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Apple loses Dutch iPad appeal to Samsung
Yesterday, 24th January, the Court of Appeal of the Hague rejected Apple's appeal, finding no infringement of their Community Design covering the iPad.  For background, see our previous postings here, here, here, here, and here.  The decision in Dutch is here, and clicking on this link should bring you a Google Translate version in English.
The Court cited the EU Court of Justice PepsiCo / Grupo Promer case (Case C-281/10) for the identity of the informed user, and the EU General Court case  T-68/10 Sphere Time v OHMI - Punch (Watch attached to a lanyard), together with OHIM's Guidelines for Examination, on the effects of dashed lines in disclaiming parts of the design - although in this case, it is far from clear whether that was Apple's intent.
The meat of the decision seems to be in the interplay between infringement and the prior art cited by Samsung.  The Dutch court cited and followed, to some extent, German Federal Supreme Court decision in Case I ZR 71/08 Untersetzer/Table Mat (English summary by Class 99 member Henning Hartwig in Bardehle's IP Report 2010/V here) to the effect that the distance of a design from the prior art can be taken into account in judging its scope. 
In the Hague appeal, the following prior art was cited:
I. U.S. Patent Application U.S. 2004/0041504 A1 (Ozolins');
II. The Knight Ridder Tablet;
III. The HP Compaq TC1000 (the TC1000);
IV. Canadian Design Patent 89,155 ('155 Design);
V. Japanese design number 887 388 ('388 Design);
VI. Japanese design number 1142127 (Design 127).
The Court held that although every significant feature of the design was shown in at least two of these citations, this did not imply that the design lacked individual character since none showed them all in combination and the combination created its own overall impression.  However, it had a narrow scope and the (to this untrained eye) small differences between the iPad and its Samsung Galaxy competitor were therefore sufficient to avoid infringement. 
The Court relied on CJEU statements from the Pepsico case on the informed user - because the informed user is "highly attentive" (paragraph 53 of PepsiCo/Grupo Promer), or at least "demonstrates a fairly high level of attention" (paragraph 59 of that decision), he will take into account the back and side view of a tablet and not just the front.  That seems at odds with the approach of the General Court in Shenzhen Taiden Industrial Co. Ltd v OHIM Communications equipment/Conference unit Case T-153/08 at para 65 to the effect that the features not visible whilst the product is in actual use are discounted in the comparison.
We still await another German decision.  In the meantime, can anyone add more information about the Dutch case?
Posted by: David Musker @ 07.43
Tags: Apple v Samsung tablet war, hague, infringement, iPad, netherlands, RCD,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA310

MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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