The German startup Losyco can continue to manufacture and sell its industrial rail system in Germany. The Higher Regional Court Düsseldorf confirmed in early April (case ID: I-2 U 16/18.) the judgment from Düsseldorf Regional Court and dismissed the appeal of the competitor Strothmann.
16 April 2019 by Mathieu Klos
Strothmann develops and sells special rail systems for manufacturing premises. This patented round-rail system is used to transport large, heavy assembly parts from one production station to the next – for example in the automotive industry. Losyco, founded in 2016 in Bielefeld, offers similar round rail systems. Strothmann had brought a suit against Losyco for infringing the German part of its European patent (EP 2 890 625 B1) by equivalence, demanding damages and recall of its products.
One of the major issues was how and with what force the clamping profiles which hold the rollers on the rails can be released. This is important for the process of replacing the rails.
The Regional Court Düsseldorf dismissed Strothmann’s claim in March 2018. The court found at the time that the Losyco product was neither equally effective nor obvious. According to the German Federal Court of Justice, both are prerequisites for classification as patent infringement by equivalence.
The Higher Regional Court agreed. The court did not allow the appeal. Strothmann could still attempt to overturn the verdict by lodging an appeal against the denial of leave to appeal with the Federal Court of Justice.
Patent infringement by equivalence is currently playing an important role throughout Europe. The 2018 judgment by the English Supreme Court in the Actavis v. Eli Lilly case concerning the active substance pemetrexed initially fired the debate. There was also a parallel case pending before the Higher Regional Court Düsseldorf, but this was settled last year.
All parties have represented their clients from the first instance. Patent attorneys Loesenbeck Specht Dantz had previously filed an opposition against the granting of the disputed Strothmann patent before the European Patent Office. Loesenbeck has cooperated for many years with Kather Augenstein and Weber was thus brought in for the litigation.
Hogan Lovells partner Keller regularly advises both Strothmann and its parent company Siempelkamp. There is also a long-standing collaboration between the law firm and the patent attorneys of Ter Meer Steinmeister. The Munich patent attorneys also previously advised the company on a European patent for a robot with an additional arm. In addition to Ter Meer Steinmeister, the Essen patent attorney firm Andrejewski Honke also advises Siempelkamp and Strothmann.
Kather Augenstein (Düsseldorf): Christopher Weber; associate: Jonas Block
Loesenbeck Specht Dantz (Bielefeld): Thomas Wonderschütz (patent attorney)
Higher Regional Court Düsseldorf, 2nd Civil Senate
Thomas Kühnen (presiding judge)