New Samsung Prior Art Claim Jeopardizes Apple’s German Ban

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Samsung has added new prior art to its case against Apple in a German court that may threaten the preliminary injunction that is in place against the Galaxy Tab 10.1. This is one more move in a long legal contest and a ruling isn't likely anytime soon. Even then it will be subject to appeal.

A German court awarded Apple a preliminary injunction against Samsung's Galaxy Tab 10.1 more than a year ago. The products found in violation included the Galaxy Tab 10.1, 10.1N, 10.1V, and the 7.7" and 8.9" versions.

Samsung and Apple in the scales of justice

According to FOSS Patents, the preliminary injunction was granted based on Community design no. 000181607-0001, which was registered in 2004. Community designs are the European equivalent of a design patent in the U.S. Samsung of course appealed that decision, but the decision was upheld. However, this time the violation was based on German unfair competition law, not Community design infringement.

In the subsequent legal maneuvering, Apple withdrew the original Community design argument but added three different Community designs to the case. One of the three new Community designs was registered in July 2010, the other two in July 2011.

Throughout the proceedings Samsung had been searching for and adding prior art to the case. Some of this additional prior art may have influenced the appeals court when it shifted its legal basis for the injunction away from the Community design argument.

Since then, more prior art has been added by Samsung and the presiding judge, Johanna Brueckner-Hofmann, indicated she's not likely to find the Community designs presented by Apple to have been infringed. In addition, she's not convinced there's a violation of the unfair competition law either.

Should Apple lose this case as the judge appears to be hinting, German courts are usually conservative with damage awards. Apple would be liable for damages caused to Samsung by the injunction if it's not made permanent, but that might amount to only a few million euros.

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