Uninvited guests during preparation of an open house day

Case No. S2016_005:
Decision of 27 June 2016 ¦ “Anordnung Beschreibung (superprovisorisch)”
Decision of 13 July 2016 ¦ “Erledigung Beschreibung”

First things first: Who are the parties?

From the wording of the requests and the feature analysis, it is clear that the patent in suit is EP 0 911 437 B1 of Lässer AG Stickmaschinen (formerly: Franz Lässer AG); see the EPO Register and Swissreg for any further details. Moreover, it is noted in the decision that the patent had been opposed by a connected undertaking of the defendant, but the opposition was dismissed and EP’437 was maintained as granted. The former opponent was Saurer Sticksysteme AG. Thus, it is reasonable to assume that the defendant is Saurer AG (again, see the summary of O2014_009 on this Blog here).

The feature analysis of claim 1 of EP’437 reads as follows:

M1: Embroidery machine, in particular a Schiffli embroidery machine, in which a mobile thread guide (17, 17′, 17″) serves as one of the stitch-forming members

M2: with a row of embroidery locations (S1, S2, S3 …) which can be brought individually into and out of operation

M3: which each comprise an individual thread guide (17, 17′, 17″), which can be brought into and out of operation

M4: with at least one drive member (11, 11′, 11″, 11″‘), with mobile bars (33, 42) for actuating embroidery members (15, 43)

M5: and with coupling members (51, 53) at these embroidery members (15, 43), which may be engaged with or disengaged from the corresponding bar (33, 42)

M6: with a switching member (71, 71′, 71″) for simultaneously bringing a plurality of embroidery members (15, 43, 89, 91) of an embroidery location (S1, S2, S3) into and out of operation

characterised in that

M7: a thread guide bar (37) is provided

M8: that the thread guide (17, 17′, 17″) comprises a thread guide lever (63, 63′, 63″) and a coupling member (69, 121, 131)

M9: that the switching member (71, 71′, 71″) comprises at least one switching rod (75, 75′, 75″) and a member (73) connected to the latter for actuating the switching rod, e.g. a cylinder (73) or motor

M10: and that at least the needle (15) and the thread guide (17, 17′, 17″) can be simultaneously switched with the member (73) for actuating the switching rod and the switching rod (75, 75′, 75″).

The invention can be more easily understood with the figures 1, 4 and 5 at hand:

The plaintiff requested preliminary measures to secure evidence; Art. 77(1) lit a PatA.

The parties had exchanged their views on whether or not a newly to be introduced machine of the defendant infringed EP’437. The machine had also been presented at a trade fair in November 2015 (most likely ITMA 2015 in Milan, November 12-19, 2015; see below). The defendant explicitly rebutted fulfilment of feature M10 — without, however, explicit acknowledgement of fulfilment of the other features M1-M9. Anyway, the FPC held that the defendant had credibly established at least fulfilment of features M1-M6 by prima facie evidence. The request for preliminary measures to secure evidence concerned the remaining features M7-M10. As to these features, the FPC held that fulfilment of feature M6-M9 also seems to be given, and that potential fulfilment of feature M10 is plausible.

In addition, the FPC held that there were further indications of an infringement: The defendant had openly presented the new machine at the trade fair, and the defendant reacted on the plaintiff’s initial inquiry with respect to the suspected infringement. Only when the plaintiff posed more critical questions, the defendant stopped any discussion and the later presentation of the machine was only ‘on invitation’ at the premises of the defendant, at the occasion of an open house day. And this is why there was special urgency: The open house day had been announced for July 1, 2016; the request for preliminary measures was received at the FPC on June 23. Moreover, the plaintiff noted that the enforcement of the measure would likely be frustrated if the defendant would be heard beforehand. The plaintiff had thus requested that the FPC orders the interim measure immediately and without hearing the opposing party. The FPC did so, and the description was executed at the premises of the defendant on June 28. The defendant later on requested that some details were blackened-out from the minutes of the description before it was made available to the plaintiff. Since these details were of no relevance for the claim features at stake, this request was allowed.

It remains to be seen what the plaintiff has learned from the description. Will the findings be the basis for yet another infringement case Lässer ./. Saurer?

WHAT’S HAPPENING ON THE MARKET

There are strong indications that Saurer’s ‘Epoca 7’ is concerned. Saurer’s press release in advance of ITMA 2015 in Milan (November 12-19, 2015) announced the introduction of the new ‘Epoca 7’ with

new technologies […] such as the individual thread guide activation, the newly developed thread delivery and […].

That pretty much resembles the suspicious wording in the invitation to the open house day on July 1, 2016, i.e. ‘individuelle, automatische Fadenleiterschaltung’. I could not find much more information on the actual configuration of this machine, but you might get a first impression from the handouts of Saurer’s press conference at ITMA 2015 (p 26):

press_conference_handout_saurer_p26_ITMA2015
Saurer Press Conference at ITMA Milan 2015 (handout, p 26)

The presentation of ‘Epoca 7’ at ITMA 2015 is also available here:

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. S2016_005:
Decision of 27 June 2016 ¦ “Anordnung Beschreibung (superprovisorisch)”
Decision of 13 July 2016 ¦ “Erledigung Beschreibung”

Lässer AG Stickmaschinen ./. Saurer AG

Subject(s):

  • Preliminary measures, securing of evidence / precise description
  • Fadenleiter

Composition of the Board of the FPC:

  • Dr. Dieter BRÄNDLE
  • Dr. Tobias BREMI
  • Frank SCHNYDER

Reporting judge:

  • Dr. Tobias BREMI

Court Secretary:

  • Susanne ANDERHALDEN

Representative(s) of claimant:

Representative(s) of defendant:

FULLTEXT OF THE DECISIONS

Decision of 27 June 2016:

Download (PDF, 88KB)

Decision of 13 July 2016:

Download (PDF, 74KB)

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