A Slap on the Wrist and a Kick Out the Door: Apple v. Samsung Continues in the UK

In August 2012, Apple Inc., (“Apple”) took a large bite out of Samsung Electronics Co., (“Samsung”) with its $1.05 billion lawsuit award. In early spring 2011, Apple filed a 38-page complaint in federal court alleging that Samsung infringed on Apple’s iPad design. Apple’s complaint included federal claims for patent infringement, unfair competition and trademark infringement. Following a lengthy litigation, a nine-person jury found that Samsung infringed on all but one of the seven patents at issue.

As soon as the jury returned with the large lawsuit award, the U.S. litigation between Apple and Samsung was highly publicized among the media and public alike. Everyone knew about the patent infringement allegations and the U.S. people followed the trial in anticipation of the outcome. Unbeknownst to many, the U.S. litigation was just one of many litigations between Apple and Samsung taking place around the world. When Apple took its claim across the pond, its luck in the courtroom seemed to run out.

First, on October 18, 2012, the Court of Appeal in the U.K. held that the Samsung Galaxy tablet did not infringe on Apple’s rights because the tablet was “not as cool” as the Apple iPad. In addition to the “coolness” language, the U.K. court determined that the Samsung products were thinner than the iPad, and there was clear Samsung branding on the front and back of the computers. Apple argued that the thinness of Samsung’s products were not material and did not matter because consumers might expect Apple tablets to get skinnier. The Court of Appeal upheld the findings of a lower court and required Apple to publicize the court rulings. The publication required Apple to publicize on their website and in other documents a statement indicating that Samsung did not infringe on Apple design patents.

Following the U.K. court decision, Apple complied with the instructions, but in a snarky way. Apple used the U.K. court opinion cool versus not cool language in its simple statement required by the courts. In addition to stating that Samsung was not as “cool” as Apple, the Apple statement contained information about the U.S. and German lawsuits. The U.K. immediately commented on Apple’s statement and ordered Apple to remove the statement within 24 hours and prepare to publish a new statement within 48 hours.

There is one pressing and most interesting point of the U.K. court’s decision. It might be shocking to see what countries and courts agree with the U.K. decision and which countries agree with the U.S. decision. A week after the U.K. found that Samsung did not infringe on the iPad, a German court issued an order stating that Samsung had infringed. Although each member state of the European Union can make individual decisions regarding its own patent and intellectual property rules, there might be problems if multiple member states declare that Samsung infringed while others hold Samsung harmless. The internal conflict in these different court decisions would have a severe negative impact on Europe and make Europe poorer for the lack of continuity among its countries.

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* Allison McCowan is a third-year student at Wake Forest University School of Law and is President of the Domestic Violence Advocacy Committee. She holds a Bachelor of Arts in Psychology from Norwich University. Upon graduation in May 2013, Ms. McCowan intends to practice corporate law, commercial law, or alternative entity law in either Delaware or Washington D.C.