Apple loses appeal against staying Samsung Galaxy non-infringement claim

The ruling this morning also said that Apple's counterclaim should be stayed, unless there were special grounds for allowing it to proceed.

The judges did not consider whether those "special grounds" – the term is taken from Article 91(1) of the EU Design Regulation – existed in this case, as neither Apple nor Samsung brought it up. But the decision did give some attention to what might qualify.

Lord Justice Lloyd, who wrote the decision, said that the grounds must be sufficient to overcome the potential harm in having inconsistent decisions between OHIM and a Community design court on the validity of the design or other points.

Those grounds might therefore be met if validity was not at issue – which it wasn't in the English case as Samsung had not responded to Apple's counterclaim by asking for a declaration of invalidity – or if speed was considered an overriding priority.

The Court proposed that the issue of special grounds should be decided by the Patents Court, as part of the upcoming trial in the case.

Apple was represented by Freshfields Bruckhaus Deringer, instructing barristers Michael Silverleaf QC and Richard Hacon, and Samsung by Simmons & Simmons, instructing Henry Carr QC and Anna Edwards-Stuart.

Managing IP contacted the lawyers on both sides, but neither were available for comment.