Is Bombardier’s Twindexx train modular? We shall see …

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Case No. O2017_015 | Hearing of 20 September 2019

Alstom logo

The patent at stake in this infringement case is Alstom‘s EP 1 024 070 B1; see EPO Register and Swissreg for further bibliographic information.

Alstom alleges that Bombardier‘s Twindexx train in the IR100 (SBB RABe 502) configuration infringes EP’070:

The IR100 configuration of Bombardier’s Twindexx train
SBB logo

Please find some further information about the Twindexx train on SBB’s website and on Wikipedia.

The relevant claims are the independent claim 1 and its dependent claim 7 (emphasis added):

  • Claim 1:
  • Claim 7:
A modular railway rake formed of at least two vehicles (1, 2) with two superposed levels, including at least one bogie (10) including at least one driving axle, at least one bogie (11) including at least one carrying axle, and on-board equipment including at least one power supply electronic unit (19) for supplying motive power to one or more traction motors, at least one motive power supply unit (22, 25) for supplying power to the electronic unit (19), at least one auxiliary power supply unit (30) for supplying power to auxiliary equipment, and at least one device (21) for connection to an overhead power supply network, in which rake the motive power factor of a vehicle or a group of vehicles is defined as the ratio of the number of driving axles to the total number of axles of the vehicle or group, the rake being characterized in that at least one vehicle (1) includes at least one bogie (10) including at least one driving axle and at least one bogie (11) including at least one carrying axle, at least one bogie (11) of the rake including at least one carrying axle is associated with at least one of said on-board equipment items (19; 22, 25; 30; 21) disposed approximately over that bogie, and the ratio between the respective motive power factors of any two groups of two vehicles of the rake is not less than 1/3 and not more than 3.
A railway rake according to claim 1, characterized in that at least one power supply unit (22, 25; 30) is disposed approximately over a bogie (11) including at least one carrying axle.

First, the parties addressed the so-called ‘verbal limitation’ in their pleadings. Apparently, the plaintiff’s prayer for injunctive relief had been directed from the very beginning to an embodiment that was covered by a combination of claims 1 and 7, as well as (of course) also by claim 1 alone. Further, the arguments on infringement also dealt with the feature(s) of claim 7. The jugde-rapporteur’s expert opinion, however, did not deal with validity of the combination of claims 1 and 7. Now, how formally does a plaintiff have to ‘verbally limit’ his patent in consideration of a nullity plea in defense? This case might provide some further clarification on this issue, in addition to  S2018_007, ¶20.

Bombardier logo

As to non-infringement, Bombardier argues that the feature of a ‘modular railway rake formed of at least two vehicles’ was not fulfilled by the IR100. In Bombardier’s view, it must mean something different than just a railway rake formed of at least two vehicles since the term ‘modular’ must have been intentionally put there to have a meaning. Otherwise, it could just have been omitted. Bombardier held that ‘modular’ means that modules can be added or removed on short notice. This is not the case in the IR100 since the software needs to be adapted and the enlargement or reduction of the capacity by adding or removing modules is only possible in a service facility.

And, indeed, the judge rapporteur had apparently held that the feature ‘modular’ when properly construed in view of the description and the figures at least comprises an adaptability of the passenger capacity in a way that he did not see fulfilled in the IR100.

Some further discussion apparently circles around the feature ‘approximately over’ in claim 7; and the term ‘said on- board equipment’ in claim 1.

Further, Bombardier argues for nullity of EP’070 as a plea in defense. We conclude from the pleadings that obviousness is alleged in view of a publication about the first generation DD-IRM (1994) train of the Dutch Railways (referred to as D1; see Wikipedia and, by way of illustration, this picture (embedded from www.railfaneurope.net, i.e. tinyurl.com/y5fmc9y5)) and EP 0 631 917 A1 (referred to as D4).

Some notable side issues:

First, even though judge DUCOR is presiding the panel of judges in this case, judge BREMI was acting as chair at the hearing.

Second, it is always interesting to see how the parties deal with pleading notes. Defendant’s counsel handed over pleading notes to the counterparty and the clerk, but not to the other judges because he

[…] thought that they would prefer to just listen.

Indeed, judge BREMI confirmed that he prefers to just listen to the pleadings.

A lawyer in a hurry …

Third, it turned out around noon that defendant’s counsel had to leave early because he had to catch an international flight that had initially been booked for later, but was cancelled and re-scheduled to an earlier time. Judge BREMI emphasized that summons are not issued with a specific end time and one should not generally expect hearings at the FPC to be finished around noon. Anyway, plaintiff’s counsel co-operated to conclude the hearing fairly soon thereafter.

No settlement discussions took place.

Reported by Susanna RUDER and Martin WILMING

BIBLIOGRAPHY

Case No. O2017_015 | Hearing of 20 September 2019

Alstom Transport Technologies SASU
./.
Bombardier Transportation (Switzerland) AG

Panel of Judges:

  • Dr. Philippe DUCOR
  • Dr. Tobias BREMI
  • Christophe SAAM

Judge-rapporteur:

  • n/a

Court Clerk:

  • Agnieszka TABERSKA

Representative(s) of Plaintiff:

Representative(s) of Defendant:

  • Dr. Christian HILTI (Rentsch Partner)
  • Moritz MEISSNER (Bombardier (inhouse)), assisting in patent matters

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