(Reuters) - A German court will decide on Thursday whether Samsung can sell its latest iPad rival in Germany after an preliminary injunction requested by Apple barred the South Korean company from selling its new Galaxy tablets in Europe’s biggest economy earlier this month.
The two companies are locked in patent fights across the globe -- in Europe, the United States and Asia.
Here are some questions and answers about the dispute and the possible outcome of the hearing:
Apple claims Samsung’s flagship Galaxy Tab line of tablet computers infringes on its design patent for the iPad. It says that Samsung’s latest tablet, the Galaxy Tab 10.1, copies the iPad’s design, look and feel -- in particular the thinness, shininess and rounded corners.
Like most iPad rivals, Samsung’s Galaxy Tab range is built on Google’s Android operating system, and many commentators see Apple’s fight against Samsung as a proxy for fighting Android itself.
California-based Apple obtained a temporary injunction in Germany on August 10 that barred Samsung from selling its tablets in most of the European Union. Samsung objected.
In a partial victory for the South Korean company, a German court lifted most of the injunction last week, limiting it to Germany. The court will decide on Thursday whether to uphold the injunction in the country or lift it.
In the Netherlands, where Apple filed a separate motion against Samsung, a court decided in favor of Apple on Wednesday, ordering a sales ban for three Samsung smartphones. [ID:nWEA1796]
The Duesseldorf-based court argued that it was questionable whether its authority extended to international companies operating outside Germany. Legal experts said this did not reflect well on the court and that both the court and Apple’s lawyers did not check the wording of the law properly.
A German court can impose a ban across the EU if an international company has an establishment in Germany, Thorsten Vormann, an intellectual property expert at law firm Clifford Chance said. However, he added, the German subsidiary Samsung GmbH was an independent unit and therefore that law did not apply.
The one court that can impose such a ban is in Alicante, Spain, where the European Office for Trade Marks and Designs is seated. It originally granted the community design on which Apple has based its claim, Vormann’s colleague Anette Gaertner explained.
HOW CAN SAMSUNG COUNTER APPLE‘S ARGUMENTS?
Samsung can attempt to cancel the community design in a nullity action and connect that motion with its invalidity defense in Germany.
“Basically one can argue that the preliminary injunction should be quashed because the granted community design is invalid,” Gaertner said.
Samsung can argue that Apple’s claim that it has copied the new design of the iPad is questionable.
“Apple has argued that Samsung has copied its iPod touch and iPhone design and really that’s not a brand new design,” Vormann said. He added: “Apple is basically calling into question its own argument.”
Samsung is following that line of defense against an injunction request filed by Apple in the United States, basically claiming that Apple ripped off Stanley Kubrick.
Samsung said in its court papers that a tablet computer seen in Kubrick’s movie 2001: Space Odyssey “has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table’s surface), and a thin form factor.”
The German court could either uphold the ban and it would then be up to Samsung to file an appeal, or ask the court to open main proceedings that would allow a proper trial and thus more room for witnesses and expert testimonies.
Samsung could also decide to alter its tablets.
If the German court lifts the injunction, Apple would likely have to pay for damages incurred by Samsung. Depending on what Samsung -- which had just begun the sales launch of its Galaxy Tab 10.1 in Europe -- had planned to ship before the injunction was issued, the bill for Apple could run quite high, Vormann said.
The court is likely to decide on which way it will go within three to four weeks after the hearing.
The injunction affects Samsung Germany but not major German retailers such as consumer electronics chain Media Markt for example, as long as the tablets are imported into another EU country first.
Samsung can continue to sell its tablets outside of Germany and retailers can choose to receive shipments from the Dutch port of Rotterdam instead of Germany’s Hamburg port.
“Realistically, by partly lifting the injunction, the court has already opened the door for Samsung to circumvent the ban since it can continue sales outside of Germany,” Vormann said.
Additional reporting by Dan Levine in San Francisco; Editing by Jon Loades-Carter