Published today in The Scotsman
Everyone seems to have a smart phone or tablet these days and, not unconnected, just about every major legal jurisdiction now seems to have intellectual property disputes arising from their sale and development.
In a dizzying whirl of litigation over the last twelve months, from Germany and Japan to the United States, the Netherlands and England, the major players in the market (including Apple, Samsung, HTC and Motorola) have locked horns in attempts to obtain injunctions against the sale and distribution of rival products. Success has been mixed.
In some instances, one company has been successful in one jurisdiction, only to obtain an entirely different or at least a conflicting outcome in another. While in essence the disputes have been about the designs and technologies used in mobile devices, the reality is that it is a battle for control or even a foothold in a multi-billion dollar worldwide market.
There are no definitive answers it seems, or at least there are a number of different ways of looking at the laws of patent infringement.
Some argue that the software designs and enhancements built in to each succeeding generation of devices have inevitably built upon those of the past; while others claim that certain features of ‘searchability’ and ‘functionality’ in devices are unique, and represent a recognisable development attracting their own intellectual property rights and legal protection. Some issues relate purely to the appearance of rival devices but overall a very real concern in the industry is that if each company becomes entrenched in successfully protecting its own patents and designs, future breakthroughs and developments will become all but impossible in the way all the major players have benefited from in the past.
This month’s decision of Judge Birss QC, in the English High Court case of Samsung Electronics (UK) Ltd v Apple Inc.  EWHC 1882 Pat, is a good example. Samsung raised an action seeking a declaration that three of its Galaxy tablet models did not infringe a European Community Registered Design registered by and belonging to Apple. Following an exhaustive consideration of many of the design features of both Apple and Samsung products, Judge Birss noted as follows:
“The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.”
Then, turning to the Samsung products he opined:
“The informed user’s overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.”
And so by way of this rather back-handed compliment and affirmation of judicial good taste, Judge Birss concluded that Samsung had not infringed Apple’s registered design.
The judge’s remarks have been a gift to satirists, or at least who those who hang around the Royal Courts of Justice. “Surely, that’s the last thing you want,” they chortled on BBC Radio’s Now Show, “judges basing their verdict on how cool they think the parties are. Older people just aren’t behaving the way we expect.” The thought led seamlessly on to the 50th anniversary of the Rolling Stones first gig. If ‘gig’ is still cool.
The makers of the Galaxy products welcomed the decision, stating that it ‘affirmed our position that Galaxy Tab products do not infringe Apple’s registered design right. As the ruling proves, the origins of Apple’s registered design features can be found in numerous examples of prior art.” And “Should Apple continue to make excessive claims in other countries based on such generic designs, innovation in the industry could be harmed and consumer choice unduly limited.”
Apple of course sees the position very differently, and the litigations pending in jurisdictions across the globe will continue to play out, with one highly significant showdown, again with Samsung, moving slowly toward a U.S. Federal Court hearing. Apple has won the vital preliminary skirmish in securing an injunction against the sale of Galaxy products, a decision which Samsung is appealing in advance of the full hearing. The stakes for both companies could not be higher.