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Friday, 30 January 2015

Nestec now the defendant as the coffee capsule battles continue

Over a recent morning coffee, this moggy stumbled across what seems to be a further chapter in Nestec’s Nespresso wars.  Not the appeal from the Nestec v Dualit High Court decision (which Merpel is keenly awaiting for the reasons discussed in two earlier blogposts, here and here); no, a new player is at the table.  As reported here at Beverage Daily, the Ethical Coffee Company (ECC) has initiated proceedings in France, alleging that Nestlé’s Nespresso machines infringe its European patent.

Not quite the harpoon device
that Nestec had in mind ...
ECC makes and sells capsules that are compatible with the Nespresso machine which, following the Nestec v Dualit decision (and pending any appeal), do not infringe Nestec’s machine patents.  However, it is alleged that Nestec introduced a “harpoon mechanism” into its machines in 2010, which grips the capsule and retains it in the correct position during and after emptying.  This harpoon mechanism (which, ECC contends, is in the form of a barbed hook within the capsule extraction housing) apparently stopped ECC’s capsules from working properly in Nespresso machines, and allegedly infringes ECC’s European patent EP2312978 B1 (“Bet that made them paws for thought” quips Merpel.)

Naturally, Nestec disagrees with ECC’s assertions and does not believe the patent to be infringed.  There is an ongoing opposition at the EPO (unfortunately this Moggy’s French is not up to understanding the lengthy submissions any time soon), and ECC are thought to be considering further suits in other territories and in relation to other patents.  This promises to be worth watching, which of course the IPKat will do with fervour, for the sake of our readers.


Anonymous said...

The link to the patent is broken.

Darren Smyth said...

Apologies. New link should hopefully work. Thank you for pointing this out.

Chris said...

Has the nestec dualit decision been appealed? It'd be good to get the priority issue looked at.

Anonymous said...

It was but Nestec withdrew the appeal following revocation of EP2103236 by the BoA.

Roufousse T. Fairfly said...

Has the nestec dualit decision been appealed? It'd be good to get the priority issue looked at.

The patent was disposed of the EPO opposition procedure.

It was the added subject-matter that killed it. With that diagnosis, the Board didn't bother to look for any bullets or toxic priorities.

I find this whole business appalling, but nevertheless find the latest installment quite interesting. ECC anticipated how Nestec might react to its soft polymer capsules, and preventively filed a patent for a product that litterally doesn't work. According to the patent, the harpoon isn't designed to grip on the cartridge (it would slide on an aluminium capsule), but to make a mess with softer, heat deformable, polymer capsules.

I'm curious to see how the allegedly infringing Nestec embodiment looks like. One might probably defeat the harpoons by tearing them off with pliers or the tip of a screwdriver, but this solution would be most certainly abhorrent to the average consumer.

If the mechanical tolerances allow it, one could also attempt to make a sleeve out of an aluminium Nestec capsule, and use it as a liner to defeat the harpoon or its equivalent mechanisms. A drop of glue could hold the sleeve in place in the receptacle, if necessary, or the aluminium capsule could be deformed to fit the shape of the inner walls.

I should have filed a patent for the liner idea before I made the present disclosure. I still have a few hours left.

I can't find any application by Nestec for anything resemble harpoons.

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