The Court of Appeal's ruling rejected an appeal by Apple against a finding of non-infringement by the High Court in July, claiming infringement of Apple registered designs by Samsung's Galaxy tablets.
The High Court ruling achieved notoriety because Judge Colin Birss said the Galaxy was not close enough to the Apple designs as it was not as "cool" given the latter's "extreme simplicity" of design.
Jacob, giving the judgment at the Court of Appeal at the invitation of Lord Justice Longmore, spent eight paragraphs criticising a ruling on July 24 by the German Court of Appeal. That ruling had granted a pan-European interim injunction against Samsung over the Galaxy 7.7, based on the same Community design rights.
Jacob criticised the German court's grounds for jurisdiction, the basis for an interim injunction and its reasoning on the merits.
He pointed out that no German court was "first seized" of a claim for declaration of non-infringement, and indeed Apple later withdrew its claim for infringement in Germany. As the High Court in England was sitting as a Community court, its decision of non-infringement was binding throughout the European Community. And that has now been upheld on appeal.
"The Oberlandesgericht apparently also thought it had jurisdiction because the party before it was SEC [Samsung] whereas the party before the English court was SEC's UK subsidiary. With great respect that is quite unrealistic commercially - especially as I shall recount below, Apple at least took the view that SEC would be liable for the subsidiary's actions. They were all one 'undertaking'. I use the word of EU law for this sort of situation," Jacob wrote.
As to the Court's reasoning, Jacob said it was wrong to say the decision in the PepsiCo design case was "outdated" as it had since been confirmed on appeal at the General Court. And it misunderstood Judge Birss's points about trade marks in the case.
In conclusion, Jacob made a point he has frequently returned to in recent years: that European courts should listen to each other. If they don't, and simply make inconsistent decisions without explanation about why they disagree – as the Düsseldorf court did – then Europe will have to wait for a common IP court. Which could still take a long time.
Barristers Henry Carr and Anna Edwards-Stuart and law firm Simmons & Simmons acted for Samsung. Apple was represented by barristers Lord Grabiner, Michael Silverleaf and Richard Hacon and law firm Freshfields Bruckhaus Deringer.
You can read the decision here.
