The Dusseldorf court is unlikely though to expand the ban on sales beyond Germany to other European Union countries as Apple sought, Presiding Judge Johanna Brueckner-Hofmann said in a preliminary assessment today. A ruling is scheduled for Sept. 9.
“In the court’s view, Apple has a case to keep” the German ban, Brueckner-Hofmann said at the hearing today. “There are a lot of alternative ways to design a tablet device, as the market amply shows. We think Apple’s EU design rights grant a medium range of protection, if not a broad one.”
The legal battle between Cupertino, California-based Apple and rival device makers is intensifying as an increasing number of consumers use smartphones to surf the Web, play games and download music. Apple, the world’s top smartphone seller, has filed patent cases against handset makers using Google Inc.’s Android operating system, including Samsung, Motorola Mobility Holdings Inc. and HTC Corp.
Strategy Analytics analyst Neil Mawston forecasts tablet sales could reach about 2.4 million units in Germany this year, up from 0.6 million in 2010, making it Europe’s third-largest market after the U.K. and France.
The Dusseldorf court on Aug. 9 granted Apple, the maker of the iPad, a preliminary sales ban in 26 of the 27 EU member countries, only to scale back its reach a week later over jurisdictional doubts. The court today signaled that it would back that approach in its verdict.
The court is likely to find that it doesn’t have jurisdiction to issue a ban applicable outside Germany against a company based outside the EU, Brueckner-Hofmann said. Samsung’s German unit, for which the ban applies EU-wide, is independent and doesn’t allow the court to assume jurisdiction for both companies alike, she said.
Samsung lost an unrelated case involving Apple yesterday before a Dutch court over sales of some smartphones there. The court took a different view on tablets, saying Samsung didn’t violate Apple’s rights to the tablet’s design.
“As the Dutch judge has rightly pointed out: Apple’s design rights cannot force us to make technically poor products,” said Henrik Timmann, Samsung’s lawyer, today. “Many design features are just necessary to use if you want to produce a tablet computer.”
The screen needs to be flat to avoid crumbs that could disturb usage, and corners need to be rounded so the screen won’t break should the device hit something solid, the Samsung lawyer said. The Galaxy’s back differs from the iPad enough to distinguish it from Apple’s EU-protected products, said Timmann.
Apple’s attorney Matthias Koch said there were other tablets before Apple introduced the iPad, which were thicker with buttons on the sides. Those didn’t violate Apple’s rights and Samsung offered similar tablets before, he added. Only Apple came up with the idea for a “minimalistic” design, he said.
“We’re not sitting here because Apple wants to prohibit all kind of tablets,” said Koch. “We’re here because Samsung’s Galaxy tab is the closest copy of the iPad. There is no other tablet that comes that close.”
Koch said the court should extend the ban to other EU countries as well. Samsung’s German unit has strong enough ties to its Korean parent to allow such a ruling under European rules, he said.
Samsung said it posted pictures of the Galaxy tab on its German website on June 6 so Apple knew sales would start in the country. Because the iPad maker only filed its bid in August, it cannot claim to need an emergency ruling, Samsung said.
Apple’s lawyers say the posted pictures weren’t enough to judge whether its design rights were violated. This was only possible after a German computer magazine published an article reviewing the Galaxy tablet.
Samsung asked the court to issue a ruling earlier or suspend the current ban. The Sept. 9 ruling won’t allow Samsung to show its tablet at the IFA consumer electronics trade show, held in Berlin from Sept. 2 to Sept. 7.
Judge Brueckner-Hofmann rejected allegations Apple forged pictures in its court filings. There was a technical error in only one of the pictures that was easily explained and unintentional, according to the judge. The court reviewed the physically Galaxy so the mistake can’t be decisive, she said.
The court won’t take Stanley Kubrick’s 1968 film “2001: A Space Odyssey” into account, she said, commenting on claims by Samsung in a U.S. case that a tablet appeared there. The film sequence doesn’t allow one to compare that device with Apple’s EU-protected design, she said.
Apple Chief Executive Officer Steve Jobs announced his resignation yesterday. Jobs, who will become chairman, was on medical leave after combating a rare form of cancer and is succeeded by Chief Operating Officer Tim Cook, who has been running day-to-day operations.
The German case is: LG Dusseldorf, 14c O 194/11.
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