Apple loses again - Dutch judge says Samsung can keep selling tablets

Rich Fiscus
24 Jan 2012 17:34

Samsung has notched another victory against Apple in the continuing saga of lawsuits over mobile device patents. A Dutch court has upheld last year's denial of a preliminary injunction against sales of the Galaxy Tab 10.1.
This is not a final ruling in the patent suit, but it does allow Samsung to sell their tablets while the lawsuit continues. The Dutch ruling runs counter to a German ruling in Apple's favor.
Germany and the Netherlands were chosen for Apple's European lawsuits because that's where Samsung's distribution centers are located. If they are banned in those two countries, they would effectively be unavailable throughout the EU.
In a post on his FOSS Patents blog, Florian Mueller explained the difference between the two decisions, which are both based on the same patents, and also explained why this may be a sign the German decision could be overturned. He also included some analysis of a similar decision in the US:

• 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.

For many people, the most important issue in Apple's lawsuits is the question of design elements. While Apple has characterized elements like rounded corners and a bezel-free design as aesthetic choices, rather than functional features, removing them would clearly reduce the usefulness of competing products.
Additionally, Apple faces the likelihood some of their patents are either invalid due to prior art or more restricted than they claim. And Steve Jobs made it clear to his biographer that the motivation for Apple's campaign of Android-related lawsuits was anger over being copied rather than a concern about actual competition.
There is no evidence Apple is worse off financially for all that copying. The iPhone continues to thrive and gain market share, in no small part at the expense of the companies they are suing. How long can Apple continue to justify huge legal bills which don't appear to add anything to their bottom line?