"Samsung vs Apple in Europe" for dummies

Posted by hkwint on Aug 13, 2011 1:35 PM EDT
LXer Linux News; By H.Kwint
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LXer Feature: 13-Aug-2011

For everybody who understands less about the current Apple/ Samsung battle in EU than I do, here is my attempt to share the few things I understand with you. I'll briefly discuss the situation in both Germany and the Netherlands. The article should be especially suited for those who cannot read Dutch / German and are not up to date with what has been happening the last few days.

The proceedings of Apple's legal representatives (Apple from here on) against Samsung have been covered in the US press, but it seems there is a lot of misunderstanding. From reading Florian Mueller's excellent blog, reading Apple's request for the 'Landsgericht' in Duesseldorf, DE and reading the Dutch coverage of the suit on the way in The Hague (NL) and some EU regulations, I tried to get up to date with the topic. So, keep in mind most of my 'knowledge' comes from reading Florian's blog.

Of course I am not a lawyer, don't have any education in law of any kind, so I'm mainly some 'interested' person trying to find out what's happening. All usual disclaimers apply: Consider this just as me trying to be a 'good member of the community' and trying to share my findings with you. Though my findings may be flawed and everything I say may even be wrong. So please keep that in mind, ahem.

What basically happened is this: Apple asked the Civil Chamber of the lower court of Duesseldorf, DE to ban Samsung Electronics GmbH (DE) from selling the Galaxy Tab 10.1 devices (Galaxy Tab from here on) in all of Europe, because Apple says the Galaxy Tab infringes on Apple's Community Design 181607-0001.

It seems Samsung GmbH is serving as Samsung's European 'hub' to distribute their electronics throughout the EU. So therefore, if the GmbH cannot sell their devices in Europe anymore, Samsung is effectively blocked from selling their devices in the EU.

Not only did Apple file a suit against Germany based Samsung Electronics GmbH 1) in Duesseldorf, but also against Samsung Electronics Co., Ltd 2), which in turn is based in Seoul, Korea. As per EU regulation 40/2001 art. 6 , Apple's lawyer says it is possible to sue a company based outside of Europe because both the defendants are basically the same.

The judge in Duesseldorf has not researched the case yet, but pending research, it has blocked Samsung GmbH from distributing / selling the devices in the EU. As far as I understand, this preliminary injunction is only valid in Germany. Other judges in the EU may use the decision of the court in Duesseldorf without further contemplating the case as per the "Brussels Regime". However, European patent law is not the same in each EU country, so I think that means Apple may have to sue Samsung in each EU country separately if they want to ban the device in all countries.

Remember: This is a preliminary injunction, the German judge has not decided anything as of yet. Thus Ken Hess' statement "Apparently Apple believes that Samsung got too close and the European Union agreed." seems totally premature. As first of all the European Union is not involved in any way, and there's no pan-European decision whatsoever. Until the ECJ speaks out about the topic, appealing is possible I guess. Moreover, it remains to be seen if there's a pan-European decision as there's no pan-European patent law, and even more, even the German court didn't make any decision whatsoever yet. If the German court decides against Apple, Apple will have to pay Samsung for the damages of banning the Galaxy Tab it seems.

What's interesting is, Apple in the German case asked the Netherlands to be excluded from the case. Because in NL, Apple has a separate case on its way. That one has been in the The Hague court last few days.

The question still is, why there's a separate case in NL. Of course, just like any EU country, the Netherlands respects EU rulings and regulations. It could be because the Netherlands have different anti-competition rules. More probably is because Samsung Korea ships the tabs from the Seoul seaport in Korea to the largest seaport of Europe, which happens to be Rotterdam in NL. From there on I guess they go to Samsung GmbH, which is only 500km.

So maybe Apple tries to stop the containers from reaching 'European land' and halting those containers before they reach the port. Or maybe they're afraid Samsung will somehow stop transporting the tabs from Rotterdam to Frankfurt, and sell them from the Netherlands. Or maybe in the Netherlands is easier to have a for Apple favourable judge decision against Samsung then in some other countries, in the same way Duesseldorf is the 'East Texas' of the EU.

In the past, US companies also tried to use the court in The Hague to start pan-European patent cases, as the EPO has an office in Rijswijk (residence of The Hague) as well. Remind EPO's head office is in Munich (DE), so maybe starting the cases in the countries where EPO resides is no coincidence. But it seems those pan-European patent cases don't work anymore since the European Court of Justice (LU) decided against such pan-European decisions.

We should be happy some people from the Dutch news website "WebWereld" have been covering the case in The Hague, because now we know what's happening.

What basically happened in the The Hague court is the following: Samsung claimed they're not infringing Apple's design patent, because the Galaxy Tab has different 'details'. Then, Apple said it's not about the details, but about the 'general look' of the device; the broader picture. Then, Samsung said if it's about the broader picture and not about details, there's prior art to Apple's design patent. Because many tablet computers before the iPad had the same general look. If you read the German Apple complaint, you see they're claiming "a flat surface display centered in the computer with a distinguishable edge and round corners". And the company logo centered on the back of the aluminium backside of the tablet, plus a picture of the device put on the carton package.

Of course, many devices before the iPad had the same design - as Apple didn't invent any of this. But then all the suddenly, Apple said it was not prior art because no details the iPad was different from the competing 'predecessors'. Samsung then on its turn said, one should measure the Galaxy tab infringing on iPad's design patent with the same units as if there's prior art or not. So if the Dutch judge looks on details, then the Galaxy tab is not infringing, and if the Dutch judge only looks at the broad picture, there's tons of prior art. The Dutch judge pretty much agreed to that Samsung-statement, it seems.

Also, the judge says if the Galaxy Tab will be blocked from the Dutch market, it will only be blocked after October 13th; a pretty reasonable statement which contrasts to the more unreasonable preliminary injunction as done by the Duesseldorf court.

It remains to be seen what will happen next. Samsung GmbH may not sell the devices in Europe, but Europe's largest electronics retail store (Metro with its brand MediaMarkt) is still allowed to sell them, and they still do. At the same time, Samsung also counter-sued Apple in NL over 3G patents. There may be some settlement boiling between Apple and Samsung it seems, at a certain point WebWereld reports Samsung asked all journalists / audience to leave the courtroom because they wanted to discuss something with the judge and Apple 'in private'. Also, more patents may be involved in Germany, but it might not yet be public. Because European patent law is fragmented, it's very unsure what any decision by the Duesseldorf lawyer would mean for the rest of Europe. And of course, Samsung would appeal an unfavourable outcome.

A good question is, what would happen if Samsung ships the tablets to some other European port like Felixstowe (UK), Valencia (ES), Antwerp (BE) or Le Havre (FR).

Samsung will plead against Apple's statement in the German court August 25th, and the judge in The Hague will probably decide about the case September 15th.

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Well Done kenholmz 2 1,160 Aug 14, 2011 8:36 AM

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