Dutch Court Obliterates Apple’s Appeal, Tab 10.1 Not Banned

Summer last year, the Dutch courts ruled that Samsung’s Galaxy Tab 10.1 did not infringe on Apple’s community designs, and as such, would not be banned from The Netherlands. This was a “quick case”, and as such, Apple had the right to appeal and turn this into a “full case”. Apple did, but I now think they really wish they hadn’t – the Court of Appeal in The Hague has pretty much ripped Apple a new one [Dutch], and upheld the District Court’s ruling.

There’s so much to talk about here I don’t really know where to start. It would seem that Apple’s legal team really made a mess of their appeal, with several large blunders being highlighted by the Court of Appeal. First and foremost, Apple failed to argue that this case is about the iPad 1 and/or 2 at all. This seems strange, and that’s because it is.

As dedicated OSAlert readers probably know by now, most of Apple’s court cases in Europe regarding Samsung’s tablets concern this Community Design, filed in 2004, which shows a tablet-like handheld computer with a very generic form factor – the infamous document all those “Apple patented rounded corners”-jokes comes from.

The judge of the Court of Appeal noted one particular problem, however: the iPad 1 and 2 differ far too greatly to be considered applications of this Community Design. Especially when it comes to thinness, a design element Apple put a lot of emphasis on in its arguments, the iPad 1 and 2 differ considerably from the Community Design. As such, the iPad 1 and 2 simply cannot be part of the proceedings.

In handling the Community Design, the judge was incredibly thorough, and after carefully considering all the supposedly unique design elements highlighted by Apple, he came to the conclusion that none of them were unique. The first thing the judge did was trim Apple’s list of allegedly unique design elements; several elements were reduced or even scrapped altogether. For example, Apple claimed the Community Design contained a ‘metallic thin bezel’, but according to the judge, the drawings gave no indication whatsoever the thin bezel was, actually, metallic. As such, the claim ‘metallic’ was dropped, leaving only ‘thin bezel’.

The fact that a large company which is clearly on a legal offensive to stifle competition would make such a simple mistake baffles me.

The judge then dove into the alleged prior art provided by Samsung, and after much debate (all detailed in the ruling) the judge came to the conclusion that each element was found in at least two different instances of prior art. Furthermore, the Ozolins case of prior art contained nine out of ten allegedly unique design elements, while Design ‘155 was found in eight out of ten elements.

The cases of prior art (can anyone help me find direct links to the Japanese and Canadian design patents?):

• U.S. Patent Application No. 2004/0041504 A1 (‘Ozolins’)
• the Knight Ridder tablet
• the HP Compaq TC1000
• Canadian Design Patent 89,155
• Japanese design no. 887 388
• Japanese design no. 1142127

Overview of unique design elements and applicable prior art

This does not mean, however, that Apple’s Community Design does not have a ‘unique identity’. As the judge notes, while none of the elements are new or unique, the combination of them still constitutes a unique identity. It’s just that to the ‘informed user’, this unique identity isn’t particularly noteworthy since such an informed user is already aware of all the cases of prior art. This severely limits the scope of Apple’s Community Design.

As a side note, it’s interesting that when it comes to European Union IP law, the concept of the informed user is actually quite narrow. You might think the informed user is a customer interested in buying a tablet, but according to EU jurisprudence, an informed user is actually much closer to people like you and me, who read sites like OSAlert and have an understanding of technology and what’s available in the market. As such, he will pay closer attention to details than an average consumer – but not to the level an actual trained designer or engineer would.

Or, as the ruling of the EU Court of Justice in PepsiCo vs Grupo Promer Mon Graphic clarified (point 59):

Third, as regards the informed user’s level of attention, it should be noted that, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details, he is also not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs in conflict. Thus, the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them.

Apple tried to argue that the court should only consider the whole package, and not the individual design elements. Considering the definition of the ‘informed user’ given above, the judge brushed this point aside. When taking the details into account, the Galaxy Tab 10.1 differs considerably from Apple’s Community Design. The Tab 10.1 is decidedly thinner and has a different aspect ratio. In addition, several elements are significantly wider on the Tab than on Apple’s Community Design, such as the area around the display (it’s important to note that the judge did not look at absolute measurements, but sets these in relation to overall size). Furthermore, the backside of the Tab is entirely different from Apple’s Community Design.

“The just mentioned differences between Apple’s Community Design and the Galaxy Tab 10.1 catch the eye and partially cover elements Apple, or at least the company’s expert, designated as characteristic of the Community Design,” the judge concluded, “Considering the nature of the designs in question and the sector to which they belong, it therefore has to be assumed that the informed user will compare the Apple Community Design to Samsung’s tablets directly. This means he will be able to see these differences clearly.”

Other than the blunder regarding the iPad 1 and 2 actually not being taken into consideration, Apple made several more mistakes as well. For instance, the company ordered a Dutch company called Synovate to conduct a study into consumer response to the Galaxy Tab 10.1 and the iPad, which yielded positive results for Apple. However, the study did not include a direct comparison between the devices, and worse yet, did not use people who fit into the legal definition of the ‘informed user’. The judge brushed it aside.

Furthermore, Apple emphasised thinness as the number one unique design element, which was a monumentally stupid thing to do, since the Galaxy Tab 10.1 is considerably thinner than the Community Design. Again, it’s important to note that the judge did not look at absolute thinness, but thinness in relation to overall size. The Galaxy Tab 10.1 has a thinness/length/width ratio of 1:28.3:19.4, while Apple’s Community Design nets 1:14.2:11. In other words, the thin form factor of the Tab is nearly twice that of the Community Design (as confusing as that may sound).

As a result of all this, the Court of Appeals of The Hague will not put a ban on sales of the Galaxy Tab 10.1, upholding the district court’s decision. In other words, Apple lost. To make matters worse, all costs of legal proceedings have to be paid by Apple – including Samsung’s legal costs, totaling ^a‘not207466.14.

Interestingly enough, in a similar case in Germany, a judge there did grant an injunction against the Galaxy Tab 10.1. The Dutch judge addressed this different ruling, and he has a pretty convincing reason as to why the German judge came to a different conclusion: in the German case, Samsung only presented two cases of prior art (the TC1000 and the Knight Ridder). In other words, Samsung was better prepared for the Dutch case than they were for the German case last year (which makes sense, obviously).

All in all, the ruling is well written and easy to read (if you speak Dutch, that is), and there’s really no holes to poke into this one. Judging by this ruling, it would seem that Dutch and EU law regarding IP is really tailored towards true infringement – you know, the crappy knock-offs you can buy in the far east – instead of being written as a tool to club legitimate competition with.

And we, European consumers, win. While it may seem The Netherlands is but a small country, it is the gateway to continental Europe, due to the port of Rotterdam. A ban in The Netherlands would have caused considerable headache for Samsung as they would have had to transfer their import operations to a different country.