The Court of Milan clarifies that, where the defendant’s appeal against an IP preliminary injunction is still pending, the deadline to bring proceedings on the merits starts running only after the appeal proceedings have been concluded.

The CJEU, following a referral from the Italian Court of Cassation, has clarified that Article 132(4) of the Italian IP Code is incompatible with EU law: a national provision cannot allow a preliminary injunction to remain in force if the right holder fails to bring proceedings on the merits within the prescribed time limit and the defendant applies for its revocation.

By the order under discussion, the CoA overturned this decision finding that, contrary to the judgement of the CFI, the validity of the patent at issue was not established with a sufficient degree of certainty for the injunction to be issued.