Observing Samsung v Apple at the High Court

This specially-designed wig for Patents
County Court judges to wear while
hearing High Court actions has not won
favour with the judiciary ...

This Kat does not get the chance to observe proceedings in the High Court for England and Wales very often, so he was very excited to get to spend some time watching the Apple v Samsung litigation yesterday in Court 6 of the lovely new Rolls Building. This litigation, readers may recall, turns on the extent to which Apple can claim a protectable monopoly in the shape of its iPad tablet computer (on which see this Kat's recent mewsing here). While Merpel was busy explaining to her guest how to tell the difference between a QC and a lowlier variety of barrister when viewed seated from behind, and why Judge Birss was not wearing a wig, the IPKat and his feline friends were treated to a joyous exposition of the difficult issues in how our current design law, lovingly given to us by the EU, is to be understood.

Regrettably, the first day was missed.  Nevertheless, we were treated to Mr Carr QC (for Samsung) cross-examining Mr Ball, expert for Apple, on the degree to which each feature of the Apple RCD might be chosen to achieve a certain technical result, even if it was the case that alternative design choices could achieve the same result. Mr Carr emphasised to the Court that taking “unfair advantage” was a feature of trade mark law, and should not be brought over into design law, because design law, in contrast to trade mark law, did not exist to guarantee origin.

Not another design case ...!

A fascinating exchange occurred between Mr Carr and Judge Birss on an issue that has often given the IPKat cause to ponder.  The Regulation states that the indication of product does not affect the scope of protection of an RCD. However, if the informed user can discern the product from the representations, is his view of the design affected by his understanding of the product?  If so, how does the informed user view prior art where the product is different, so the design freedom is different? For example, the lack of buttons on a tablet computer is a major design choice, but is less so on a computer monitor that is expected to be controlled from an attached computer.  If the judgment clears this point up, the IPKat will be jolly happy indeed.

The IPKat’s friends tell him that after he left, there was discussion between Mr Silverleaf QC, for Apple, and Judge Birss, who stated that the informed user’s impression must be influenced by design freedom.  Mr Silverleaf stated that the point made by Samsung (which seemed to underlie the cross-examination of Mr Ball) that a functional advantage for a design feature equals a lack of design freedom, is wrong. 

This earlier version of
the tablet computer
was too large and
lacked functionality

According to Mr Silverleaf, the differences between prior art and features of a RCD are weighted as to how important they are in the design process. The test is, according to Mr Silverleaf, do these differences lead to the Samsung tablet creating a different overall impression to the RCD in the eyes of the informed user? It is axiomatic that there will be differences, but the analysis is not a tick box exercise comparing similarities and differences one by one. One certainly does not go straight for the measuring tape when examining similarities concerning thinness, as the “detail merchants” on the Dutch bench did. It is possible to get too focused on detail – something lawyers, not least of all those who generally deal in patents, may be apt to do. (In respect of the weighted assessment of the design, the IPKat observes that this is of course at the heart of design law, and, after nearly a decade of having this law, this fundamental issue is still not very clear.)

Finally Mr Carr addressed the issue of whether it is a legally correct test to argue that something infringes because it is closer to the RCD than the design is to the prior art.  It was pointed out by Mr Carr that if this test is correct, then Procter & Gamble would have been decided the other way (the IPKat thought that this test was good law, but sees some force in the argument that it does not sit well with the final result in P & G).

Mr Carr requested that the decision be issued on an expedited basis.  The IPKat really hopes that Judge Birss is able to do this.


Jeremy's footnote on cats and tablets: I seem to recall reading, many years ago, a fascinatingly ambiguous piece of draftsmanship in a Reader's Digest book on household tips.  It read something like this: "If your cat finds it difficult to swallow a tablet, first rub it all over with butter".