The Court of Appeal for England and Wales have upheld the judgements of the High Court (see earlier article here) in relation to Apple’s Community Design registrations for tablet computers. This is the latest decision in the on-going and well-publicised dispute between Apple and Samsung.

The lead judgement for the Court of Appeal was delivered by Sir Robin Jacob who, despite having retired from the bench over a year ago, is still being recalled for key IP decisions. As is normal with Court of Appeal decisions, the focus of the decision was on whether the High Court judge erred in his application of the law, rather than in his subjective judgement of the case. The key points of law discussed in the Court of Appeal judgement were:

  • The identity of the informed user – the approach set down by the General Court of the CJEU, and subsequently approved by the CJEU, was followed by the Patents Court, so no fault could be found here by the Court of Appeal
  • The significance of the lack of ornamentation in the Registered Community Design, and whether Samsung’s use of a trade mark on both faces, as well as other features, of their product was enough to distinguish the Samsung product from the registration
  • The meaning of dotted lines in the registration – the Patents Court decided that in the particular context of the registration, these did not signify a non-claimed feature (in contrast to T-68/10), but instead indicated a frame behind the cover glass. This was affirmed by the Court of Appeal
  • Overall impression to the informed user – this is usually the key question in any design dispute, as very few relate to carbon copies. The approach of the Patent Court was to assess the design corpus (i.e. the collection of prior art devices which showed certain similarities), consider the extent of design freedom, then consider whether the overall impression of the Samsung product differed from that of the Apples registered design. The verbalisation of design features as a tool in the comparison was approved by the Court of Appeal

It seems one of the key deciding points in the case was the relative thickness of Samsung’s tablets compared to the registered design, and the curvature of the edges. One of the most telling images in the recent judgement is:

Click here to view image.

Given the detailed review of the approach the Judge (HHJ Colin Birss) had taken, Sir Robin Jacob expressly approved his (famous) conclusion, that the Samsung tablets were ‘not as cool’ as Apple’s design:

“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.”

Perhaps unusually for an appeal decision, he also stated that he would have come to the same conclusion on the evidence, which is a true endorsement of the legal approach and judgement of the lower court.

The Court of Appeal’s ire was reserved for the acts of the German Courts, and in particular the Oberlandesgericht, which had previously issued a pan-European injunction against Samsung, after the UK High Court’s initial decision that Samsung did not infringe.

Sir Robin Jacob was perplexed as to the legal basis on which such an interim injunction was issued, especially given that the High Court, in its first instance decision, was acting as a Community Design Court. In any event, Apple had agreed during the current proceedings to withdraw their request for an injunction so no decision on this point was eventually required.

The Court of Appeal’s judgement can be found here.