Coffee break is over: A new frontier in coffee capsule litigation

Case No. S2016_002 ¦ Main hearing of 01 September 2016

Note that Hepp Wenger Ryffel is involved in this matter on behalf of the defendants.
Logo (© Nestlé)

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


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:


Representative(s) of plaintiff:

  • Dr. Andri HESS (Homburger)
  • Dr. Kurt SUTTER (Blum), assisting in patent matters

Representative(s) of defendant:


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4 Replies to “Coffee break is over: A new frontier in coffee capsule litigation”

  1. dolce-gusto_11093221945645fc4f9c09cI just came across a Dolce Gusto® litigation in Portugal. According to a press release of Bicafé, “[t]he Portuguese Intellectual Property Court has rejected an injunction brought by [Nestlé] to prevent Bicafé – Torrefacção e Comércio de Café, Lda (Bicafé) from producing and marketing coffee capsules compatible with the beverage extraction system marketed under the brand name Nescafé Dolce Gusto* (the Nescafé Dolce Gusto system).” I currently have no further information about the patent(s) at stake and details of the attacked embodiment.

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