Urgent Appeals, not always

The process for patent, trademark and copyright litigations has to be fast and efficacious.

Those enduring an infringement of rights in these particular subjects cannot wait the long times of justice because counterfeiting economically speaking may have catastrophic effects which cannot always be reimbursed after two or three years.

For this reason the main instrument of defense is the preventive proceeding, an urgent relief permitting to obtain a judgement in a very short time: one or two months, or even less.

This rapidity is due to a particular summariness in the examination and analysis of the case. This does not mean superficiality but it is the exam in light of the acts and of the situation in “prima facie”.

Nevertheless, during these proceedings it is often ordered a technical appraisal which is needed to decide if it is the case of a patent infringement.

A technical appraisal lengthens the time but the decisions are issued in few months.

A fast intervention is so vital in case of infringement that the urgency (“danger in delay”) is recognized “in re ipsa” because of the current counterfeiting that threatens the reason of the holder of the patent, trademark or copyright.

If this is generically true, in practice it is not or at least this is for the Court of Milan which rejected a precautionary appeal because of the excessive complexity of the question submitted to its exam which was not compatible with the typical speed of this proceeding.

The appeal submitted to the Court had as subject the complained and unauthorized decompilation of a software which occurred in violation of a contract between the parties.

The appeal was 143 pages long and there were about 20 questions including the request for a computer technical appraisal. In addition to the technical issues there were also the complex law issues which made necessary a deep analysis, the possible call of thirds and a careful study of many aspects.

In light of this the Court of Milan, with the ordinance of August 2, 2017, rejected the appeal stating that

“The issues in fact and in law to be examined and the complexity of the preliminary and expert checks to be made, as revealed by the substantiality of the applicant’s claims and argumentations and by the requests that it formulated, are incompatible with the concise nature of the precautionary judgement”

A clear decision that makes think even if it represents a rarity in the industrial sector in which the precautionary process is widely spread and used even for complex cases.