Lidl beats Thermomix in court and will be allowed to remarket its food processor

BarcelonaBarcelona's Court of Appeal ended up ruling in favour of German supermarket chain Lidl in its litigation against Vorwerk, a German appliance company which developed the Thermomix food processor. The court upheld Lidl's appeal and overturned a previous judgment that found that the supermarket chain had plagiarised its food processor, Monsieur Cuisine Connect, directly from Thermomix.

Because of this previous judgment, issued a year ago, a commercial court in Barcelona ordered the withdrawal of all units of Lidl's kitchen robots, as it considered the supermarket company's encroachment on Vorwerk's patent to be proven. Lidl, however, appealed the decision to a higher court, the Audiencia Provincial, which on January 13 concluded that there was no plagiarism and reversed the decision of the commercial court.

Vorwerk took Lidl to court in 2020, following the market launch of Monsieur Cuisine Conncect by Silvercrest, Lidl's electrical appliances brand. The robot had a price of €359, well below the over €1,200 at which Vorwerk was selling its Thermomix. In addition to demanding the recall of the product, Vorwerk also asked to be compensated with 10% of the sales of the Lidl food processor. The supermarket chain's legal counterattack was a cross-claim to invalidate Vorwerk's patent for "lack of novelty, inventiveness and addition of matter", which is what the Appeal Court has now accepted.

Invalid patent

The Court's ruling considers that "the patent on which Vorwek relied to impute [to Lidl] the infringement of its rights is invalid for different reasons," according to a statement from the General Council of the Judiciary published on Wednesday. Specifically, the judges annulled it for substantive reasons, since they argue that "the application does not have inventiveness", that is, that the Thermomix does not include any innovative element that is not obvious to the eye of an expert, a basic requirement for the grant of a patent. "The Court considers that, even if the patent were valid, there would be no infringement by Lidl of the Vorwerk patent," the statement concludes. The appliance manufacturer patented the Thermomix in 2008.

However, the judges also believe that Vorwerk has "illegitimately extended protection in the course of prosecution" of its own Thermomix patent, because of "the existence of added matter". In other words, the Thermomix patent is invalidated over a formal issue in the prosecution, since the manufacturer included new elements during the process of acceptance of the patent by the Spanish Patent and Trademark Office (SPTO), something which is not allowed.

The inclusion of irregularities in the prosecution is a common practice in most European Union countries and before the European Patent Office, but until now it was not common in Spain. That a court now accepts the inclusion of matter during prosecution as a valid ground for the annulment of a patent represents a change in case law that brings the Spanish legal system into line with that of the rest of Europe.