LD Milan, 13 June 13 2023, decision, UPC_CFI_127/2023

The conditions referred to in Rule 197.1 RoP and Article 60(5) UPCA, for the granting of the measure without the prior hearing of the defendant, are:

1. The tight deadlines do not allow the parties to be convened before the end of the fair tomorrow;
2. There is a risk that the evidence will no longer be accessible to the claimant once that trade fair event is over, since the defendant is based abroad and the documentation indicated is easily concealed and/or destroyed.

In the internal division of competence between the Central Division and the Local Divisions, the latter are generally competent for provisional actions, based on the combined provisions of Article 32(1)(c) and 33 UPCA. This Local Division is then territorially competent on the basis of Art. 33(1)(a) UPCA, since in the Italian territory, the forum commissi delicti is identified, i.e. the place where the infringement of the patent is taking place or in any case threatened.

The Court acknowledges that pursuant to Rule 371.3 RoP, in case of urgency, when advance payment is not possible, the applicant’s representative will have to pay the fixed fee within the deadline set by the Court.

Pursuant to Rule 196.4 RoP, the measure shall be carried out – according to the national internal legislation in whose territory the remedy is to be implemented – by an expert, appointed by the Court and indicated in the operative part, chosen from the list of expert technical consultants in patent matters who habitually collaborate with the Court of Milan, which guarantees expertise, independence and impartiality, required by Rule 196.5 RoP