The Samsung versus Apple war rages on as we edge nearer to August 25th, the day that an official hearing will be made in Germany, and the temporary lifting of an injunction to ban sales of the Samsung Galaxy Tab 10.1 will expire.
How did it all start? How long will the courtroom battle last? Could the Galaxy Tab 10.1 join the HP TouchPad in the tablet graveyard? Will Samsung really say that Kubrick actually invented the tablet not Apple?
We spoke to Deborah Bould, a partner at international law firm Pinsent Masons who specializes in cases similiar to the Apple and Samsung case.
Deborah, who is representing an 'interested party' (which is not Apple or Samsung), gave us her insight on how she thinks events will play out between the two major tech heavyweights.
Why has the ruling to ban the Samsung Galaxy Tab 10.1 in Europe happened in the first place?
The Samsung Galaxy Tab 10.1 is a lot closer to the iPad 2 than anything that Samsung have produced before. The size of the product is an important aspect of that; the screen size is similar and the product is slightly thinner than the iPad2. So Apple are upset about the product's whole look and feel, plus they have complained about its packaging as well. So Apple are saying that they are unhappy with the way that the whole product is being presented including the packaging.
The registered design that Apple have got is really interesting. It’s a very simple registered design protecting the fundamental shape of the iPad. Apple must have applied for it pretty much when the iPad was still a concept because the registration goes back to 2004. Obviously the iPad hadn't been launched then, so Apple made a very early application, which was very sensible of them. That is what we advise clients to do all the time; apply early before others crowd the market.
However, Apple have registered a very simple design, which gives them broad protection. I am sure that Samsung will challenge validity of this registration. European registered designs aren’t subject to rigorous examination before registration. So Samsung will be looking to see if they can find any similarly shaped products on the market before 2004 which they can use to claim that the design registration is invalid.
What is the latest on the ruling?
The injunction has been temporarily lifted outside of Germany until 25 August. The injunction is still in place in Germany as far as I understand. On 25 August, there will be a hearing and the German courts should decide at that point whether they were right to impose the original injunction or not and make a decision whether there should be one imposed across Europe up to trial.
How could Samsung seek to challenge the injunction?
I’m sure that Samsung will be trying to challenge the validity of Apple's design registration and also they will be emphasising how the Galaxy Tab 10.1 is different to the iPad where there are any design differences (for example, port/button locations), so that it doesn't infringe the registered design.
I think Samsung will argue very strongly that there shouldn’t be any injunction at all but, even if the German courts disagree with that, there shouldn't be any injunction imposed outside of Germany and the German courts should not be deciding the case for the rest of Europe.
How long could the case last? How long does a case like this normally take to be resolved?
On average, intellectual property cases in Europe tend to last about 12 to 18 months before they get to trial. The issue that Samsung have got here though is that there is other litigation between Apple and Samsung outside Europe, in the USA and Australia, which adds to the complexity of the global dispute.
We always try to achieve a global settlement deal for clients wherever possible, and Apple and Samsung will probably take that line too, rather than settling specific pieces of litigation like this registered design action. The US proceedings will probably take longer than 12-18 months to resolve. I think settlement is likely to be at least a year off while the pair of them are just slogging it out, trying to get the upper hand in all the litigation that’s going on around the world.
What we don’t know yet is whether Apple are going to complain about any earlier tablets that Samsung have made. Obviously they are most upset about the Galaxy Tab 10.1, but they could expand the proceedings to cover sales of earlier products too. If I was acting for Samsung, I would be trying to achieve commercial certainty quickly with a product which Apple can't object to, so that Samsung can continue selling tablets while the litigation is pending. This is known as a design around solution. If Apple don't object to the earlier Samsung tablets, then they could simply continue those tablet sales.
How could it all end?
The German action is just a battle in a bigger war. There is a long way to go in that war. I think ultimately that the two sides will reach a global settlement deal. In the meantime, I’d be surprised if Samsung don’t succeed in overturning the temporary injunction outside Germany, so that they can continue to supply the Galaxy Tab 10.1 product.
Does the recent deal involving Google buying Motorola have any relevance to this case?
No, I don't think so. Google are looking to buy a patent portfolio to give them some protection against patent infringement claims from companies like Microsoft (who have asserted Android related patent claims against various manufacturers but haven't yet sued Google). The rationale is that if a company asserted patents against Google, they would be able to counter with their own patent assertion.