55.
Finally I should say something about the 24th July decision of the
Oberlandesgericht which held that the 7.7 infringed and granted a pan-EU
injunction against SEC from selling it.
56. Firstly I cannot understand on
what basis the Court thought it had jurisdiction to grant interim relief. I do
not think it did for several reasons.
57. Firstly it is common ground that
no German court was "first seized" of the claim for a declaration of
non-infringement. Indeed given that Apple withdrew its claim for infringement in
Germany, no German court appears even now to be seized of a claim for
infringement. It is true that Samsung applied for declarations of
non-infringement on the same day, 8th September 2011 in Spain, the Netherlands
and England and Wales and there could be (but I think rather overtaken by events
given that the trial and appeal are over here) a dispute about which case
started first in point of time. After all there is now a Community-wide decision
on the point, now affirmed on appeal. One would think that ought to put an end
to all other litigation about it.
58. Secondly I cannot see any basis for an
interim injunction. The UK court had already granted a final declaration.
Moreover it was sitting not just as a UK court but as a Community Court. Interim
injunctions are what you grant in urgent cases where there is not enough time to
have a full trial on the merits. That was not this case. Lord Grabiner told us
that the Oberlandesgericht had jurisdiction pursuant to Art. 31 of the Brussels
Regulation EC/44/2001. But that relates to "provisional, including protective
measures." There was no room for "provisional" measures once Judge Birss,
sitting as a Community Court had granted a final declaration of
non-infringement.
59. Further Judge Birss was not sitting as a purely
national court. He was sitting as a Community design court, see Arts. 80 and 81
of the Designs Regulation 44/2001. So his declaration of non-infringement was
binding throughout the Community. It was not for a national court - particularly
one not first seized - to interfere with this Community wide jurisdiction and
declaration.
60. The Oberlandesgericht apparently also thought it had
jurisdiction because the party before it was SEC 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.
61. Finally I regret to say that I find the Oberlandesgericht's
reasoning on the merits sparse in the extreme. Firstly, for the reasons I have
given, I think it was wrong to say that the General Court decision in Grupo
Promer/Pepsico was "outdated" when the decision on appeal affirmed the General
Court. Secondly the Court wrongly assumed that the trade mark point was critical
to Judge Birss's decision when it was not. And for the reasons I have given I
think it was wrong in law to say that the positioning of a trade mark was
irrelevant where it interfered with one of the key features of the design
(simplicity and plainness).
62. What the Oberlandesgericht did not do was to
consider Judge Birss's decision in detail. It gave only meagre reasons for
saying "The Court cannot concur with the interpretation of the High Court". I
regret that. In Grimme v Scott [2010] EWCA Civ 1110, this Court
said:
63. Broadly we think the principle in our courts - and indeed
that in the courts of other member states - should be to try to follow the
reasoning of an important decision in another country. Only if the court of one
state is convinced that the reasoning of a court in another member state is
erroneous should it depart from a point that has been authoritatively decided
there. Increasingly that has become the practice in a number of countries,
particularly in the important patent countries of France, Germany, Holland and
England and Wales. Nowadays we refer to each other's decisions with a frequency
which would have been hardly imaginable even twenty years ago. And we do try to
be consistent where possible.
64. The Judges of the patent courts of the
various countries of Europe have thereby been able to create some degree of
uniformity even though the European Commission and the politicians continue to
struggle on the long, long road which one day will give Europe a common patent
court.
65. That principle was not followed by the
Oberlandesgericht. If courts around Europe simply say they do not agree with
each other and give inconsistent decisions, Europe will be the
poorer.
So what does Apple have to go by? A crooked jury
verdict, a mistaken German verdict. No mention of all the other cases they lost,
over the same patents. No mention of those very patents being invalidated as we
speak. No mention of the ridicule and scorn poured over Apple because of their
antics - well, they wouldn't mention that, now would they?
