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That Apple/Samsung design litigation - the last word in Europe?
Sir Robin Jacob has today issued the England and Wales Court of Appeal's judgment, upholding the first instance judgment of Judge Colin Birss that Samsung did not infringe Apple's RCD (left).  As you'd expect, it is as punchily readable as anything decided by the best patent barrister of his generation.

As usual, the Court of Appeal has reviewed rather than re-heard the case.  The judgment is useful for two substantive law points: firstly, a summary of the characteristics of the "informed user" post-Pepsico, and secondly, support for the new approach to functional features developed in Lindner Recyclingtech v Franssons Verkstäder (Case R 690/2007-3 Chaff Cutters [2010] ECRD 1) and Dyson v Vax [2012] FSR 4), namely "a feature which is purely functional, not to some degree chosen for the purpose of enhancing the product's visual appearance".  I have never liked this test because it is (a) subjective and (b) not transparent to competitors, but I seem to be in a minority.  However, these obiter dicta are least helpful in clarifying that the Court of Appeal has walked away from the approach it took in Landor & Hawa v Azure.  See previous Class 99 posts for further analysis.  We shall see what the CJEU eventually make of the issue.

On procedure, there is some fascinating analysis of the conflicts of jurisdiction between the court seized of the substance of the case (here, the English court) and others granting interim relief.  Regular readers will recall that Apple at first got pan-European interim injunctions in Germany, then lost them.  Well, it seems that a few weeks after Judge Birss's first instance UK decision on the substance of Samsung's declaratory non-infringement action, on 24 July 2012 the Oberlandesgericht Dusseldorf (the local German Court of Appeal) allowed the appeal and granted a pan-European interim injunction in respect of the 7.7 against SEC and its German subsidiary (their press release is here).  According to Sir Robin there is no jurisdiction to continue with interim measures of this kind after a Community Design Court seized of the action has taken a decision.  So Apple have apparently dropped it. 

It seems that the Oberlandesgericht have a different view of design scope to the English (and Dutch) courts.  We expect that, as with patent cases, the result will be that proprietors go to Germany and competitors go to England.
Posted by: David Musker @ 18.11
Tags: Apple v Samsung tablet war, infringement,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA376

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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