Samsung Galaxy Tab Design-Around Passes Muster With German Court

Apple has suffered a setback in its multicountry, extremely complex, and seemingly everlasting patent fight with Samsung. In the latest episode, its request to ban Samsung from selling two devices in Germany — its Galaxy Tab 10.1N tablet and its Galaxy Nexus smartphone — was rejected by the Munich Regional Court.

This particular dispute began last April when Apple filed suit against Samsung for infringing its mobile device patents in these products, citing how similar they looked to Apple’s iPad and iPhone. Samsung countersued, but Apple was able to win an injunction. Samsung then reworked the design of its Galaxy Tab 10.1, calling it the “Galaxy Tab 10.1N.” It is this newer version that the judge has said may be sold in Germany.

This is a double blow to Apple, said Scott Dangler, a business litigation attorney for Gunster.

Prior to this latest ruling, it appeared that Apple had the upper hand. Earlier this week, an appeals court in Dusseldorf ruled that Samsung could not sell its Galaxy Tab 10.1 or 8.9 tablet devices in the country.

However, “while the preliminary injunction was initially issued based upon an Apple design patent, the appellate court declined to uphold the preliminary injunction on that ground,” noted Dangler. “Rather, it only upheld the preliminary injunction on the limited ground of German unfair competition law.”

Because that type of claim is not generally recognized in the rest of the EU, Apple could not point to the German appellate ruling as being favorable with respect to its related EU design patents, he explained.

Apple Made Some Gains

Even though the original injunction against the Tab 10.1 and the 8.9-inch version still stands, Apple was unable to persuade the Munich court to ban the new Galaxy Tab 10.1N.

“That’s a good development for consumers,” David A. Makman of the Law Offices of David A. Makman told the E-Commerce Times. “Samsung is doing something different enough from Apple to avoid the Apple patents, which means that consumers get different products to chose from.”

Expect to see more such design-arounds, he added. “The two companies have identified key features and functionality that consumers want and secured rights in those features. Now they are trying to design around each other’s patents and get to market with products that — in the context of patent law — are meaningfully different.”

Sooner or later, Samsung and Apple will figure out what features they need to have and what those features are worth, said Makman. “At that point, they ought to be able to reach a principled settlement. Until then, the sparks will fly, but it appears that the courts are not inclined to issue injunctions hastily — which is good.”

If injunctive relief is available too easily, it can lead to companies gaming the patent system, he noted.

A Global Clash

Samsung and Apple are engaged in a much larger and fiercer battle than just the German market. In recent months the two companies — which are also, ironically, business partners — have clashed in courtrooms across Europe and in Australia.

The European Commission recently requested information from Samsung and Apple, concerning the enforcement of “standards-essential patents,” to make sure the legal system was not being abused.

“The reality is, this is almost a never-ending story,” Peter S. Vogel, partner with Gardere Wynne Sewell, told the E-Commerce Times.

“There are a number of different claims that overlap and deal with multiple patents. Apple could have a patent application in the works that could be issued next week or next year or next month that could change the scenario yet again. The same for Samsung.”

Or either company could make an acquisition, he added, acquiring a patent that could be used as a weapon in this war.

Apple and Samsung did not respond to our requests to comment for this story.

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