1. Introduction

In March 2026, the Court of Appeal of the Unified Patent Court (UPC) ruled in KeeeX v. Adobe and Others that where the UPC exercises jurisdiction on the basis of Article 7(2) of the Brussels I Recast Regulation (the plaintiff may choose to bring proceedings in the courts of the place where the harmful event occurred or may occur [1]), its jurisdiction is limited to infringements within UPC member states and it has no jurisdiction to hear infringements in non-UPC member states [2].

However, only two months later, the UPC Court of Appeal made clear in Fujifilm v. Kodak that where the defendant is domiciled in a UPC member state, the UPC's jurisdiction may extend to the European patent designations of non-UPC territories [3].

On the surface, the conclusions of the two cases appear contradictory. But on analysis, it can be found that the apparent contradiction is in substance a shift in the focus of the discussion concerning long-arm jurisdiction — the UPC is moving from the binary judgment of "whether long-arm jurisdiction can be exercised" toward the construction of a layered framework of "on what jurisdictional basis and under what conditions long-arm jurisdiction is exercised".

2. The KeeeX Case: The Article 7(2) Path of the Brussels I Recast Regulation

2.1 Case Background

KeeeX is a digital verification services company based in Marseille, France, holding European Patent EP 2 949 070 B1, which relates to blockchain data authentication and traceability technology. On 14 June 2025, KeeeX brought an infringement action before the UPC Paris Local Division against Adobe (United States), OpenAI (United States and Ireland) and several other companies.

It is noteworthy that the domiciles of all defendants in this case are located in the United States or Ireland, and none has its domicile in a UPC member state [4]. In its claim, KeeeX asserted that its patent was valid in 8 UPC member states (France, Italy, Germany, Austria, Belgium, Denmark, the Netherlands and Sweden) and 6 non-UPC member states (Switzerland, Spain, the United Kingdom, Ireland, Norway and Poland), and requested the UPC to rule on the infringements in all of the above countries together.

2.2 First Instance and Appeal

The UPC Paris Local Division ruled at first instance that the UPC not only had jurisdiction over infringements within its member states, but could also, on the basis of long-arm jurisdiction, make findings on infringements in non-member states. All defendants appealed to the UPC Court of Appeal.

On 13 March 2026, the Court of Appeal issued its order, setting aside the first-instance order and stating clearly: "Where the UPC has jurisdiction on the basis of Article 7(2) of Regulation 1215/2012 as the court of the place where the damages occurred or threaten to occur, said article does not provide jurisdiction for infringement in non-member states of the UPCA." [2]

2.3 The "Suspension" of Article 71b(3) of the Brussels I Recast Regulation

Before the Court of Appeal issued that order, KeeeX had also invoked Article 71b(3) of the Brussels I Recast Regulation as an alternative jurisdictional basis. That provision states: where the UPC has jurisdiction over a defendant, it may exercise jurisdiction in relation to damage arising outside the Union, provided that property belonging to the defendant is located in a UPC member state and the dispute has a sufficient connection with that member state [1]. That provision allows the UPC to extend its jurisdiction beyond its territory, in particular to hear cases of infringement committed outside UPC territory [2].

KeeeX argued that Adobe and OpenAI both have subsidiaries in France, satisfying the "assets condition". However, the Court of Appeal dismissed the argument solely on the ground that the plaintiff had not sufficiently proved the assets condition, and left the following fundamental question open [2]: in the context of Article 71b(3) of the Brussels I Recast Regulation, whether "damage caused by this infringement outside the Union" may establish jurisdiction for the UPC for infringement of national patents in these countries [5]. Article 71b(3) of the Brussels I Recast Regulation requires proof that the defendant has assets of a certain value within UPC territory [2]. KeeeX's Statement of claim contained no such proof. KeeeX attempted to remedy this defect after the defendants raised preliminary objections, through supplementary evidence, arguing that Adobe and OpenAI have subsidiaries in France. But the court made clear that such after-the-fact supplementation cannot cure the deficiency of the Statement of claim itself. The evidence submitted by KeeeX after the Statement of claim, in response to the defendants' objections, cannot be used to make up for the lack of jurisdictional argumentation.

Nevertheless, the Court of Appeal did not deny that the UPC could exercise long-arm jurisdiction pursuant to Article 71b(3) of the Brussels I Recast Regulation. The Court of Appeal did not make a substantive legal determination that "Article 71b(3) cannot apply to patent infringements in non-UPC states", but merely dismissed KeeeX’s jurisdictional claim in this case solely on the basis of procedural requirements.

This means that although the path of long-arm jurisdiction over patent infringements outside UPC territory on the basis of Article 7(2) of the Brussels I Recast Regulation has been rejected, the path of long-arm jurisdiction over patent infringements outside UPC territory on the basis of Article 71b(3) is "pending" rather than "closed".

3. The Fujifilm Case: The Article 4 Path of the Brussels I Recast Regulation

3.1 Case Background

Fujifilm is the registered proprietor of European Patent EP 3 511 174 B1, which relates to lithographic printing plate precursor technology aimed at solving the technical problem of unexpected discoloration of the printing plate precursor. The patent remained valid in Germany and the United Kingdom, but its effect in other UPC member states had terminated before the entry into force of the UPCA.

In 2025, Fujifilm brought an action before the UPC Mannheim Local Division, accusing three Kodak companies domiciled in Germany of infringing the patent corresponding to the German designation and the United Kingdom designation. In April 2025, the Mannheim Local Division found the patent valid and Kodak liable for infringement, ordered Kodak to cease infringement in Germany and pay high damages, and further extended the injunction to the United Kingdom [6].

3.2 The Court of Appeal's Jurisdictional Finding

Kodak appealed on the jurisdictional issue, the core question being whether the UPC could exercise jurisdiction over patent infringements in non-UPC member states.

In June 2026, the UPC Court of Appeal issued its judgment, setting aside the Mannheim Local Division's injunction against Kodak and finding that Kodak had not infringed Fujifilm's EP 3 511 174 B1 patent. However, on the jurisdictional issue, the Court of Appeal confirmed the UPC's long-arm jurisdiction over the United Kingdom patent. The jurisdictional basis for the various Kodak entities in this case derived from Article 4 of the Brussels I Recast Regulation (i.e., subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State [1]). In this case, the defendant's domicile was located in Germany, so Article 4 could be applied.

Comparing the KeeeX and Fujifilm cases, the key distinction is that the defendant's domicile is a strong connecting point that can give rise to long-arm jurisdiction, whereas the place of damage is a weak connecting point that cannot by itself give rise to long-arm jurisdiction.

4. The Separation of "Existence of Jurisdiction" and "Exercise of Jurisdiction"

4.1 The Theoretical Contribution of the Fujifilm Case

The most theoretically valuable contribution of the Fujifilm case is that the Court of Appeal clearly distinguished the existence of jurisdiction from the exercise of jurisdiction. Article 4 of the Brussels I Recast Regulation resolves the former, namely whether the UPC has the power to hear the case, while the international law principle of comity constrains the latter, namely in what manner and to what extent the UPC should exercise that jurisdiction.

The principle of comity refers to states voluntarily recognizing and respecting the laws, judicial decisions and customs of other states out of courtesy, good faith and mutual respect, without harming their own sovereignty and interests. The UPC stated in its judgment: a court which has jurisdiction to hear an alleged infringement of a patent validated outside of its own territory is not only required to apply the law applicable to that patent, but must also apply international law principles such as comity [3].

4.2 The Core Logic of the Layered Exercise Framework

In that judgment, the Court of Appeal established a framework for the exercise of jurisdiction layered according to the closeness of the relationship between the target country and the EU legal system.

Specifically, in situations where the Court has jurisdiction to decide on the alleged infringement and remedies requested by the patentee based on a non-UPC designation of a European patent (EP), and where the defendant has — as a defence — asserted that the EP relied on is invalid:

First layer: the target country is an EU/Lugano state. The UPC cannot review the validity of patents in these countries, but retains infringement jurisdiction. The defendant must, within a period specified by the court, bring a revocation action in that country's courts; if it does not, the UPC will presume the patent valid and rule on that basis [7].

Second layer: the target country is a non-EU/non-Lugano state. The UPC may assess validity inter partes and may on that basis decide the infringement action based on such patents [3]. That is, where the UPC finds the patent valid or invalid in the case, that finding binds only the plaintiff and the defendant and does not affect the patent's effect in other cases or between other parties. Other entities may still challenge the validity of the patent again in the future.

The above framework of exercise makes the principle of comity operable as a "regulating valve," determining the depth of the UPC's intervention according to the closeness of the relationship between the target country and the EU legal system.

Specifically, this judgment designed different depths of intervention according to the closeness of the relationship between the target country and the EU legal system. For EU/Lugano states, the UPC cannot review patent validity at all, reflecting a shallower depth of intervention, leaving the power to decide patent validity entirely to the national courts. For non-EU/non-Lugano states, the UPC may review patent validity inter partes but does not make an erga omnes declaration, reflecting a deeper depth of intervention while retaining a certain degree of comity.

In short, the closer the target country is to the EU legal system, the more the UPC respects its judicial sovereignty; the more distant, the more the UPC may judge autonomously. This is the "regulating valve" function of the principle of comity.

5. Conclusion

In the KeeeX case, the Court of Appeal held in its March 2026 order that Article 7(2) of the Brussels I Recast Regulation as a "place of damage" jurisdictional basis has jurisdiction limited to damage within the court's own territory and cannot extend to non-member states. In the Fujifilm case, the Court of Appeal established in its June 2026 judgment a framework of exercise layered according to the closeness of the relationship between the target country and the EU legal system. Comparing the two cases, it can be seen that the UPC's long-arm jurisdiction is moving from the mechanical application of the Brussels I Recast Regulation toward a layered framework with the principle of comity as a regulating valve.

In the KeeeX case, the court avoided the question of the application of Article 71b(3) of the Brussels I Recast Regulation. Taking "assets" — a purely proprietary connection — as a basis, its legitimacy foundation is completely different from that of "defendant's domicile" under Article 4. If in the future a party sufficiently proves the assets condition, the question it will face is: when the connecting point shifts from "person" (domicile) and "conduct" (place of infringement) to "thing" (assets), is the legitimacy basis of jurisdiction still sufficient?

Article 71b(3) of the Brussels I Recast Regulation takes "the defendant having assets in a member state" as the jurisdictional basis, and the principle of comity should here play a stronger restrictive role. Although the defendant has assets in a UPC member state, if the infringement, the place of patent implementation, and the place of damage are all in non-UPC member states, then the fact that the defendant has assets in a UPC member state may have no substantive relationship with the dispute. The legitimacy basis for supporting jurisdiction by "the defendant having assets in a member state" is clearly weaker than that of domicile and place of damage. Therefore, if the UPC takes "the defendant having assets in a member state" as its jurisdictional basis, it may be inclined to more cautiously assess whether it is appropriate to hear the dispute, more respect the jurisdiction of the target country's courts over their own patents, and, where "assets" are insufficient to support substantive jurisdiction, on its own initiative limit the depth of its intervention, or even decline jurisdiction.

In the KeeeX case, the court avoided the question of the application of Article 71b(3) of the Brussels I Recast Regulation, leaving the specific scope of the principle of comity in this scenario still to be defined.

References

[1] REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:02012R1215-20150226&qid=1791698726734. 2015-02-26.

[2] ADOBE INC., ADOBE SYSTEMS SOFTWARE IRELAND LIMITED, OPENAI LP, OPENAI OPCO LLC, OPEN AI IRELAND LTD, TRUEPIC INC., JOINT DEVELOPMENT FOUNDATION PROJECTS LLC, COALITION FOR CONTENT PROVENANCE AND AUTHENTICITY v. KEEEX SAS. UPC_CoA_922/2025, UPC_CoA_923/2025, UPC_CoA_924/2025, UPC_CoA_925/2025. The Court of Appeal of the Unified Patent Court. 2026-03-13.

[3] Kodak Holding GmbH, Kodak GmbH, Kodak Graphic Communications GmbH v. Fujifilm Corporation. UPC_CoA_312/2025, UPC_CoA_333/2025, UPC_CoA_880/2025, UPC_CoA_882/2025. The Court of Appeal of the Unified Patent Court. 2026-06-02.

[4] EPLAW. UPC-Adobe, OpenAI & Others v. KeeeX / Appeal. 

https://www.eplaw.org/blog/detail/upc-adobe-openai-others-v-keeex-appeal/#main. 2026-03-20.

[5] Bech-Bruun. UPC Court of Appeal limits cross-border reach. 

https://bechbruun.com/insights/news-and-cases/upc-court-of-appeal-limits-cross-border-reach/. 2026-05-12.

[6] Intellectual Property Protection in China. Kodak Achieves Reversal of the Case in the Long-Arm Jurisdiction Case Involving Fujifilm. https://ipr.mofcom.gov.cn/article/gjxw/ajzz/zlajzz/202606/1996524.html#1. 2026-06-16.

[7] FRESHFIELDS. Is the sky the limit? Long-arm jurisdiction-UPC vs EU national courts. 2026-07-07.