14 December 2022
The famous litigation process over the sale of Lidl’s Monsieur Cuisine, the machine that openly competes with Vorwerk’s Thermomix, the most famous food processor on the market, has taken a radical turn. Today we analyze the evolution of this case that has as protagonist: Monsieur Cuisine, the robot that sweeps in sales since it costs three times less than the Thermomix, with quite similar features.
1. 1st instance litigation – Vorwerk vs Lidl 2021: cross-claims between Lidl and Vorwerk
The lawsuit filed by Vorwerk against Lidl for infringement of Vorwerk’s patent was initially upheld. The holder of the Commercial Court number 5 of Barcelona decided that the Monsieur Cuisine machine reproduced some features of the Thermomix and, therefore, Lidl was performing acts of direct exploitation of that invention prohibited by the Patent Act of 2015, which protects patented inventions that are in force, among which was the Spanish Thermomix patent ES2301589.
Subsequently, the nullity action brought by Lidl against the validity of Vorwerk’s patent by Lidl was dismissed. In this case, the judgment indicated that Vorwerk’s Spanish patent is valid because it meets the requirements of “novelty” and “inventive step”, requirements by which the patentability of inventions is ruled within the patent conventions.
2. Appeal – Lidl vs Vorwerk 2022: Lidl beats Vorwerk on appeal by twofold
Section 15 of the Barcelona Court of Appeal upholds the appeal filed by Lidl against the judgment issued by the Commercial Court number 5 of Barcelona in favor of Vorwerk and determines that Lidl’s Monsieur Cuisine does not infringe Thermomix.
2.1 INFRINGEMENT ANALYSIS: Monsieur Cuisine by Lidl does not infringe Thermomix
To analyze infringement, Vorwerk’s claimed and the allegedly infringing product, Monsieur Cuisine, are compared feature by feature.
In light of the description, the preamble of the Thermomix claim should be interpreted to mean that the Thermomix interlocking system allows intervention in the mixing bowl only after stopping the stirring mechanism.
Lidl indicated that, in the Thermomix patent, there are two sequential operations:
(a) stopping the stirring mechanism and
(b) unlatching/releasing the stirring cup lid.
Lidl pointed out that the Monsieur Cuisine can be unlocked with the stirring mechanism in motion.
The Court indicated that, in light of Vorwerk’s patent description, the preamble of the Thermomix claim should be interpreted to mean that the interlocking system allows:
Intervene in the vessel only after stopping the stirring mechanism:
- First, stop the stirring mechanism;
- Second, only then it is possible to intervene on the vessel by removing or opening the previously locked lid.
As to whether in Lidl’s product, the stirring vessel and the lid can be interlocked in such a way that no intervention inside the stirring vessel is possible during operation, the Court indicated that:
There are not two sequential operations in Monsieur Cuisine, but only one; and that Lidl does not reproduce that sequence necessary for safe intervention in the stirring vessel. In the Monsieur Cuisine, the lid can be opened without first stopping the stirring mechanism. Therefore, the Monsieur Cuisine does not reproduce the preamble of the Thermomix claim.
As Monsieur Cuisine does not reproduce all the features of the Thermomix claim, the court rules that Monsieur Cuisine does not infringe Vorwerk’s claim.
And in that sense, section 15 of the Barcelona Court of Appeal, reflects it in this way:
“The conclusion we reach is that there is no infringement because the defendant’s (Lidl’s) kitchen robot does not reproduce that sequence necessary for safe intervention in the stirring vessel. In Lidl’s food processor, the lid can be opened without the need for any prior action, i.e., without the need to stop the stirring mechanism beforehand, and it is this opening or unlatching of the lid by means of a small turn on its axis that determines the stopping of the stirring mechanism, albeit not immediately”, states the judgment.
2.2 NULLITY ANALISYS: Thermomix patent is VOID in Spain
The judgment, dated January 13, 2022, considers that Vorwerk’s patent is invalidated for including added matter, i.e., for increasing the scope of protection during the prosecution of the patent and for lack of inventive step.
In this sense, the nullity of the patent must be declared judicially, and produces the effect of considering that the patent was never valid (art. 104 PL); that is to say, the declaration of nullity of the patent operates retroactively. In fact, the effects of the nullity are ex tunc, which implies that the patent was not valid.
In addition, the effects, being retroactive, imply that the application has not deployed the legal effects of the grant of this right (art. 114.1 PL).
2.2.1 ADDED MATTER
In the initial description of Vorwerk’s patent, two functions of the control card (stirring and heating) are described separately, but no reference to the weighing device can be found.
However, the Court indicated that the Thermomix claim adds subject matter by extending its scope of protection by “a control circuit influencing the stirring or mixing mechanism and a control circuit affecting a weighing device”, contrary to Art.123 EPC.
2.2.2 LACK OF INVENTIVE STEP
The Court indicates that: starting from the closest prior art, the person skilled in the art would arrive at the content of Thermomix claim in an obvious way, without exercising inventive step.
Lidl’s victory
After this succession of lawsuits, appeals and appeals, we come to the end of this controversial case with only one outcome:
Lidl wins the battle against the Thermomix manufacturers and will be able to sell the Monsieur Cuisine again.
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