SodaStream Industries v Aarke (CFI, 31 October 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 31 October 2024 (UPC_CFI_373/2023), the Düsseldorf Local Division held that Aarke infringed SodaStream’s EP 1 793 917, which concerns a device for carbonating liquid in a bottle, with its “Aarke Carbonator Pro”. It granted an injunction for seven countries, backed by penalty payments of up to EUR 250,000 per breach, together with information, destruction and recall orders, declared Aarke liable in damages and ordered an interim award of EUR 250,000. Only publication of the decision was refused. The decision is of practical interest for its treatment of the “Gillette defence”, its refusal of pecuniary compensation in lieu of an injunction, and an interim award measured by the expected cost of the damages proceedings.

Facts and procedure

The patent, in force in Austria, Belgium, Finland, France, Germany, Italy and Sweden, has not been challenged and Aarke did not contest its validity. The language of proceedings was changed from German to English by order of 16 January 2024, an application for security for costs was dismissed by the judge-rapporteur on 5 August 2024. The oral hearing took place on 15 October 2024. Claim 1 covers a device with a flask receiving the bottle, a filling head, relative movement between an insertion position and a carbonating position in which a substantially closed cavity is formed, and locking means, “preferably” a bayonet connection.

The applicable law

The extent of protection is determined under Article 69(1) EPC, applying the Court of Appeal’s principles of claim interpretation. The remedies rest on Articles 63, 64, 67, 68 and 80 UPCA, the interim award of damages on Rule 119 RoP, and enforcement without security on Article 82(2) UPCA and Rule 118.8 RoP.

Question

Does Aarke’s device, in which the bottle stands on an assembly of drip tray, seal and ring, and whose cover is lowered and locked by a spring mechanism, embody the features of claim 1, and is an injunction proportionate?

Decision

The claim is not limited to preferred embodiments: the flask need not be monobloc or of a set height, and the drip tray, seal and ring together form one, movement of either component suffices, and the locking means need not be a bayonet, which is merely preferred. The new argument raised at the hearing that glass fragments could escape from the cavity was disregarded given the front-loaded nature of the proceedings (Rule 9.2 RoP). The Gillette defence, relying on a 1982 US patent to narrow the claim, failed: prior art discussed in the patent informs interpretation, and the distinction the patent draws (a closed cavity formed by flask and filling head) had already been taken into account. A brief patent attorney opinion did not rule out negligence. The proprietor’s exclusive right justified the injunction, whatever the premium customer base targeted by Aarke, and the pecuniary compensation sought instead was refused. The interim award of EUR 250,000 reflects the claimant’s estimate, not seriously disputed, of the cost of the damages proceedings. Publication was refused as the other measures sufficed. Aarke bears the costs. The value in dispute was set at EUR 3 million and the ceiling for representation costs at EUR 400,000.

Key points for practice

• A functional claim element may be made up of several assembled parts. “Preferably” does not limit the scope of the claim.
• The Gillette defence is not entertained as a free-standing defence: prior art comes in only as an aid to interpretation where the patent expressly distinguishes it.
• Rule 119 RoP allows an interim award, at the merits stage, sized to the expected cost of the damages proceedings.
• Practical point: a non-infringement opinion confined to legal conclusions will not shield a defendant from a finding of negligence.

Provisions applied

Agreement on a Unified Patent Court

Arts. 25(a), 63, 64, 67, 68, 69, 80 and 82(2)

Rules of Procedure

Rules 9.2, 118.5, 118.8, 119 and 190.1

European Patent Convention

Art. 69(1)

Regulation (EU) No 1215/2012

Arts. 7(2) and 71b(1)

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Mammut v Ortovox, Court of Appeal, 25 September 2024, Sanofi v Amgen, Munich Central Division, 16 July 2024, Düsseldorf Local Division, 10 October 2024, UPC_CFI_363/2024

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.