In its judgment of 24 August 2011, the preliminary relief judge of the District Court of The Hague, the Netherlands, ruled that several Samsung products do not infringe Apple's design rights and copyrights. He did, however, rule that one Apple patent is infringed and imposed a cross-border (European-wide) injunction in that respect; this means that Samsung will have to make a technical change. The judgment is an interesting addition to the raging phone/tablet war, where the Netherlands and Germany are the European battle grounds. Charles Gielen, Richard van Oerle and Helmer Klingenberg of the NautaDutilh-IP group are part of the team representing Samsung.


If invalidity of a foreign patent is invoked, pursuant to Article 22(4) Brussels I Regulation and European case law, the addressed national court may not rule thereon and must either stay the case or dismiss the claims. Presently, questions are pending before the Court of Justice aimed at determining whether this rule also applies in preliminary relief proceedings (Solvay/Honeywell, case C-616/10). Pending the outcome thereof, the position of the District Court of the The Hague, thus also taken in the Samsung/Apple case, is that the answer is no.

Swipe patent

Out of three patents invoked against several Samsung products, the court only found infringement by some Samsung smartphones (Galaxy S, S II and Ace) of one patent (claiming protection for a certain two-staged swiping movement). The Samsung tablets were held to be non-infringing.

No design infringement

The court furthermore ruled that none of the Samsung smartphones and tablets attacked by Apple infringe its design rights. In this respect, it stressed that the comparison must be made between the design registrations of Apple (not the designs as used by Apple) on the one hand and Samsung's products on the other hand. The court pointed out that it thus disagrees with Advocate General Mengozzi's advisory opinion in the PepsiCo case (C-281/10).

In the comparison, the court identified several differences and moreover stated that many other elements were either already known or are technically determined. In respect of this last issue, the court noted that there is a trend towards 'minimalistic' design, which essentially means that the design as much as possible follows the outline dictated by the technology and ergonomics of the product. Inherently, a design right to a minimalistic design thus forces competitors to make suboptimal choices, which does not necessarily make the design invalid, but does limit the scope of protection to the actual design elements. Furthermore, the court ruled that some of the priority rights invoked by Apple in respect of the Community design rights were invalid priorities, since the designs were not identical.

All in all, the court ruled that in view of the above the Samsung products produce a different general impression than the design rights invoked by Apple and are therefore non-infringing. A market survey filed by Apple was dismissed for not having asked relevant questions and not enabling the respondents to return to a picture previously seen, making it a memory test rather than a comparison test.

No copyright protection: USA country of origin

Apple also alleged copyright infringement, but this argument failed in view of Samsung's defence that the country of origin is the USA, where the products concerned are not copyright protected. Consequently, under the Berne Convention there is no such protection in the Netherlands either.


The most interesting holdings of the case are arguably those that criticise Advocate General Mengozzi and also those that try to set some ground rules for design registrations covering minimalistic designs. In addition, the decision to impose a cross-border injunction is interesting, but not very surprising: it is in line with the court's historic willingness to 'cross the border'. The court will surely keep a close eye on the outcome of the Solvay/Honeywell case though. Practically, the outcome of the case means that Samsung need only make a technical change (which it indicated at the hearing will be fairly easy) to some smartphones, while the tablets have been 'cleared' entirely. This seems like a good result, but the fight will likely continue!

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