Long-Arm Jurisdiction and the Emerging Role of Anti-Suit Injunctions

The European patent litigation landscape has transformed since the Court of Justice of the European Union (CJEU) delivered its ruling in BSH v. Electrolux (C-339/22). This decision drew widespread attention to courts’ ability to adjudicate infringement claims concerning patents validated in jurisdictions beyond their own territorial borders. A recent case demonstrates that anti-suit injunctions (ASIs) may emerge as a potent countermeasure by courts outside the EU to perceived jurisdictional overreach.

The Legal Background: Long-Arm Jurisdiction

The CJEU’s decision in BSH v. Electrolux (February 2025) confirmed that under Article 4(1) of the Brussels Recast Regulation (No. 1215/2012), courts of an EU Member State where the defendant is domiciled have jurisdiction to rule on infringement of patents granted in other Member States or even third countries. Critically, this jurisdiction persists even when the defendant raises invalidity as a defence. For patents registered in non-EU countries, where Article 24(4) of the Brussels Recast Regulation does not apply, the court may determine validity on an inter partes basis without affecting the patent’s status on its national register.

This long-arm jurisdiction doctrine was applied by the UPC in Fujifilm v. Kodak (July 2025) to assert jurisdiction over the UK designation of a European patent where the defendants were domiciled in Germany. And in Dyson v. Dreame (August 2025), the UPC’s jurisdictional reach was similarly extended to include the non-UPC Member State Spain against (amongst others) a Chinese manufacturer.

While the UPC only has jurisdiction over European patents (EP) and Unitary Patents, this restriction does not apply to national courts. Under the doctrine of BSH v. Electrolux, a European national court can assert long-arm jurisdiction for infringement of patents in third countries, as long as the defendant is domiciled within its territory. As we will see later from the BMW v. Onesta case, this becomes interesting with respect to patents in common law jurisdictions such as the United States, which have legal traditions of using anti-suit injunctions (ASI).

Anti-Suit Injunctions (ASI)

An ASI is a court order, traditionally associated with common law jurisdictions, in which a court in one jurisdiction prohibits a party from initiating or continuing proceedings in another jurisdiction. The potential sanctions for non-compliance are severe: US courts may seize assets and impose contempt of court penalties, including imprisonment for company managers, until compliance is achieved.

In complex cross-border patent disputes, an escalation can occur, leading to a series of procedural injunctions. An ASI is issued by one court to prevent a party from pursuing litigation in a foreign forum; the targeted court may then issue an Anti-Anti-Suit Injunction (AASI) to block enforcement of the ASI, and this could potentially escalate further to an Anti-Anti-Anti-Suit Injunction (AAASI) as each party seeks to protect its preferred jurisdiction.

From a Swedish and European perspective, ASI remedies are relevant in respect to countries outside the EU, as such remedies are unavailable between Member States. In Turner v Grovit (C-159/02), the CJEU held that the Brussels Convention must be interpreted as precluding the grant of an injunction whereby a court of a Contracting State prohibits a party to proceedings pending before it from commencing or continuing legal proceedings before a court of another Contracting State, even where that party is acting in bad faith with a view to frustrating the existing proceedings. This principle has been affirmed by later case law and applies equally under the Brussels Recast Regulation. Accordingly, ASI (and probably AASI) remedies are excluded within the EU legal order.

The potential for ASI/AASI escalation is illustrated in the UPC case InterDigital v. Disney, a dispute over video streaming standard-essential patents (SEP).

InterDigital filed patent infringement actions against Disney simultaneously in the United States, the UPC, Germany, and Brazil. When Disney sought an ASI from the U.S. District Court in California to halt InterDigital’s Brazilian enforcement, InterDigital pre-emptively applied for AASIs from both the UPC’s Mannheim Local Division and the Munich Regional Court. In May 2025, the Mannheim Local Division granted an AASI, finding that Disney’s mere refusal to disclaim ASI intentions was sufficient to warrant protective relief. The case demonstrates both the willingness of UPC courts to deploy AASIs to protect their jurisdiction (even pre-emptively) and the tactical risks facing defendants who refuse to disclaim ASI intentions in multi-jurisdictional patent disputes.

BMW v. Onesta: ASI as a Counter to Long-Arm Jurisdiction

While ASIs have historically been deployed in SEP/FRAND global licensing disputes as in InterDigital v. Disney, the recent BMW v. Onesta decision extended this logic to non-SEP disputes to counter long-arm jurisdiction.

Onesta IP had filed suit against BMW at the Munich Regional Court, asserting not only a European patent but also two US patents. Onesta’s strategy relied on BSH v. Electrolux’s logic to establish German jurisdiction over the US patents. BMW resides in Germany and manufactures vehicles in Munich for export to the United States, and Onesta argued that infringement occurred when the vehicles crossed the US border. BMW responded by filing a declaratory judgment action in the Western District of Texas in December 2025, seeking an ASI against Onesta.

On January 13, 2026, the Texas court granted BMW’s ASI, prohibiting Onesta from pursuing its US patent claims in Munich. The ruling emphasized that US patents must be adjudicated in US courts under US law, with attendant procedural protections – particularly the constitutional right to a jury trial.

ASI or AASI Remedy in Swedish National Courts?

Swedish national courts have no established practice of granting ASIs or AASIs. The most likely avenue for a party seeking an ASI-type remedy in a Swedish national court would be through the general provisional measures in Chapter 15, Section 3 of the Code of Judicial Procedure (Rättegångsbalken).  This provision allows courts to order “appropriate measures” (lämplig åtgärd) to safeguard a party’s rights when:

1. The applicant shows probable cause for having a claim that is or may become the subject of litigation, and
2. there is reasonable cause to fear that the counterparty, through exercising certain activities or taking or omitting certain actions, would hinder or impede the exercise of the applicant’s rights or substantially diminish their value.

The provision is broadly worded and permits various forms of relief, including prohibitions backed by fines (vite). The specific measures available are determined on a case-by-case basis and are exemplified rather than exhaustively listed in the statute.

Given the lack of precedent, we can only speculate as to whether a Swedish national court would grant an ASI against proceedings in non-EU jurisdictions. However, with respect to AASIs, the UPC’s practice in InterDigital v. Disney and similar cases may provide persuasive authority. It is possible that a Swedish court, drawing on UPC practice, might be more receptive to an AASI application to protect proceedings before it from such foreign ASI interference. However, this remains an untested and uncertain proposition.

Will ASIs Limit Long-Arm Jurisdiction?

The long-arm jurisdiction represents a fundamental shift in European patent enforcement, enabling patentees to obtain comprehensive relief from a single forum against EU-domiciled defendants. The BMW v. Onesta decision, however, demonstrates that this jurisdictional expansion has limits, particularly when it extends to patents granted outside the EU. ASIs may therefore emerge as a tool for defendants seeking to prevent the assertion of their national patents in foreign courts. Likewise, AASIs may emerge as a countermeasure to such ASIs.

As long-arm jurisdiction continues to evolve, legal practitioners must remain vigilant to the strategic implications of forum selection and the potential for ASI and AASI countermeasures.

Setterwalls continues to stay at the forefront of the evolving patent litigation landscape.