The Apple v. Samsung saga continues overseas.

As I reported in a comment to my July 9^th article “Tab”ed out” and as Tim Callery described in his full-length July 29^th article “Apple’s Mea culpa,” on July 9, 2012,  Judge Colin Birss QC of the British High Court of Justice, Chancery Division, Patents Court, issued his ruling in the iPad design infringement case brought by Apple, Inc. against Samsung Electronics, Inc. in the U.K. Courts. He ruled that Samsung’s design of their Galaxy Tab 10.1 Tablet did not infringe Apple’s design. Specifically, he famously concluded that because the overall impression of the Samsung product designs “were not as cool” as Apple’s, they were not infringing.

Samsung immediately sought an order for dissemination of the judgment. On July 18, 2012, Judge Birss issued a judgment on injunction and publication of judgment, ordering Apple to publish a link to the July 9, 2012 decision as well as a notice within seven days on many of their international home pages, as well as in The Financial Times; the Daily Mail; The Guardian; Mobile Magazine; and T3 magazine. The notice was to read that:

On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronics (UK) Limited’s Galaxy Tablet computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design 000181607-0001. A copy of the full judgment of the High Court is available via the following link …

Apple appealed the decision and order. On October 18^th, a three-judge panel on the Court of Appeal (Civil Division) unanimously affirmed both of Judge Birss’ decisions, endorsing the order that forces Apple to issue statements showing Samsung did not “copy” Apple’s designs. To correct the damaging impression that Samsung was simply copying Apple’s work, the High Court specifically ordered that in addition to the newspaper publications, Apple must post a link on their UK homepage to the judgment for at least one month. As of October 20, 2012, no such link has been posted.

While found clearly not infringing in the U.K., the U.S. courts have come to a different conclusion: the U.S. jury decision, handed down August 24, 2012 in the U.S. Federal Court for the Northern District of California, concluded Samsung infringed on numerous Apple technology and design patents (although they found some Samsung designs to be non-infringing), and granted Apple more than $1 billion in damages. Although the overall decision still stands, the injunction placed on the sale of the Samsung Galaxy Nexus cellphone was lifted October 11, 2012 by the U.S. Federal Court of Appeals.

Overall, it appears that the U.S. jury decision is out of step with the mounting case law on the Apple v. Samsung matter in Europe. In September, Apple failed to win an infringement claim against Samsung over its Motorola Mobility technology in a German Court, and also lost an appeal in the Dutch courts last year, after seeking an injunction against the sale of Samsung Galaxy 10.1, 8.9, and 7.7 model phones (Apple is currently petitioning the Dutch Supreme Court). Furthermore, a Japanese District Court ruled in August that Samsung did not infringe Apple’s music and video synchronization patents.

This is not the first time, nor will it be the last, that U.S. courts have decided differently regarding patent and patent infringement suits.

In recent memory, a patent involving the Oncomouse (or Harvard Mouse) met with similar judicial disparity on the international stage. The Oncomouse was originally created by researchers at Harvard University in Boston as a genetically modified mouse designed to carry an activated oncogene, which would significantly increase the mouse’s susceptibility to cancer. This increased susceptibility made the mice particularly attractive to cancer researchers. The United States Patent and Trademark Office (USPTO) granted Harvard a patent over the mouse in 1988 (U.S. Patent 4,736,866) without resistance. The U.S. patent protected “a transgenic non-human mammal whose germ cells and somatic cells contain a re-combatant activated oncogene sequence introduced into said mammal…”

In other jurisdictions, Harvard’s attempt to patent the mouse met with much more resistance. For instance, Harvard’s application for a Canadian patent was rejected all the way to the Supreme Court (with the exception of the Federal Court of Appeals who would have granted the patent). At the Supreme Court level, the majority of justices held that the mouse could not be patented since as “higher life form,” the mouse fell outside the scope of “invention,” defined in section 2 Canadian Patent Act, R.S.C. 1985 c.P-4, as “any new and useful art, process, machine, manufacture or composition of matter” or any new and use improvement thereof. Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76, paras. 118–20.  Similarly, a 20-year saga through the European Patent Office system where the patent was accepted and then revoked for maintained contrary to public order and morality, ended in 2006 when the patent was revoked for failure to pay required fees and submit required translations of the amended claims.

The problem of disparate patent decisions is inherent in the nature of our patent system: patents are subject to domestic law; thus, courts must decide the case according to the patent law in their country. Even if countries have entered international treaties to streamline the patent process and provide protection to those inventions already patented in a sister jurisdiction, those seeking to obtain patents must still file applications in each country where protection is sought. The effect is a mosaic of decisions, reflexive of the sight variations in patent law as implemented in each country and interpreted by their courts. In other words, it is not always possible to compare Apples to Apples.

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