Supreme Court ruling on Ethical Coffee Company ./. Nestlé Nespresso et al.

Case No. 4A_520/2016 (Supreme Court) ¦ Decision of 07 April 2017

The patent in suit is CH 701 971 B1; see Swissreg for further details. In a nutshell, ECC claimed CH’971 is a patent for the technology it alleges Nestlé Nespresso uses to block its capsules. The suit had been flatly dismissed with decision O2015_001 of 12 July 2016. The FPC held that the phrase ‘toute capsule’ / ‘any capsule’ means (literally) any capsule that is suitable for use in the machines to prepare coffee, irrespective of whether or not the capsule is retained in the machine thereafter.

[…] l’expression «toute capsule» signifie dans le présent contexte toute capsule susceptible d’être utilisée dans le dispositif (machine à café) en question, de façon à permettre la préparation d’une boisson extraite (un café), ceci indépendamment de la question de savoir si une telle capsule est retenue dans la cage après l’extraction.

The plaintiff had admitted that ECC’s modified capsules were not retained in the attacked devices. Likewise, the defendant had submitted that not all capsules are retained in the attacked devices. Concluding, the FPC held that the attacked embodiments evidently did not retain ‘toute capsule’ / ‘any capsule’. The FPC further held that the request for injunctive relief reached beyond the scope of protection conferred by the patent, and the suit had to be dismissed for this reason, too.

For further background information and details of the underlying decision O2015_001, please see this Blog here.

It had been known since April 11 that the Supreme Court had dismissed ECC’s appeal with decision of 07 April 2017:

The Supreme Court’s decision has been published only on April 28, 2017.

ECC essentially argued that the generic term ‘any capsule’ meant ‘capsule of any kind’ or simply ‘capsule’ — and that the claim does not require that systematically all capsules deformable upon contact with hot water are retained. Rather, it would suffice if only a relatively high number of such capsules were retained. In a nutshell, the Supreme Court holds that there is apparently no specific meaning of the term ‘any capsule’ in the specific technology, and that the literal meaning is perfectly clear. The appellant did not identify any part of the specification of the patent that would allow for a different interpretation.

Consequently, ECC’s appeal has been dismissed.

Reported by Martin WILMING


Case No. 4A_520/2016 (Supreme Court) ¦ Decision of 07 April 2017

Ethical Coffee Company SA


Nestlé Nespresso SA
DKB Household Switzerland AG
Eugster/Frismag AG

Composition of the Board of the Supreme Court:

  • Dr. Christina KISS
  • Dr. Martha NIQUILLE
  • Marie-Chantal MAY CANELLAS

Court Clerk:

  •  Dr. Diane MONTI

Representative(s) of Ethical Coffee Company SA:

Representative(s) of Nestlé Nespresso SA et al.:


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