Beyond EU Borders: What the Kodak/Fujifilm Decision Means for UPC Patent Litigation

Under certain conditions, the Unified Patent Court (UPC) can also rule on claims concerning the UK part of a classic European patent. This was clarified by the UPC Court of Appeal in its decision of 2 June 2026 in the Kodak/Fujifilm case (UPC_CoA_312/2025).

Following Brexit, the United Kingdom does not participate in the UPC. The UPC therefore has no jurisdiction over purely national UK patents. The situation can be different for the UK part of a classic European patent: Where the UPC has international jurisdiction over the defendant, in particular because the defendant is domiciled in a UPC Contracting Member State, the UPC may, according to the case law in Fujifilm v Kodak, also rule on alleged acts of infringement in the United Kingdom.

The Court of Appeal thus confirms the practical significance of the UPC’s so-called “long-arm jurisdiction”. This may offer considerable advantages for patent proprietors, as cross-border infringement claims can potentially be consolidated before a single court rather than pursued in parallel proceedings across multiple jurisdictions. This can streamline litigation, reduce costs and minimise the risk of conflicting decisions.

At the same time, relying on the UPC’s long-arm jurisdiction requires careful analysis and preparation. International jurisdiction merely provides access to the Court; it does not relieve the patent proprietor of the need to establish both infringement and the individual defendant’s responsibility for the alleged infringing acts. This is precisely where Fujifilm’s case ultimately failed. The Court of Appeal set aside the first-instance decision. In Germany, Kodak was able to rely on a right of prior use. As regards the United Kingdom, Fujifilm had failed to establish that the German Kodak entities named as defendants had themselves committed relevant acts of infringement in the UK or could be held legally responsible for acts committed by a UK group company. The Court’s assessment turned on the specific supply chain, ownership structure and economic control over the products. The mere fact that a German group company manufactured products for a UK company was not sufficient to attribute the latter’s importation or distribution activities in the UK to the German entity.

At the same time, the assessment remains challenging and requires particularly careful preparation: International jurisdiction merely provides access to the court. It neither dispenses with the need to establish patent infringement nor with the requirement to attribute the alleged acts to the specific defendant entity. This was precisely where Fujifilm failed in the case at hand. The Court of Appeal set aside the first-instance decision. In Germany, Kodak was able to rely on a right of prior use. With regard to the United Kingdom, however, it had not been sufficiently established that the German Kodak companies being sued had themselves carried out relevant acts of infringement there or that they were legally liable for such acts by a UK group company. The decisive factors were the specific supply chain, ownership structures and the economic control over the products. The mere fact that a German group company manufactured products for a UK company was not sufficient to hold the German entity responsible for the UK company’s subsequent import and distribution activities in the United Kingdom.

The decision therefore does not provide a carte blanche for cross-border litigation before the UPC. It does, however, demonstrate that, when dealing with classic European patents, companies should not shape their patent and litigation strategies solely around the territorial boundaries of the UPC Contracting Member States.

For defendants, intra-group manufacturing and distribution structures may offer potential lines of defence. For each market concerned, the patent proprietor must specifically plead and prove which group entity is responsible for the relevant acts of infringement; mere membership of the same corporate group is not sufficient. Companies facing infringement claims should therefore ensure that their manufacturing locations, supply chains and contractual arrangements, transfers of title, as well as the entities exercising actual decision-making authority and control over distribution, are clearly documented from an early stage.

Fujifilm v Kodak thus confirms that the UPC’s reach may extend beyond UPC Contracting Member States. Whether a cross-border infringement claim ultimately succeeds, however, will depend on the specific acts of infringement at issue and, crucially, on whether those acts can be attributed to the individual defendant.