Short Summary
Ortovox Sportartikel GmbH, the proprietor of European Patent EP 3 466 498 B1 concerning an avalanche victim search device (LVS), sought provisional measures against Mammut Sports Group regarding the 'Barryvox S2' device. The Local Chamber Düsseldorf maintained the preliminary injunction of December 11, 2023, ordered the respondents to provisionally reimburse costs of EUR 33,375.70, and rejected the respondents' counter-application for provisional cost reimbursement of EUR 19,858.40.
Detailed Summary
This case concerns an application for provisional measures (interim injunction) before the Local Chamber Düsseldorf of the Unified Patent Court (case UPC_CFI_452/2023), decided on April 9, 2024.
**Parties and Patent:**
The applicant (Antragstellerin) is Ortovox Sportartikel GmbH, the sole proprietor of European Patent EP 3 466 498 B1 (the 'patent in suit'). The patent was filed on October 9, 2017, published on April 10, 2019, and granted on December 4, 2019. It is in force in Germany and Austria. The respondents (Antragsgegnerinnen) are Mammut Sports Group AG (Switzerland) and Mammut Sports Group GmbH (Germany). The first respondent had filed a nullity action against the Swiss part of the patent on July 11, 2023, which was still pending before the Swiss Federal Patent Court.
**Subject Matter:**
The patent protects an avalanche victim search device (Lawinen-Verschütteten-Suchgerät, LVS) with a transmitting unit, a receiving unit, and a control device that drives at least one loudspeaker to output voice messages in connection with a search for another LVS device, wherein sound signals related to the search are suppressed or output at reduced volume during voice message output. Claim 13 protects a corresponding method. The provisional measures were directed against the 'Barryvox S2' avalanche search device offered and distributed by the respondents.
**Procedural History:**
The court had already issued a preliminary injunction on December 11, 2023 (ORD_591011/2023), including an obligation to provide security of EUR 500,000. The respondents filed an application under R. 212.3 in conjunction with R. 197.3 and 197.4 of the Rules of Procedure for review of that order. An oral hearing was held on March 5, 2024.
**Key Legal Findings:**
1. **Patent Interpretation:** Art. 24(1)(c) EPGÜ in conjunction with Art. 69 EPC exclusively determine which documents may be used for interpreting patent claims—namely the patent description and drawings. The prosecution file is not mentioned in Art. 69 EPC and is therefore generally not admissible interpretation material. Statements by the applicant during examination proceedings may at most have indicative significance for how the skilled person understands a feature.
2. **Burden on Applicant:** An applicant generally does not need to take risks in pursuing provisional measures. They need only approach the court when they have reliable knowledge of all facts making such proceedings promising and can credibly demonstrate those facts.
3. **Timeliness of Submissions:** Under No. 7 sentence 3 of the preamble to the Rules of Procedure, parties must cooperate with the court and present arguments as early as possible. Submissions made only after the close of oral hearings do not meet these requirements and are regularly to be rejected as untimely, unless the party was exceptionally granted the right to make supplementary submissions within a court-set deadline.
4. **Cost Decision:** No cost decision is required in provisional measure proceedings when followed by main proceedings. R. 211.1(d) RoP provides for provisional cost reimbursement in the interim order, and R. 118.5 RoP mandates a cost decision in the main proceedings. There is therefore no gap in the rules justifying an analogous application of R. 118.5 RoP in interim proceedings.
5. **Security:** The court may require appropriate security for the respondent in case the provisional measure is lifted. As a rule, this possibility should be used unless the specific case dictates otherwise.
**Order (Anordnung):**
I. The preliminary injunction of December 11, 2023 (ORD_591011/2023), including the security obligation of EUR 500,000, was maintained.
II. The respondents were ordered to provisionally reimburse the applicant's costs of EUR 33,375.70.
III. The respondents' application for provisional cost reimbursement of EUR 19,858.40 in their favor was rejected.
IV. The order is provisionally enforceable.
The respondents were informed of their right to appeal within 15 days of service (Art. 73(2)(a), 62 EPGÜ, R. 220.1(c), 224.2(b) RoP).
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 Mammut Sports Group AG and Mammut Sports Group GmbH is valuable context for structuring arguments or assessing risk in similar proceedings.
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