Case No. S2016_002 ¦ Main hearing of 01 September 2016
The plaintiff in this infringement case is Nestlé. It’s all about coffee capsules again. But the Nespresso® system is not concerned this time: Capsules compatible with Nestlé’s Nescafé® Dolce Gusto® system are at stake.
The attacked embodiment is Delica’s Twïn® system that has been introduced on the market in Switzerland in February 2016. A similar system is marketed elsewhere as Café Royal. The Twïn® capsules are compatible with Nescafé® Dolce Gusto® machines, and both systems directly compete in supermarkets. Nestlé now seeks injunctive relief in summary proceedings.
Unlike the Nespresso® system, both the Dolce Gusto® and the Twïn® system enable the customer to draft e.g. a latte macchiato from capsules:
Nestlé alleges infringement of EP 1 472 156 B1, i.e. the combination of claims 1, 3 and 9. The relevant claims read as follows:
1. Capsule designed to be extracted by injection of a fluid under pressure in an extraction device, containing a substance for the preparation of a beverage, comprising a closed chamber containing the said substance and a means allowing the said capsule to be opened at the time of its use and for allowing the said beverage to flow out, characterized in that opening is achieved by relative engagement of the opening means with a retaining wall of the closed chamber and in that the relative engagement is performed under the effect of the rise in pressure of the fluid in the chamber.
3. Capsule according to Claim 1, characterized in that the opening means (28, 32, 41, 48, 64, 71, 73, 74, 80, 81, 82, 84, 85, 86, 93, 94) is housed outside the closed chamber and in that the retaining wall (29, 33, 40, 45, 72, 92) is moved under the effect of the rise in pressure against the opening means.
9. Capsule according to Claim 3, characterized in that it comprises a cup (66) with a rim and a bottom having an opening for the outflow of the beverage and a membrane (67) welded to the periphery of the rim of the said cup and in that the means allowing opening comprises recessed and raised elements (73, 74) forming the bottom of the said cup covered by a thin film (72), this thin film tearing on the raised and recessed elements at the time of extraction.
The animated explanation on the Dolce Gusto® website is helpful to understand how the capsule actually works.
The interim assessment of the reporting judge held that this combination of features is not infringed by the Twïn® capsules, mainly in view of differences with respect to the opening means (including the function thereof and its interaction with the thin film to be opened). The defendant additionally argued for non-fulfilment of the two underlined features of the claims recited above.
In order to rebut the interim assessment of the reporting judge the plaintiff had commissioned a second opinion from an IP law firm. The plaintiff emphasized that this firm had assessed the matter completely independently. Right from the outset, the President left no doubt about the fact that this opinion is nothing but a party opinion. In addition, the defendant noted that this firm is regularly involved in disputes against Migros (or connected undertakings) on behalf of counterparties.
Nestlé refused to enter into settlement negotiations.
Reported by Oliver JEKER and Martin WILMING
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BIBLIOGRAPHY
Case No. S2016_002 ¦ Main hearing of 01 September 2016
Société des Produits Nestlé S.A.
./.
(1) Migros-Genossenschafts-Bund
(2) Delica AG
(3) Total Capsule Solutions SA
Composition of the Board of the FPC:
- Dr. Dieter BRÄNDLE
- Kurt STOCKER
- Dr. Herbert LAEDERACH
Court Secretary:
- Susanne ANDERHALDEN
Representative(s) of plaintiff:
Representative(s) of defendant:
- Dr. Thierry CALAME (Lenz & Staehelin)
- René WENGER (Hepp Wenger Ryffel), assisting in patent matters
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PATENT IN SUIT
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Do you have a copy of the decision renreded in this case? English version?
See this Blog here: http://www.patentlitigation.ch/dolce-gusto-patent-not-infringed/
It’s only available in German.