Short Summary
This is a procedural order from the Local Chamber Düsseldorf concerning European Patent EP 3 466 498 B1. The plaintiff Ortovox Sportartikel GmbH sought leave under Rule 36 of the Rules of Procedure to file additional submissions after learning that the defendants were also offering the 'Barryvox S' (in addition to the previously accused 'Barryvox S2') with voice control functionality. The court denied the request, finding no basis to permit further submissions, noting that the plaintiff is already protected by confirmed provisional measures orders regarding the 'Barryvox S2' and retains remedies for any potential violations.
Detailed Summary
The plaintiff, Ortovox Sportartikel GmbH, based in Taufkirchen, Germany, brought an action against Mammut Sports Group AG (Switzerland) and Mammut Sports Group GmbH (Germany) concerning European Patent No. EP 3 466 498 B1. The case was pending before the Local Chamber Düsseldorf under case number UPC_CFI_16/2024. The plaintiff was represented by attorneys from Kather Augenstein, while the defendants were represented by Bird & Bird LLP. The presiding judge acting as rapporteur (Berichterstatter) was Vorsitzender Richter Thomas. The proceedings were conducted in German.
The matter concerned an application by the plaintiff under Rule 36 of the Rules of Procedure (VerfO) seeking leave to file additional written submissions. The plaintiff argued that it had recently learned that the defendants were not only offering and selling the 'Barryvox S2' — the previously accused embodiment — but also the 'Barryvox S' equipped with voice control functionality. Both products were marketed with a notice indicating that the voice control feature was currently unavailable in certain countries, including Germany and Austria. The plaintiff had purchased one unit of each device and was in the process of testing them. According to the plaintiff's current understanding, the voice control could initially only be activated via the 'Barryvox' app, which used the smartphone's location tracking to determine whether the user was in a country where voice control was supposed to be unavailable. The plaintiff suspected that users could potentially use the voice control in Germany or Austria if it had been activated abroad. The plaintiff contended that the 'Barryvox S' with voice control, like the 'Barryvox S2', embodied all features of the patent in suit, with the only apparent relevant difference being that the 'Barryvox S2' employed the more advanced sound signals already known to the court.
& Analysis:
The court, acting through the rapporteur, found that there was neither cause nor room (weder Anlass noch Raum) to grant leave for additional submissions. The court reasoned that with respect to the 'Barryvox S2' product, the plaintiff was already protected by provisional measures orders that had been confirmed on appeal. Specifically, the court referenced the orders in UPC_CFI_452/2024 dated December 11, 2023 and April 9, 2024, as well as the appeal order in UPC_CoA_182/2024 dated September 25, 2024. The court further indicated that in the event of possible violations of those existing orders, the plaintiff retained available remedies.
Final Order & Ruling:
The rapporteur denied the plaintiff's application for leave to file additional written submissions under Rule 36 of the Rules of Procedure. The court determined that the existing provisional measures protection was sufficient and that no further submissions were warranted at that stage of the proceedings.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Düsseldorf (DE) Local Division. Understanding the court's reasoning in Ortovox Sportartikel GmbH vs Respondent is valuable context for structuring arguments or assessing risk in similar proceedings.
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