A remarkable preliminary court decision of the Dutch Court at The Hague of August 24 2011 in the court case regarding the Apple and Samsung smart phones and tablets has started an interesting discussion among Dutch IP lawyers.
Apple started interim injunction proceedings based on three patents, five design rights, its copyright and slavish imitation (act of tort). The judge prohibited Samsung marketing the Galaxy S, SII and Ace, but based this ban only on the infringement of one Apple patent. All other orders are declined, which makes the decision not so unfortunate for Samsung and a loss for Apple, since Samsung has announced that it can easily alter the software on its smart phones so that it no longer infringes the Apple patent.
The remarkable point of this decision is that the judge made the ban a cross-border ban, which means that Samsung is not only prohibited from marketing its smart phones in the Netherlands but also in all other European countries where the patent is valid.
The possibility that a judge can give a cross-border ban in an interim injunction proceeding is controversial since a European patent is in fact not one patent but a pooling of several national patents. In case the nullity of a patent is invoked in proceedings on the merits, or the validity of the patent is disputed, for example by an invalidity defence of Samsung, the national judges can decide only on the invalidity of a national part of a European patent.
Apple, Samsung, ECJ