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Last week we reported on the recent English Court of Appeal decision in one of the many on-going patent disputes between Samsung and Apple. To recap briefly, two of Samsung's patents had been held invalid by the High Court, and Samsung was in the process of appealing that decision to the Court of Appeal. In the meantime Samsung had applied at the European Patent Office (EPO) for central amendment of both patents, and the question arose what should happen to the appeal case pending the outcome of the EPO central amendment process: Samsung argued that the appeal should be stayed in the interim; Apple argued that Samsung's actions were an abuse of process and if the central amendment proceedings continued, the appeal should be struck out. Samsung's argument prevailed.
As is common in English patent disputes, after receipt of the judgment, the parties returned to court a short while later for a hearing to resolve what the consequences of that judgment were, including who should pay what costs and what the terms of the Court Order should be to put the judgment into effect. That hearing took place yesterday (judgment not yet publically available), but in the time between the trial and yesterday's hearing the EPO had reached a decision with regard to one of Samsung's two patents: amendment would be allowed. With regard to the other patent the initial response of the EPO was negative, but the process still has further to go before a final outcome.
This threw up a new question for the Court of Appeal: should the appeal of the patent that had come through the central amendment process proceed while the appeal in respect of the other patent continued to be subject to the stay, or should the appeal in respect of both patents continue to be subject to the stay?
Samsung argued for the former. In Samsung's favour was that the technology of the two patents was quite different, that the two had been addressed by different legal teams and expert witnesses, and the judge at first instance had given separate judgments on them. Therefore there was no commonality between the two patents and the appeal relating to them readily could be split.
The Court of Appeal disagreed with Samsung. First, it was Samsung who had chosen at the outset to sue Apple for infringement of the two patents in one action. Secondly there may be common issues, in particular how the appeal should proceed in light of the central amendment. Accordingly the Court of Appeal decided that, at least for now, the entire appeal should continue as one action.
Separately on the question of costs, Samsung submitted that it had won the application for a stay, and Apple's counter-application had failed; therefore on the ordinary principles of costs Samsung should get its costs. The Court of Appeal however agreed with Apple that Samsung had been granted an indulgence by the court, particularly in light of the fact that Samsung had brought the application for central amendment so late in the process. Accordingly the decision was that no award of costs should be made.