Cluster Failure During a Hearing about Cluster Failure

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Case No. O2019_004 | Hearing of 30 June 2020

We first reported here that a blockchain infringement case might be pending at the FPC with some involvement of MLL. Shortly thereafter, on June 4, 2020, the official announcement followed and revealed that Sunshine Software Development GmbH had taken action against FRIENDZ SA for alleged infringement of the Swiss part of EP 1 151 591; see EPO Register and Swissreg for further information. Note that the patent has lapsed on 13 January 2020, after 20 years.

FRIENDZ SA describes itself as a start-up that aims to

[…] decentralize the digital advertising industry.

According to their website,

[…] brands can use Friendz Coins to access digital advertising.

These coins seem to be at the center of the present case.

As noted previously, little information is publically available about Sunshine Software Development.

EP 591 is directed to data access and management. From what could be gathered from the arguments made at the hearing, the subject matter of EP 591 seems to be relevant at least to Ethereum, and possibly other blockchain platforms. Much of the discussion related to infringement seemed to evolve around whether defendants shifted («verschieben») or replicated data, or what the difference between the two would be. Specifically, the two independent claims 1 and 30 of EP 591 comprise the following features:

the data storage means shift data redundantly stored in the system independent of an access of the computer unit as a function of the determined parameters of data transmissions between the data storage means.

redundantly stored data is shifted independently of an access of the computer unit (CL) to the data as a function of the determined parameters of data transmissions between the data storage means.

Apparently, the judge-rapporteur had concluded in his expert opinion that defendants did not shift data, and consequently did not infringe on claims 1 and 30.

We gathered from the pleadings that plaintiffs alleged a replication and subsequent deletion of data, which might realize a shift of data. Defendants appeared to argue that accidental deletion of redundantly saved data would not constitute a shift of data, and that replication was done for data safety reasons.

Speaking of accidental things related to IT,  the hearing was up to a rocky start when the monitors of the judges would not work. But a FPC hearing on blockchain was not going to be stopped by some measly IT issue – or was it? The IT gods stepped up their game and also let the microphones fail, and at a later point the projector. But even when every piece of IT had apparently failed at least once during the hearing, the President shrugged off the cluster failure — «[…] ein Clusterausfall!» —, determined to continue the hearing. Cluster failure is apparently not only a potential blockchain issue …

As usual, the parties were asked whether they would be interested in settlement talks under the court’s guidance. Both parties affirmed, though plaintiffs indicated that while the amount of compensation may be negotiable, the validity and infringement would not be.

As always, the public was not allowed to stay for the settlement talks, and it remains to be seen if a judgement will ever see the light of the day.

Reported by Philippe KNÜSEL and Martin WILMING


Case No. O2019_004 | Hearing of 30 June 2020

Sunshine Software Development GmbH

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dany VOGEL
    • Christoph MÜLLER


    • Dany VOGEL

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

    • Dr. Kilian SCHÄRLI (MLL)
    • Dr. Simon HOLZER (MLL)
    • Andreas ASCHERL (K. A. L & E), assisting in patent matters

Representative(s) of Defendant:




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