Stephen O’Rourke: A global battle for the smartphone money

By STEPHEN O’ROURKE
Published on 23/07/2012 00:00

Everyone seems to have a smartphone or tablet these days and, not unconnected, just about every major legal jurisdiction now seems to have intellectual property disputes arising from their sale and development.

In a dizzying whirl of litigation over the last year, from Germany and Japan to the United States, the Netherlands and England, major market players (including Apple, Samsung, HTC and Motorola) have tried to obtain injunctions against the sale and distribution of rival products. Success has been mixed.

In some instances, one company has been successful in one jurisdiction, only to obtain an entirely different, or at least a conflicting, outcome in another. While in essence the disputes have been about the designs and technologies used in mobile devices, the reality is that it is a battle for control, or even a foothold, in a multi-billion-dollar worldwide market.

There are a number of different ways of looking at the laws of patent infringement.

Some argue that the software designs and enhancements built into each succeeding generation of devices have inevitably built upon those of the past; while others claim that certain features of “searchability” and “functionality” in devices are unique, and represent a recognisable development attracting their own intellectual property rights and legal protection. Some issues relate purely to the appearance of rival devices but overall, a very real concern in the industry is that if each company becomes entrenched in successfully protecting its own patents and designs, future breakthroughs and developments will become all but impossible in the way all the major players have benefited from in the past.

This month’s decision of Judge Birss QC, in the English High Court case of Samsung Electronics (UK) Ltd v Apple Inc. [2012] EWHC 1882 Pat, is a good example. Samsung raised an action seeking a declaration that three of its Galaxy tablet models did not infringe a European Community Registered Design registered by and belonging to Apple. After an exhaustive consideration of many of the design features of both Apple and Samsung products, Judge Birss noted: “The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.”

Turning to the Samsung products. he opined: “The informed user’s overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.”

With this rather back-handed compliment and affirmation of judicial good taste, Judge Birss concluded Samsung had not infringed Apple’s registered design.

The judge’s remarks have been a gift to satirists. “Surely, that’s the last thing you want,” they chortled on BBC Radio 4’s The Now Show, “judges basing their verdict on how cool they think the parties are. Older people just aren’t behaving the way we expect.”

Galaxy makers Samsung welcomed the decision, stating that “the ruling proves the origins of Apple’s registered design features can be found in numerous examples of prior art”. And, “Should Apple continue to make excessive claims in other countries based on such generic designs, innovation in the industry could be harmed and consumer choice unduly limited”.

Apple sees the position very differently, and litigations pending across the globe will play out, with one highly significant showdown, again with Samsung, moving slowly toward a US Federal Court hearing. Apple has won the vital preliminary skirmish in securing an injunction against the sale of Galaxy products, a decision which Samsung is appealing in advance of the full hearing. The stakes for both companies could not be higher.

• Stephen O’Rourke is an Advocate with Terra Firma Chambers. He also writes at www.stephenorourke.org