The patent war between two giants which are Apple and Samsung isn’t new. They have been fighting like Tom and Jerry, just to show the world who is stronger with respect to intellectual property. Many lawsuits have been filed by one on the other and by other on the first one. This patent par between two electronics giants doesn’t seem to be coming to an end. The present lawsuit is the one where Apple had appealed against court decision delivered in July which stated that Samsung had not infringed their design of iPad (Apple’s registered design No. 0000181607-0001). High court also gave the decision in favor of Samsung stating that the defender’s designs were not as “cool” as iPad and asked Apple to run public acceptance of the decision on its site and in leading newspapers that Samsung did not infringed on Apple’s registered design.

Apple’s registered design claimed these features:

i. A rectangular, biaxially symmetrical slab with four evenly, slightly rounded corners.

ii. A flat transparent surface without any ornamentation covering the entire front face of the device up to the rim.

iii.            A very thin rim of constant width, surrounding and flush with the front transparent surface.

iv.            A rectangular display screen surrounded by a plain border of generally constant width centered beneath the transparent surface.

Case

Apple appealed against July’s court decision that Samsung doesn’t infringes the trademark design of iPad. This appeal was made against two orders given by Judge Birss of Patents court:

1.      The first judgment was dated 9th July, 2012 and it stated that three Samsung Galaxy tablet computers viz. 10.1, 8.9 and 7.7 do not infringe Apple’s registered Community Design No. 000181607-0001.

2.      The second judgment was regarding publicizing Apple’s defeat wherein Apple had to publicize that Samsung did not infringed their design. This judgment was given on 18th July, 2012.

In first judgment, Judge has given the following judgment and it was in the contexting that a feature of the registered design was “A flat transparent surface without any ornamentation covering the front face of the device up to rim”.  He said:

·         “All three tablets are the same as far as features ii. is concerned. The front of each Samsung tablet has a tiny speaker grille and a tiny camera hole near the top edge and the name Samsung along the bottom edge.

·         The Samsung tablets look very close to the Apple design as far as this feature is concerned but they are not absolutely identical as a result of a small degree of ornamentation”.

In the second judgment Judge ordered:

Within seven days of the date of this Order

[18th July 2012] [Apple] shall at its own expense (a) post in a font size no smaller than Arial 11pt the notice specified in Schedule 1 to this order on the homepage of its UK website … as specified in Schedule 1 to this Order, together with a hyperlink to the Judgment of HHJ Birss QC dated 9th July 2012, said notice and hyperlink to remain displayed on [Apple’s] websites for a period of six months from the date of this order or until further order of the Court (b) publish in a font size no smaller than Arial 14pt the notice specified in Schedule 1 to this Order on a page earlier than page 6 in the Financial Times, the Daily Mail, The Guardian, Mobile Magazine and T3 magazine”. Apple’s objections?

Apple’s first objection was that as the design was from 2004 so it was easy for the informed user to know and expect advances in technology that would make tablets thinner. Hence, Apple suggested that the informed user would give little significance to the thickness of the registered design.

Second objection was the fact that Judge took account of the fact that the products from Samsung had their trademark Samsung on both sides. Apple said that the informed user would disregard the trademark as being a mere conventional addition to the registered design.

Who is informed user?

The designs are assessed from the perspective of the informed user.  The identity and attributes of the informed user have been discussed by the Court of Justice of the European Union in PepsiCo v Grupo Promer (C-281/10P) [2012] FSR 5 at paragraphs 53 to 59 and also in Grupo Promer v OHIM [2010] ECDR 7.(http://www.bailii.org/ew/cases/EWCA/Civ/2012/1339.html)

Samsung’s perspective

Samsung provided own characteristics of the informed user which were accepted by the court. Samsung also admitted that there is only a limited degree of freedom for any designer who wants to design a tablet, particularly in relation to the front and back of the tablet computer.

Court findings

The High Court found out different perspectives for all the features and Judge Jacobs gave following statement:

1.      For display screen:

a.      Judge stated that rectangular display is totally obvious and is solely determined by its functions. He also stated that there are some design constraints applicable to this feature but they also not account for the identity between the two rivals.

b.      Next he stated that front face can be of somewhat different shape but the general shape (rectangular with rounded edges) is not significant.

c.       As to item (ii) (transparent and flat over the entire face with no ornamentation), the Judge found that flatness was common and transparency essential. He held that there was a certain amount of design freedom (you could have a bezel or raised frame). Touch screen technology meant you did not need a raised frame to protect the screen. The degree of ornamentation of the front was a matter of designer choice.

2.      For the thin rim:

a.      The judge stated for this that as before, this aspect of the design is the product of tradeoffs by the designer which include functional considerations but also include aesthetics. The designer can choose to have a flush rim or a bezel, can choose the rim thickness and whether it is constant around the device. Within a general overall constraint, the designer has significant aesthetic design freedom.

3.      For the border within the frame:

a.      Judge found out that there was a degree of design constraint applicable here. The devices need some kind of border. The border need not be as described in feature (iv) but there were limits on design freedom.

Judge also stated that irrespective of the matter of design freedom, to his eye, feature (iv) would strike the informed user as a rather common feature.

Final Decision

As for the final decision, High Court decided in the favor of Samsung Electronics Corporation and asked Apple to publicize the order stating that Samsung didn’t infringed on their design. The decision came out with a statement from the Judge that Samsung’s devices were not as “cool” because they lacked Apple’s “extreme simplicity.