AYLO Premium v DISH Technologies (CoA, 3 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 3 September 2024 (UPC_CoA_188/2024), the Court of Appeal, sitting as a panel of five judges, dismissed the appeal of AYLO Premium, AYLO Billing and AYLO Freesites against the rejection of their preliminary objection by the judge-rapporteur of the Mannheim Local Division, in the indirect infringement action brought by DISH Technologies and SLING TV on EP 2 479 680 (rate-adaptive streaming). The court held that the accessibility of a website in a State where the patent has effect is enough to found the UPC’s international jurisdiction under Art. 7(2) of the Brussels I recast Regulation, without any need for the website to target users in that State or for the servers to be located there. It added that the list of objections in Rule 19.1 is exhaustive. The order is directly relevant to disputes over online services.

Facts and procedure

DISH, the proprietor, and SLING, its exclusive licensee, allege that AYLO offers, on streaming websites, media players and video files enabling the invention to be put into effect in several Contracting Member States, including Germany. AYLO lodged a preliminary objection challenging the international jurisdiction of the UPC and the competence of the local division and arguing, in the alternative, that the action was abusive and manifestly unfounded. The judge-rapporteur rejected it on 5 April 2024. On appeal, AYLO also relied on the action brought by DISH and SLING before the Munich Regional Court the day before the UPC action, concerning the same acts and a patent of the same family (paragraph 28).

The applicable law

The UPC is a common court within the meaning of the Brussels I recast Regulation. Its international jurisdiction is assessed under Art. 71b(1) read with Art. 7(2), which refers to the place where the harmful event occurred or may occur. The competence of the local division falls under Art. 33(1)(a) UPCA. Preliminary objections are governed by Rules 19 to 21.

Question

Does the UPC have jurisdiction where the acts complained of consist in making accessible, from servers located outside the Contracting Member States, websites supplying the means of indirect infringement, and can abuse of process be raised by way of preliminary objection?

Decision

Where damage is alleged to occur over the internet, the likelihood of damage may arise from the accessibility of the website in the State where the patent has effect, even if the server is located elsewhere (paragraphs 10 to 16). Whether the requirements of indirect infringement under Art. 26 UPCA are met is a matter for the merits, not for jurisdiction (paragraphs 18 and 19). The argument that the websites had to target users in the Contracting Member States was inadmissible, not having been raised at first instance (Rule 222.2), and in any event unfounded (paragraphs 20 and 21). No reference to the Court of Justice was needed (paragraph 24). The place of infringement under Art. 33(1)(a) is interpreted in the same way as Art. 7(2) (paragraphs 25 to 27). The parallel German action did not require the UPC to decline jurisdiction: Art. 30(2) is discretionary, its conditions were not shown, and other safeguards against abuse exist (paragraphs 28 to 30). The list in Rule 19.1 is exhaustive, abuse and manifest lack of merit may nonetheless be dealt with early under the case management powers, against which the only remedy is review by the panel (paragraphs 31 to 34).

Key points for practice

• Accessibility of a website in a Contracting Member State is enough to found the jurisdiction of the UPC and of a local division for acts committed online. The location of the servers is irrelevant.
• The substantive conditions of infringement, including indirect infringement, are not argued at the preliminary objection stage.
• Abuse of process and manifest lack of merit are not preliminary objections within Rule 19.1.
• Practical point: a defendant seeking an early ruling on abuse of process should ask for a case management measure, and an unjustified new argument on appeal will be disregarded under Rule 222.2.

Provisions applied

Agreement on a Unified Patent Court

Arts 26, 31, 32(1)(a) and 33(1)(a)

Rules of Procedure

Rules 19.1, 19.7, 20.1, 21, 222.2, 332, 334 and 361

Regulation (EU) No 1215/2012

Arts 7(2), 30(2), 71a and 71b(1)

Case law cited

Netgear v Huawei, Court of Appeal, 11 January 2024, Netgear v Huawei, Court of Appeal, 21 March 2024

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.