Month: September 2017

The relevance of profit for the qualification of an act of communication to the public according to the Italian Court of Frosinone

IPlens1 Comment

The decision of the Court of Frosinone, published on February 2017 (available here), relies on a criminal investigation carried out by the Italian Tax Police earlier in 2014 against several websites that shared protected contents without the authorization of the right holders. Among these websites, there was also filmakerz.org.

The users of filmakerz.org were allowed to access without right holders’ consent a large number of movies and TV series through hyperlinks posted on the website. However, before being able to check the list of links that redirected to other websites, users were forced to see advertising banners.

The Italian Tax Police initially requested the Review Court of Rome, competent to rule on precautionary measures, to grant the preventive seizure of the website to exclude any further access to the infringing material. Other than expected, the Court rejected the request considering that the information insofar collected by the Tax Police was insufficient to prove the capacity of the advertising banners to produce profit in favor of the website’s holder, considering the profit purpose crucial to grant any precautionary measure against filmakerz.org.

Following further investigations, the Tax Police found out that after the first instance request, the websites filmakerz.org and the affiliated websites filmakerz.me and filmkerz.biz, automatically redirected to the website cineteka.org. According to the Tax Police, it was highly reasonable that all the domains were managed by the same person (filmakerz.org‘s holder), who set the redirection to bypass any possible block applied against filmakerz.org and the other affiliated websites.

The evidence presented before the Prefecture of Frosinone in the administrative proceedings was instead considered sufficient by the Judge to issue a fine of Euros 546,528.69 according to Article 171-ter, para. 2, letter a-bis of the Italian Copyright Act (which punishes everyone who “In violation of art. 16 of the Copyright Act, for profit, communicates to the public a copyright-protected work or part of it, by entering it into a system of telematic networks, by means of connections of any kind”).

The infringer appealed the administrative sanction before the Court of Frosinone which overruled the Prefecture’s decision. According to the Court the Italian Copyright Act requires the unauthorized communication to the public to be performed for profit, namely the intention to gain a consistent economic advantage or patrimonial increase from the infringer’s illegal conduct. It follows that the hyperlinker cannot be sanctioned for the sole act of linking to unauthorized protected material, but it is necessary that this leads to a considerable economic benefit.

In the case at stake, the evidence collected was deemed not sufficient to prove that the creator of filmakerz.org, filmakerz.me, filmkerz.biz and cineteka.org was obtaining any significant profit from his/her activity.

The Court of Frosinone has been one of the first in Italy to deal with the linking issue after the CJEU recent cases (particularly Svensson, GS Media and more recently the Pirate Bay case).

The meaning of “profit” – and the possibility to detect the existence of such purpose – assumes in the case at stake a prominent relevance. The same factor has been considered also in the CJEU case law, leading to different conclusions.

In the GS Media case (available here), the CJEU did not clarify what should be intended as “lucrative purpose”, though the Court specified that the presence of the profit intention is relevant to determine whether the conduct of the hyperlinker amounts to an “act of communication to the public”. In fact, in case hyperlinking is made for profit it must be assumed that it has been made following previous controls, from which the hyperlinker should have verified that the work in question is not unlawfully published on the site to which those hyperlinks refer. Even though no lucrative purpose is detected, hyperlinking can still be considered an “act of communication to the public” if the hyperlinker is aware – or should have been reasonably aware – of the fact that said work had been published on the Internet without authorization. In the GS Media case the CJEU asserted that a profit purpose existed. But the absence of lucrative purpose would not have directly led to the exclusion of the hyperlinker’s liability: it would have just implied the need for further evidence (based on the awareness criterion).

In the Pirate Bay case (available here) the EU Court stated: “there can be no dispute that the making available and management of an online sharing platform, such as that at issue in the main proceedings, is carried out with the purpose of obtaining profit therefrom, it being clear from the observations submitted to the Court that that platform generates considerable advertising revenues”. In this case, the presence of the profit intention is strictly connected to the fact that the hyperlinker was obtaining “considerable advertising revenues” from its activity, in a way which highly resembles the case held before the Court of Frosinone. Indirect income, such as the one obtained from the advertising banners, might be qualified as source of profit in the way intended by the CJEU in the Pirate Bay case. Moving from this decision, the Court of Frosinone might have qualified the profit incoming from the advertising banners, placed on the websites under investigation, as sufficient to consider fulfilled the requirement prescribed by Article 171-ter of the Italian Copyright Act.

The other way around, the Italian Court seems to have considered that the investigation did not provided enough evidence to prove that the infringer gained an economic benefit from his/her conduct. Without clarifying if, in the Court’s view, this circumstance relied on the impossibility to qualify the advertising banners as a source of profit or, conversely, on the inability to prove that the economic advantage gained was “considerable” (that is the term used by the Court). Such consideration would require assessing when the economic benefit can be deemed “considerable” within the scope of the Italian Copyright Law, in contrast with Article 171-ter which refers only to the profit intention itself regardless any quantification.

The above considerations remain however unanswered since the decision does not share any in depth reasoning about the grounds on which the Court ruled, probably without taking into consideration to the CJEU caselaw.

Miriam Loro Piana

Court of Frosinone, docket No. 1766/2015, 7 February 2017, Unknown vs Prefecture of Frosinone (Judge Gemma Carlomusto)

 

The EU General Court dismissed an action to invalidate a Registered Community Design held by Nike for electronic wristbands.

IPlens3 Comments

In 2012, Nike registered successfully a Community Design for an electronic wristband. One year later, Mr. Murphy filed for a declaration of invalidity of Nike’s design on the basis of a prior registered design for “Flexible LCD watch bands”.

murplhy design.jpgwristband.jpg

Mr. Murphy argued that Nike design infringed Article 6(1)(b) of the Community Designs Regulation, submitting that it lacked individual character as the overall impression on the informed user did not differ from that produced by Murphy’s prior design.

Neither the Invalidity Division of the EU Intellectual Property Office (EUIPO) nor the EUIPO Board of Appeal agreed with Mr. Murphy.

The case came before the EU General Court upon Mr. Murphy’s appeal of the Board of Appeal decision.

The General Court rejected Murphy’s application for a declaration of invalidity of the Nike design on the following grounds (here).

Firstly, it considered that, in order for a wristband to be able to fulfil its function properly, its designers would be limited by several constraints, as the need to be relatively small, thin, light, ergonomic in order to fit the wrist and to contain measuring instruments. These technical constraints led to conclude that the degree of freedom of the designer was high rather than very high, as argued by Mr. Murphy.

The degree of freedom must be taken into consideration in assessing individual character pursuant to Article 6(2) of the Designs Regulation, because the more the freedom of the designer in developing a design is restricted, the more likely it is that minor differences between the designs being compared will be sufficient to produce a different overall impression on an informed user. (see judgment of 10 September 2015, Handbags, T‑525/13, EU:T:2015:617, paragraph 29 and the case-law cited).

In any case, even taking account of a high degree of freedom afforded to the designer of electronic wristbands, the Court reiterated the position from earlier case law that the overall impression produced by the Nike design on the informed user was clearly different to that produced by Murphy’s design.

Indeed there were a number of differences between the two designs, namely that (i) the Nike design was larger and thicker than Murphy’s design, (ii) Nike’s design featured a large oval button on the surface of the wristband which was not present in Murphy’s design, (iii) the internal components of the Nike design were visible, giving it a more technical aspect than Murphy’s design, which appeared as opaque and elegant, and (iv) the Nike design had less ornamentation than Murphy’s design, on which the image of a diver and a line running along the wristband were clearly visible.

On the contrary, the clasps’ similarity in both designs alone was not sufficient to make them similar as a whole. Indeed, the overall impression must be determined in light of the manner in which the product is used and when using an electronic wristband, the informed user attaches more importance to the part displaying the data than to the clasp.

The General Court disregarded Murphy’s argument, based on UK case law, that his prior design enjoyed a higher degree of protection because it was a significant advance over the prior art in existence at the time of its registration in 2005. The Court has pointed out that it was not bound to consider decisions of national courts, even where the latter are based on provisions analogous to those of that regulation (see judgment of 29 October 2015, Éditions Quo Vadis v OHIM — Gómez Hernández (‘QUO VADIS’), T‑517/13, not published, EU:T:2015:816, paragraph 46 and the case-law cited). In addition, the new and unusual character of Murphy’s design did not prevent the informed user from perceiving the differences in subsequent designs (see, to that effect, judgment of 21 May 2015, Senz Technologies v OHIM — Impliva (Umbrellas), T‑22/13 and T‑23/13, EU:T:2015:310, paragraph 95).

Appeal has already been brought before the European Court of Justice (ECJ) (C-538/17 P). It does not seem unreasonable to predict the confirmation of the here mentioned decision. Indeed, the General Court seems to have applied the long standing principles formulated by the ECJ in relation to the assessment of the individual character and its judgment appears to be a matter of fact, that hardly may be challenged by the higher court.

Jacopo Ciani

General Court (Fifth Chamber), 4 July 2017, Thomas Murphy v European Union Intellectual Property Office, Case T-90/16

Early thoughts on behavioral advertising and the GDPR: a matter of discrimination?

IPlens1 Comment

How is behavioral advertising affected by the new EU General data protection regulation (GDPR)? This is probably one of the trickiest part of the new piece of legislation.

In its 2010 opinion (here), the group of EU data protection authorities (WP29) defined -online- behavioral advertising as “the tracking of users when they surf the Internet and the building of profiles over time, which are later used to provide them with advertising matching their interests”. The advertising matching is the result of an automated processing of personal data and is traditionally included in the concept of “profiling”.

When does personalized advertising entails profiling?

The threshold of profiling in perzonalized advertising is not always straightforward. The WP29 opinion distinguished among:

  1. Contextual advertising: advertising content selected based on the content currently being viewed by a user. E.g., for a search engine, the content derived from (i) the search keywords or (ii) the user’s IP address if connected to geographical location. It does not entail profiling.
  2. Segmented advertising: advertising content selected based on known characteristics of the data subject (age, sex, location, etc.), which the data subject has provided at the sign up or registration stage. It does not entail profiling.
  3. Behavioral advertising: advertising content selected based on user’s interests derived or inferred from his behavior. It entails profiling. In a recent decision (here), the Italian Garante stated that behavioral advertising entails profiling when the segmentation of the public is based both on generic data (sex, age, location) and the purchase history, as displaying different advertisement based on this data causes a diversification in the treatment of customers. This can be therefore an example of minimum level of profiling in personalized advertising.

Behavioral advertising and profiling under the Data Protection Directive

The Data Protection Directive (95/46/EC) did not specifically regulate the concept of profiling, though it already posed attention to automated data processing (which could include profiling). Article 15 was stressing that each individual should have the right not to be subject to decisions solely based on automated processing of data if they might (i) produce legal effects or (ii) significantly affect him. It left rooms for Member States to allow exceptions only in case this automated processing is (i) necessary for the performance of an agreement or (ii) authorized under national law. But behavioral advertising has not been generally included under the scope of this provision.

…and the GDPR

In the GDPR, profiling takes center stage as one of the main type of automated processing. The GDPR introduces a legal definition of profiling (Art. 4.4), that is based on the automated evaluation of individuals’ aspects to analyze or predict his/her situation, preferences, interests, reliability, behavior, location or movement. And adds right to explanation for individuals (Art. 13.2.f) and to require human intervention (art. 22.3).

Art. 22 GDPR also updates Art. 15 of Data Protection Directive, by adding “profiling” among the processing operations entailing automated decisions one has the right not to be subject to, i.e. when it might (i) produce legal effects or (ii) similarly significantly affect individuals. And introduces consent as a new legal ground for this automated processing. However, given the high risk entailed, it requires an “explicit” consent. Other legal grounds, e.g., legitimate interest, cannot be invoked. This profiling/automated processing is thus compared to special (risky) categories of personal data regulated by Art. 9 GDPR, for which “explicit” consent shall be sought.

What type of profiling entails a significant effect? Is this applicable to behavioral advertising?

Some guidance can be taken from the regime of the Data Protection Impact Assessment (“DPIA”) required for processing activities resulting in high risk. Indeed, Art. 35 GDPR states that a DPIA is in particular required in case of “systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person”. This provision basically recalls Art. 22 GDPR.

big bother eye.png

The WP29 guidelines on DPIA (here) mention as an example of profiling that does not significant affect individuals (meaning, not resulting in high risk): “An e-commerce website displaying adverts for vintage car parts involving limited profiling based on past purchases behaviour on certain parts of its website”. Probably not the most illuminating example, but in sum: profiling not systematic nor extensive. The guidelines then list the elements entailing a high risk:

  1. the use of a new technology;
  2. the time factor, i.e., the duration of the processing. For instance, in line with this, the Italian DPA (“Garante”) –in a landmark 2005 decision about loyalty programs– identified a maximum retention period for customer profiling data and their use for marketing of respectively 1 and 2 years (here). Retaining profiling data for longer periods entails a high risk and requires the Garante’s prior check –once the GDPR applies a DPIA would be required instead–;
  3. the large scale of data processed;
  4. matching or combining datasets.

An example of processing raising an high risk is: “The gathering of public social media profiles data to be used by private companies generating profiles for contact directories”. The use of social capturing tools to profile and match customer data on a large scale can be thus relevant.

“Strong” v “soft” profiling and the risk of discrimination in behavioral advertising

Based on this, one may apparently distinguish between a sort of “strong” and “soft” profiling, subject to different regimes. But the guidelines continue stating that a risk occurs also when processing may lead to discrimination against individuals.

This point is quite obscure, particularly if applied to behavioral advertising. Many say that behavioral advertising cannot have significant effects on individuals (see here and here). However, it is worthy noting that the UK DPA (“ICO”), in its public consultation about profiling (here – yet still provisional), warned about potential risks for individual fundamental rights connected even to behavioral advertising:

“Profiling technologies are regularly used in marketing. Many organisations believe that advertising does not generally have a significant adverse effect on people. This might not be the case if, for example, the use of profiling in connection with marketing activities leads to unfair discrimination. One study conducted by the Ohio State University revealed that behaviourally targeted adverts can have psychological consequences and affect individuals’ self-perception. This can make these adverts more effective than ones relying on traditional demographic or psychographic targeting. For example, if individuals believe that they receive advertising as a result of their online behaviour, an advert for diet products and gym membership might spur them on to join an exercise class and improve their fitness levels. Conversely it may make them feel that they are unhealthy or need to lose weight. This could potentially lead to feelings of low self-esteem”.

One may argue that any kind of customer segmentation and profiling –resulting in different contents showed to individual– entails discrimination. It is probably too extreme. Profiling entails diversification in the treatment of individuals. It is for sure an act of processing (as it has an effect on individuals) though does not necessarily discriminate. But this risk shall not be underestimated: based on the opinions above, it appears that attention should be given to the possible effects (price discrimination, psychological effects, etc.) the envisaged targeted marketing campaigns can cause, considering the type products advertised, the way they are advertised, the type of segmentation and matching of interests, the scale, etc. Intrusive effects of profiling shall thus being considered. Not an easy exercise, but as profiling techniques are dramatically increasing their capacity of analyzing individual intimate aspects (e.g., AI advances are used to spot signs of sexuality, see here) authorities are calling for broader protection of individual fundamental rights.

What are the practical consequences?

“Risky” (or “strong”) profiling is subject to stricter formalities, requires a DPIA and explicit consent. This apply to behavioral advertising as well.

There is no definition of “explicit” in the GDPR. The WP29 (here) defined it as:  “all situations where individuals are presented with a proposal to agree or disagree to a particular use … and they respond actively … orally or in writing […] by engaging in an affirmative action to express their desire to accept a form of data processing. In the on-line environment explicit consent may be given […] through clickable buttons depending on the context, sending confirmatory emails, clicking on icons, etc.” An active choice shall be thus required.

What about behavioral advertising based on tracking cookies?

An explicit consent would require an opt-in for the use of tracking cookies. In the past, EU DPAs have exempted tracking cookies from explicit consents (see for instance the Italian Garante and the ICO decisions, here and here). Similarly, Recital 32 GDPR lists as a form of “express” consent (though not “explicit”) the setting of the browser. This seems evidently addressing the use of cookies. Some further guidance on the consent through the set up of browsers will be surely given under the e-Privacy Regulation. The current draft (here), at Art. 4a (former art. 9) and Recitals 20-22, provides further details on how browser settings will be presumably confirmed as a form of consent (though they are abandoning “cookie banner/cookie walls” solution endorsing advanced browsers settings “privacy by design” instead). But, based on the above, this kind of consent would be difficulty allow “strong” profiling (though e-Privacy Regulation is lex specialis and some guidelines will help).

Behavioral advertising and legitimate interest

On the other hand, “soft” profiling can be also based on “normal” consent, or on legitimate interest. This is clearly confirmed by Article 21 GDPR, that is however stressing that if profiling is based on legitimate interest controllers must grant data subjects with “objection rights”. The WP29 (see the guidance on legitimate interests, here) has already stated that: “controllers may have a legitimate interest in getting to know their customers’ preferences so as to enable them to better personalise their offers and ultimately, offer products and services that better meet the needs and desires of the customers.” Although it then excluded that legitimate interest can justify certain “excessive” behavioral advertising practices (see our past analysis here).

There is for sure a legitimate interest of companies in matching promotional communications to individual preferences and interests. This is the future of advertising as well as one of the main business models for free services. Without personalisation many services would loose appeal and users nowadays are expecting a certain level of personalization based on their interests. Conditioning behavioral advertising to consent collection can be burdensome. And consent does not always represent a real safeguard. For this reason, some are calling for more flexible interpretation of the above rules to avoid the risk of having Europe’s advertising market (as well as data intelligence industry) limited and less competing compared to other countries (that do not subject profiling to consent).

This shall be however balanced with the right to privacy and to have personal data processed fairly, which is a fundamental right under the EU Charter (art. 8).

The final answer is left to the balance between the conflicting interests of companies and individuals. A balancing test for measuring the legitimate interest and excluding significant effects and discrimination shall be of crucial importance. This fits in with the spirit of the new accountability principle, that leaves to data controllers the ultimate decision on how to treat the risks of the concrete processing. Data controllers shall put in place privacy safeguards. As balancing tools, transparency and granular control for individuals on how personal data are processed will play a key role, together with an real analysis of potential risks. These efforts should concretely mitigate privacy risks in behavioral advertising.

Let’s see how EU authorities guidelines on profiling (expected before December) will clarify these aspects and ultimately discrimination risks.

Francesco Banterle

A requiem for torpedo actions? A catalogue of the most recent decisions on the issue

IPlens3 Comments

 

Actions

(i) relating to a European Patent

(ii) aimed at obtaining a declaration of non-infringement of different national portions of said European Patent

(iii) brought before Italian Courts

(iv) against a patentee who is not domiciled in Italy

are commonly known as Italian torpedoes (the expression is a fortunate coinage of Mario Franzosi).

These actions are often started to take advantage of the rules concerning lis pendens. Where a non-infringement action is pending before a Court (say an Italian Court) with regard to the national portion of a European Patent (say the German portion), any infringement action subsequently brought before the Court of another country (say a German Court) with regard to the same portion of the same European Patent may be stayed. This stay – and the consequent delay in ascertainment of infringement – is the goal of torpedo-launchers.

Of course, the slower the jurisdiction, the longer the stay. Thus, launching a torpedo is particularly effective in slow jurisdictions, like – at least in the past – that of Italy.

Traditionally Italian Courts have not looked with favor on such actions, seeing them as tools for misusing the (flaws of the Italian) legal system.

This traditional view was authoritatively expressed by a 2003 decision of the Joint Divisions of the Court of Cassation (the Windmöller decision), which deracinated torpedo actions on the grounds that Article 5.3 of the Brussels Convention of 1968 does not apply to non-infringement claims (Italian Court of Cassation, decision no. 19550/2003, in Giur. Ann. Dir. Ind., 2004, pp. 61 ff.). If it is the plaintiff itself which denies the existence of a harmful event, said the Court, then by definition there cannot be jurisdiction under Article 5.3 of the Brussels Convention.

A few years later, in the GAT case (here), the EU Court of Justice struck another blow against torpedoes by stating that the rule of exclusive jurisdiction laid down by Article 16.4 of the Brussels Convention of 1968 [corresponding to Article 22.4 of Regulation 44/2001] concerns all proceedings relating to the registration or validity of a patent

“irrespective of whether the issue is raised by way of an action or a plea in objection” (the principle was later incorporated in Article 24.4 of Regulation 1215/12).

As a result – and even regardless of the restrictive interpretation of Article 5.3 of the Brussels Convention given by the Windmöller ruling -, in order not to fall into the exclusive jurisdiction under Article 16.4 of the Brussels Convention and 22.4 of Regulation 44/2001, torpedo actions had to be based on pure non-infringement arguments.

In this scenario, most certainly not favorable to torpedoes, a decision of the Joint Divisions of the Court of Cassation reopened the discussion on the admissibility of this kind of action (Court of Cassation, 10 June 2013, in Giur. ann. dir. ind., 2013, pp. 60 ff.: the Asclepion case; a full English translation of the decision has been published in IIC, 2014, pp. 822 ff.). In the context of a non-infringement case brought before the Court of Rome by a German company with regard to the Italian and German portions of a European Patent owned by a US company, the Joint Divisions – quoting, word for word, the EUCJ Folien Fischer decision (here) – stated that

(a) “Article 5.3 of Regulation 44/2001 … must be interpreted “as meaning that an action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict falls within the scope of that provision”

and also that

 (b) “therefore [pertanto, in the original Italian text] with regard to the declaration of non-infringement sought … before the Court of Rome, the Italian Courts must be considered to have jurisdiction, on the grounds that they are the Courts of the place where the harmful event may occur, also with regard to the “German portion” of the European Patent” [my translation].

The 2013 Asclepion ruling certainly lent itself to interpretation as a general permit to launch torpedoes, at least when they do not rely on any arguments of invalidity. This is, indeed, what the Court said. But, looking more closely, a missing step can be seen in the reasoning of the Asclepion ruling, between statements (a) and (b). This significantly limits its practical impact.

If closing the jurisdictional door of Article 5.3 of Regulation 44/2001 to non-infringement actions, as the Windmöller 2003 decision did, fatally blocks any attempt to launch torpedoes, interpreting Article 5.3 as covering both infringement and non-infringement actions does not necessarily mean – in spite of the adverb “therefore” used by the Court of Cassation – that the Italian Courts have jurisdiction under this provision over actions concerning the foreign portions of a European Patent. To this end, something more must exist, and namely a link with Italy.

It is precisely because of the (non-) existence of this link that the torpedo actions brought before Italian Courts after the Asclepion ruling have been stopped.

In Schindler v. Otis, in line with Asclepion, the Court of Milan (Judge Dr. Marina Tavassi; decision of 27 January 2014, published in Giur. ann. dir. Ind., 2014, pp. 741 ff.) admitted that, in itself, a non-infringement action may be brought against a foreign defendant under Article 5.3. Nevertheless, it declined its jurisdiction on the non-infringement claims submitted against a US patentee, insofar as the Spanish portions of the European patent in suit were concerned. According to the Court,

“Italy can be the place where the harmful event occurs or may occur only with regard to the Italian portion of a European patent, because there cannot be harm – actual or potential – caused in Italy by the alleged infringement of the Spanish portions of the patents in suit. Indeed, any national portion of a European patent is effective only in the relevant country and may be infringed only in that country” [my translation].

Therefore, in the opinion of the Court of Milan, when it comes to the infringement/non infringement of foreign portions of European patents owned by foreign patentees, there can never be a link with the country of Italy.

In the more recent Basf v. Bayer case, the Court of Milan (Judge Dr. Alessandra Dal Moro; the decision, dated 14 December 2016, published in Riv. dir. ind., 2017, I, pp. 309 ff. and also available here) fully confirmed the above approach and declared its lack of jurisdiction over the non-infringement of the foreign portion of a European patent (in particular, the German portion). In doing so, the Court explicitly dealt with the reasoning of Asclepion, clarifying why, in its view, the Court of Cassation’s decision could not be read as allowing torpedoes:

“the fact that article 5.3 of Regulation 44/2001 (now replaced by Regulation 1215/2012) may be applied to non-infringement actions in no way changes the stance of the Supreme Court with regard to the existence of jurisdiction in the case of infringement (or non-infringement) of non-Italian portions of European Patents. A claim seeking a declaration whereby certain conduct does not constitute infringement of a patent means that the patent is effective, and this effectiveness is geographically limited to the perimeter of the legal system to which it refers. Outside that perimeter of effectiveness, it is not possible to discuss infringing or non-infringing conduct and it is therefore not even possible to allege an, actual or potential, ‘harmful event’” [my translation].

A further decision was issued on torpedoes in 2014, but on different grounds. In Agilent v. Oerlikon, the Court of Genova (Judge Dr. Rossella Silvestri; the decision, dated 23 April 2014, is available here) declined its jurisdiction because the torpedo-launcher had raised invalidity arguments in support of non-infringement claims concerning the German portion of a European patent and a German utility model. The claims thus fell into the exclusive jurisdiction of the Courts of the place of registration.

Hence, all the torpedoes launched in Italy after the Asclepion ruling have been dismissed on the grounds of lack of jurisdiction. Does this mean that the torpedo saga has finally come to an end?

Riccardo Perotti