Wednesday, February 1, 2012

Munich court denies Apple an injunction against the Galaxy Tab 10.1N and Galaxy Nexus

Bloomberg reports that the Munich I Regional Court today handed a negative ruling on an Apple request for a preliminary injunction against the Galaxy Tab 10.1N and the Galaxy Nexus. According to Bloomberg (which scooped everyone else on this, including me, though I live in the Munich area), Apple asserted "a patent granted last year protecting technology related to touch screens for tablets and smartphones". It appears that the court was skeptical of the validity of this patent and therefore didn't want to order a ban based on a fast-track evaluation of Apple's claim.

Samsung said that it "welcomes the Munich Regional Court's ruling denying Apple's request for a preliminary injunction regarding GALAXY Tab 10.1N and GALAXY Nexus" and reiterated its determination to defend itself.

Preliminary injunctions based on technical patents (as opposed to design-related rights) are relatively unusual in Germany, but they're not impossible. Here's a famous example (in German).

[Update] I have now found out from two independent sources that Apple asserted EP2126678 B1, the European equivalent of U.S. Patent No. 7,469,381 on "list scrolling and document translation, scaling, and rotation on a touch-screen display", which I dubbed "Apple's favorite make-Android-awkward patent". It's relatively surprising that the Munich court doubted the validity of that patent. Judge Lucy Koh in California deemed that patent both valid and infringed -- she nevertheless denied Apple an injunction over equitable considerations, which are very different from how German courts decide on injunctive relief. Apple had also made quite some temporary headway with that patent against Nokia (the case was settled prior to a final decision). In light of that, I think Apple may very well appeal the Munich I Regional Court's rejection to the Munich Higher Regional Court, which could still grant a preliminary injunction -- or Apple might pursue this matter solely within the framework of the full-blown main proceeding before the lower court. Either way, Apple will hardly give up on this patent at this stage.

Apple filed the related patent application in January 2008. The European patent was granted in November 2011. [/Update]

This is a patent that a court can easily understand, as opposed to one raising complicated technical issues (which is what many patents related to wireless telecommunications standards do). Only patents that a court can easily evaluate lend themselves to preliminary injunction bids. Preliminary injunctions are granted at the end of fast-track proceedings, in Germany frequently within days of the filing of a complaint. Courts don't have time to go into intricate patent claims within that framework. But such patents are also at a particularly high risk of being invalid, or of being considered likely to be invalid, which is what apparently happened here.

I've repeatedly criticized both Apple and Samsung for seeking preliminary injunctions against each other. While I can understand that time is of the essence in such a dispute (the first one to have major leverage will likely get a settlement on much more favorable terms than otherwise) and while I'm furthermore aware of the competitive situation between the world's top two mobile device makers, most of those bids have so far either failed. Those that succeeded have partly been overturned (such as in Australia) or designed around (such as in Germany).

Both companies obviously have enough money in the bank that they can afford this kind of gamble. Their scattershot litigation is keeping courts around the world busy, including the following three German courts:

  • In Düsseldorf, Apple brought design-related claims against Samsung. Yesterday, an appeals court upheld a formal ban in Germany against the Galaxy Tab 10.1, but since Samsung is now selling a slightly-redesigned version, the 10.1N, next week's decision on that one will have more commercial relevance in the short term than yesterday's ruling. By the way, if you can read German, let me point you to a commentary I wrote on this for leading German financial daily Handelsblatt.

    I'm not aware of any Samsung claims against Apple in Düsseldorf, or any claims brought by Apple there over technical patents, though I recently heard a rumor that Apple may also be asserting one ore more technical patents in that town against Samsung.

  • In Mannheim, Samsung sued Apple last April over three patents. Two of those lawsuits have already been dismissed (though Samsung might appeal). Last year, Apple countersued in Mannheim over six patents. In December, Samsung asserted four additional ones.

  • Today's news is the first one of a lawsuit between those two companies in Munich.

The three courts listed above are all based in the districts of different higher regional courts. This is fairly similar to the concept of circuits in the United States. In the U.S., appeals against decisions of district courts in a given circuit go to the appeals court for that circuit (unless they go to a special appeals court, such as patent cases, which go to the CAFC). In Germany, the decisions of regional courts go to higher regional courts. Düsseldorf and Munich have higher regional courts in the same town. Mannheim appeals go to Karlsruhe.

The Karlsruhe and Düsseldorf Higher Regional Courts are considered to be skeptical of injunctions based on patents that haven't previously withstood a nullity action (declaratory judgment of invalidity). That may be the reason why Apple chose to bring this motion against Samsung in Munich.

Finally, I'd like to mention that this was Apple's second German attack on the Galaxy Nexus, a flagship device Samsung developed in conjunction with Google. At a recent Mannheim hearing, Apple brought supplemental infringement contentions against the Galaxy Nexus. There was some confusion on the Internet because an unnamed Samsung official denied this fact when contacted by a Korean newspaper. But as I clarified toward the end of this recent post, I was at the hearing and can rule out a misunderstanding. I presume that the Samsung official who denied it just had not yet seen the infringement contentions by the time he or she commented. Those things can happen, especially in large organizations and even more so in the context of world-spanning litigation.

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