Lässer ./. Saurer, reloaded

Case No. O2014_009 ¦ Hearing of 27 January 2016

Dejà-vu! Lässer and Oerlikon Saurer Arbon were already litigating in the matters S2012_004 and S2014_004. We note a change in Lässer’s litigation team: Lässer is now represented by Andri Hess (Homburger). Again, but now for the first time in main proceedings, EP 1 983 083 B1 is at stake. The patent is about heat cut technology used in embroidery machines.

Independent claim 1 of EP’083 reads as follows:

1.   Method for applying flat pieces of material of any desired form onto an embroidery base (Fig. 6: 42) by means of an embroidery machine, wherein at least one material layer is arranged above the embroidery base (42) and, controlled by the program of the embroidery machine, a relative movement is produced between a cutting device (47) and the material layer (Fig. 6: 44), and, as a result, a flat piece of material of the desired form is cut out of the material layer (44), characterised in that the cutting is carried out by a heatable tip (47) and the penetration depth of the heatable tip (47) into the material layer (44) is determined by a spacer (55) provided at the tip (47), such that the tip only penetrates into the material layer (44) which is to be cut.

EP 1 983 083 B1, Fig. 3 and 3a
EP 1 983 083 B1, Fig. 3 and 3a

Heatable tip (47) and spacer (55) can be seen e.g. in Fig. 3 and Fig. 3a of the patent; see also paragraph [0017] of EP’083 for further details on the spacer.

Apparently, the interim assessment of the reporting judge had not been in favour of the defendant, neither concerning infringement nor with respect to the plea of nullity.

From what has been discussed in the hearing, it seems that the interim assessment ignored the underlined feature of the claim, at least in the feature analysis. It remains to be seen whether this has the potential to turn the interim assessment or not.

HeatCut illustration (Source: Saurer)
HeatCut illustration (Source: Saurer)

Saurer’s HeatCut technology evidently makes use of a heating tip; see the black tip in the middle of the picture taken from Saurer’s HeatCut website. This technology also relies on so-called fabric pressers; see the silvery bars that are intermittently arranged on top of the fabric. Apparently, a key issue in this case is whether these fabric pressers are spacers (55) in the sense of the patent in suit.

The defendant showed a PowerPoint presentation during his submission; printouts were handed over. Various figures and aspects of this presentation were objected as inadmissible  / in violation of Art. 229 CPC; presentation of new facts and evidence at the main hearing is only admissible if they are so-called proper novae or, at least, improper novae. Hearings are always good for surprises, but the President was not amused:

Erzählen Sie zu dem Bild, was Sie wollen — wir müssen uns das Bild halt wegdenken.

Tell us what you want concerning this picture — we have to imagine it wasn’t there.

Finally, the value in dispute was adjusted. The parties had initially agreed on CHF 300’000,–, but reality is way ahead of this; expenses so far for legal representation: kCHF 127 (plaintiff) and kCHF 221 (defendant); patent attorney costs: kCHF 41 (plaintiff) and kCHF 73 (defendant; in-house patent attorney in the group of companies of the defendant). In view of these relatively high costs the value in dispute was set to CHF 5m; both parties agreed. These party costs are a great deal of money, indeed — but their former case HG.1998.27 before the Commercial Court of St. Gallen had been even more costly.

Both parties agreed to enter into the non-public part of the hearing / settlement negotiations.

Reported by Susanna RUDER and Martin WILMING

— BIBLIOGRAPHY —

Case No. O2014_009 ¦ Hearing of 27 January 2016

Lässer AG Stickmaschinen ./. Oerlikon Saurer Arbon AG

Subject(s):

  • Infringement
  • Plea of nullity

Composition of the Board of the FPC:

  • Dr. Dieter BRÄNDLE (President, Judge)
  • Dr. Tobias BREMI (Judge)
  • Frank SCHNYDER (Judge)
  • André ROLAND (Judge)
  • Dr. Christian HILTI (Judge)
  • Lic. iur. Susanne ANDERHALDEN (Court Secretary)

Representative(s) of claimant:

  • Dr. Andri HESS (Homburger)
  • Hans Rudolf GACHNANG (Gachnang), assisting in patent matters

Representative(s) of defendant:

  • Dr. Stefan KOHLER (Vischer AG)
  • n/a, assisting in patent matters

— PATENT IN SUIT —

EP 1 983 083 B1:

Download (PDF, 802KB)

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