2025-01-14 - LD Düsseldorf - Ortovox v. Mammut - UPC_CFI_16/2024
- Aktenzeichen:
- UPC_CFI_16/2024
- Datum:
- Spruchkörper:
- Court of First Instance - Düsseldorf (DE) Local Division
- Art:
- Proceeding Decision
- Parteien:
- Ortovox Sportartikel GmbH v. Mammut Sports Group AG, Mammut Sports Group GmbH
Kernaussage: The Düsseldorf Local Division decided the main action following its own preliminary injunction and the Court of Appeal's order in the same dispute, and gave three headnotes.
2025-01-14 - LD Düsseldorf - Ortovox
v.
Mammut - UPC_CFI_16/2024
notable
The Düsseldorf Local Division decided the main action following its own preliminary injunction and the Court of Appeal's order in the same dispute, and gave three headnotes. The first is the substantial one: where a device as offered cannot yet use every claimed feature because the customer must first activate a function, the alleged infringer is answerable for the customer's conduct if it instructs the customer to activate or knowingly exploits an activation it knows will happen. Here the voice function was shipped switched off and could be enabled through an app only outside Germany and Austria, but once enabled abroad it stayed enabled on return, the seller had taken no effective step to prevent that, and the function had been the feature singled out when the device won an award at a trade fair. The second headnote refuses to let a software deactivation displace destruction unless it is assured that the device cannot be put back into an infringing state. The third confines publication of the decision to cases where other measures do not already protect the claimant. The decision also states that a division deciding both the action and the counterclaim has no occasion to stay, and that R. 118.2 RoP allows a conditional judgment only where a revocation action is pending before the central division or an opposition before the EPO.
Nichtigkeitsgründe
Art. 138 EPCNovelty
Patent survived (this ground)Art. 54 EPC · Art. 138(1)(a) EPC
“The novelty ground failed against all four documents [512]-[604]. EP '679 mentions voice output only in a paragraph about combining the device with a GPS system, and the modular combinations it describes concern a device that determines the buried person's position automatically, so nothing links a voice message to a search tone or supplies the initiating event [524]-[547]. WO '721 speaks of 'buzzers or loudspeakers' and of optical and/or acoustic stimuli, which does not disclose both signal kinds together [549]-[570]. DE '217 has a speech processor but no tone signal and nothing about suppressing one during the other [572]-[581]. EP '011 discloses only tone patterns differing in frequency, repetition rate, duration and volume, with no spoken instruction [583]-[604]. The division expressly declined to follow the contrary view of the Swiss Federal Patent Court's technical judge opinion [534].”
Inventive Step
Patent survived (this ground)Art. 56 EPC · Art. 138(1)(a) EPC
“The inventive-step ground failed [606]-[698]. The attack from EP '679 rests on the premise that the document discloses every feature but the control of the two acoustic outputs; on the division's construction the prior question is whether the skilled person had any reason to display search results by tone signal and voice message together at all, and following the Court of Appeal in the preliminary-measures appeal it did not.”
Insufficiency of Disclosure
Patent survived (this ground)Art. 83 EPC · Art. 138(1)(b) EPC
“The Art. 83 EPC ground failed [699]-[719]. On the correct construction of the claims there is no gap in the disclosure either as to how the loudspeaker is driven or as to the criterion distinguishing a voice message from a tone signal, the division adopting the Court of Appeal's reasoning in the preliminary-measures appeal. The section heading writes 'Art. 83 EPGÜ' where the text correctly names Art. 83 EPC.”
Inoffiziell
Inoffizielle KI-Übersetzung
Dies ist eine automatische, von KI erstellte Übersetzung, die Fehler enthalten kann. Rechtsverbindlich ist allein das Originaldokument in der Verfahrenssprache (German).