UPC's long-arm jurisdiction: Fujifilm v Kodak

The Unified Patent Court (UPC) Court of Appeal's decision of 2 June 2026 in Fujifilm v Kodak provides a detailed answer to a key question in UPC litigation: can the UPC adjudicate infringement of a European patent validated in a country that is not a party to the UPC Agreement (UPCA), e.g., the UK, and if so, on what terms? The answer is yes, and the court has now set out precisely how such jurisdiction works.

In brief

The UPC can hear cases involving patents in countries outside the UPC system, including the UK, provided the defendant is domiciled in an EU Member State.
Such a defendant cannot ask the UPC to hand the case to a non-EU court on the basis that it would be a more convenient forum.
If the UPC finds infringement, it can grant relief that covers non-UPC countries, subject to those countries' own courts having the final say on validity of the patent designated in their territory. The Court of Appeal has set out a process by which the UPC should exercise its jurisdiction.

Background

Fujifilm sued three German-domiciled Kodak companies before the Mannheim Local Division alleging infringement of various designations of a European patent covering lithographic printing plate precursors. The claim included both the German and UK designations. Kodak objected to the UPC having jurisdiction in relation to the UK designation. As we discussed in our article in July 2025, the Mannheim Local Division accepted jurisdiction and found infringement of both designations, granting the first UPC injunction covering the UK.

The UPC Court of Appeal has now reversed the infringement findings but has also confirmed the court did have jurisdiction in relation to the UK, articulating rules that will govern how the UPC approaches non-UPC designations.

Does the UPCA confine the UPC to its own territory?

Kodak's argument here was textual: Article 34 UPCA provides that UPC decisions cover the territory of those Contracting Member States for which a European patent has effect. Kodak argued this was an implicit limit to the court's jurisdiction.

The Court of Appeal rejected that reading. Article 34 addresses the scope of decisions as a default rule but says nothing about the limits of jurisdiction. Article 3(c) UPCA, which brings European patents validated outside the UPC territory within "matter governed by" the Agreement, pointed firmly in the other direction. The provision Kodak relied on was about what decisions cover, not about what the court can hear.

The UPC's jurisdiction derived from the Brussels Recast Regulation (the EU regulation governing cross-border jurisdiction between Member State courts). Under Article 4 of Brussels Recast, defendants domiciled in a Member State should be sued there. All three Kodak entities were domiciled in Germany, which resolved that basic jurisdictional question. Under the "Owusu principle", a court with jurisdiction cannot decline it on the ground that a non-Member State court would be more appropriate (known as "forum non conveniens"). That principle has been embedded in EU private international law since 2005, and the Court of Appeal applied it in this case.

Meanwhile, the CJEU's February 2025 ruling in BSH Hausgeräte v Electrolux reinforced this approach in the patent context: Article 24(4) of the Brussels Recast Regulation, which confers exclusive jurisdiction on the courts of the granting state for patent validity proceedings, did not apply to third-state courts such as those of the UK post-Brexit. No competing exclusive jurisdiction existed that could displace the UPC.

Limits to exercising jurisdiction

While confirming it had jurisdiction, however, the Court of Appeal drew a clear distinction between the existence of that jurisdiction and its exercise. A court hearing infringement of a patent validated in another country must apply both the law of that country and international law principles, including comity. On that basis, the Court of Appeal set out a structured framework covering the likely scenarios where non-UPC designations are involved and validity is disputed, as follows.

Scenario	Fact pattern	Outcome
Scenario I	A freestanding revocation action against a non-UPC designation.	The UPC has no jurisdiction and must say so.
Scenario II	Where a UPC-territory patent is found invalid (but would have been infringed if valid) and infringement proceedings also rely on a non-UPC designation, the patentee should first be offered the opportunity to withdraw its non-UPC claim. If the patentee declines to do so, the outcome turns on whether the non-UPC designation country is in an EU Member State or signatory to the Lugano Convention.	For designations in EU Member States or Lugano Convention countries, the UPC cannot itself assess validity. It should give the defendant an opportunity to file a revocation action before the relevant national court, and should generally stay its own infringement proceedings until that national proceeding concludes. If the defendant does not bring such a national revocation action within "an appropriate period of time", the UPC should assume the patent valid and proceed to determine the infringement action on that basis. For designations in states outside both regimes, e.g., the UK, the infringement action should be dismissed, unless there are specific reasons not to do so (e.g., if there are different claims involved which the UPC considers to be valid).
Scenario III	Where a UPC-territory patent is found valid and infringed in infringement proceedings which also rely on a non-UPC designation.	The UPC may issue conditional orders covering the non-UPC designation, subject to the condition subsequent that the competent national court does not later hold that designation invalid. This mechanism (drawn by analogy from the CJEU ruling in Solvay v Honeywell) allows the UPC to grant meaningful cross-border relief without pre-empting national validity decisions. Such an order will become permanent if the national court upholds validity, and will fall away (with a two-month window for consequential relief) if it does not.

Scenario

Fact pattern

Outcome

Scenario I

A freestanding revocation action against a non-UPC designation.

The UPC has no jurisdiction and must say so.

Scenario II

Where a UPC-territory patent is found invalid (but would have been infringed if valid) and infringement proceedings also rely on a non-UPC designation, the patentee should first be offered the opportunity to withdraw its non-UPC claim.

If the patentee declines to do so, the outcome turns on whether the non-UPC designation country is in an EU Member State or signatory to the Lugano Convention.

For designations in EU Member States or Lugano Convention countries, the UPC cannot itself assess validity. It should give the defendant an opportunity to file a revocation action before the relevant national court, and should generally stay its own infringement proceedings until that national proceeding concludes. If the defendant does not bring such a national revocation action within "an appropriate period of time", the UPC should assume the patent valid and proceed to determine the infringement action on that basis.

For designations in states outside both regimes, e.g., the UK, the infringement action should be dismissed, unless there are specific reasons not to do so (e.g., if there are different claims involved which the UPC considers to be valid).

Scenario III

Where a UPC-territory patent is found valid and infringed in infringement proceedings which also rely on a non-UPC designation.

The UPC may issue conditional orders covering the non-UPC designation, subject to the condition subsequent that the competent national court does not later hold that designation invalid. This mechanism (drawn by analogy from the CJEU ruling in Solvay v Honeywell) allows the UPC to grant meaningful cross-border relief without pre-empting national validity decisions.

Such an order will become permanent if the national court upholds validity, and will fall away (with a two-month window for consequential relief) if it does not.

Joint tortfeasorship

The judgment also confirms that UPC jurisdiction extends to joint tortfeasor claims. Following its October 2025 ruling in Belkin v Philips, the Court of Appeal held that an "infringer" under the UPCA includes a person to whom a third party's infringing acts are attributable because they acted as an accessory.

The facts of this case show where the limits lie. Fujifilm argued that Kodak Graphic, though not the primary infringer, was liable as a joint tortfeasor for UK infringement. The court accepted jurisdiction but dismissed the claim on the substance. Under UK law, joint tortfeasor liability requires a common design and knowledge of the essential facts making the relevant acts wrongful. Fujifilm had not shown that any Kodak entity possessed the necessary technical knowledge before Fujifilm itself raised the allegation. Corporate control of a manufacturer was not, on its own, sufficient.

What does this decision mean for UPC strategy?

For patentees with European patents extending into non-UPC territories, the conditional order route opens a path to pan-European relief through a single UPC action, without waiting for national proceedings to conclude. The condition subsequent is a real constraint, but the trade-off is clear: timely and geographically broad relief from the UPC, with national courts retaining the final word on the validity of their own patents.

For defendants, the possibility of avoiding the UPC's jurisdiction on the basis of "forum non conveniens" has been shut down. Where the defendant is EU-domiciled, the UPC will hear the case. The more productive line of defence lies in challenging the substance: validity of the non-UPC designation, the UPC-territory patent itself, and, as this case shows, whether the right defendant has actually been identified and sued at all.

Fujifilm v Kodak is a significant marker in the UPC's development. The Court of Appeal has read the jurisdictional framework broadly but carefully, providing some limits to the exercise of that jurisdiction.