Apple recently requested a preliminary injunction on termination of infringing acts regarding several patents in and outside the Netherlands. In particular, Apple sued for infringement on the basis of the Galaxy Tab, the Galaxy Tab 10.1v and the Galaxy Tab 10.1 from Samsung. Similar claims have been put forward regarding smartphones.
Samsung countered that the case is too complex to be judged in preliminary injunction proceedings, that there is no urgency, and that the patents in suit are not valid. Apple is the owner of the European patents EP 2 059 868, EP 2 098 948 and EP 1 964 022.
The District Court of The Hague found itself competent on August 24 to decide on a preliminary injunction in respect of territory outside the Netherlands. Despite a pending referral to the Court of Justice of the EU regarding this question, raised in the case Solvay v Honeywell, the District Court of The Hague followed Yellow Pages v Yell (July 2011 in the Appeal Court of The Hague).
Dutch legal practitioners have communicated quite diametrical opinions about the decision of the District Court as far as its competence for providing the cross-border provisional injunctions is concerned. On the one hand, criticising this decision, the preliminary injunction proceedings are not suited for applying foreign law, which needs to be done according to the Rome II Convention. This is supported by he Yellow Pages v Yell, where foreign (UK) law needed to be applied. On the other hand, supporting the decision, the opinion of the Appeal Court in Yellow Pages v Yell allows a cross-border ruling in preliminary injunction proceedings.
On October 14, the preliminary injunction instituted by Samsung was rejected by the Court of The Hague on account that Samsung has an obligation to offer a licence under the FRAND conditions for the essential patents for a technological standard. Samsung and Apple should try to reach an agreement under the FRAND conditions first. Only if they fail to do so, will Samsung be free to claim an infringement injunction.
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Tatiana Sazonova |
Vereenigde Octrooibureaux NV
Johan de Wittlaan 7, 2517 JR The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99
