The Fall and Rise of the Italian Torpedo in European Patent Litigation

Matthew R. Jones

©2014. Published in Landslide, Vol. 6, No. 6, July/August 2014, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

As an opening strategy in patent litigation, the “Italian torpedo” is one of the most interesting and creative. It arose out of the peculiarities of the rules governing jurisdiction between European Union member states (and, of course, out of the minds of diligent and creative lawyers), and became one of the most controversial tactics used by alleged patent infringers in Europe. It was also something of a headache for patentees and the practitioners representing them. For many years, most practitioners thought that the Italian courts and the Court of Justice of the European Union (CJEU) had “killed” the Italian torpedo. However, in a 2013 judgment, the Italian Supreme Court revived the Italian torpedo. This article discusses what the Italian torpedo is, how it died, how it caused a little trouble even after its death, how it came back with a vengeance, and what patentees might do to defend against it.

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