Schöck and Basys twisting things

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Case No. O2020_017 | Hearing of 11 May 2022

DISCLOSURE NOTICE: Hepp Wenger Ryffel is involved in this matter on behalf of the Plaintiff.
Schöck’s logo

Schöck asserts infringement of EP 2 455 556 B1 (cf. EPO Register and Swissreg) and EP 2 455 557 B1 (cf. EPO Register and Swissreg). The attacked embodiments of Basys are the so-called ‘Normalkraftanschlüsse’ of types Basycon N, UZ and Seismolock.

Basycon ‘Normalkraftanschluss’ of type N (illustration taken from the FPC‘s tweet)

According to the announcement of the hearing, Basys argues that the patents were insufficiently disclosed and not novel or obvious in view of no less than 14 documents in total (of which the following are mentioned in the announcement: EP 1 072 729 A1, EP 1 881 119 A2, DE 87 00 301 U1, DE 197 05 698 A1, CH 678 076 A5, DE 200 08 570 U1, CH 690 966 A5, DE 30 05 571 C2, a Basycon Flyer of Jan 2005 and a Basycon catalogue of 2008). Further, the patents were not infringed when construed correctly.

At the beginning of the hearing, Basys presented a sample of an attacked embodiment; Art. 168 para. 1 lit. c CPC. The various features of the sample were briefly discussed, and even some manual tests were made on the sample, by both parties. The President closed this part of the hearing with a smirk:

Oder möchten Sie sonst noch etwas verbiegen?

In the first round of pleadings, Schöck asserted various violations of the principle of party disposition in the judge-rapporteur‘s expert opinion. Further, Basys’ comments on the expert opinion contained inadmissible novae that must not be relied on. On the merits, Schöck focused on admissibility of amendments in general, and intermediate generalisations in particular. The judge-rapporteur had apparently held that the omission of the rectangular shape of a plate in an auxiliary request amounts to an intermediate generalisation. But what does «rechteckig hochkant orientiert» in [0045] and [0047] of EP 556 actually mean: a rectangular shape or a rectangular orientation of the plate? With reference to T 1471/10 (r. 3.3.2 et seq.), Schöck held that the feature could well be omitted because there was no indication whatsoever in EP 556 of the relevance of the form of the plate; and the orientation of the plate is already contained in the claim language to the extent necessary.

With respect to novelty and non-obviousness, Schöck addressed a photography on page 1 (similar to this one) and a schematic illustration on page 3 of the Basycon Flyer 2005; and EP 792 (not mentioned in the announcement).

Basys‘ logo

After a 15 min break, Basys’ pleadings began at 11:20 hrs. Basys rebutted selected arguments of Schöck’s latest submissions. Some arguments referred to the skilled person; on the funny side, Basys held that the skilled person cannot be willing and able to understand unclear features of EP 556 on the one hand, and be dull-witted in the assessment of the prior art on the other hand.

An interesting discussion circled around whether (or not) a specific attack (with a certain combination of prior art) of a sub-eventualiter inter partes limitation of a patent can be considered by the court ex officio for higher-ranking requests.

After a lunch break from 12:30 hrs to 13:30 hrs, Schöck and Basys made their respective second submissions, until 14:20 hrs. It appears that the actual expenses for patent attorneys were almost identical on both sides; but the parties disagreed on the responsibility for the costs.

No settlement discussions took place.

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. O2020_017 | Hearing of 11 May 2022

Schöck Bauteile GmbH
./.
Basys AG

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Tobias BREMI
    • Dr. Markus MÜLLER

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Sven BUCHER

Representative(s) of Plaintiff:

Representative(s) of Defendant:

ANNOUNCEMENT

PATENTS IN SUIT

EP 2 455 556 B1:

EP 2 455 557 B1:

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