The patent in suit is CH 701 971 B1; see Swissreg for further details. In a nutshell, ECC claimed CH’971 is a patent for the technology it alleges Nestlé Nespresso uses to block its capsules. The suit had been flatly dismissed with decision O2015_001 of 12 July 2016. The FPC held that the phrase ‘toute capsule’ / ‘any capsule’ means (literally) any capsule that is suitable for use in the machines to prepare coffee, irrespective of whether or not the capsule is retained in the machine thereafter.
[…] l’expression «toute capsule» signifie dans le présent contexte toute capsule susceptible d’être utilisée dans le dispositif (machine à café) en question, de façon à permettre la préparation d’une boisson extraite (un café), ceci indépendamment de la question de savoir si une telle capsule est retenue dans la cage après l’extraction.
The plaintiff had admitted that ECC’s modified capsules were not retained in the attacked devices. Likewise, the defendant had submitted that not all capsules are retained in the attacked devices. Concluding, the FPC held that the attacked embodiments evidently did not retain ‘toute capsule’ / ‘any capsule’. The FPC further held that the request for injunctive relief reached beyond the scope of protection conferred by the patent, and the suit had to be dismissed for this reason, too.
For further background information and details of the underlying decision O2015_001, please see this Blog here.
It had been known since April 11 that the Supreme Court had dismissed ECC’s appeal with decision of 07 April 2017:
ECC essentially argued that the generic term ‘any capsule’ meant ‘capsule of any kind’ or simply ‘capsule’ — and that the claim does not require that systematically all capsules deformable upon contact with hot water are retained. Rather, it would suffice if only a relatively high number of such capsules were retained. In a nutshell, the Supreme Court holds that there is apparently no specific meaning of the term ‘any capsule’ in the specific technology, and that the literal meaning is perfectly clear. The appellant did not identify any part of the specification of the patent that would allow for a different interpretation.
A non-return valve (3), comprising an inlet section (5) in the form of a self-supporting trough-shaped section and an outlet section, the outlet section being made of a flexible resilient material connected to the inlet section (5), whereby the outlet section comprises a flat flexible resilient strip (6) with a high inherent degree of flexibility, the strip (6) being connected with the inlet section (5) at its upper edge; and further comprising a component that is separate from the strip (6) providing a complementary surface against which the lower end of the flexible strip (6) may seal.
Defendant (1) is Enswico AG. More precisely, it was. Enswico AG has recently sold its operative business, according to information on their website (screenshot below taken today). Bankruptcy proceedings have been opened with decision of 31 August 2015; see Commercial Register. Thus, proceedings have been split and today’s hearing in the matter O2014_002 only concerned the second defendant, Van Allmen AG. Separate proceedings against Enswico AG (in liquidation) will be continued, too (O2015_013). The attacked product is Enswico’s valve used in waterless urinal systems:
The second defendant, Von Allmen AG, apparently produced the valves for Enswico AG. Two embodiments of the valve are at stake: A first generation embodiment where the flaps were not connected at the lower end; and a second generation where the two flaps are interconnected by connectors. It has been argued that the second generation embodiment is subject of granted EP 2 553 299 B1 (see characterizing part of claim 1 and Fig. 8 ff).
From what has been argued I conclude that the preliminary assessment of the reporting judge must have been in favour of the plaintiff’s position, i.e. that the patent is infringed (by both embodiments) and valid. Accordingly, the plaintiff’s opening pleadings were succinct, fully supporting the assessment of the reporting judge. Not so the defendant’s reply. In brief, four major issues were adressed in subsequent pleadings of the parties:
i) (Lack of) distinctiveness of the request
From what has been argued I tend to assume that the claim language “high inherent degree of flexibility” is literally recited in the plaintiff’s request for injunctive relief. Parties dissented on the question of whether or not this wording is specific enough in order to meet the legal requirements as definied e.g. in the decision BGE 131 III 70 E3.3 of the Supreme Court. Defendant insisted that the case should not be considered in view of the improper request.
ii) Claim construction by the reporting judge
Fig. 3 of D1
I understood from the plaintiff’s pleadings that the reporting judge had interpreted a non-return valve according to the patent as a valve which is gas-tight when it is slack, without special outer influences. It was disputed that a gas-tight closure is achieved in the dry state, at least for the second generation embodiment. In a nutshell, defendant argued that if the reporting judge’s assessment were correct, then at least the second generation embodiment cannot infringe since it is not gas-tight without special outer influences. Else, if the construction of this feature was not correct, at least the prior art document D1 (US 3 835 857) would be novelty-destroying for the patent in suit.
Next, the inlet section (5) in the form of a self-supporting trough-shaped section has been discussed. Defendant argued that if in D1 the inlet section was not self-supporting since it is made from the same material as the flaps, then both the first and second generation could not infringe — because the same material is used for both elements.
iii) Undue extension of subject-matter
Defendant raised various objections in this respect. First, the documents as filed allegedly only disclosed a valve that “has a component (4) having a flat strip (6).” Defendant argued that this implies a one-piece construction, in light of the whole specification (e.g. manufactured in an injection moulding process). To the contrary, claim 1 as recited above requires a connection (of two parts?). Defendant argued that this constitutes an undue extension of subject-matter.
Second, defendant alleged a shift from a complementary component to (only) a complementary surface of such component in the granted claim.
iv) Equivalency
From the discussion at the hearing, I conclude that two features of the claim were held to be not literally fulfilled by the attacked embodiments, but rather only under the doctrine of equivalents. Interestingly, the features at stake are marked-up as amendments in the DREX, i.e. were at least not irrelevant for the patent to proceed to grant: First, that the component is separate from the strip. Note that the second generation embodiment has connectors (which, in turn, is a patented embodiment; see above). And second, that it is (only?) the lower end of the flexible strip that seals.
Parties finally entered into non-public settlement negotiations.
Reported by Martin WILMING
— BIBLIOGRAPHY —
Case No. O2014_002 ¦ Main Hearing of 14 September 2015
Case No. O2012_016 ¦ Main Hearing of 03 December 2014
This case pertains to clamping systems for compacting of metal and ceramic powder. Parties to the proceedings are Erowa AG as the plaintiff and ProGrit GmbH as the defendant.
The allegedly infringing devices of the defendant are abbreviated as RCS (roller clamping system) and SCS (segmented clamping system). Screenshots taken on 06 January 2015 from the defendant’s website are embedded below.
Progrit RCS (visited 06 Jan 2015)
Progrit SCS (visited 06 Jan 2015)
Note that the roller clamping system RCS is not available in Germany and Austria, but rather only a
new version RCS II without heightended surface sections at the chuck.
From the hearing, it became evident that this suit had been lodged already more than 5 years ago; it had thus been transferred to the FPC from a formerly competent cantonal court. Moreover, the parties have been before courts in other jurisdictions on this matter, too (see references below for each of the patents in dispute). Noteworthy, Progrit’s managing partner Dietmar Walter Kramer had been Head R&D at Erowa until 2004 (cf. CV, as found online on December 24, 2014; markup added).
1. THE PATENTS IN SUIT
i) The Swiss part of EP 1 068 918 B1
The first patent in suit is the Swiss part of EP 1 068 918 B1. Please see Swissreg for the bibliographic details.
As indicated above, this matter was also litigated elsewhere, e.g. in Germany. Please see DPMAregister for bibliographic details of the German part of the European patent. In Germany, the patent has most recently been upheld in amended form, published as DE 500 08 295 C5; see the decision 4 Ni 43/10 (EP) of the German Federal Patent Court (issued 08 November 2012) and the decision X Zr 148/12 of the German Supreme Court (issued 29 July 2014); and a correction thereof.
The courts in Dusseldorf dealt with the corresponding infringment proceedings; see decision 4a O 270/09 of the Dusseldorf Regional Court (LG) and decision 2 U 29/13 of the Dusseldorf Higher Regional Court (OLG). The decision of the OLG already takes into account the amended wording of the patent as upheld by the Supreme Court with decision X Zr 148/12 (see above).
ii) The Swiss part of EP 1 068 919 B1
The second patent in suit is the Swiss part of EP 1 068 919 B1. Please see Swissreg for the bibliographic details.
The German counterpart was also litigated in Germany. Please see DPMAregister for bibliographic details. In first instance, the German Federal Patent Court decided to maintain the patent in amended form; see decision 4 Ni 20/11 (EP) of 24 September 2013 (the decision is res judicata).
Again, corresponding infringement proceedings were dealt with by the Dusseldorf courts; see decision 4a O 84/10 of the Dusseldorf Regional Court (LG) and decision 2 U 58/11 of the Dusseldorf Higher Regional Court (OLG).
iii) CH 699 547 B1
The third patent in suit is CH 699 547 B1; see Swissreg for the bibliographic details.
2. WHAT THE HEARING WAS ALL ABOUT
The hearing was somewhat exceptional in that the discussion did not concern technical matters at all. Rather, pleadings revolved around highly interesting points of law.
i) Allowable submissions after closure of the file
Not always that clear
A first issue relates to the restriction of the request for injunctive relief. It was undisputed that a restriction of the request for injunctive relief constitutes a limitation of the claim which is explicitly permitted at any time; see Art. 227(3) CPC. However, the right of the plaintiff to present new facts in support of such a restricted request was under dispute. Note that the amendment(s) to the requests were made only after the second round of written submissions, i.e. when the closure of the file (“Aktenschluss”) had already occured; see Art. 229(2) CPC and the decision 4A_73/2014 (r. 6.3.2.3) of the Supreme Court. Go figure: Being allowed to limit your request for injunctive relief, but not being allowed to freely argue in support of this limited request? That’s a nasty situation for a plaintiff!
The plaintiff argued that Art. 227(3) CPC should overrule Art. 229 CPC. Otherwise, a limitation of the claim (which is explicitly permitted in Art. 227(3) CPC at any time) would be impossible in patent infringement proceedings. In practice, it is rather unlikely that a patentee would be in a position to argue in support of infringement of a limited request and validity of a limited patent claim (see below) without having to present new facts. You cannot reasonably stockpile for each and every situation that might occur, be it a decision of a foreign court in co-pending proceedings on the same patent family, or new prior art that comes to light.
Moreover, the plaintiff argued that even the requirements of Art. 229 CPC were fulfilled for all patents in suit, essentially as follows:
The decision of the German Federal Supreme Court with respect to the German counterpart of the first patent in suit (see above) constitutes proper nova; see Art. 229(1) lit. a CPC and the decision 5A_568/2012 of the Swiss Federal Supreme Court, r. 4. Moreover, the patentee / plaintiff had partially surrendered the patent vis-à-vis the Patent Office (Art. 24 PatA) to bring the wording of the claim in line with the decision of the German Supreme Court. This would also constitute a new fact and the patentee / plaintiff should be allowed to present new facts in support of validity and infringement of the limited claim (like in the corresponding proceedings in Germany, see above). Note, however, that the limitation had not yet been published at the date of the hearing, and the FPC apparently dismissed a request of the patentee to postpone the hearing until publication of the limitation.
With respect to the second and the third patent in suit, the plaintiff argued that the preliminary assessment of the reporting judge and the decision 4 Ni 20/11 (EP) of the German Federal Patent Court constitute nova according to Art. 229(1) CPC, and that it should likewise be allowed to present new facts in support of validity and infringement of correspondingly limited claims that address these newly raised issues.
In sum, this boils down to three scenarios of limitations to a patent claim / request for injunctive relief: Is it allowed to present new facts in support of a limited claim / request, when the limitation is occasioned by: –
… a corresponding decision in another country?
… a statement in the preliminary assessment of the reporting judge?
… a partial surrender of the patent?
ii) Limitation under Art. 24 lit. c / partial invalidity
The patentee / plaintiff asserted that the patents in suit are valid and infringed on the basis of independent patent claims that were to be limited by incorporation of features taken from the description (i.e., not a combination of an independent claim with a dependent claim).
In the present proceedings, the defendant did not lodge a counterclaim for nullity but rather argued for nullity as a mere plea in defense. Apparently, the FPC had indicated to the parties in writing beforehand that it is doubtful whether it is possible at all to limit a claim on the basis of a feature taken from the description vis-à-vis the FPC, or if this shall only be possible when a counterclaim for nullity had been lodged (see Art. 27 PatA). E. Brunner in Der Patentverletzungsprozess (SMI 1994, p 127) favours the latter. Even though the plaintiff / patentee fiercely rebutted this view, the prior information from the FPC had prompted the plaintiff / patentee to declare the partial surrender of the patents vis-à-vis the patent office before the hearing. The partial surrender had not yet been officially published when the hearing took place, but had already been approved by the patent office.
A decision of the FPC on these highly interesting points of law would definitely make a good read. However, the parties finally entered into settlement negotiations and it remains to be seen if a decision will be issued at all.
Reported by Susanna RUDER and Martin WILMING
—
BIBLIOGRAPHY
Case No. O2012_016 ¦ Main Hearing of 03 December 2014
Case No. S2014_006 ¦ Decision of 06 October 2014 ¦ “Kaltmilchschäumer: Gutheissung vorsorglicher Massnahmen (Patentverletzung); Anforderungen Glaubhaftmachung offenkundige Vorbenutzung; Anforderungen Sicherheitsleistung”
— IN A NUTSHELL —
A prior use as prima facie evidence in a plea of nullity is frequently cumbersome — and was unsuccessful here. The prior use had allegedly occured already more than 10 years ago. The defendant did not provide a binding cease and desist declaration; preliminary injunctive relief was granted. It was not even made conditional on the payment of a security by the plaintiff since the defendant had repeatedly argued that the allegedly infringing machines were no longer marketed anyhow. Thus, the FPC did not anticipate that the measures may cause loss or damage to the defendant (Art. 264 CPC).
— IN MORE DETAIL —
Milk frothers are frequently litigated in Switzerland. You might perhaps recall the decisions “Milchschäumer“ and “Milchschäumer II“ a few years ago. The present case is apparently not related to the old ones, but again pertains to a milk frother. Fortunately, catchwords are not confusingly similar: This time, it’s a milk frother for cold milk (Kaltmilchschäumer).
i) BACKGROUND OF THE CASE
One of the plaintiffs is the patentee of both patents in suit, i.e. a Swiss patent and a European patent. The other plaintiff is a member of the same group of companies. However, the parties are anonymized in the decision.
Nevertheless, from the wording of the requests and the technical details given in the decision, it is evident that CH 707 091 B1 and EP 2 120 656 B1 are the patents in suit. The patentee is Steiner AG Weggis. A connected undertaking of Steiner AG Weggis is Thermoplan AG — quite likely the second plaintiff. Never heard? Thermoplan manufactures the machines that Bloomberg recently referred to as “Starbucks’ secret weapon“.
Opposition/appeal proceedings are currently pending against EP 2 120 656 B1. The online file wrapper at the EPO is insightful: Franke Coffee Systems GmbH of Germany intervened as a party (under Art. 105 EPC), since proceedings for infringement of that patent had been instituted against them. In the intervention, it is referred to two summary proceedings at the regional court of Düsseldorf (Germany), i.e. 4a O 52/14 and 4a O 81/14 (the fulltext of the intervention is available here). No further details on these proceedings are available to date, but the present decision of the FPC also refers to two “corresponding decisions in summary proceedings” at the regional court of Düsseldorf on the German part the patent in suit. There are some further hints in the decision; in sum, it is abundantly clear to me that Franke Coffee Systems is involved as the defendant (i.e. the Swiss member of the Franke group of companies, Franke Kaffeemaschinen AG).
The European patent was maintained in slightly amended form by an Opposition Division (OD) of the EPO; see the Druckexemplar of the interlocutory decision of the OD. Appeal proceedings are still pending. The independent claims as maintained by the OD read as follows (markup vis-à-vis EP 2 120 656 B1 as granted:
1. A method for the production of milk foam or milk-based drinks, wherein milk is sucked with a pump (1) out of a container (3, 3′) and conveyed to an outlet (11′), air or a gas being added to the milk, whereby the milk/air mixture is processed in a cold or hot state into milk foam and conveyed as cold or hot milk foam to the outlet (11′), characterised in that
the milk or the milk/air mixture, which is sucked by the pump (1) und mixed with the air respectively the gas, is selectively conveyed via a throttle point (12) directly or via a flow heater (16) to the outlet (11′).
2. An apparatus for implementing the method according to claim 1, having a pump (1) sucking the milk from a container (3, 3′) via a suction line (2), having an outlet line (10) leading from the pump (1) to an outlet (11′), having an air supply line (5) opening out into the suction line (2), characterised in that the outlet line (10) has two parallel sections (10a, 10b), which can be enabled selectively by means of a valve (15) between the throttle point (12) and the outlet (11′), a flow heater (16) being assigned to one of these outlet line sections.
ii) WORDING OF THE REQUESTS
The proper wording of requests for injunctive relief is a matter of ongoing discussion amongst practitioners. Swiss case law strictly follows the rule that a request must be precise enough to allow enforcement of the prohibition by mere factual inspection; see e.g. this Blog here (with further reference). The present request for preliminary injunctive relief is quite lengthy. But it is a good example of a request that makes use of photographic illustrations of the infringing features to meet this goal (in German language, but you will get the idea):
Moreover, the request did not reach beyond the scope of the patents. Consequently, the FPC held that the wording of the requests was formally allowable.
iii) CLAIM CONSTRUCTION
Construction of the term “throttle point (12)” was under dispute. Clearly, this throttle point converts the milk/air mixture to a milk foam. In a function-oriented construction of the term, the FPC first clarified the terms “milk/air mixture” and “milk foam”. There is neither a precise definition in the patents nor have the parties provided any commonly accepted definition. A Ph.D. thesis of Katja BORCHERDING was not held sufficient since it only relied on a single reference for an amount of 0.5-0.97 vol.% of air in a milk foam. The term “milk/air mixture” was thus construed very broadly as “any mixture of air and milk”, thus also encompassing “milk foam”.
As to the contribution of the throttle point, the FPC held that this is any kind of bottleneck that at least contributes to the formation of a milk foam.
iv) ALLEGEDLY INFRINGING EMBODIMENT NO LONGER IN USE, PRELIMINARY INJUNCTION ISSUED ANYHOW: HOW COMES?
The defendant argued that the allegedly infringing machine had only been produced and sold from January 2013 to February 2014. It had then been replaced by a new machine with a different (allegedly non-infringing) milk frother. However, the defendant did not provide any arguments as to why the contested embodiment would not infringe the patents in suit. The FPC considered the legitimate interest of the plaintiff ex officio (Art. 59 CPC). A danger of repetition of the alleged and undisputed infrigement remained since the defendant did not declare to cease and desist; cf. BGE 124 III 72, r. 2a and BGE 128 III 96, r. 2e. Moreover, validity of the patents was still disputed, and even the allegedly non-infringing machine was illustrated with a diagram that still carried the name of the contested device. In sum, the FPC held that the legitimate interest in preliminary injunctive relief still remained.
A threat of a not easily reparable harm was acknowledged for the reason alone that it would be difficult for the plaintiff to later on prove the causality of the harm to have occured from the infringement. Urgency of the matter was not compromised by the fact that the plaintiff had awaited the outcome of the decision of the OD of the EPO; this was rather appreciated as prudent by the FPC.
v) PRIOR USE: REQUIREMENT OF PRIMA FACIE EVIDENCE
The defendant argued for nullity of the patents in suit. Besides some further prior art documents (see below), nullity was argued in view of a prior use “Esprè Magic”. This prior use had been documented in corresponding opposition proceedings before the EPO with the following documents:
Note that the prior use had occured already more than ten years ago. Two affidavits in support of the prior use and the technical details thereof were put on file by the defendant when the plaintiff had disputed the public availability and the relevant technical details of “Esprè Magic”. These affidavits were not supported with further documentary material. Moreover, the affidavits were not free from inconsistencies. Thus, the FPC was reluctant in considering these declarations. Apparently, the Regional Court of Düsseldorf came to the same conclusion in parallel proceedings in Germany. Moreover, it was not only that the FPC had doubts as to whether a prior use had actually occured or not. Even the technical details of the alleged prior use were held to be not sufficiently clarified by prima facie evidence to be considered novelty-destroying for the patents in suit.
vi) FURTHER PRIOR ART DOCUMENTS
Novelty of claim 1 of CH 707 091 B1 over R4 (i.e. EP 0 485 350 A1) was disputed. The decision highlights two decisive issues: First, the term “throttle point (12)” was construed very broadly (cf. above), and thus the bottleneck in conduit 6 of R4 was identified as to fulfil this feature. Second, it was required that the milk foam be conveyed to the outlet in a cold state. R4 discloses that the conduits 3 and 6 can be held at room temperature, thus with inoperative heating elements 10. Accordingly, the FPC held that a prima facie lack of novelty of claim 1 of CH 707 091 B1 was given.
To the contrary, it was held that no prima facie case of lack of novelty or inventive step of claims 1 and 2 of EP 2 120 656 B1 had been established. The FPC essentially followed the reasoning of the OD of the EPO in consideration of R4 and R6 (i.e. US 6,192,785 B1).
vii) SECURITY
The FPC could have made the interim measure conditional on the payment of security by the plaintiff, but (only) if it had been anticipated that the measures may cause loss or damage to the defendant (Art. 264 CPC). The defendant requested a security of CHF 2’000’000,–, but the FPC stressed that the defendant had repeatedly argued that the allegedly infringing machines are no longer marketed anyhow. Therefore, one would not anticipate that the preliminary injunction could cause loss or damage to the defendant.
viii) WHAT’S UP ON THE MARKET
The allegedly infringing machines are not identified in the decision. But in the meantime it has become a rubber-stamping excercise for me to dig a bit deeper into what is actually happening on the market. I have learned from followers of this blog that this is highly appreciated. So, these are the snippets of information that I could gather from the internet:
The world premiere of the Franke FoamMaster™ FM800 (flyer dated 12/12; CH and DE) was in early 2013 in Switzerland (see gourmet 4/13). Consequently, this machine was also promoted on the Franke website back in 2013 as the new premium device:
Franke Website (CH): Screenshot of July 30, 2013
However, the FM800 is no longer promoted on the Franke Website for Switzerland (see screenshot of August 13, 2014 below). The same holds true for the Website for Germany. No signs of the FM800 machine anymore. Seemingly, the FM800 has been replaced by a machine FM750 (flyer dated 07/14; CH):
Franke Website (CH): Screenshot of August 13, 2014
Thus, the FM800 would perfectly match the bibliographic criteria of the allegedly infringing machine at stake in the present decision. I have found a detailed technical booklet on the FM800 machine on the internet, with a water flow diagram (Wasserlaufschema) on p. 320:
This illustration looks strikingly similar to the one reproduced on p. 6 of the decision, but details are scarcely visible in the decision. Pump P100 and restrictor BL0.8 are referred to in the decision, and are also visible on the right side of the above water flow diagram. In my personal opinion, all these are strong technical indications towards the FM800 machine.
Reported by Martin WILMING
— BIBLIOGRAPHY —
Case No. S2014_006 ¦ Decision of 06 October 2014 ¦ “Kaltmilchschäumer: Gutheissung vorsorglicher Massnahmen (Patentverletzung); Anforderungen Glaubhaftmachung offenkundige Vorbenutzung; Anforderungen Sicherheitsleistung”
An unfortunate plaintiff: Yet two further unsuccessful attempts to make a case pending, in addition to O2012_012. A first writ was held querulous and thus returned to sender. A second writ did not comply with minimal standards, was overly lengthy, side-tracked and invective against authorities. The plaintiff failed to improve this second writ, so the case was finally not considered. Again.
— THE DECISION IN MORE DETAIL —
The present matter is a follow-up of O2012_012. At that time, the FPC did not consider the case in view of incomprehensibility of the claim (Art. 132(1) and (2) CPC; Art. 23(1) lit. a PatCA).
The plaintiff tried the case once again and filed a writ on August 22, 2013. But again, the writ was not in conformance with at least a minimum of formal requirements. The plaintiff did not take learnings from the prior case. Consequently, the President of the FPC returned the querulous writ to the plaintiff; Art. 132(3) CPC.
Next, the plaintiff filed yet another writ on November 4, 2013. At least some progress: The President set a deadline for correction / improvements to the writ (Art. 132(1) and (2) CPC), since the majority of the writ did not deal with any patent infringement at all. Moreover, it was invective against authorities.
Ihre vorliegende Eingabe von 97 Seiten befasst sich, wie Sie selbst ausführen, zu wohl 95% mit dem, was Sie als “ungebührliche Benachteiligung der Aargauer-Bestecher-Behörden” bezeichnen […]. Daneben figurieren weitere Themen (u.a. Tennis-Technik, Tennis-Trainings-tubel-Terror-Tyrannen, Drug-Drops mit Nikotin, Betreibungsamt, Psychiatrie, Untermieter, Anästhesie, Schwester), die mit der konkreten Patentverletzungsklage nichts zu tun haben. Ihre Klageschrift erweist sich deshalb als unzulässig weitschweifig. Zudem ist sie, was die wiederholten Verbalinjurien gegenüber Behörden und Behördenmitglieder angeht, offensichtlich ungebührlich.
Moreover, it was explicitly noted that the writ did not provide any reasons and arguments for the alleged infringement; the President explicitly referred to BGE 131 III 70 for guidance with respect to the proper wording of requests for injunctive relief. The plaintiff also desired legal aid according to Art. 117 ff CPC. The President recommended to use the form which is available online.
The plaintiff improved the writ in due time. However, the requests (recited in section 4 of the decision on p. 4 and 5) were formally defective for various reasons — if not tragicomic. On the merits, the plaintiff failed to provide any comprehensible discussion of claim features in relation to the alleged infringement(s), despite the President’s guidance in this respect. Even worse, the request did not identify any allegedly infringing embodiment of the defendant(s). Consequently, it was decided to not consider the case. The request for legal aid was accordingly dismissed as the case was devoid of any chances of success; Art. 117 lit. b CPC.
No(!) costs were charged on the plaintiff this time, but the FPC emphasized that it might simply archive further submissions of this kind, without comments.
By the way, just in case you are interested in the technical issues at stake: The plaintiff had invoked CH 698 211 B1 and EP 1 449 391 B1; see Swissreg and the EPO Register for further information.
1. Art. 72 PatA: Request for an order to cease and desist a patent infringement.
For a request for an order to cease and desist a patent infringement to be admissible it must contain a detailed description of the incriminated act. This description must be sufficiently specific such that a purely factual examination is sufficient to determine whether an act is prohibited. A description which requires a legal qualification or the interpretation of ambiguous technical expressions is insufficient. A request for an order can therefore be limited to the wording of a patent claim only if the wording of the patent claim itself fulfils these requirements (r. 17).
2. Art. 26 PatA; Art 8 CC: Burden of allegation if a party raises a ground for nullity of a patent.
If a party raises a ground for nullity the assessment of which involves the skilled person [and] his common general knowledge, this party bears the corresponding burden of allegation, i.e. it must specifically name the skilled person (defined according to education and/or profession) and his common general knowledge (in particular the extent of the pertinent technical knowledge supposed to be known to him at the relevant date). If such a specific allegation is not put forward the ground for nullity will be dismissed (r. 19-20 and 31-32).
3. Art. 125 PatA; Art. 51PatA: Prohibition of double patenting.
The loss of effect of the Swiss patent due to the existence of a European patent for the “same invention” with the same effective date according to Art. 125(1) PatA is subject to the condition that the same technical teaching is protected by the claims of both patents (r. 37).
1. Procedural History
Richemont International S.A. had sued De Grisogono S.A. for patent infringement before the Civil Court of the canton of Geneva on 15 July 2008. The defendant delivered his answer on 04 November 2008 (the year 2011 given in the decision on p.6 is evidently a typo), argued for non-infringment, lodged a counterclaim for nullity of the patent in suit and requested that the infringemenent action be held an act of unfair competition. As an auxilliary measure, the defendant requested to appoint an expert. With his reply of 30 January 2009, the plaintiff inter alia requested that three experts were to be appointed. The rejoinders were filed on 27 April 2009 (defendant) and 12 July 2009 (plaintiff), respectively.
Finally, three experts were appointed: René BESSON (horologist), Ronald NOLL (patent attorney) and René ADDOR (horologist). BESSON and NOLL submitted a joint opinion on 05 April 2011; ADDOR completed his opinion on 13 June 2011.
The Civil Court of Geneva decided to transfer the case to the Federal Patent Court on 26 January 2012. The parties were invited on 23 October 2012 to comment on the two expert opinions. They filed their comments on 14 January 2013, and the plaintiff put the competence of the FPC into doubt. The main hearing took place on 05 November 2013 (extra muros in Fribourg).
2. The patent in suit
The patent in suit is CH 695 712 A5 of Richemont International S.A.; for bibliographic details and legal status, see Swissreg. In brief, independent claim 1 pertains to a mechanism to display a date from two separate numbers, comprising
a first annulus (1) with a first set of digits and a toothing at its inner circumference to drive it;
a mobile (9,10) with a plate (9) comprising a second set of digits and a part (10) with a multitude of teeth and wherein the plate (9) is partially arranged on top of the first annulus; such that at each stable position of the first annulus (1) and the mobile (9,10) a digit of the first annulus (1) and a digit of the mobile (9,10) are arranged side by side in a frame or two parts (2,13) of a frame;
characterized in that the mobile (9,10) is pivot-mounted outside of the first annulus (1) and wherein the first annulus (1) comprises a toothing (14) also at its outer circumference, interacting with the teeth of part (10).
For ease of reference, an illustrative figure and the original claim wording in French language is given below:
The mechanism can be best understood on the basis of Fig. 1-3 of CH 695 712 A5 (excerpts of which are given below) showing the sequence of a date switch:
Excerpts from Fig. 1-3 of CH 695 712 A5
3. The incriminated watches
Two de GRISOGONO watches were incriminated, i.e. Instrumento Grande and Instrumento Grande Open Date. A key feature of both these watches is the large date indication (at 6-position in the pictures below):
Instrumento Grande (left) Instrumento Grande Open Date (right)
An annotated picture of one of these watches had been filed by the plaintiff, for illustrative purposes:
Instrumento Grande Open Date, annotated by the plaintiff (taken from p. 5 of the decision).
4. What has been decided
4.1 Competency of the FPC
According to Art. 41 PatCA, the Federal Patent Court shall, where it is competent, adjudicate in cases that are pending before the cantonal courts, provided that the main hearing has not yet been held. The procedure of taking evidence had not yet been concluded, and no main hearing had taken place. Thus, the cantonal court referred the case to the FPC.
On the subject matter of the case, the competency of the FPC is evident (Art. 26 PatCA).
4.2 Wording of the requests
The wording of the request essentially recites the wording of the only independent claim 1 of the patent in suit. Don’t assume that this is typically the case. Formal requirements for such requests are harsh and sometimes difficult to meet in view of the decision 131 III 70 of the Supreme Court. For a request for an order to cease and desist a patent infringement to be admissible it must contain a detailed description of the incriminated act. This description must be sufficiently specific such that a purely factual examination is sufficient to determine whether an act is prohibited. A description which requires a legal qualification or the interpretation of ambiguous tehcnical expressions is insufficient. A request for an order can therefore be limited to the wording of a patent claim only if the wording of the patent claim itself fulfils these requirements. This was held to be the case here. (But beware: It is more an exception than the rule that recitation of the claim wording is sufficient.)
4.3 On the merits of the patent
Besides the alleged infringment of CH 695 712 A5 (see 4.4, below), the FPC had to deal with validity issues since the defendant raised a counterclaim of invalidity (see 4.3.1 to 4.3.4, below). Note that Swiss patent applications are only formally examined but not on the merits, i.e. for novelty and inventive step. (A pre-examination on the merits had been introduced for certain inventions in the textile and watch industry with an amendment of the PatA in 1954, but this has been abolished again in 1996.)
4.3.1 Alleged undue extension of subject-matter
The amendments carried out during prosecution are discussed in the decision on the basis of the claim wording with tracked changes:
The amendments were found to be clearly and unambiguously derivable from the documents as filed. In any case, this would not have been a ground for nullity under Art. 26(1) c PatA, but would rather have resulted in a shifted filing date (Art 58(2) PatA effective until June 30, 2008; BGE 4A_109/2011 / 4A_111/2011, r. 4.1).
As a sidenote, the FPC emphasized that it is the understanding of the person of routine skill in the art that counts for assessment of the question of whether or not an amendment goes beyond of what can be clearly and unambiguosly derived from the application as filed. Thus, the person of routine skill in the art is to be identified beforehand, typically by means of his profession and/or education. Providing this definition is an obligation of the party who raises an argument or counterclaim that relies on the knowledge of the person of routine skill in the art. The defendant did not do so but rather only gave a general definition without any context to the technical matter at stake.
4.3.2 Novelty
The defendant alleged a lack of novelty of the patent in suit over the following documents:
As can be concluded from Fig. 1 of the Valjoux patent (below, for ease of reference), the disk carrying the first series of digits (the upper disk in fig. 1) is not in the form of an annulus (couronne). Consequently, there is also no disclosure of an inner and outer toothing on the (missing) annulus. Novelty over the Valjoux patent was thus acknowledged.
Piguet discloses an annulus for the first series of digits, but without any outer toothing (but rather only two inner toothings). Moreover, the mobile (carrying the digits 0-3) is not is pivot-mounted outside of the annulus. Novelty over the Piguet patent was thus acknowledged. See Fig. 2 of the Piguet patent below, for ease of reference:
This piece of prior art was not alleged by the defendant in order to challenge novelty or inventive step (but rather only in the context of the alleged undue extension of subject matter). Nevertheless, ADDOR had discussed this document also for patentability issues — and the plaintiff did not object. Anyhow, novelty over the Jaeger-Le Coultre patent was acknowledged by the FPC: The mobile (carrying the digits 1-3) is not pivot-mounted outside of the annulus. Moreover, there is no outer toothing on the annulus that interacts with the toothing of the mobile. See Fig. 1 of the Jaeger-Le Coultre patent below, for ease of reference:
Fig. 1 of EP 529 191 B1 (Jaeger-Le Coultre)
iv) JP 44-20619 (Aichi Tokai Denki)
This document had not been relied on by either of the parties. ADDOR had identified it in a search which had not been authorized or instructed by the FPC. Even worse, he came up with this document only two months after he had initially provided his opinion. The plaintiff could have objected against consideration of this document, but did not do so. Anyhow, novelty over the Aichi Tokai Denki patent was acknowledged for essentially the same reasons as outlined for the Valjoux patent above: It does not disclose an annulus being driven by an inner toothing and interacting with a mobile by means of an outer toothing.
Unfortunately, I could not find a pdf of this document, but at least the figure given in the decision is shown below for illustration purposes:
Figure of JP 44-20619 (Aichi Tokai Denki)
4.3.3 Inventive step
The FPC assessed the inventive merit on the basis of the so-called problem-and-solution-approach (see EPO Guidelines for Examination, G-VII, 5). The objective technical problem to be solved was identified in a simplification of the mechanism and a reduction of the number of pieces (see paragraphs [0005] and [0006] of CH 695 712 A5). There was no apparent incentive for the person of routine skill in the art to arrive at the claimed invention in an obvious manner; thus, the could-would-approach failed and inventive step was acknowledged.
4.3.4 Double patenting
The plaintiff is also owner of EP 1 296 204 B1. The European application and the Swiss patent CH 695 712 A5 had been filed on one and the same day, with apparently the same documents. However, the resulting scope after prosecution was different in both cases (I did not yet make a detailed comparison of the claim wordings). Thus, the FPC held that both patents are not directed to the same invention and therefore Art. 125 PatA does not apply.
4.3.5 Infringement
The report BESSON/NOLL came to the conclusion that the patent in suit is infringed. From the report ADDOR, the FPC took the same conclusion (albeit implicitly). Taking both reports into due consideration, the FPC followed the conclusions drawn by BESSON/NOLL.
The primary counter-argument of the defendant was that the (let’s call it) structure 3 in the figure below was not an external toothing (“denture périphérique externe” in the original claim wording in French).
Fig. 1 of EP 1 612 628 B1 (De Grisogono); this mechanism is embodied in the incriminated watches.
The ADDOR report provided the following illustration of the technical term tooth (dent; left side) and gudgeon (ergot; right side):
Illustrations of technical terms by the expert Addor: dent (left); ergot (right)
The FPC was not at all convinced that the so-called ergot was not a tooth. In fact, even in EP 1 612 628 B1 itself the structure 3 is referred to as a tooth (dent); see paragraph [0010]. The FPC held that also a single tooth constitutes a toothing according to the patent in suit.
5. In a nutshell
The defendant was ordered to cease and desist from using the invention, and to report on the sales figures of the infringing devices within a deadline of 60 days. The counterclaims of the defendant were dismissed. The decision can be appealed within 30 days.
Case No. O2012_004 ¦ Decision of 24 August 2012 ¦ “Nichteintreten wegen ungenügendem Rechtsbegehren; Bemessung der Parteientschädigung”
This case started back in March 2010 at the cantonal court of Grisons. Written proceedings were already completed before the case was transferred to the FPC in December 2011. No settlement could be reached in a hearing on 23 May 2012. The FPC then submitted the opinion of the reporting judge to the parties: It was held that the patent – to the extent it was valid – was not infringed. The parties were invited to provide their comments. Within the same time limit, the plaintiff was invited to present a more precise request; the FPC explicitly noted that the case would otherwise not be considered.
Two aspects of this case are of particular interest:
1. Non-consideration of the case because of insufficient wording of the requests
From a technical point of view, this case deals with an alleged infringement of EP 1 183 218 B1, pertaining to lightweight concrete. In brief, it was claimed that a lightweight aggregate is included which
[…] exhibits a screen-analysis curve that is graded between 0 and the largest grain size with at least 3 fractions, preferably more than 5 fractions, in particularly preferred manner at least 8 fractions.”
The initial requests filed by the plaintiff literally recited this feature of the claim, with or without the preferred ranges. In their counterstatement, the defendants objected to the unspecific wording of the requests. In reply, the plaintiff presented an additional request, wherein the lightweight aggregate was named as
Technopor Perimeter 50
(Author’s note: A leaflet with some details about this product can be found here, in German language only.)
The patent-in-suit fails to clearly define the term “grain size”, and the parties were of dissenting opinion on the meaning of this term. One may only conclude from the patent-in-suit that a grain size may well comprise a certain range of actual grain sizes. However, neither a clear definition of the breadth of such a range is given, nor the necessary amount of grains to be found in such a range in order to be considered as a grain size.
The plaintiff presented the following data of the grain sizes of Technopor Perimeter 50 (it was not contested that this product was used by the defendant):
The left column contains the mesh sizes of the screen plates (Maschenweite); the middle column shows ranges of the through fraction percentage of Technopor Perimeter 50 passing the respective screen plates (Siebdurchgang); the right column illustrates a typical value within these ranges. Referring to this data, the plaintiff alleged that it showed six grain sizes, but also admitted that there maybe more grain sizes if a finer distinction would have been made.
Thus, the FPC held that the request is evidently not specific enough for a bailiff to enforce the prohibition by mere factual inspection, but that interpretation of technical terms would still be required. The trade name Technopor Perimeter 50 did not help, either, since a product trade name can be changed, and/or a different product can be sold under the same name. Thus, a product trade name cannot replace the detailed description of the technical embodiment of the allegedly infringing product; cf. BGE 131 III 70 E3.3 and earlier posts on this topic (S2012_002 and S2012_003) for further reference.
The plaintiff did not further specify the requests, despite being invited to do so. Consequently, the FPC did not consider the case.
The FPC – again – clearly set out the rules for drafting proper requests, in accordance with the case law of the Federal Supreme Court. First, a proper claim feature analysis of the claim(s) is to be done. Next, the actual implementation of each and every claim feature of the alleged infringement is to be established and to be included into the request.
(Author’s note: It might perhaps have helped the case at least to be considered by the FPC if the plaintiff had relied on the ranges of typical through fraction percentages at hand in order to draft a more precise request.)
2. Compensation of costs
The compensation for professional legal representation is governed by the value of the claim. The parties had agreed on a value of the claim of CHF 100’000,–.
According to the significance, difficulty and extent of the dispute and the attorney’s time spent for services rendered, a value of the claim in the range of CHF 50’000,– to 100’000,– shall correspond to a compensation in the range of CHF 10’000,– to 24’000,– (Art. 4 and Art. 5 CostR-PatC). However, there is some discretion to reduce or increase the compensation in exceptional cases (Art. 8 CostR-PatC).
The plaintiff argued that the compensation should be fixed at the lower side since the court finally did not consider the case. In contrast, the defendant asserted attorney costs of CHF 111’000,– (corresponding to 250 hours spent on the case), and yet further CHF 51’000,– (corresponding to 135 hours spent on the case) for the patent attorney’s costs. These costs incurred were harshly criticised by the FPC as “exorbitant”, “neither necessary nor useful” and “smashing the scale”. The FPC highlighted that the case was a relatively easy one; it took the reporting judge only eight pages to assess both validity and infringement issues. Moreover, neither a main hearing was held, nor was a procedure of taking evidence necessary.
Finally, the FPC fixed the compensation for attorney costs to CHF 24’000,–, thus exactly in accordance with Art. 5 CostR-PatC. An additional compensation for the assistance of the patent attorney was fixed to CHF 16’000,–.
(Updated 19 September 2012; author’s note: A previously published version of this decision erroneously indicated the compensation to be paid as CHF 30’000,–, in total. Apparently, a rectified version (now indicating CHF 40’000,–) was submitted to the parties two days after dispatch of the inital version. Unfortunately, the rectified version does not give any hint towards this error being corrected.)
Reported by Martin WILMING
—
BIBLIOGRAPHY
Case No. O2012_004 ¦ Decision of 24 August 2012 ¦ “Nichteintreten wegen ungenügendem Rechtsbegehren; Bemessung der Parteientschädigung”
Case No. S2012_002 ¦ Order of 7 March 2012 ¦ “Formulierung von Rechtsbegehren”
In this interlocutory order, the FPC again objected the wording of a request for injunctive relief (cf. also case S2012_003 for further reference to the case law of the Federal Supreme Court in this respect). Here, the request merely referred to a specific product identified by its trade name and by reference to a flyer pertaining to this allegedly infringing product. However, such reference to the flyer would fail for several reasons:
First, the flyer was obviously made for advertising purposes only, but not in order to identify embodiments of features of the allegedly infringed patent. By means of example: For at least one feature of the claim, it was not readily apparent whether or not it is fulfilled by the product described in the flyer.
Second, the mere reference to a product name in the request is not sufficient anyhow. A product name can be changed, and/or a different product can be sold under the same name. Thus, a product name cannot replace the detailed description of the technical embodiment of the allegedly infringing product.
The Plaintiff was ordered to rectify the request accordingly in the reply; otherwise, the case will not be considered by the FPC.
Reported by Martin WILMING
—
BIBLIOGRAPHY
Case No. S2012_002 ¦ Order of 7 March 2012 ¦ “Formulierung von Rechtsbegehren”
Case No. S2012_003 ¦ Decision of 2 February 2012 ¦ “Dichtungsvorrichtung für Spannzange”
Based on a case that was transferred from the Commercial Court of the Canton of Berne on 27 December 2011, this first decision of the FPC has meanwhile become final. The crucial point was the wording of the request for preliminary injunction. The FPC held that the request reached beyond the actual scope of the patent. Thus, the request was dismissed:
Geht das Rechtsbegehren aber über den Schutzbereich hinaus, führt dies zur Abweisung des Massnahmebegehrens, ohne dass auf weitere Fragen noch einzugehen wäre.
Not much of a surprise so far. However, note that the request not only described embodiments of claim features (though the embodiment of one feature of the claim was missing), but also referred to specific trade names of the allegedly infringing articles. Nevertheless, it was not decisive whether or not the allegedly infringing articles as named in the request in fact implemented the missing feature. A product trade name can be changed, and/or a different product can be sold under the same name. Thus, a product trade name cannot replace the detailed description of the technical embodiment of the allegedly infringing product:
Daran ändert auch die Angabe von Typenbezeichnungen im Rechtsbegehren nichts; weil eine Typenbezeichnung jederzeit geändert bzw. unter der gleichen Typenbezeichnung anderes vertrieben werden kann, können Typenbezeichnungen die konkrete Umschreibung der technischen Ausgestaltung der angegriffenen Ausführungsform nicht ersetzen (BGE 131 III 70 E3.3).
(Note that the Commercial Court of the Canton of Zurich decided differently in a case pertaining to a medicament registered and approved by SwissMedic, the Swiss Agency for Therapeutic Products (cf. sic! 2008, 642): In such cases, the product and/or the name cannot be easily changed, and therefore the product name may well aid in precisely defining the subject matter of the request.)
The general approach in the assessment of distinctiveness of requests is prevailing case law in Switzerland based on the 2004 decision of the Federal Supreme Court referred to in the above citation. Later on, the Federal Court again expanded on the proper wording of requests (4C.361/2005). Albeit the request is to be directed to a specific conduct, it needs not to be identically directed to the allegedly infringing product. It may be drafted in more general terms in order to prevent further infringement in only slightly modified form. However, the request must be precise enough for a bailiff to enforce the prohibition by mere factual inspection:
Unterlassungsklagen müssen auf das Verbot eines genau umschriebenen Verhaltens gerichtet sein (BGE 131 III 70 E. 3.3). Dieses muss nicht mit dem konkret erfolgten Verletzungstatbestand identisch sein. Vielmehr kann das Verbot darüber hinaus allgemein formuliert werden, wenn ansonsten die Gefahr der Umgehung besteht. Eine solche Gefahr ist zu bejahen, wenn eine in bestimmter Form begangene Verletzungshandlung nicht nur die Wiederholung der genau identischen Verletzungsform, sondern auch die Begehung zwar leicht abgewandelter aber in ihrem Kern gleicher Handlungen, vermuten lässt (vgl. […] Peter Heinrich, Die Formulierung patentrechtlicher Unterlassungsbegehren und – Urteile, sic! 2006, S. 48 ff., S. 51). Die Formulierung des Verbots muss jedoch in jedem Falle so präzise sein, dass die verpflichtete Partei und die Vollstreckungs- oder Strafbehörden durch blosse tatsächliche Kontrolle ohne weiteres feststellen können, welche Handlungen gegen das Verbot verstossen (BGE 131 III 70 E. 3.3).
In patent matters, finding a proper wording for a request for (preliminary) injunction that fulfills the requirements as defined by the Federal Supreme Court is a slippery slope – not only, but maybe in particular in Switzerland.
Reported by Martin WILMING
—
BIBLIOGRAPHY
Case No. S2012_003 ¦ Decision of 2 February 2012 ¦ “Dichtungsvorrichtung für Spannzange”
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The patent in suit is CH 701 971 B1; see Swissreg for further details. In a nutshell, ECC claimed CH’971 is a patent for the technology it alleges Nestlé Nespresso uses to block its capsules. The suit had been flatly dismissed with decision O2015_001 of 12 July 2016. The FPC held that the phrase ‘toute capsule’ / ‘any capsule’ means (literally) any capsule that is suitable for use in the machines to prepare coffee, irrespective of whether or not the capsule is retained in the machine thereafter.
The plaintiff had admitted that ECC’s modified capsules were not retained in the attacked devices. Likewise, the defendant had submitted that not all capsules are retained in the attacked devices. Concluding, the FPC held that the attacked embodiments evidently did not retain ‘toute capsule’ / ‘any capsule’. The FPC further held that the request for injunctive relief reached beyond the scope of protection conferred by the patent, and the suit had to be dismissed for this reason, too.
Price differentiation for various markets is a common phenomenon, for a broad range of products. 
One of the plaintiffs is the patentee of both patents in suit, i.e. a Swiss patent and a European patent. The other plaintiff is a member of the same group of companies. However, the parties are anonymized in the decision. 
