Ex parte interim injunctive relief granted and confirmed after hearing the Defendant

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Case No. S2021_003 | Decision of 15 September 2021 | ‘Baugerüst’

Hepp Wenger Ryffel is involved in this matter on behalf of the Plaintiff / Tobler AG.

The patent at stake is EP 2 881 521 B1; cf. EPO Register and Swissreg for further bibliographic information. Tobler AG had requested interim injunctive relief for Vijator Schweiz GmbH‘s scaffolds of the “WAS-M” type with a diagonal strut of rectangular, oval or pentagonal shape (cf. claim 1 of EP 521):

Notably, Vijator Schweiz had admitted that EP 521 was valid and infringed by its WAS-M scaffolds; cf. ¶16.  Nevertheless, Vijator Schweiz had indicated to Tobler after having been served with the request for interim injuntive relief that it would export the remaining WAS-M scaffold as soon as possible. This gave rise to ex parte interim injunctive relief by order of 16 June 2021, prohibiting such export. Further, Vijator Schweiz did not submit an unconditional cease and desist declaration, but rather only declared that it would do so in case the FPC would order interim injunctive relief. The threat of (further) infringing acts and of not easily reparable harm was thus established; cf. ¶17, 20.

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Urgency was given, too: Tobler had undisputedly become aware of the infringing acts only in April 2021, i.e. the request for interim injunctive relief was filed soon thereafter (25 May 2021) and well before the 14 months bar for ‘relative urgency’; ¶21.

Commensurability of interim injunctive relief was a non-issue since Vijator had declared that it would provide a cease and desist declaration when the FPC would order interim injunctive relief; cf. ¶24.

The parties were far apart with their respective estimates of the value in dispute: Tobler assumed CHF 100’000,–, while Vijator Schweiz submitted that it had only made a profit of CHF 1’000,– with the infringing scaffolds. The judgment holds that in case of such discrepancy the higher value is typically to be taken — and it is Plaintiff’s commercial interest which is relevant for the value in dispute, not Defendant’s profits; ¶30.

In a nutshell, interim injunctive relief was ordered as requested, including a prohibition to export.

Reported by Martin WILMING


Case No. S2021_003 | Decision of 15 September 2021 | ‘Baugerüst’

Tobler AG
Vijator Schweiz GmbH

Single Judge (President):

    • Dr. Mark SCHWEIZER

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

Representative(s) of Defendant:

    • n/a
    • n/a, assisting in patent matters





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