Today Apple formally won a Dutch injunction against Samsung over the photo gallery page-flipping patent (EP2059868 on a "portable electronic device for photo management"), and it's entitled to damages that have yet to be determined. This ruling by the Rechtbank 's-Gravenhage (The Hague District Court) is a follow-up, after a full-blown main proceeding, to a preliminary injunction granted in August 2011.
I have analyzed the ruling, which you can find here (in Dutch). Having already discussed this patent on several occasions I'll just sum up the key takeaways:
This is an injunction. Someone wrote that it's not, since the court only ordered Samsung to pay up to 100,000 euros ($128,000) per day of infringement, but that's high enough a fine that there won't be any infringement. The amount is meant to be a sanction, not a fee for compulsory licensing. In Germany, a jurisdiction that has some elements in common with the Dutch system, contempt of injunctions costs up to 250,000 euros per incident (which would be, for example, a single shipment of infringing goods to a customer) with the theoretical possibility of confinement (if the fees don't bring about the desired effect, a highly unlikely scenario). In the U.S., injunctions usually don't specify the sanctions for contempt of court beforehand, but the possible consequences of contempt are similar to the ones in Europe.
Samsung has already done all the work necessary to work around this injunction. It made that effort last year after the preliminary injunction that today was converted into a permanent one. Instead of a bounce-back in the photo gallery, there's a "blue flash", which the court recognizes to be a valid workaround. Also, there won't be any impact on product sales.
The amount of damages Samsung owes Apple will have to be determined in a separate proceeding. Given the limited size of the Dutch market and the fact that this is not a jurisdiction known for outrageous damages awards, the absolute amount will likely be small, presumably even below the legal fees incurred. I said the same about another Dutch case based on which Apple will owe damages (and future license fees) to Samsung.
Last week I reported on a German appeals court hearing involving this patent (in an Apple v. Motorola Mobility case) and discussed a potentially broader interpretation of the patent, which was previously adopted by the Mannheim Regional Court. The key issue in this regard is whether the two gestures the patent claims refer to (one to navigate within one picture and another one to flip pages and bring up the next item) must be sequential or whether there is also an infringement if there are two distinguishable (such as by length) gestures, one of which navigates within an (enlarged) object while the other has the page-turning effect. Today's Dutch ruling rejects the broader claim construction as "incorrect". In my view, the word "incorrect" goes too far because there is no absolutely hard evidence that the two gestures must be sequential, even though it's also how I intuitively understood the patent when I read it the first time. There are various indications that seemingly support the narrower interpretation -- but for each and every one of them there are also some counterarguments for why there is still a possibility of the broader interpretation being correct.
Motorola will provide a certified translation of this ruling to the Munich Higher Regional Court. That's what all these litigants routinely do if they wish to notify a court of a decision supporting their positions. Judge Konrad Retzer, the judge presiding over the appeal in Munich, said at the outset of last week's hearing that his court already has various domestic and international decisions to choose from. The previous Dutch decision was only a preliminary injunction decision, which has much less persuasive value than a final (post-main-proceeding) decision by the same court.
Based on its narrow claim construction, the Dutch court doesn't consider this patent invalid.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn:
