Why Does Our Unified Court Have Such Long Limbs?

So many long limbs!

The new Unitary Patent package, which includes the Unified Patent Court (UPC), is a European Union (EU) system. Many EU countries have already joined the UPC — but recently, the court has made rulings about activities that happened outside the EU.

Wait… what? How can it do that? What gives the UPC the right to reach across borders like this?

The Basics: Patents Are Territorial

Any conscientious patent practitioner knows the golden rule: patents are national rights of prohibition.

If a patent is in force in country X, you can sue an infringer for acts in country X. Simple.

And we all know that court decisions are normally bounded by national borders. A French court may decide one way on a French patent, while a German court could decide differently on the same patent in force in Germany. We are trained to think country-by-country.

The Not-So-New Idea of the “Long Arm”

The basic idea behind the “long arm” of the law isn’t new. We’ve just not seen it used in quite this way before.

It comes from principles of territorial jurisdiction (a court’s power over things happening within its territory) and personal jurisdiction (a court’s power over a particular person or company). Sometimes, those principles allow a court to deal with activities happening elsewhere — for example:

• If illegal acts are carried out in country X, even though the person controlling them is in country Y.

• Or if someone in country X is directing illegal acts in country Y.

Without this “long arm,” it would be all too easy to dodge the law by simply crossing a border; it would be an easy escape from the rule of law to effect the performance of illegal acts in country X from the sweet tranquility of a sunny terrace in country Y. Criminals could simply hop (back and forth) across national borders at will, to dodge each respective national law as it suits them. 

Why the Law Reaches Further

To prevent that kind of gamesmanship, legislatures and courts have developed long-arm jurisdiction rules. These rules aim to close such loopholes — but their scope depends on many factors, such as the defendant’s connections to the court’s territory. And every jurisdiction sets its own rules, which change over time as society evolves.

As often happens in law: greater fairness can mean greater complexity.

The UPC’s Legal Limbs

For the UPC, the legal basis for long-arm jurisdiction comes from the Brussels Regulation (as amended). The UPC is still very new, so we don’t yet know just how far its reach will extend, in practice.

By way of comparison: in the US, a defendant can be sued if there are “minimum contacts” with the court’s forum — a measurable level of connection. The UPC seems to be applying something similar: in some recent cases, it claimed jurisdiction over acts outside the EU simply because the defendant’s place of business was inside a UPC member state. In other words, having a domicile in UPC territory can be enough of a link, even if the alleged infringement happened elsewhere.

Summary

The long-arm jurisdiction is a well-established concept aiming to stop the exploitation of loopholes in the law resulting from the existence of territorial borders. So, there is nothing inventive about our new unified court’s long limbs, even if we might be a bit shocked by the novelty of their reach.