Final win for NSK and Bird & Bird against EMS in dental equipment dispute

The dental equipment industry is seeing increasingly fierce patent disputes. Several manufacturers are facing off in court. Now, the Higher Regional Court in Düsseldorf has dismissed a lawsuit filed by market leader EMS Dental. Its Japanese competitor NSK Nakanishi can resume selling its prophylaxis devices in Germany.

Distribution company Henry Schein Dental, which sells products from both manufacturers as well as its own device, is also involved in the dispute between EMS Dental and NSK Nakanishi. EMS had obtained a preliminary injunction against Henry Schein at the Düsseldorf Regional Court, prohibiting the distribution of NSK’s product ‘Varios Combi Pro’. The Swiss company also filed a main action against NSK, which succeeded at first instance. In summer 2024, the court prohibited the manufacture and sale of ‘Varios Combi Pro’ devices in Germany. Henry Schein and NSK appealed to the Düsseldorf Higher Regional Court.

At the heart of the dispute is an interchangeable powder container for the device. EMS accuses NSK of infringing EP 1 972 295. The Federal Patent Court restricted the patent during proceedings. Nevertheless, the judges at first instance concluded that NSK’s product still infringes the patent.

The Higher Regional Court judges, led by presiding judge Thomas Fricke, see things differently. Andrea Frehe and judge Michels were also involved in the decisions. They overturned both the preliminary injunction against Henry Schein and the infringement ruling against NSK (case IDs: I-2 U 73/24 and I-2 U 72/24). EMS has since confirmed to JUVE Patent that it will not appeal to the Federal Court of Justice. The judgments are therefore final and the ‘Varios Combi Pro’ may continue to be sold in Germany.

Dispute not yet over

However, this does not spell the end of the dispute between the competitors. EMS’s appeal against the Federal Patent Court’s invalidity ruling is still pending. If the Federal Court of Justice overturns the ruling and confirms the patent in its original form, EMS could reopen the infringement dispute. Lawsuits based on newer patents are also possible.

A parallel main proceeding under EP 295 against Henry Schein is still pending before the Düsseldorf Regional Court.

Separately, the Swiss dental equipment manufacturer is taking action against a Chinese manufacturer of similar prophylaxis devices at the Munich and Düsseldorf Regional Courts. The disputes indicate intense competitive pressure in the European market from Asian competitors.