UPC rejects challenge on jurisdiction over internet related infringement

In an order dated 3 September 2024 (UPC_CoA_188/2024) the UPC Court of Appeal held that the UPC has international jurisdiction in respect of an infringement action where the European patent relied on by the claimant has effect in at least one Contracting Member State and the alleged damage may occur in that particular Contracting Member State.

The panel considered the wording “the place “where the actual or threatened infringement has occurred or may occur” of Art. 33(1)(a) UPCA and concluded that it must be interpreted in the same way as the place “where the harmful event occurred or may occur” of Art. 7(2) of the Brussels I recast Regulation. It was noted that the two above provisions have a similar purpose, namely to define a ground of jurisdiction or competence on the basis of the connection between the subject-matter of the dispute and the court or division respectively.

The appellant had questioned the competence of the UPC generally and of the Court of First Instance of the Mannheim (DE) Local Division specifically in hearing the action for alleged indirect infringement brought by the claimants over a method for presenting rate adaptive streams. The appellant had specifically argued in the appeal that the claimants did not put forward “all objective characteristics” of the indirect infringement, and thus did not conclusively argue an indirect infringement of the patent in Germany. In the appellant’s view, Art. 7(2) of Brussels I recast required such an assessment of the alleged infringement in order to establish jurisdiction. 

However, the panel rejected this argument and confirmed that Art. 7(2) of Brussels I recast lays down a sole condition of identifying the place where the harmful event has occurred or may occur. This identification cannot depend on any other criteria such as the conditions for establishing an indirect infringement. Such criteria are specific to the examination of the merits of the action, and are not relevant for establishing jurisdiction. This is a pragmatic approach that has been adopted by the UPC and specifically the UPC Court of Appeal and should allay concerns about literal adherence to the provisions of the UPCA and Brussels I recast as regards founding jurisdiction.

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