In its judgment of 24 August 2011, the preliminary relief judge of the District Court of The Hague, the Netherlands, ruled that several Samsung products do not infringe Apple's design rights and copyrights. He did, however, rule that one Apple patent is infringed and imposed a cross-border (European-wide) injunction in that respect; this means that Samsung will have to make a technical change. The judgment is an interesting addition to the raging phone/tablet war, where the Netherlands and Germany are the European battle grounds. Charles Gielen, Richard van Oerle and Helmer Klingenberg of the NautaDutilh-IP group are part of the team representing Samsung.
If invalidity of a foreign patent is invoked, pursuant to Article 22(4) Brussels I Regulation and European case law, the addressed national court may not rule thereon and must either stay the case or dismiss the claims. Presently, questions are pending before the Court of Justice aimed at determining whether this rule also applies in preliminary relief proceedings (Solvay/Honeywell, case C-616/10). Pending the outcome thereof, the position of the District Court of the The Hague, thus also taken in the Samsung/Apple case, is that the answer is no.
Out of three patents invoked against several Samsung products, the court only found infringement by some Samsung smartphones (Galaxy S, S II and Ace) of one patent (claiming protection for a certain two-staged swiping movement). The Samsung tablets were held to be non-infringing.
No design infringement
The court furthermore ruled that none of the Samsung smartphones and tablets attacked by Apple infringe its design rights. In this respect, it stressed that the comparison must be made between the design registrations of Apple (not the designs as used by Apple) on the one hand and Samsung's products on the other hand. The court pointed out that it thus disagrees with Advocate General Mengozzi's advisory opinion in the PepsiCo case (C-281/10).
In the comparison, the court identified several differences and moreover stated that many other elements were either already known or are technically determined. In respect of this last issue, the court noted that there is a trend towards 'minimalistic' design, which essentially means that the design as much as possible follows the outline dictated by the technology and ergonomics of the product. Inherently, a design right to a minimalistic design...