The Oberlandesgericht Düsseldorf (Dusseldorf Higher Regional Court) just announced its decision on two appeals of decisions by the Landgericht (District Court) based in the same German city.
The appeals court upheld the lower court's denial of a preliminary injunction against the Galaxy Tab 10.1N, a modified version of the 10.1-inch tablet that Samsung's designers and lawyers jointly created in order to steer clear of violationg of Apple's asserted rights.
The appeals court had previously affirmed a preliminary injunction against the original Galaxy Tab 10.1, identifying a violation not on the basis of Apple's asserted Community design (the EU equivalent of a U.S. design patent) but under German unfair competition law. As a result, the geographic scope of the decision was limited to Germany.
Apple succeeded on another count. It won a preliminary injunction against the Galaxy Tab 7.7 on an EU-wide basis. It was previously already able to enforce the Galaxy Tab 10.1 decision against the Galaxy Tab 7.7, which has the same design but a smaller form factor (under German law, this is called a "kerngleicher Verstoß", or "violation sharing the same core"). But with the appeals court's decision, it can now also prevent Samsung's Korean parent company (and, as a result, its different international subsidiaries) from selling the Galaxy Tab 7.7 anywhere else in the EU. Today's decision formally excludes Germany, but that's for the reason I explained.
The lower court had originally entered an EU-wide preliminary injunction against the Galaxy Tab 10.1 affecting not only Samsung's German subsidiary but also its Korean parent company and, as a result, the Samsung group as a whole. It then modified that order so as to apply only to the German subsidiary, holding that Apple had not proven that the Korean parent company has an "establishment" in Germany. The appeals court, however, disagreed and found (already in the Galaxy Tab 10.1 decision) that Samsung's German subsidiary is effectively an establishment of the Korean parent company, even though it formally claims to be an independent legal entity.
Today's decision is still a ruling made on the fast track. It is, by definition, a preliminary decision. The final decision has not even been made by the lower court yet, and it will also be possible to appeal that one. In the full-blown main proceeding, Apple is targeting a total of five Samsung tablets (and in a separate case, ten Samsung smartphones). While the outcome of the main proceeding is likely going to be consistent with the appeals court's fast-track ruling, it's legally possible that the court changes mind.
Today's decision provides, on a preliminary basis, valuable clarification to both parties. Apple and Samsung have a better idea now of how similar to Apple's tablet computers Samsung's Galaxy devices may look without infringing in the opinion of German courts.
But today's decision won't have much of a bearing on the U.S. trial scheduled to start on Monday (July 30), though Apple may file a request for judicial notice with Judge Koh, the effect of which would be merely psychological.
In the United States, Samsung will also have to decide, after the upcoming trial, which changes to the design of its Galaxy Tab line are necessary in order to avoid further infringement. The Galaxy Tab 10.1N could serve as a starting point for any designaround effort.
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