|Oh, a new claw scratcher!|
(c) CNET/Eric Mack
The District Court provided a brief overview of the cases in which the matter had been previously litigated (or where litigation was still on-going). It noted that:
- in the Netherlands, on 24 August 2011, a court ruled that the Galaxy Tab 10.1 did not fall within the scope of the asserted RCD (judgment upheld on 24 January 2012);
- in Germany, on 24 October 2011, the Landgericht Düsseldorf stated that the Galaxy Tab 7.7 fell within the scope of the RCD and declined jurisdiction to hear the claims against Samsung Ltd; on 24 July 2012, the Oberlandesgericht Düsseldorf amended the lower court's ruling, affirming jurisdiction with regard to Samsung Ltd, and granted a preliminary injunction which prohibited the sale of the Galaxy Tab 7.7 in the EU;
-in the UK, on 9 July 2012, the High Court ruled that the Galaxy Tab 7.7, 8.9 and 10.1 did not fall within the scope of the RCD (judgment upheld by the Court of Appeal on 18 October 2012).
The UK case was taken as a reference, being the first judgment on the merits in which the alleged infringement of the RCD had been examined. In particular, the Dutch court explicitly recalled the words of the Court of Appeal's judge, Lord Justice Jacob, who had criticized the Oberlandesgericht's decision of 24 July 2012 for being inconsistent with the previous decision of the High Court of 9 July 2012:
"Firstly I cannot understand on what basis the Court thought it had jurisdiction to grant interim relief ... After all there is now a Community-wide decision on the point, now affirmed on appeal. One would think that ought to put an end to all other litigation about it.
Secondly I cannot see any basis for an interim injunction. The UK court had already granted a final declaration. Moreover it was sitting not just as a UK court but as a Community Court ... There was no room for "provisional" measures once Judge Birss, sitting as a Community Court had granted a final declaration of non-infringement ... So his declaration of non-infringement was binding throughout the Community. It was not for a national court - particularly one not first seized - to interfere with this Community wide jurisdiction and declaration".
|Samsung Galaxy Tab 8.9 and Apple's RCD|
On the merits, the Dutch court observed that the trial unfolding before it involved the same subject-matter and cause of action of the case decided by the High Court and the Court of Appeal, as Community design courts, namely whether the tablets Galaxy Tab 7.7, 8.9 and 10.1 fell within the scope of the RCD. It also evidenced that Apple had not brought any new evidence or argument to justify a re-examination of the prior decisions, which the court, in principle, must follow. It therefored rejected Apple's counterclaims and provided the declaration of non infringement demanded by Samsung (the court also rejected Apple's claims related to the Galaxy Tab 10.1v, not examined in the UK trial, for lack of substantiation).
This judgment addresses [and raises, argues Merpel] some interesting questions. The CDR contains several provisions concerning the effects of judgments rendered by the Community design courts (Articles 87, concerning the declaration of invalidity of a Community design; Article 91, concerning related actions; Article 95 on parallel actions). The rationale behind these provisions seems to be encrypted in recitals 29 and 30 to the Preamble of Regulation 6/2002:
(29) It is essential that the rights conferred by a Community design can be enforced in an efficient manner throughout the territory of the Community
(30) The litigation system should avoid as far as possible ‘forum shopping’. It is therefore
necessary to establish clear rules of international jurisdiction.
|EU-wide effects, you say?|
"The Oberlandesgericht apparently also thought it had jurisdiction because the party before it was SEC whereas the party before the English court was SEC's UK subsidiary. With great respect that is quite unrealistic commercially - especially as I shall recount below, Apple at least took the view that SEC would be liable for the subsidiary's actions. They were all one "undertaking". I use the word of EU law for this sort of situation".