German Appeals Court Approves Galaxy 10.1N, Tells Apple "Deal With It"
February 9, 2012 6:01 PM
Original Galaxy Tab 10.1 is still banned, but court rules it's not infringing Apple's design -- sort of
Apple, Inc. (
) has been dealt the latest in a series of mounting losses in its legal campaign to stifle top tablet and smartphone competitor Samsung Electronics, Comp., Ltd. (
). International courts are increasingly becoming frustrated at what some claim amounts to be anticompetitive legal "trolling" by both companies, who have flooded international courts
with a deluge of lawsuits
I. Apple's Design Claims -- Going Nowhere Fast
Apple, who initiated the patent spat, has made some controversial claims. Its lawyers argued that all modern tablets are in infringement of Apple's patented design, stating, "Samsung says Galaxy Tab 10.1, we say any tablet device."
Unfortunately for them, that claim is being tossed out of court. In
, Apple has already been dealt effective losses in key rulings, after courts rebuffed its request to be granted a design-patent based exclusive monopoly on "minimalist" designs.
Samsung redesigned its Galaxy Tab 10.1 to make the 10.1N, a German specific variant that looks to avoid looking anything like the iPad. [Image Source: GSM Android]
where a judge granted Apple a victory on a design basis, with Mannheim court Presiding Judge Johanna Brueckner-Hofmann writing, "The court is of the opinion that Apple’s minimalistic design isn’t the only technical solution to make a tablet computer, other designs are possible. For the informed customer there remains the predominant overall impression that the device looks."
II. Germany Appeals Court Says Samsung Design Does Not Infringe, Bans it Anyway
As in a technology patent based dispute in Australia, the Brueckner-Hofmann ruling was appealed by Samsung and overturned by a higher court. The Düsseldorf Higher Regional Court (an appeals court) ruled that the lower court erred in banning the standard international Samsung Galaxy Tab 10.1 on a design basis.
, "The scope of Apple's design is limited. A rimless flat [tablet] patent was already requested in an old U.S. patent application, the so-called "Ozolins design". Incidentally, the distinction "Galaxy Tab 10.1" [is] sufficiently clear from the declared design of Apple. Thus, the [Apple] design patent covers two aesthetically perceptible[ly] parts, a shell and a front panel covering it. The "Galaxy Tab 10.1" by contrast, was constructed in three parts, it consists of a front, a back and a verklammernden (clinging) frame."
The Ozolins design,
U.S. Patent Application No. 2004/0041504 A1
-- a minimalist tablet patent that predates Apple's -- was already successfully applied by Samsung to
kill design claims in a Dutch lawsuit
The court, however, did ban both the Galaxy 10.1 (original) and its diminutive twin, the Galaxy Tab 8.9 on grounds that Samsung violated Germany's "unfair competition" laws.
It seems like bizarro day as the court essentially contradicts itself, stating, "The distribution of the "Galaxy Tab 10.1" [runs] contrary to the law against unfair competition, because the Samsung model unfairly imitates (§ 4 No. 9 b) the Apple Tablet "iPad" [hence violating] the law against unfair competition. Samsung use [of] the outstanding reputation and prestige of the "iPad" [is] unfair."
The ruling is very nebulous and arbitrary to say the least, as it does not exactly specify how Samsung is "unfairly" using Apple's "prestige", particularly considering that it already conceded that the iPad and Galaxy Tab designs are quite different in looks.
III. German Court Says Galaxy Tab 10.1N is Sufficiently Different
equivalent, dpa, reports the latest breaking news in the Samsung v. Apple legal war. The Düsseldorf Higher Regional Court has ruled
to hand Apple a preliminary injunction on the Galaxy Tab 10.1N.
The Galaxy Tab 10.1N is a special design exclusive to the German market. It contains additional visual flares to differentiate it further from the iPad. Unsurprisingly, Apple was not satisfied with Samsung's efforts. It sued trying to block sales, but saw its request for a preliminary injunction
refused by a lower court
last year. It then tried to appeal the PI rejection to the Düsseldorf Higher Regional Court.
Apple has lost another round at the Düsseldorf Higher Regional [appeals] Court in Germany.
[Image Source: All About Samsung]
But the higher court sided with the previously ruling, commenting that the extra design changes, on top of the Tab's already distinctive design, were cumulatively enough to work around both the European patent laws, and the stricter "prestige" based local German competition laws.
The court writes [translated]:
The chamber concluded after a summary of fast-tracked tests that the design of the "Galaxy Tab 10.1 N" has now changed sufficiently to differentiate [Samsung's] product from the design rights granted in Apple's European filing, which shows the design of a Tablet PC. Consequently, it does not fall within this protection area, and
there is no infringement
. Due to the pre-design changes made by Samsung the "Galaxy Tab 10.1 N "
is [also] not in violation of [the] competition law
In a way, in pushing for a fast-tracked preliminary injunction and then appealing to the higher court when it didn't get it, Apple's lawyers may have scuttled their own ship. Now that the higher court has ruled that the Galaxy Tab 10.1N does not infringe, it is far less likely that the lower Mannheim court would rule it to be in infringement.
This is a major victory for Samsung, as it means that it can continue to sell in Europe's third largest tablet market (behind France and the UK).
Of course, these rulings all concerned Apple's request to receive a preliminary injunction. While the rulings indicate Apple is less likely to receive
injunction on the Tab 10.1N, it is possible that it could still score such a win when the final ruling is made. Regardless of the outcome, that ruling will likely be appealed by whoever loses, so it will still be some time before this particular branch of the lawsuit war comes to its conclusion.
IV. A Long War Ahead
You can't say Apple isn't trying hard -- it's also targeting ten Samsung smartphones and five Samsung tablets (including the Galaxy Tab 10.1N), using four design right claims --
[PDF]. Samsung is looking to directly attack the validity of these design claims, filing to have them removed from the EU design patent base [
]. It filed the invalidity claim in Aug. 2011.
Motorola -- whose
by Android phonemaker Google Inc. (
) will be
approved or rejected next week
-- is also being sued by Apple with regards to the Xoom tablet. Apple has also tried to bully HTC Corp. (
) with a series of international filings. Its biggest success thus far has been to
ban some older model HTC smartphones
in the U.S. -- but that ruling will not go into affect until April, giving HTC time to potentially redesign and avoid it.
The Android phonemakers have been actively countersuing Apple. Motorola has -- so far -- seen the biggest success, scoring a temporary online sales ban on the iPad in Germany, as well as a
still-standing ban on the iCloud
. Samsung's claims have been far less successful, though it continues to employ a "carpet bombing" legal approach akin to Apple's [
Samsung is currently the world's largest Android phonemaker. Apple and Samsung were in a dead heat in terms of smartphone sales in Q4 2012, with
Samsung moving 36.5m units
Apple moving 37m
. Overall Apple
narrowly outshipped Samsung
in smartphones for the full year.
In tablets, Apple is
much farther ahead in sales
, although Samsung's Galaxy line still leads non-iPad tablets in sales. The iPad 2 sold roughly 40 million units in 2011 [
], Samsung moved about several million Galaxy Tabs for the year, reaching shipments to retailers of 2 million in Q4 [
V. Judge for Yourself
While it's nice to see Germany finally coming around to common sense with the Galaxy Tab 10.1N ruling, the "unfair competition"-based ruling on the original design is still controversial.
Judge for yourself whether you think the
iPad, iPad design patent, and Galaxy Tab (original)
are that much like each other. Do the facts support Germany's ban?
Düsseldorf Higher Regional Court [translated]
“So far we have not seen a single Android device that does not infringe on our patents." -- Microsoft General Counsel Brad Smith
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