Friday, March 16, 2012

Mannheim court halts Apple's second slide-to-unlock case against Samsung

It's taking Apple and Samsung time to win any decision against each other in Mannheim. Two weeks ago, Samsung lost its third 3G/UMTS-related case in a row and Apple saw the first one of its two German slide-to-unlock cases against Samsung thrown out. This morning, Apple's second slide-to-unlock case was stayed for the duration of a parallel proceeding before the Deutsches Patent- und Markenamt (German Patent and Trademark Office) that could lead to the revocation, in whole or in part, of Apple's slide-to-unlock utility model. Judge Andreas Voss said that the court was unconvinced of the validity of that intellectual property right in all respects, with particular concern about the broadest group of claims.

When I reported on the related trial, I already explained the key differences between patents and utility models. A utility model is a fast-track patent that is valid for a maximum of ten years, and unlike a patent, which undergoes at least some examination, utility model registrations are a mere formality. In light of that difference, utility models, unlike patents, don't enjoy a presumption of validity. If you assert a utility model, you bear the burden of proof. If you assert a patent in court, the defendant has to meet a certain standard to succeed with an invalidity defense, or to at least win a stay.

I don't know about the status of the revocation proceeding at the German patent office. But those can take time, especially if there are further delays due to appeals (in which case the Mannheim court would have to decide again whether to extend the stay or decide in Apple's favor based on the decision taken by the patent office). Since this utility model is already about five years old, every passing year significantly reduces its commercial value. Justice delayed is often justice denied in a fast-paced industry, but it's a good thing that courts approach utility models with a healthy degree of skepticism once there's an invalidity defense that's reasonably plausible. In this case, the jury is out on whether that utility model will be revoked, but based on how the trial went, Samsung had a reasonably credible defense based on its primary prior art reference, the Neonode N1m. Still, Apple could have overcome that invalidity contention if the court had determined that the obscure Swedish device wasn't eligible as prior art against a utility model (which requires a certain level of visibility in Germany). Judge Voss didn't comment on the Neonode N1m at today's announcement, but I saw at the trial that Samsung's invalidity defense depended on this device.

This is the second Apple case in as many days to be halted by a German court over doubts about the validity of the asserted intellectual property right. Yesterday, the Munich I Regional Court said clearly (though a more formal announcement is due on March 29) that an Apple lawsuit against Motorola over a "dynamic ornamental appearance" patent can't be adjudicated as long as the court has the current level of doubts about the validity of that patent. The key difference here is that Motorola had to show to the Munich court an 80% probability of invalidity (the standard for patents), while Samsung merely had to meet a standard comparable to preponderance (more than 50%) for the utility model.

Some of the claims of the utility model are rather sweeping, and if they were held valid, infringement would probably be a given for most if not all implementations of slide-to-unlock.

There was a third slide-to-unlock case in Germany, and Apple won that one against Motorola in Munich last month. In that one, Apple was asserting the slide-to-unlock patent. I don't know whether Apple is also suing Motorola over the slide-to-unlock utility model.

There will be two trials today in Mannheim (on a Motorola lawsuit against Microsoft and another Apple lawsuit against Samsung).

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