Nestec v. Ethical Coffee Company (suisse) SA and Betron AG, Düsseldorf District Court, Germany, 16 August 2012, with thanks to Bernhard Arnold and Cordula Tellmann-Schumacher, Arnold Ruess for sending in the judgment and a head note in English
The Swiss companies Ethical Coffee Company and Betron are marketing in Germany – and other countries – coffee capsules under the brands Espresso and Esprimo. The capsules are made from biodegradable material and are compatible for Nespresso machines. Nestec holds a patent which claims an extraction system comprising a device for extraction of a capsule (i.e. a coffee machine) and a capsule. Nestec asserted this patent in preliminary proceedings against Ethical Coffee Company and Betron on the basis of alleged indirect infringement.
The case was legally particularly interesting as back in 2005 the Düsseldorf Court of Appeal had decided in a similar case concerning the Senseo coffee-pads that there could be an indirect infringement by offering coffee-pads compatible to Senseo coffee machines (judgment dated 17 November 2005, 2 U 35/04). However, in 2007 the Federal Supreme Court further specified the criteria of indirect infringement and exhaustion in its decision Pipettensystem (judgment dated 27 February 2007, X ZR 38/06). Now, the Düsseldorf District Court followed the Pipettensystem decision and ruled that there is no indirect patent infringement as the patentee’s rights are exhausted with the sale of the Nespresso machines. The use of the Nespresso machines by the consumers with capsules of third parties forms part of the intended use of the machines.
Read the judgment (in German) here.
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