Cart before the Horse? BSH Hausgeräte v Electrolux and Exclusive Jurisdiction over Patent Validity

In a much‐anticipated judgment, the Grand Chamber of the CJEU in BSH Hausgeräte GmbH v Electrolux AP reshaped the landscape of cross‐border patent litigation in the EU. The case concerned the interpretation of Article 24(4) of Regulation 1215/2012 (Brussels Ia), under which the courts of the European Member State of deposit or registration have exclusive jurisdiction ‘in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence’. In its judgment, the Court of Justice clarified that a court seised of an infringement claim relating to a patent registered in a EU Member State does not lose jurisdiction merely because the defendant has challenged validity. It also confirmed that Article 24(4) does not apply to patents registered in third States, and – crucially – permitted courts to assess the validity of such patents inter partes . This note examines the practical implications of this landmark ruling, identifies unresolved questions, and criticises the inconsistency it introduced between patents registered inside and outside the EU.