Wednesday, August 24, 2011

Dutch court orders formally Europe-wide preliminary injunction against Samsung Galaxy smartphones

The Rechtbank 's-Gravenhage (a Dutch court in the city of The Hague) today issued a formally Europe-wide preliminary injunction against Samsung's Galaxy S, Galaxy S II and Ace smartphones -- but not the Galaxy tablets -- at Apple's request. The decision follows a hearing held on August 10 and 11, 2011.

Let me clarify "formally Europe-wide" here:

  • This relates to countries in which one particular European software patent (EP 2059868) is valid. (Formally it's a "device" patent, but it doesn't represent any innovation on the hardware side, so the nature of the invention is that of a software patent the way I define that term.) The injunction relates to the current version of those devices but would not cover future releases that may be designed in ways that don't infringe this particular patent.

    The status of that patent varies between different countries as this list shows. While the patent was originally designated to more than 30 member countries of the European Patent Organization (which is not an EU organization and also includes non-EU members such as Switzerland), there are many countries in which the application wasn't turned into a valid patent because Apple didn't make the necessary administrative effort and pick up the related costs. Those countries in which Apple didn't successfully pursue and complete a local registration include Austria, Belgium, Czech Republic, Estonia, Greece, Iceland, Italy, Latvia, Lithuania, Portugal, Romania, Slovenia, Slovakia, and Spain. Local registrations have apparently succeeded in Germany, Ireland, Sweden, Switzerland, and the UK -- as well as the Netherlands, obviously.

  • In legal terms, the order does not bind Samsung's Korean parent company -- only three different Samsung subsidiaries registered in the Netherlands -- with respect to other countries than the Netherlands. However, it is my understanding that Samsung's European logistics use the Netherlands as the primary hub. If Samsung's Korean parent company wants to exercise its freedom to ship into other European countries despite this injunction, it will have to reorganize its logistics chain in Europe accordingly.

According to a statement quoted by the BBC, Samsung appears to be determined to modify its software in order to steer clear of the infringement identified by the court. Samsung vows to fight on against Apple and underscores that all of Apple's infringement allegations except for the one related to this particular patent were defeated. (I did a follow-up post to explain why the judge considered Apple's slide-to-unlock patent trivial and invalid).

Here's the official court order (in Dutch):

KG 11-0730 en 11-731 Apple - Samsung

The decision was due on or before September 15. The court issued it well ahead of time. This gives Samsung even more time to rearrange its European logistics.

The decision will take effect in seven weeks, i.e., mid October. That is consistent with what the judge said at the hearing, and that date didn't change even though the decision was handed ahead of time. The court apparently has the expectation that Samsung should be able to modify its software in the meantime in order to steer clear of infringement.

This is the patent to which the decision relates (Apple also brought other claims but didn't succeed with those):


Apple would now have a much more impactful decision in its hands if it had pursued the European registration of that patent more thoroughly. Also, Samsung may be able to work around that particular patent without a huge degradation of the usability of its devices because it appears to relate to the way users flip through the pictures in a photo gallery. However, regardless of how Samsung may be able to work around this decision in Europe, it's a setback for Android, a platform that is at issue in more than 50 lawsuits worldwide. In all likelihood, the winning patent is infringed by Android itself -- not the operating system per se, but by one or more of the applications that ship with Android and without which the usefulness of Android would be impaired in one particular area (photo viewing). Apple has now obtained the first enforceable court decision (out of many lawsuits going on around the world) that finds Android to infringe an Apple patent -- and there will definitely be many more to come.

At a first look it seems that the court has a skeptical perspective on the other two software patents asserted by Apple.

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