Italian Torpedo

A term coined by Mario Franzosi in a 1997 article, Worldwide Patent Litigation and the Italian Torpedo, published in the EIPR. It refers to the technique of filing a declaratory judgment case in a slow jurisdiction such as Italy (and in certain particularly slow Italian courts (their speed is highly variable)), thereby under the Brussels Convention‘s lis pendens rule precluding another EU member state’s courts from taking the infringement case (as it is already before another EU court.) The result could be to stall the case for years.

As a tactic the Italian Torpedo has been effectively killed off by two 2006 decisions of the European Court of Justice, GAT v. LuK which held that jurisdiction to determine patent validity lay with the courts of the member state in which the relevant patent is registered and Roche v. Primus, which ruled that, although facts might appear similar in cross border cases, the question of infringement arose out of different acts and under different, if albeit similar laws, and that therefore member state courts lacked jurisdiction to consider infringement issues arising out of acts of infringement in other states.

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