The case of the day is BSH Hausgeräte GmbH v Electrolux AB (CJEU 2025). In the European Union, the Brussels I bis regulation allocates exclusive jurisdiction over the validity of patents and other registered IP rights to “the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place.” So if litigation concerns a German patent, only the courts of Germany can decide whether the patent is valid or invalid.

Today in Europe, many patents are “European patents” instead of simply German patents or French patents. A European patent, though, is not a unitary patent. Under the European Patent Convention, it “confer[s] on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.” So to coin a phrase, it is a “bundle of sticks,” a collection of national patents.¹ Thus when a German court is asked to decide the validity of a European patent, it is deciding on the validity of the German “part” of the European patent.

OK, that’s just some background. Today’s decision tells us that the European Patent Convention’s limitation on jurisdiction about validity does not apply when invalidity is raised as a defense in an infringement case, at least when the defendant has its domicile in the state whose national courts are hearing the claim. The decision also tells us that the jurisdictional limitation in the EPC simply does not apply to non-EU patents. What does that mean in practice? If a European company is accused of infringing a US patent, it can be sued in the court where it is domiciled, even if one of the defenses is that the US patent is invalid.

There are a few things going on here that are familiar to common law lawyers, though I don’t claim to understand the intricacies of how European lawyers look at these issues:

• The idea that any claims against someone domiciled in a state can be brought in the courts of that state should be very familiar to us.
• Patents have an in rem or “thingy” quality. There’s a pretty strong analogy between a patent and a real property right: it is strongly territorial; it is a right to exclude; states have a system of recording or registration. And there are strong reasons to say that as between the patentee and the world, only the courts of the state where the rights are registered (or where the land is located) can decide questions like title or validity.
• But it should also pretty familiar to us to say that as between the parties, issues regarding real property and even intellectual property can be decided by any court with jurisdiction.

If the case leads to more litigation about US patents in European national courts, one likely consequence is an upswing in Section 1782 cases. Litigants might be attracted by the lower costs of European patent litigation, but there is a cost to avoiding the costs, as parties won’t have access to the discovery tools they would have in a US case.

I’d like to thank my friends from Powell Gilbert, Joel Coles and Tess Waldron, who are visiting Boston for a conference and who put me on to today’s interesting decision.

1. There is also a new unitary European patent system, which I’ll leave to the side here. ↩︎