Wednesday, October 24, 2012

Dutch court rules (again) that Samsung doesn't infringe Apple's touch event model patent

The Rechtbank 's-Gravenhage, a court of first instance based in The Hague, Netherlands, today handed down its decision (in Dutch) on an Apple infringement claim against Samsung based on EP2098948 on a "touch event model". The Dutch court now reaffirmed in a full-blown main proceeding the finding of non-infringement of EP'948 that it made in a fast-track proceeding in August 2011, when it granted Apple a preliminary injunction against Samsung over a photo gallery page-flipping patent but did not hold Samsung liable for infringement of EP'948 (and Apple's tablet design right).

This non-win was expected. The Dutch court was the first European court to throw out this patent (which would have quite some impact if Apple's interpretation of its scope ever was adopted), and in between the preliminary injunction denial and today's final (though appealable) ruling, Apple was unable to prevail on this patent against Samsung and Motorola in Mannheim, Germany, and against HTC (in a declaratory judgment action initiated by the Taiwanese handset maker) in London.

Today's The Hague ruling notes that the outcome in favor of defendants is consistent with the UK and German decisions. But with a view to Apple's likely appeals in one or more jurisdictions, it's worth noting that the underlying logic of the decisions differs in some ways:

  • Only the UK court declared the patent invalid. The Dutch and German rulings did not reach that question. In Germany, courts dismiss a case if they don't identify any infringement, and if they have serious doubt about the validity of an infringed patent, they merely stay a case, with (in)validity being determined in a separate nullity action. In the Dutch case, Samsung brought an invalidity counterclaim but only for the event of an infringement finding, which rendered it moot. Even though the court didn't have to adjudge Samsung's validity counterclaim, Apple has to bear the costs. The legal fees related to this proceeding that Apple owes Samsung amount to approximately $400,000.

  • In Mannheim, Samsung's first non-infringement argument (for details on Samsung's defenses see my reports on the two Mannheim trials; 1, 2) carried the day. Today's Dutch ruling is based on Samsung's second non-infringement argument, which had considerably less traction in Germany than the first one but was successful in the UK. I can't rule out that the second non-infringement argument would also have succeeded in Germany if the case had hinged on it.

The validity of this patent is under attack at the European Patent Office (EPO). Third parties can oppose the grant of an EPO patent within nine months. Thereafter, a patent can only be challenged on a country-by-country basis in national courts. This patent was granted in February 2011. Samsung filed its opposition in November 2011, just about in time to be admissible. HTC and now-Google-subsidiary Motorola Mobility joined the opposition proceeding later as intervenors. The three Android companies made their most recent filing in late June (apparently a reply brief to an Apple pleading).

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