Apple's enforcement of design-related rights against Samsung's Galaxy Tab range of tablet computers has suffered yet another setback, with the Gerechthof 's-Gravenhage (an appeals court in The Hague, Netherlands) ruling against Apple's appeal of a lower court's decision back in August 2011 that denied Apple a preliminary injunction against the Galaxy Tab 10.1 in the Netherlands. (Back then, Apple won a preliminary injunction in the Netherlands based on a photo gallery scrolling patent, but its claims related to the Galaxy Tab 10.1 were thrown out. Today's ruling addresses only the design part.)
Today's decision is available on the Internet (in Dutch).
As I'll explain below, the rationale underlying this decision is very similar to the approach taken by Judge Lucy Koh of the United States District Court for the Northern District of California, who denied Apple a preliminary injunction for (among other things) an iPad-related design patent that is the U.S. equivalent of the Community design asserted in Europe. Apple is appealing Judge Koh's decision.
The Dutch appeals ruling comes down one week before a ruling by the Düsseldorf Higher Regional Court, a German appeals court that might lift a preliminary injunction granted to Apple by a lower court in the same city in early August 2011. Furthermore, the Düsseldorf Regional Court will rule in early February on an Apple motion for a preliminary injunction against the Galaxy Tab 10.1N, a product version with a modified, potentially non-infringing design.
Last week, Apple filed two new design lawsuits targeting a total of 15 Samsung products in Germany. As I explained then, the two companies need the courts in various jurisdictions to clarify where Apple's exclusive scope of protection ends and Samsung's freedom to compete begins. There's no mathematical formula based on which they could simply agree that Samsung's products are allowed to have a degree of similarity of up to (for example) 70%. Instead, they need guidance from judges.
These are the key findings underlying today's Dutch decision:
Apple's asserted design-related right, Community design 000181607-0001, was not held invalid since none of the prior art presented by Samsung features all of the key characteristics of Apple's design.
However, the existence of at least two pieces of prior art for each of the asserted key design elements led the Dutch appeals court to determine that the valid scope of Apple's asserted design-related right is narrow. Based on that narrowed scope, the asserted right was not deemed infringed.
By contrast, the Düsseldorf Regional Court had described, at a hearing and in its detailed written decision, the scope of protection as "medium-range or broad". The Dutch decision had to address the finding of the Düsseldorf court due to EU rules. Courts in one EU member state can reach different conclusions than those in another on the same matter of EU law, but they must at least explain why they beg to differ. Here, the Dutch appeals court says that it took into account some additional prior art that was not considered by the Düsseldorf court. In my opinion, the Düsseldorf Regional Court had actually failed entirely to narrow the scope of the asserted design right based on existing prior art.
In the United States, Judge Koh also narrowed the scope of Apple's design rights based on prior art. Like her Dutch colleagues, she also concluded that the asserted design right was not necessarily invalid but narrowed its scope in light of prior art.
In the Dutch appeals proceeding, Apple also sought a preliminary injunction against the Galaxy Tab 10.1V, an older and thicker version of the tablet. It appears that the 10.1V is no longer marketed. The Dutch appeals court didn't find that Apple satisfied the sense-of-urgency requirement, without which there is no basis for a preliminary injunction.
The Dutch decision took into consideration the following pieces of prior art:
U.S. Patent Application No. 2004/0041504 A1 ("Ozolins")
the Knight Ridder tablet
the HP Compaq TC1000
Canadian Design Patent 89,155
Japanese design no. 887 388
Japanese design no. 1142127
The Dutch ruling notes that only two of those pieces of prior art were considered by the Düsseldorf Regional Court (the HP Compaq TC1000 and the Knight Ridder tablet). Next week we will know whether the Düsseldorf Higher Regional Court takes any additional pieces of prior art into consideration.
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