a third party by placing products on the market to which Regulation 2023/988 and 2019/1020 apply may be granted against an authorised representative that performs the tasks laid down in these Regulations on behalf of the third party?
The Court of Appeal clarifies that jurisdiction over a defendant domiciled in a UPC state, with regard to its acts outside UPC territory, is established by domicile alone, without assessing the plausibility of acts elsewhere (Art. 4 Reg. 1215/2012).
The CoA overturned the lower court’s reasoning, which had considered it necessary to examine the defendant’s acts in Spain to establish jurisdiction over the German-domiciled co-defendant.
Division
Court of Appeal
UPC number
UPC_CoA_789/2025 and UPC_CoA_813/2025
Type of proceedings
Appeal in preliminary measures, referral to CJEU
Parties
Appellant in appeal 789/2025, Respondent in appeal 813/2025 (Applicant in first instance):
Dyson Technology Limited, Malmesbury, Wiltshire, United Kingdom
Respondents in appeal 789/2025, Appellants in appeal 813/2025 (Defendants in first instance):
- Dreame International (Hongkong) Limited, Tsu-en Wan, Hong Kong, China
- Eurep GmbH, Ingolstadt, Germany
Patent(s)
EP 3 119 235
Jurisdictions
UPC, Spain, EU
Body of legislation / Rules
Art. 38(2) Statute of the UPC, Art. 21 UPCA, Art. 62(1) UPCA, R. 266.5 RoP, Art. 267 TFEU, Art. 8(1) and Art. 71b(2) Regulation (EU) No 1215/2012, Art. 9 Directive 2004/48/EC
