Print 62 comment(s) - last by testerguy.. on Feb 14 at 9:19 AM

Original Galaxy Tab 10.1 is still banned, but court rules it's not infringing Apple's design -- sort of

Apple, Inc. (AAPL) 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. (KS:005930).  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 Australiathe U.S., and the Netherlands, 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.

Galaxy Tab 10.1N
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]

That left only Germany 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 court writes, "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.
U.S. Display patent

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

Germany's Associated Press equivalent, dpa, reports the latest breaking news in the Samsung v. Apple legal war.  The Düsseldorf Higher Regional Court has ruled not 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.

Dusseldorf 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 any 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 -- 000748280-0006 and 000888920-0018 [PDF].  Samsung is looking to directly attack the validity of these design claims, filing to have them removed from the EU design patent base [source].  It filed the invalidity claim in Aug. 2011.

Motorola -- whose acquisition by Android phonemaker Google Inc. (GOOG) 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. (TPE:2498) 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 [1][2][3].

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 and 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 [1][2][3][4], Samsung moved about several million Galaxy Tabs for the year, reaching shipments to retailers of 2 million in Q4 [source].

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?

Sources: Düsseldorf Higher Regional Court [translated], ITO [translated], dpa [translated]

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RE: No....
By testerguy on 2/12/2012 7:37:05 AM , Rating: 0


Do those really look that different? Functionality dictates form. Repeat it.

Functionality doesn't dictate form. At all.

Do they really look that different? Hint - of course they do. Proving that functionality does NOT dictate form.

Furthermore, it is NOT, repeat NOT form which was the reason the Galaxy got banned, if by form you simply mean the shape. There are thousands of tablets which have a similar shape but they were different enough to clearly be distinguished. It was the combination of a whole host of factors which were identically copied (or to the point which could not be distinguished) with made the JUDGE agree with me that they were not significantly different. And by the way, the two pictures you posted are VERY easy to distinguish. I'm sure their lawyers would be able to tell them apart.

In your mind what would a sufficiently"different" tablet look like?

How about looking at *EVERY* other tablet which wasn't successfully banned? You know, something with any ounce of originality?

Again with tablets people have no point of comparison... that is my point.

So the Samsung lawyer had no point of comparison for the iPad?

in this case you're offering up a non sequitir, in that the "similarity" is perceived due to Apple's dominant position.

The only 'non sequitir' comment was your ludicrous CPU comparison in the first place. The similarity to the iPad which makes the original Galaxy illegal is not due to any false 'perception' which you claim exists. The courts don't have that false perception, clearly aware of the 2 different tablets being discussed, and the case did not rest on what the general public could distinguish - but rather on what was objectively copied and could not be distinguished. If you say that any tablet looks like an iPad to the end user, and that that is the reason the Galaxy was banned, then by your logic the court will ban every tablet. Guess what, they wont - and the reason they wont is that their tablet have at least some semblance of their own designs. Furthermore, the CPU comparison falls flat because the only reason the 'dominant' position (of Intel) leads to some people assuming any processor is an Intel (which doesn't matter legally anyway) is because they are not given any opportunity given their role to visibly distinguish themselves. Intel could make their processors purple if they wanted, it wouldn't change it. If Samsung came up with a proper design they COULD product a tablet which was not a direct copy. And by the way, since looks are a selling point in tablets and not in processors, the actual equivalent would be if the architecture of the AMD and Intel CPU's were indistinguishable.

What exactly about the packaging of the keyboardless tablet is so different??

Are you saying you can't tell the difference? By the way, you failed to understand what 'packaging' means, look at the link which TakenYourPoints has linked a few times showing how identical so many parts of the Galaxy Tab are to the iPad. Look at the back of the Asus, for example - completely different. Now look here, not the style of the rim, for one example:
Both identical - not so on the Asus.

You also try to remove the most relevant point. The Asus has a unique and innovative design in that it can dock to a keyboard, making it arguably distinguishable. Finally, who's to say Asus didn't breach the iPad 2 copyright too, and that Apple wont go after them next? Just because 2 companies do something illegal doesn't make it not illegal. It's good that you now admit you can't tell the difference though.

Obvious troll is obvious. ASUS Transformer Prime: Bluetooth 2.1 micro HDMI Wi-Fi 802.11b/g/n Docking port Galaxy Tab 10.1: Bluetooth 2.1 HDMI Wi-Fi 802.11b/g/n Wow... looks really different. Glad an expert has set the record straight.

Someone please enlighten Jason Dick to the fact we're not talking about the Asus transformer. Please, before the 'expert' makes a mockery of himself and his pathetic biased excuse of a site...

Look here, for the specific items I was referring to:

RE: No....
By testerguy on 2/12/2012 7:39:25 AM , Rating: 2
The overall design differences between any two touch-screen devices of a given size are minimal. The most striking visual element is the touchscreen itself. Apple does not make or design its own touch screens -- it buys them from LG. The rest is just putting a plastic/metal wrapper around the internals.

Riiiiight ok Jason - now people don't care about design. They could wrap sheep skin around the iPad 2 and it would sell just as many? You pick the one part which has nothing to do with the copyright (the screen) and then point out that Apple doesn't manufacturer it.... like that has any relevance, whatsoever? Hint - it doesn't. The screen was never the issue or subject of any of the legal cases, it's, as ever, just a pathetic way for you to try and discredit Apple by writing irrelevant drivel. Guess what, the consumer doesn't care whether the screen was manufactured by Apple or by Cheese Inc Ltd - as long as it works. As for 'putting a plastic/metal wrapper around the internals' - please, that's such a pathetic statement when it's probably the single most important element to any tablet, and incorporates far more technology and design than your primitive sentence suggests.

You clearly are poorly informed. The incident you are referring to occurred when a Samsung tablet was held up over 10 feet from a Samsung lawyer... I would have trouble tell most laptops apart from that distance... It was just a meaningless court antic a la "if the glove doesn't fit, you must acquit!" Your insistence clinging to it is quite sad.

This is the most pathetic response, ever. 10 feet? So less than the typical distance people sit away from their TV - the same people who appreciate and can see the difference HD makes from that distance. If you would have trouble telling laptops apart from 3 metres - I would suggest you're either a) Blind, or need glasses, b) Not qualified to represent that laptop maker in a court of law in a copyright infringement case (where your job is to highlight how it's different) or c) That the laptops are too similar. Fortunately, the court agrees with me. But obviously the court are 'poorly informed' too - since they don't agree with your inexplicably sad hatred for Apple and the bias drivel you excrete as a result.

If you were properly informed, by the way, you would know that '"if the glove doesn't fit, you must acquit!"' can easily be distinguished because he was (theoretically) able to change the size of his hands through medicine. Are you suggesting that Apple got the Galaxy Tab to stop taking pills so that it would look identical to the iPad just for that question? Typical misuse and misunderstanding of legal precedents. But of course, that's why you're just a blogger - and not a very good one.

quote: I can rip off a BMW down to every last detail, and then write 'JASON MICK IS BIASED' all over it - it's easy to tell which is which but it's still a blatant rip off. Nice, oddly random obtuse personal attack. I give you points for trying your best to avoid discussing the facts at hand.

Did you really not understand the relevance? Your argument was that if it's easy to tell something apart, it's not a copy. I proved, by counter example, that being able to tell something apart doesn't necessarily mean that copyright hasn't been infringed upon. Perfectly relevant, perfectly logical - to anyone who has a basic grasp of logic.

If you actually had read and understood the numerous pieces I have written on this topic, I think it's pretty clear that I point out that Samsung's lawsuits are also quite disruptive to the market.

As I stated quite clearly, the 'passing mentions' you give Samsung's lawsuits and the pathetic excuses 'retaliatory' you constantly provide for Samsung mean that you absolutely understate just how bad what they tried to do is. Trying to ban devices based on FRAND patents is far, far worse, than trying to ban devices based on the fact that they are blatant rip-offs, yet even your mentions of those far more disruptive Samsung cases rant on about how Apple 'started it' and ends up talking more about those cases. As I said, you're bias is completely transparent.

You clearly are a big expert on bias, no? But I suppose I have no right to write a public analysis. I had no idea you had passed a law prohibiting my free speech and freedom of the press... I'll know better next time, surely. Pass the koolaid, while you're at it, I'm kinda thirsty from all this typing.

Did I say you had no right to post biased garbage on a public blog? Try no. Did I say it was biased garbage? Try yes. Learn the difference and learn why free speech is irrelevant as to whether you're a biased drivelling idiot or not.

'Koolaid' - wow, good one - respected journalist...


RE: No....
By Camikazi on 2/12/2012 11:53:52 AM , Rating: 2
Aside from both being cars, that Audi and the Smart car don't fit the niche, their functions are different. The smart car is meant for personal conveyance usually in crowded city driving. The Audi, while it can drive in the city, is made mostly for conveying a family around longer distances, yes they both can do each but one is made to be better in certain things then the other. Just like you wouldn't use a Ferrari to haul a trailer you really wouldn't use a Mack truck on a race track. See even in cars form follows function and the function of a hand held, large touchscreen device used as a media consumption device rectangular with boarders is the basic setup, you can't make it round or triangular.

RE: No....
By testerguy on 2/14/2012 9:19:48 AM , Rating: 2
The smart car is meant for personal conveyance usually in crowded city driving. The Audi, while it can drive in the city, is made mostly for conveying a family around longer distances, yes they both can do each

You answer your own comment. They can both do each. If they can 'do' it - it's a function of theirs. They both have the same function - yet their forms are different. Just like the laptops Jason linked, one may be faster, one may last longer - but their FUNCTION is the same, one just does that same function slightly better than the other.

Your Ferrari example is flawed, as is your Mack truck. The Ferrari is designed for speed and is marketed for that. A truck slows it down. Similarly, a Mack truck isn't designed for speed, so wouldn't make sense to race. They aren't the intended functions of either. Driving in a city, and driving more than 2 people around, however, ARE both functions of the two cars I linked. I picked them for a reason, talking about Ferraris is obviously different and that's why I didn't select them. Take any two sports cars if you really want, their form wont look the same. Clearly then, in cars as in anything, function doesn't dictate form.

The Galaxy Tab was not found to be a copy of the iPad because of it being 'rectangular' or 'large'. 'borders' are NOT a requirement driven by the function, they are a design option - and again they were not the ONLY reason the Galaxy Tab got banned. To say 'you can't make it round or triangular' when the case did not focus at all on the fact that the tablet was rectangular, is clearly irrelevant.

To use your Ferrari analogy, it's like Honda copying the latest Ferrari so closely that a Ferrari lawyer couldn't tell which one was which from 3m away. It isn't infringing because it has 4 wheels. It isn't infringing because it has a rear mounted engine. It's infringing because it wasn't ORIGINAL.

"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein

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