Bombardier ./. Stadler: A case of interest for commuters

Case No. O2012_043 ¦ Main Hearing of 16 March 2015

Note that Hepp Wenger Ryffel is involved in this case on behalf of the defendants.

Plaintiff in this infringement action is Bombardier Transportation. The defendants of the Stadler group of companies essentially only argued for nullity as a plea in defense. The patent in suit is EP 1 963 157 B1 (see EPO Register and Swissreg for any further details). Stadler and Siemens had already challenged EP’157 in opposition / appeal proceedings at the EPO, but the patent was maintained as granted; see the decisions of the OD and the BoA here and here. The proceedings at the FPC had been stayed pending the decision of the BoA.

Now, what is the patent all about? In simple terms, it concerns the pairwise arrangement of transformer units and power converter units at the wheel units of a train:

The only independent claim 1 reads as follows:

Rail vehicle with a body (102) which is supported on a first wheel unit (103.1) and a second wheel unit (103.2) located a distance away in the longitudinal direction of the body (102), and an electrical drive device (104), which drives the first wheel unit (103.1) and the second wheel unit (103.2), wherein the drive device (104) comprises at least one first transformer unit (105.1) and a first power converter unit (106.1) allocated to it, which are arranged in the body (102), characterised in that the first transformer unit (105.1) and the first power converter unit (106.1) are arranged in the area of the first wheel unit (103.1) and drive the first wheel unit (103.1), and the drive device (104) comprises a second transformer unit (105.2) and a second power converter unit (106.2) allocated to it, which are arranged in the area of the second wheel unit (103.2) and drive the second wheel unit (103.2).

From the writ and the interim assessment of the reporting judge (both were put on file in EPO opposition / appeal proceedings; see here and here) it is clear that Stadler’s electric double-deck trains KISS are at stake:

Excerpt from interim assessment of the reporting judge, p. 3
Excerpt from interim assessment of the reporting judge, p. 3

See the interim assessment for any further information:

Download (PDF, 830KB)

In brief, the interim assessment held that (i) EP’157 is not novel over documents (compiled here from the EPO online file-wrapper) that had been submitted from ABB to Siemens and Stadler without confidentiality obligation; (ii) alternatively, EP’157 is not inventive over a combination of Wieser and Red Line Car. Further, a prior user right was acknowledged in the interim assessment (Art. 35 PatA), based on an offer provided to the Swiss Federal Railways (SBB).

All these issues were extensively discussed. In addition, the defendant also alleged a lack of novelty / inventive step over a presentation given by Peter Spuhler at a UITP conference (and corresponding documentary material in a database). My personal quote of the day: With respect to the prior user right, the defendant noted that the plaintiff merely refused to enter into a “dogmatic infight.”

Die Klägerin betreibt ein dogmatisches Durcheinander; sie verweigert den “dogmatischen Nahkampf”, […]

The parties also filed their debit notes. The value in dispute is CHF 1m. The plaintiff requested compensation for legal representation according to the tariff (Art. 5 CostR-PatC); no debit note was put on file in this respect. Plaintiff’s alleged costs for an assisting patent attorney amount to approx. CHF 15k. On the other hand, the defendant asserted much higher costs: CHF 376k for legal representation; CHF 104k for a former team of assisting patent attorneys and CHF 66k for the assisting patent attorneys currently on file. It remains to be seen whether the value in dispute is to be adjusted.

The parties did not enter into settlement negotiations.

Reported by Martin WILMING

— BIBLIOGRAPHY —

Case No. O2012_043 ¦ Main Hearing of 16 March 2016

Bombardier Transportation GmbH

./.

(1)  Stadler Altenrhein AG
(2)  Stadler Bussnang AG
(3)  Stadler Rail AG

Board of Judges:

  • Dr. Dieter BRÄNDLE
  • Dr. Tobias BREMI
  • Dr. Daniel KRAUS
  • Dr. Markus MÜLLER
  • Dr. Christophe SAAM

Court Clerk:

  • Susanne ANDERHALDEN

Reporting Judge:

  • Dr. Tobias BREMI

Representative(s) of Plaintiff:

  • Dr. Michael RITSCHER (MLL)
  • Dr. Mark SCHWEIZER (MLL)

Representative(s) of Defendants:

— PATENT IN SUIT —

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