Bollegraaf Recycling Machinery B.V, and Grumbach GmbH & CO. KG v. Stora Enso Langerbrugge N.V. and Wagensveld B.V., Ghent Court of Appeal, Belgium, 26 September 2011, with thanks to Carl de Meyer and Carina Gommers, Hoyng Monegier for sending in the case and summary
On 26 September 2011, the Ghent appellate court decided on the infringement action initiated by Bollegraaf and Grumbach against Stora Enso Langerbrugge and Wagensveld.
Grumbach is owner of EP 1 291 092 (EP ‘092) re a method and device for removing cardboard from a wastepaper mixture. Bollegraaf is its exclusive licensee and commercializes the device called Paper Spike. In this device, wastepaper mixture is carried flat on a conveyor with partial support. In addition, free projecting tines move synchronized with the conveyor; are aligned at the unsupported paper and cardboard and infiltrate into the free spaces. The court considers that the essential elements of EP ‘092 are that the wastepaper mixture is only partially supported so that there are free spaces and that the tines can project through these free spaces. The tines press the paper into the free spaces entraining it further and pierce and spike the cardboard parts.
Wagensveld also owns patents for devices for separating paper and cardboard and manufactures these under the name Carbo Separator. The first generation Carbo Separator comprised a conveyor carrying the wastepaper mixture and sorting tines fixed on an inner drum, which move towards the conveyor for the separation of the wastepaper mixture. In addition, removal means are comprised an outer drum placed around the inner drum. In one of the dependent claims the carriers are in the form of belts fitted all the way round on the conveyor. The second generation differs from the first generation in that the carrier is flat and flexible so that the tines are pressed against the flexible carrier and in doing so pierce and spikes the cardboard while the paper remains on the carrier.
Stora Enso is a well-known manufacturer of paper using in particular recycled material. The order for a Carbo Separator Stora Enso placed with Wagensveld gave rise to the infringement action.
Since Wagensveld and Stora Enso filed a counterclaim for revocation of the patent, the court first examines the validity of EP ‘092 ruling that the patent is valid and should be construed restrictively.
As regards the infringement claims, the court rules that the first generation Carbo Separator infringes EP ‘092 but that the second generation does not. The statement by Wagensveld that the first generation was no longer commercialized was not held sufficient to declare this part of the action without merit. As to the second generation, the court considers that there is neither a literal infringement – also not when the carrier would be damaged or worn, nor an infringement under the doctrine of equivalents.
Read the decision (in Dutch) here.