Swarco v Strabag (UPC_CFI_33/2024)

• Swarco brought an infringement claim against STRABAG in relation to its patent concerning colour-mixing collective optics for outdoor image display panels. STRABAG (and the intervener Chainzone, being  the manufacturer of LED display panels containing collective optics) did not file a revocation counterclaim but did raise an invalidity objection.
• Strabag and Chainzones' invalidity objection was not substantively considered by the Vienna LD as no counterclaim for revocation had been filed. The court was clear that under Rule 25 RoP a defence must include a counterclaim for revocation against the patent proprietor in accordance with Rule 42 RoP if it is alleged that the patent is invalid.
• The Vienna LD upheld the infringement claim and issued various orders, including cessation of infringement, destruction of infringing products, and compensation for damages.
• Publication of the decision determining infringement in the public media is discretionary under Article 80 UPCA. In order for publication to be permitted, the claimant's interest in publication must outweigh any adverse consequences for the defendant. When exercising its discretion, the court must take into account the purpose of Article 80 UPCA, which is to deter future infringers and raise public awareness. In this case, Swarco did not submit any reasons and there were no apparent reasons that would make publication in the media necessary. The remedial measures awarded against Strabag under Article 64(2) UPCA were deemed to be sufficient.

This analysis is based on a machine translation of a decision not available in English.