A guide to the UPC and the UP - Flipbook - Page 95
Relief extends to …
Domicile of
defendant
ROW
Basis for Court’s
jurisdiction
EU Member States
not CMS
Lugano Convention
States
Other EPC
Contracting States
art.31 LC
(provisional
measures)
Y
Y
Y
arts 71b(2) +
7(2) (place of
infringement)
N
N
N
arts 71b(2) +
8(1) (joinder)
N
Y, but subject to
art.22(4) LC
Y, but subject to
policy grounds*
art.71b(2) 2nd
sentence
(provisional
measures)
N
Y
Y
arts 71b(2) 1st
sentence + 71b(3)
N
Y (not reliant on
Solvay), but subject
to art.22(4) LC
Y (not reliant on
Solvay), but subject
to policy grounds*
art.71b(2) 2nd
sentence + 71b(3)
(provisional
measures)
N
Y (not reliant
on Solvay)
Y (not reliant
on Solvay)
*see paragraph 6-12 above
6-40
55
As already noted, the amendments to Brussels I Regulation (recast) have drawn considerable
criticism and been referred to as “exorbitant”, but it remains to be seen how the Court will
consider its jurisdiction and exercise its discretion. Will the Court, for example, follow the Dutch
court’s lead and be open to granting cross-border preliminary injunctions in all EPC Contracting
States in similar factual situations to those in Solvay v Honeywell? 55 Will the Court follow the
policy reasons in GaT v LUK and decline jurisdiction where, in a case on the merits, a defence
is raised over the validity of a European patent granted in a non-EU EPC Contracting State?
Alternatively, will it stay the proceedings under art.34 Brussels I Regulation (recast)?
How will the Court exercise its discretion under art.71b(3)? These and other questions will
need to be resolved as soon as possible after the Court opens for business to ensure that
both claimants and, particularly defendants, have the necessary clarity and certainty as to
the jurisdiction of this new court.
(C-616/10) ECLI:EU:C:2012:445.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 85
