[GuestPost] What has long arms and lives in Switzerland? The cross-border injunction club gains a new member

The list of courts willing to reach across borders after BSH v Electrolux has a new entry. Katfriend Peter Ling (Lenz & Staehelin) provides the following analysis of the Swiss Federal Patent Court's first cross-border preliminary injunction decision, in which jurisdiction was accepted over the foreign designations of a European patent but the injunction was nonetheless refused on the merits. Over to Peter:

"One and a half years after the CJEU's BSH v Electrolux decision (C-339/22, Katpost here), patent litigation in Europe looks very different. To recall the fundamental finding of this decision, the CJEU confirmed that a court that has jurisdiction under Article 4(1) of the Brussels Regulation (recast) regarding the infringement of a foreign patent does not lose this jurisdiction even when the defendant claims that such foreign patent is invalid.

The Unified Patent Court was quick to embrace the decision and granted several cross-border injunctions, including in non-UPC or non-EU territories, referencing BSH v Electrolux (see the recent UPCKat post here with a summary of some notable cases). By now, the simple rule set out in BSH v Electrolux developed into a strategy game, largely surpassing the original topic of the decision. Small talk at patent litigation bonanzas now almost resembles a debate about sewing, when participants spend their precious time discussing "anchor" (defendants, not stitches) and "long arm" (jurisdiction, not quilting machines).

National courts have taken note too. In September 2025, the Regional Court of Munich notably granted a cross-border PI in 22 countries, citing BSH v Electrolux, prompting one national judge (who shall remain anonymous) speaking on a panel at a patent law conference a few months ago to wonder whether litigating at the UPC has still any advantages (it probably has).

And now Switzerland has entered the chat. In a decision dated 17 July 2026, published in early August and related to a formulation of aflibercept, the Swiss Federal Patent Court was asked to grant a cross-border PI in 19 countries against three defendants.

The PI request was denied under the Swiss doctrine of equivalence test (which was slightly changed and developed at this occasion, a topic that would deserve a Katpost of its own). However, more importantly, the Swiss Patent Court confirmed that it had jurisdiction over all three defendants and over the (alleged) infringement under all 19 foreign counterparts of the patent-in-suit.

The case is part of the series of patent battles related to Regeneron and Bayer's blockbuster Eylea® (aflibercept). Regeneron and Bayer brought this suit against three companies of the Sandoz group (importantly, all three of them being domiciled in Switzerland). The case was based on EP 2 364 691, the same patent that was at play in the Munich Regional Court decision just mentioned.

Claimants requested a PI against the distribution of Sandoz' Afqlir® (aflibercept) in Switzerland, Austria, Belgium, Bulgaria, Czechia, Denmark, Finland, France, Greece, Hungary, Ireland, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

The Patent Court referred to the CJEU case law in Solvay/Honeywell (C-616/10, Katpost here) and BSH/Electrolux and ruled that given the Swiss domicile of all three defendants, it had jurisdiction to decide a PI request in all 19 jurisdictions where infringement was alleged.

The Court also underscored that the law applicable to the alleged infringement in this case would be the national law of each individual jurisdiction, which arguably would be difficult to deal with in PI proceedings where urgency calls for swift decisions. However, specifically because this was a PI proceeding where infringement needs only to be shown prima facie, the court took a shortcut:

"To the extent that the asserted claim for an injunction is based on an alleged infringement of the national parts of a European patent, Article 69 EPC, which defines the scope of protection of European patents, and the accompanying Protocol on the Interpretation of Article 69 of the European Patent Convention are applicable. Against this background, it can be assumed that a patent infringement will ultimately be decided in the same manner in the individual member states of the EPC." (Emphasis added)

When it came to standing to be sued of each individual defendant, the Court confirmed the very liberal Swiss stance (see this decision, where an English-language website in Estonia describing infringing products without any link to Switzerland was deemed an offer on Swiss soil). In this case, Defendant 1 (Sandoz Group AG) was the ultimate holding company of the Sandoz group, Defendant 2 (Sandoz AG) was the company operating the www.sandoz.com website and Defendant 3 was the holder of the Swiss marketing authorization for Afqlir®. The court confirmed that all three defendants had standing to be sued.

You would not guess
how long my arms are

Sandoz Group AG had published ad hoc announcements filed with the Swiss stock exchange regarding the imminent market entry of Afqlir®. These announcements were deemed "offering" within the meaning of the Patent Act because any communication apt to influence market behaviour to the patentee's disadvantage triggers infringement. It is irrelevant that such announcements primarily target investors, as they have an immediate advertisement effect: they draw anyone's attention to the market entry of a new product. It is equally irrelevant that the company making the announcement is a mere holding company.

As for Sandoz AG, the court reasoned that it controlled the content of www.sandoz.com, where the announcements of Sandoz Group AG had been published. In addition, Sandoz AG holds the trademark rights for AFQLIR and Sandoz's local subsidiaries (such as Defendant 3) could not market the product under any other name, so the use of the AFQLIR trademark was a conditio sine qua non for commercialisation of the allegedly infringing product. Sandoz AG was therefore found to have at least aided and abetted the alleged infringement as well.

Comment

The jurisdiction aspect of the decision is fully in line with the CJEU decision in Solvay/Honeywell (a case that is more than ten years old now) and should therefore not come as a surprise. Nonetheless, it seems that the BSH/Electrolux case did the important job of emboldening litigants and judges to make better and more frequent use of the procedural toolbox provided by the Brussels Regulation (recast) and the Lugano Convention. These options have always been there, but BSH/Electrolux seems to have been the breakthrough giving anyone the courage to put cross-border injunctions to the test in real-life cases.

One surprising aspect of the case remains the generic affirmation that given Art. 69 EPC and its Protocol, the case "will ultimately be decided in the same manner" under all EP designations. Case law of the last decades shows that this is not entirely true. In addition, had the PI been granted in this case, some aspects should likely have still been reviewed under 19 different laws, such as the ability of exclusive licensees and exclusive sublicensees to bring infringement actions (an aspect far from being uniformly regulated in national patent laws). Irrespective of that however, I wholeheartedly agree with this finding because this was a PI case under a single EP. Cross-border PI proceedings would be entirely unrealistic if infringement had to be proven (possibly by expert testimony) under each EP designation separately."