Pages 149-170

WORKING SESSION

The Unified Patent Court

Marina TAVASSI - President of the IP Specialised Division of Milan (now Court of Enterprises) - Injunctive relief – the experience in common and continental law jurisdictions

Protection of intellectual property rights and injunctive relief pending the establishment of the Unified Patent Court – the Italian experience

1. The introduction of specialised court divisions

A reform process has taken place in Italy in recent years regarding the protection of intellectual property rights.

Legislative Decree No. 168 of 27 June 2003 created court divisions specialising in industrial and intellectual property. Twelve first-instance and twelve appeal courts in Italy have divisions dealing with industrial and intellectual property law plus unfair competition and competition in cases regarded as "interfering" with IP rights. In a more recent reform (Law No. 27 of 24 January 2012) it was decided to distribute these court divisions more evenly across the whole territory of Italy, and to increase their number to 21 (21 first instance, 21 appeal). From September 2012 these courts will be called "Undertakings Courts" or "Courts of Enterprises".

These specialised divisions are part of the district courts and courts of appeal of the regional capitals. A three-judge panel decides on each case.

Under this reform the competence of these court divisions has been extended to cover competition law, company law and tenders for contracts of European relevance (up to a certain value, established by law).

The concentration of judicial capacity dealing with IP disputes – previously dealt with by 165 non-specialised district courts and 29 appeal courts throughout Italy – into a few specialised court divisions enhances the IP expertise of the judges appointed to them. They take a supra-district perspective, which will ultimately ensure that an adequate response is provided in matters of substantial complexity and international relevance. This requires that we standardise our diverse hermeneutic approaches to ensure consistent court rulings and legal certainty. This should enhance the reliability of our system in the eyes of foreign investors, who tend to evaluate the strength of a country's judicial system in terms of the effectiveness of its procedures.

These specialised court divisions have also been officially designated as Courts for European Trade Marks, Designs and Models pursuant to the EC Regulations.

Implementing another important aspect of the delegated act ("legge delega") of 12 December 2002, No. 273, an Industrial Property Code was issued in the form of Legislative Decree No. 30 of 10 February 2005 (amended by Legislative Decree No. 131 of 13 August 2010). The most notable effects of Article 15 of the above-mentioned "legge delega" were: "partition of the discipline into homogeneous fields" through "formal and substantial co-ordination of current dispositions in order to guarantee legal, reasonable and systematic consistency", "adequacy of the norms to the international and Community law", "revision and harmonisation of the protection of copyright law on the designs and models with the tutelage of industrial property", "adequacy of the norms to the modern information technologies", "ordering and empowerment of the institutional organism devoted to the management of norms", "introduction of appropriate tools for simplifying and decreasing the administrative accomplishments".

The Industrial Property Code governs the industrial property rules and regulations, in its substantial and procedural aspects. It represents a body of laws, which brings together the numerous and heterogeneous norms once covered by separate pieces of legislation (with the exception, as mentioned above, of copyright law) and it simultaneously co-ordinates the treatment of this area with the civil code and the European and international norms. (In contrast the Intellectual Property Code is not a piece of stand-alone legislation: it is integrated into the Copyright Law (Law No. 633 of 1941), which has been reformed in recent years to bring it into line with European Law and what is known as the Enforcement Directive (Directive 2004/48/EC)).

Particular emphasis was placed on the reform of procedural rules to assure quicker and more efficient protection as well as to simplify and unify the protection instruments. This task was assigned to the court divisions specialising in IP (now called "courts of enterprises").

The exclusive competence of the specialised court divisions and the new Code provide the instruments for more efficient protection of the market in the face of global competition, with the aim of regaining the competitiveness of the Italian system and – dare I say it – allowing our country to make a significant advance in the protection of industrial property and the fight against infringement and counterfeiting (imitation).

2. Civil procedure in the field of intellectual property

In intellectual property litigation in Italy (we use the term "intellectual property" to mean intellectual and industrial property), there are actions for the following:

• infringement
• revocation or nullity of the patent, trade mark, industrial design and copyright
• attribution of the right to the owner
• damages
• interim measures (including seizures, injunctions, penalties, publication of the decision)

All of these claims can be brought before the specialised court divisions.

In recent years the courts have been working hard and have become highly specialised. However, among the first-instance courts, a high percentage of cases (about 70%) are filed before the Courts of Milan and Rome, Milan handling the most patents. Milan and Rome are followed by Turin, Venice, Bologna and Naples.

The Italian system does not operate "enlarged courts" in this area (meaning courts involving technical experts). For knowledge on technical aspects of the case, an expert witness (or a panel of experts) can be appointed.

The decision to involve an expert is taken during the evidence-gathering phase and is based on specific questions that the judge submits to the expert. This expert does research and reports to the judge, often on his own or sometimes with the help of an assistant. The expert is entitled to ask the parties for clarification and to get information from third parties.

The parties can follow the actions of the appointed expert or they can choose an expert themselves whose report can be given to the court-appointed expert.

In the Italian legal system the expert's opinion is not considered as evidence: it aims to add something to the judge's technical background knowledge, and helps him to evaluate the evidence. The expert's brief is to explain the scientific and subject-specific rules to the judge, who in turn makes a personal assessment of the evidence.

No matter what, expert competence ends when the judicial assessment starts because this assessment is the remit of the judge alone.

Expert evaluation is not binding on the judge, but the Supreme Court has ruled that the judge must explain why he has not endorsed the conclusions expressed by the expert he appointed.

It is possible now, thanks to the recent amendment of the IP Code (Legislative Decree No. 131 of 2010), to ask for a pre-trial expert report, to make a preliminary evaluation of the case (for instance, about the validity or the nullity of a patent, or about counterfeit goods), and also to settle the litigation. This could be used for rapid dispute settlement (a prompt resolution of controversies on the merits) without resorting to lengthy proceedings.

The IP Code specifically governs proceedings before the specialised court divisions, while at same time referring to the law on civil proceedings in Italy. They are the same rules, but there are some particularities as regards evidence and provisional measures.

3. Standards of proof in IP cases

Regarding evidence, Italian law employs the principle of "allegation by the parties". In this regard, courts can only hear evidence from the litigants and do not have significant investigative powers of their own. The burden of proof is governed by Article 2697 of the Italian Civil Code, which stipulates that "any person wishing to assert a right before the court must prove the facts upon which that right is based. Anyone who challenges the relevance of these facts, or who contends that the right has either been changed or expired, must prove the fact on which the exception is based". This rule, which stipulates precisely what evidence is to be furnished respectively by the plaintiff and defendant, plays a key role in the proceedings, since disputes often hinge on whether or not one of the parties has fulfilled his burden of proof. In other words, if a plaintiff fails to substantiate his claim, it will be rejected regardless of the opposing party's attitude (unless that opposing party has conceded the plaintiff's rights), and even if the defendant is judged in absentia.

The same principles govern the burden of proof in IP cases. Article 121 stipulates that the burden of proof of the invalidity or revocation of an industrial property right is, in all cases, on the person who challenges that right. The burden of proving an infringement is on the patent owner. Proof of a patent's (or trade mark's) revocation due to non-use may be provided by any means, including simple presumption.

The Italian patent system does not have substantive examination procedures such as those under the European Patent Convention. It is important to point out that Italian courts have no investigative powers independent of motions by litigants, except for some instruction measures such as reports written by court-appointed experts (Articles 61 ff Code of Civil Procedure) or requests for information from the offices of Public Administration (Article 213 CCP). Judges do not have the power to investigate the facts of a case freely: the law governs exactly what evidence is admissible in court, as well as the form and manner in which it is presented and accepted.

The above-mentioned principles are also applied in patent cases, save some measures which have been introduced specifically for this area or following the introduction of international patent laws adopted by Italy.

The provision, which transcribed the TRIPS Agreement (reached at the Marrakech session of the Uruguay Round on 15 April 1994 and implemented via Legislative Decree No. 198 of 9 March 1996) into Italian law, invested judges with broader powers in respect of trade marks and patents, enabling them to seek evidence and other elements on which to base their decisions, even though these powers are still conditional upon a motion by one of the litigants (e.g. discovery, acquisition of information from the opposing party, confiscation or description of evidence of the reported violation (also from a third party), power to submit to the court-appointed expert documents which can prove the invalidity of the patent).

Regarding evidence and provisional measures, the TRIPS Agreement gives new inquiry powers to the judge in patent, trade mark and industrial design cases, particularly concerning the enforcement of intellectual property rights such as general obligations (Article 41), civil and administrative procedures and remedies (Articles 48, 49), and provisional measures (Article 50).

The most interesting aspects relate to evidence and injunctions (i.e. the order to desist from an infringement). The following provisions are the most important:

• Production of evidence by the opposing party (Article 121, second paragraph, IP Code);
• Collection of information through examination of the opposing party (discovery: Article 121bis IP Code);
• Order to provide all the elements necessary to identify the subjects involved in the production and distribution of the infringing goods or services and of their channels of distribution (Article 121, first paragraph, second point, IP Code);
• Measures to guarantee protection of undisclosed information (recommendation pursuant to Article 39 TRIPS on protection of undisclosed information in cases of unfair competition; Article 121, third paragraph, IP Code);
• Presumption that any identical product when produced without the consent of the patent owner will, in the absence of proof to the contrary, be deemed to have been obtained by the patented process (Article 67 IP Code);
• Seizure or description of evidence of the reported violation (Articles 129 and 130);
• Possibility for the appointed expert to receive documents concerning the requested questions even if the documents have not yet been exhibited in the proceedings (Article 121, fifth paragraph, IP Code).
• Possibility to request the appointment of an expert in a pre-trial phase.

This last possibility was introduced by the reform of the IP Code, Legislative Decree No. 131 of August 2010. Using this pre-trial mechanism, it is possible to get a rapid evaluation of the technical aspects of the case and – on the basis thereof – to negotiate a settlement of the litigation.

The new rule also establishes the possibility of having a court-appointed expert try to reach a direct settlement between the parties, through the assistance of their experts and lawyers.

It also provides for the possibility of getting, through the judge's order, useful information to help identify people involved in the production and distribution of the goods and services allegedly infringing the IP rights, and their channels of distribution.

We must take every precaution to protect confidential information as mentioned above (Article 47 TRIPS Agreement states: "unless this would be out of proportion to the seriousness of the infringement").

4. Preliminary measures

It is possible for the owner of a patent, trade mark, or copyright to obtain preliminary measures against the alleged infringer. These measures are very effective because they guarantee immediate protection. These kind of precautionary proceedings are a great success of our system because they are very rapid. It is possible to obtain a decision from the judge within two or three months, or – if necessary – within a few days, or – exceptionally – within a few hours.

An example of this is my decision in the Samsung vs. Apple proceedings for injunctive relief to reject Samsung's request to have the launch of Apple iPhone 4S blocked. I decided in a relatively short period – two months – given the complexity of the case (order of 5 January 2012).

The decision on preliminary measures and injunctive relief is taken by a single judge and can be appealed before a panel of three judges attached to the same specialised court division. This panel excludes the judge who took the original decision.

An appeal of this kind is also decided in a short period, making it a very efficient system.

In addition, if any party wants to start proceedings on the merits, the preliminary measure may go on to become definitive and binding on the parties involved in those preliminary proceedings.

The new Italian Civil Procedure Code, as well as the reform adopted to harmonise Italian law with the TRIPS Agreement, and more recently Legislative Decree No. 131 of August 2010, have considerably amended the provisions on preliminary measures.

Before initiating ordinary proceedings, the plaintiff may request and obtain a "description", a "seizure" order or an interlocutory "injunction".

A "description" is an order of the court authorising the plaintiff to inspect and describe the infringing products or process, with the assistance of a bailiff, a court expert and sometimes a photographer. The function of the description is to preserve evidence of the tort and evidence of its extent.

A "seizure" is an order of the court authorising the plaintiff to block the infringing goods in order to avoid any damages to the rightful owner while he is waiting for the final judgment. It is important to note that the seized goods cannot be sold by the defendant as long as the seizure provision is in force, but the defendant is not prevented from manufacturing or selling other goods. To this end the system provides an efficient means of injunctive relief.

Injunctive relief is thus the most interesting preliminary measure.

An "interlocutory injunction" or "injunctive relief" is a court order to enjoin a party from manufacturing, using or marketing a product that infringes an industrial or intellectual right. Usually this order is reinforced by the imposition of a pecuniary fine (penalty or astreinte) for any subsequent violation or for any delay in complying with the order.

For all these preliminary measures and especially for the injunction, the court, having considered the circumstances, may demand security from the applicant to cover the payment of any damages.

In exceptional cases one can obtain a preliminary measure without serving the application on the opposite party (ex parte), even if usually one must serve the application after filing it before the court.

In the Italian system since the reform of 2005, judges are also entitled to order the publication of the order granting injunctive relief (and in general preliminary measures) in newspapers and magazines so as to provide consumers with the necessary information about the case and the court's decision.

This form of injunctive relief is a highly efficient remedy, because it is very rapid and allows the judges to block a particular behaviour when this behaviour infringes a patent (or a trade mark, etc.) and there is a risk that the injury suffered by the patent owner will not be adequately compensated when the judgment on merits is issued.

In order to evaluate the conditions necessary to grant this measure the judge has to consider whether there is sufficient evidence of the right of the patent owner and of the infringement. The registration of a patent guarantees the holder the presumption of patent validity. However in preliminary proceedings it is also possible for the alleged infringer to present a claim for patent (trade mark) nullity. In this case the judge can appoint an expert to evaluate the patent even if he is dealing with precautionary proceedings. In that case the expert is invited to perform his services within a short period (two or three months).

On the basis of the expert evaluation the judge can decide if there is scope for granting injunctive relief, and whether the patent is valid, the product of the opposite party infringes this patent and the spread of the infringed products definitely risks ruining the reliability and reputation of the protected product on the market.

If this is the case, the judge can immediately block the sale of the infringing product, ordering its withdrawal from the market, imposing a penalty, and ordering – if necessary – the publication of this decision in newspapers and magazines.

5. Damages

Another group of rules in the IP Code governs damages.

In the Italian system the evaluation of damages is generally based on Article 1223 of the Civil Code. It covers the loss sustained by the injured party/the creditor and the loss of profits insofar as they are a direct and immediate consequence of the infringement/the non-performance or delay. The rule is the same for liability either in contract or tort.

It is interesting to observe that a provision relating to damages in Article 125 of the IP Code provides that the judge, when requested by the injured party, may liquidate a lump sum determined on the basis of the evidence of the proceedings and on the presumptions deriving therefrom.

The suggestion for the judge is to take into account all appropriate aspects such as prejudicial economic consequences, including loss of profits, which the owner of the infringed right has suffered, the benefits accrued by the infringer and, whenever appropriate, aspects other than those of an economic nature such as moral prejudice caused by the infringement to the owner of the right.

The loss of profit is set at an amount not lower than the amount of the fees that the infringer would have paid if he had obtained the licence from the owner of the infringed right.

The owner of the right may demand the return of all profit made by the infringer, or (as possible alternatives) either reimbursement for his loss of profit or reimbursement of all profit made by the infringer that exceeds his loss of profit.

Thanks to the recent reforms of our laws and the establishment of the specialised divisions, the Italian system is now in a sufficiently strong position to face the challenges of globalisation and to guarantee the efficient protection of intellectual property rights. This extends to the information technology field.

The Italian system of preliminary measures and especially of injunctive relief has proved to be very efficient, so it is used a lot and most cases start with a claim for injunctive relief. In addition, in a fair number of cases in which the judge has granted such a measure, the preliminary proceedings are not followed by a judgment on the merits because the parties are satisfied with the summary evaluation of these proceedings. Based on the judge's preliminary decision, the parties often reach a final agreement amongst themselves.

6. The Rules of Procedure of the Unified Patent Court

The rules governing the powers of the Court and preliminary and precautionary measures (provisional and protective measures) in the Draft Agreement on the Unified Patent are similar to those in the Italian system. For example: order to produce evidence, to preserve evidence, including a description, taking of samples, seizure of the infringing goods and the materials and implements used in the production and/or distribution of these goods and the documents relating thereto, and the inspection of property. The courts may also order, in appropriate cases and under certain conditions, the communication of banking, financial or commercial documents.

In the Italian system there is no provision for "freezing orders", but it is possible to obtain a similar order to establish the seizure of the assets located in our territory, the appointment of a custodian (a guardian) and an injunction to restrain the owner from dealing in any assets, whether located within its jurisdiction or not.

It is considered to be fundamental to have the possibility (Article 35a, par. 4, Draft Agreement) to grant an injunction (and in general a preliminary measure) without the other party having been heard, in particular when any delay is likely to cause irreparable harm to the proprietor of the patent, or where there is a reasonable risk of evidence being destroyed. After such an order (inaudita altera parte), the opposite party must be summoned within a short period to be given the opportunity to be heard (following the general rule of Article 34a, par. 2).

Regarding injunctions, the possibility to impose a penalty in the Italian system is somewhat different from the situation under the Draft Agreement, because in the latter the penalty is paid to the Court (Article 37a, par. 2) while in the Italian system it is paid to the injured party. I think that the solution chosen by the Agreement is a useful one in the case of violation of a court order, and it enables the court to derive some monetary benefit.

It is also very efficient when the injunction is accompanied, in the European system (Article 38 Draft Agreement) as well in the Italian one (Article 120 IP Code), by further measures to preclude the distribution of the infringing goods and to prevent future violation. To this end the judge can order the recall of products from a sales channel, the removal of infringing property from a product, and the destruction of the materials and implements used in the production and/or distribution of these goods.

In my opinion it is also very useful to suggest to the judges (this principle is not in our national system, but it is described in the jurisprudence and taken into consideration by the courts) that they balance the proportionality between the seriousness of the infringement and the remedies ordered, as well as taking into account the interests of third parties (including consumers).

I applied this principle in the Samsung/Apple case.

Last autumn Samsung filed a claim for injunctive relief before the Specialised Division of Milan, of which I am president. Samsung requested the judge to prohibit Apple from selling the latest model of the iPhone on the Italian market. The launch on the Italian market of the iPhone 4S was scheduled before Christmas 2011. Samsung also requested an injunction regarding the new models of iPad, which were ready to be sold.

The complexity of the issues brought before me involved both the protection of some "families" of patents owned by the Korean company (103 families, covering thousands of patents) and, at the same time, problems related to standard-essential patents and the "frand" (fair, reasonable, and non-discriminatory) licence. In the precautionary proceedings Apple introduced a counterclaim stating that Samsung had infringed competition law, abusing its dominant position, impeding Apple from using its patents and refusing to grant a "frand" license to Apple. Samsung, owing to the counterclaim proposed by Apple, requested a postponement of the hearing.

The case deserved special attention. The decision involved many aspects of the relationship between competition and IP rights. It was of particular interest in view of its market impact and of the financial interest of the parties in the proceedings.

In considering this case, I started by looking at the relationship between the parties, and the previous contact between them in order to agree on the percentage of royalties requested by Samsung to grant the use of its patents to Apple. I also looked at the supply from the companies Qualcomm and Intel of chips used to build the new Apple models, and the existing agreements granting Qualcomm and Intel licences on Samsung patents. In addition, I weighed up the parties' interests and in particular took into account the potential harm for either party that could result from the granting or the refusal of the injunction.

In the end I decided to reject the adoption of the interim measure, on the basis that Apple seemed to be exercising its right in using the Qualcomm and Intel chips in question. This could be considered to be an "exhaustion" of the Samsung rights. (This principle is expressed with reference to national law in Article 5 of the Industrial Property Code (Legislative Decree No. 30, 10 February 2005). Similar provisions are provided for the Community trade mark (Article 13, Council Regulation (EC) 207/2009) and the Community design (Article 21, Council Regulation (EC) 6/2002).)

Regarding Rule 206 of the draft Rules of Procedure of the Unified Patent Court (RoP), it would be reasonable in my view to express in the text the purpose of a provisional measure in order to highlight its function/scope (ratio).

As we know, the main aim of provisional measures is to ensure that the execution of a future judgment on the merits is not frustrated by the actions of one party pendente lite.

According to general principles of law widely observed and to the jurisprudence of the International Court of Justice, the essential justification for the power of a tribunal in granting relief before it reaches a final decision is that the action of one party pendente lite damages or threatens to damage the rights of the other party in such a way that it would not be possible to restore fully those rights, or remedy the infringement thereof, simply by a judgment in the other party's favour. In fact in international settings there is an even greater need for rapid action through provisional and protective measures.

It should be kept in mind that even in the internal market of the European Union there is not yet a body of uniform or harmonised rules on protective measures and Article 31 of Regulation 44/2001 provides that application may be made to the courts of a member state for such provisional measure as may be available under the law of the state, even if the courts of other member states have jurisdiction as to the substance of the matter.

Only the International Law Association has submitted detailed proposals on this topic1 and the ALI/UNIDROIT Principles of Transnational Civil Procedure devote Principle 8 to this issue2.

I would therefore suggest that the RoP should clearly provide for two general categories: orders ensuring that, pending final determination of the dispute, the status quo will be maintained and orders designed to secure the final judgment of the court by preventing the defendant from disposing of assets pending the outcome of the proceedings.

With reference to the rules of international civil procedure, both of these types of provisional and protective measures have a freezing effect because they restrain the defendant from removing assets that are a necessary basis for the final decision.

I would like to suggest that the rule makes reference to two simple requirements of evidence: the claimant has to show that he has a good arguable case on the merits and that there is a real risk that the final judgment will be impeded owing to the disposal of the assets unless the defendant is restrained from disposing of them.

In conjunction with such an order, the court might grant ancillary orders for discovery and issue interrogatories to identify where the objects of violation are located, the extent of the violation and people involved in this behaviour.

Greater emphasis should be placed on the notion of the cross-border potential effect of the provisional measure in the rule of law.

With regard to Rule 207 on the "protective letter" I would like to focus on the following problem:

What sort of protective letter is there if the counterparty lodges a case on the merits instead of an application for provisional measures (within six months from the date of receipt of the protective letter)?

Regarding Rule 209, par. 3: in my opinion it would be preferable to convene a subsequent oral hearing in every case (after the decision on the urgent measures), in order to serve the application and the decision on the provisional measure on the opposite party and to confirm (or to revoke) the decision.

With regard to Rule 211, par. 2: the rule refers to the "right holder" and the degree of certainty "that the patent in question is valid". Let us bear in mind that the TRIPS Agreement and the Enforcement Directive established the possibility of obtaining provisional measures as early on as the registration (application) stage, provided that the patent application has been made accessible to the public or the persons on whom such an application has been served.

Par. 2, final statement: "such infringement is imminent", but also "is immanent", when the infringement is in progress.

There is a lack of guidance on description (a simple description of the allegedly infringing goods, or a description of the method in a process patent, or a description of every document necessary to prove the infringement): see Rule 170, par. 2b, "Means of obtaining evidence". A "description" is an order of the court authorising the plaintiff to inspect and describe the infringing products or process, with the assistance of a bailiff, a court expert and sometimes a photographer. The function of the description is to preserve evidence of the tort, without the consequences of a seizure. Article 35a of the Draft Agreement, 19 October 2011 states: "The Court may, even before the commencement of proceedings on the merits of the case, on application by a party who has presented reasonably available evidence to support the claim that the patent right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement". Par. 2: "Such measure may include the detailed description ... or the physical seizure of the infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto".

There is also a lack of guidance on how to preserve secret information. Nor is there a provision relating to astreinte or penalty, useful to prevent violation of the order. Usually the injunction is reinforced by the imposition of a pecuniary fine for any subsequent violation or for any delay in complying with the order.

In addition, I should mention that the TRIPS Agreement invests judges with broader powers in respect of (trade marks and) patents, enabling them to seek evidence and other elements on which to base their decisions, even though these powers are still conditional upon a motion by one of the litigants (e.g. discovery, acquisition of information from the opposing party, confiscation or description of evidence of the reported violation, also from a third party, power to submit to the court-appointed expert documents which can prove the invalidity of the patent, even if they have not yet been exhibited in the proceedings).

Regarding evidence and provisional measures, the TRIPS Agreement gives new enquiry powers to the judge in patent (plus trade mark and industrial design) cases, particularly concerning the enforcement of intellectual property rights: general obligations (Article 41), civil and administrative procedures and remedies (Articles 48, 49), provisional measures (Article 50).

There is also the possibility of getting, by virtue of the judge's order, information to help identify people involved in the production and distribution of the goods and services allegedly infringing the IP rights, and their channels of distribution.

We must take every precaution to protect confidential information as mentioned above (Article 47 of TRIPS Agreement says: "unless this would be out of proportion to the seriousness of the infringement").

Provisional measures are very effective because they can guarantee immediate protection. For example in the Italian system, these kind of precautionary proceedings are a great success because they are very rapid. In two or three days (and even ad horas) if necessary, it is possible to obtain a decision from the judge. This decision is taken by a single judge and can be appealed before a panel of three judges attached to the same court. The panel excludes the judge who took the original decision. I have found no comparable provision in the RoP, although appeals before the Unified Patent Court will also have to be decided within a short period if the system is to be efficient.

I would like to invite you to reflect on the possibility (existing in the Italian system) of transforming the provisional measure into a final decision. If any party wants to start proceedings on the merits, the preliminary measure (the only one that has anticipated the effect of the final decision) can go on to become definitive between the parties involved in those preliminary proceedings.

The benefit of this provision is that it avoids needless proceedings on the merits, lightening the workload of the Court and leaving it to the parties to decide on their future relationship.