The Unified Patent Court’s “Black Sheep”: Long-Arm Jurisdiction

Far-reaching jurisdiction of the UPC: balancing efficiency and respect for national courts

On 10 October 2025, the Local Division (LD) of The Hague of the Unified Patent Court (UPC) delivered a decision in the case UPC_CFI_386/2024 between HL Display AB and Black Sheep Retail Products B.V. The ruling, while concerning a rather technical patent dispute over a shelf divider system, has drawn significant attention for what it says about the UPC’s interpretation of its own reach — in particular, the exercise of long-arm jurisdiction over countries outside the UPC’s Contracting Member States (CMS).

Background of the case

The dispute centred on European Patent EP 2 432 351, owned by HL Display AB, covering a system for securing shelf accessories to retail shelving. The Swedish claimant HL Display alleged that Black Sheep Retail Products (BSRP), a Dutch company, had infringed the patent by manufacturing and supplying shelf divider systems. BSRP counterclaimed for revocation and also sought a declaration of non-infringement regarding a revised version of its product. The Court ultimately found the patent valid and infringed, while declaring BSRP’s counterclaim for non-infringement inadmissible.

The court’s approach to competence and long-arm jurisdiction

One of the most significant parts of the judgment lies in the Court’s reasoning, regarding the LD’s own competence — particularly the issue of long-arm jurisdiction. The defendant did not dispute the international and relative competence of the Local Division, and importantly, did not challenge the Court’s long-arm jurisdiction for countries where the patent was in force, but which are not Contracting Member States of the UPC Agreement. These include Liechtenstein, Ireland, Norway, Poland, Switzerland, and the United Kingdom.

The court raised the issue of the invalidity defence in view of the ECJ’s decision in BSH v. Electrolux. At the hearing the defendant clarified that its counterclaim for revocation only pertained to the CMS, while for the non-CMS it was to be considered an invalidity defence. The defendant also clarified that no revocation claims had been instituted in any of the non-CMS countries.

On that basis, the Local Division of The Hague confirmed that it assumes competence to hear infringement claims for all states designated under the European Patent, even when those states are not Contracting Member States. This interpretation effectively allows the UPC to extend its jurisdiction to non-UPC territories within the limits of the European Patent’s designation, provided that the patent remains in force there.

However, the Court drew important distinctions depending on the category of non-UPC states. For non-CMS European Union or Lugano Convention member states, like Norway and Switzerland, the Court stated that it will only proceed where there is no ‘serious, non-negligible chance’ that the competent national court would invalidate the patent. In contrast, for non-EU states such as the UK, the Court held that it may make an inter partes decision on validity. This cautious but assertive formulation balances judicial efficiency and relationship with other national courts.

Implications for cross-border enforcement

The LD’s reasoning signals an ambitious reading of the UPC’s powers, effectively enabling a pan-European, if not general, enforcement of European Patents under the UPC umbrella. By confirming its competence for infringement claims spanning both UPC and non-UPC territories, the decision provides patentees with a procedural pathway to pursue a single litigation covering multiple jurisdictions.

At the same time, the Court’s nuanced treatment of validity challenges outside the UPC territory shows a sensitivity to the limits of its authority and to the principle of mutual respect between jurisdictions. By recognising that non-CMS EU or Lugano states retain their own judicial authority to rule on patent validity, the Court avoids overreach while still asserting its jurisdiction to decide on infringement questions with cross-border effect.

This decision strengthens the UPC’s role as a central forum for European patent litigation, particularly for patentees seeking efficient remedies that encompass major markets such as the UK and Switzerland. At the same time, it raises questions about the enforceability of UPC orders beyond its formal territorial limits — a tension that may need to be resolved through future jurisprudence or political agreement.

Conclusion

The Local Division of The Hague’s October 2025 decision demonstrates the UPC’s willingness to interpret its jurisdiction broadly, particularly with respect to long-arm jurisdiction. While its approach reflects judicial pragmatism and an effort to deliver efficient, Europe-wide justice, it also underscores the delicate balance the Court must maintain when extending its reach into non-UPC territories. As this and similar cases progress, the contours of the UPC’s authority — and its interaction with national courts — will continue to define the future of European patent enforcement.