What the heck is a funnel?!

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Case No. O2020_003 | Hearing of 7 July 2021

Hubert Hergeth has sued Uster Technologies AG and Maschinenfabrik Rieter AG for infringement of CH 698 484; see Swissreg for further bibliographic information. The plaintiff is at the helm of Hergeth GmbH.

Uster Jossi Vision Shield 2
Vision Shield 2

The attacked embodiments are Uster® Jossi Vision Shield T and Uster® Jossi Vision Shield 2.

The technology at stake in CH 484 is pretty simple, at least at the face of it: It’s about a device for ejecting and separating fibrous foreign particles (8) in a fibre transport air stream. The particles are blown into a funnel (5). At the exit of the funnel, another air stream takes over the ejected particles:

Page 3 of ch698484b1
Page 3 of ch698484b1
Contributed to DocumentCloud by Martin Wilming (Hepp Wenger Ryffel AG) • View document or read text

The first part of plaintiff’s pleadings was done by Mr Hergeth, the inventor and patentee himself. His presentation was frequently interrupted by the President, enquiring where the specific facts and arguments have been made beforehand in the written exchange of briefs. In my perception, the frequent interventions and the subsequent attempts to clarify these issues sometimes derailed the presentation. Accordingly, Mr Hergeth’s presentation may well have taken (much) longer than expected: When Mr Hergeth had finished his presentation, plaintiff’s representatives were politely reminded by the President that they would still have about five minutes for their remaining pleadings. Note that the parties are held to limit their first pleadings to about an hour (it took a little longer in the end, which however has not been an issue).

I understood from the pleadings that the expert opinion of the judge-rapporteur had held that the patent was not infringed, and that it had been unduly amended during prosecution.

With respect to the unallowable amendments, the plaintiff blamed the examiner for having tampered with the patent application merely for clarity reasons:

Der Umstand, dass der Schweizer Prüfer beim IGE dem Erfinder aus Gründen der Klarheit in seine Anmeldung hinein pfuschte, […].

Regarding non-infringement, it appears that inter alia the term «funnel» (‘Trichter’ in German) is controversial, and the parties did not agree on the correct claim construction. Note that the patent is maybe the shortest that I have ever seen being litigated: The specification and the claims fit on a single page. So, the patent itself is maybe not of much help in this respect. What is more, the defendants pointed out in their pleadings that the plaintiff himself got lost in the various proposed interpretations of the term «funnel»:

Die Klägerin selbst ist orientierungslos.

Defendants showcased this argument by way of comparative citations from plaintiff’s briefs. In reply, plaintiff denounced defendants’ compilation as misleading. In my perception, the atmosphere between the parties was exceptionally embittered. Maybe we will learn more about the reasons for this and the background of the matter from the final decision. I could not stay until the very end of the hearing, but I have no reason to assume that the parties have settled.

On the procedural side, it was interesting to see that the defendants had prepared a joint pleading on an unbranded slide deck, which obviously made time management at the hearing a lot easier for the court.

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. O2020_003 | Hearing of 7 July 2021

Hubert HERGETH
./.
(1) Uster Technologies AG
(2) Maschinenfabrik Rieter AG

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Tobias BREMI
    • Kurt STOCKER

Judge-rapporteur:

    • n/a

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

    • Dr. Christian HILTI (Rentsch Partner)
    • Dr. Alena BACH (Rentsch Partner), assisting in patent matters
    • Dr. Alfred KÖPF (Rentsch Partner), assisting in patent matters

Representative(s) of Defendant (1):

    • Dr. Andri HESS (Homburger)
    • Angelika MURER (Homburger)
    • Dr. Pavel PLISKA (inhouse), assisting in patent matters

Representative(s) of Defendant (2):

    • Lara DORIGO (Lenz & Staehelin)
    • Dr. Andreas WIRTH (inhouse), assisting in patent matters

ANNOUNCEMENT

PATENT IN SUIT

Initially granted:

Partial waiver:

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