Apple-Samsung case exasperates panel of Dutch judges

IDG News Service - In the face of an Apple demand for a sales ban on its Android products, Samsung told a Dutch court on Friday that in fact it has already changed the products so they no longer infringe. But the South Korean company's failure to provide evidence of the change exasperated the judges.

Apple is suing Samsung in the Court of the Hague over a patent that describes a way to scroll through a photo gallery using finger gestures on a touchscreen.

Samsung has already lost a case concerning the same patent in the Netherlands after preliminary proceedings in August last year, leading to a sales ban on the then-infringing Galaxy S, SII and Ace. Samsung adjusted the photo gallery software on those devices in October when it introduced proprietary technology as a work-around for the infringing software.

Samsung has since changed all its products in the Netherlands to use its own technology, said Bas Berghuis van Woortman, one of Samsung's lawyers during the hearing. There are no more Samsung products in the Netherlands that infringe on Apple's patent, he added.

However, Samsung failed to make this assertion in its written plea that was filed with the court, which irritated the judges. "And now at the hearing you come without any substantiation with the bare assertion that this is the case and that we should believe you?" asked Rian Kalden, one of three judges reviewing the case.

Samsung could have contacted Apple beforehand to resolve the matter, Kalden said. The court is obliged to rule on basis of the written proceedings, she said.

Rutger Kleemans, one of Apple's lawyers, said Apple would still consider Samsung's products as infringing on its patent, since Samsung has made no explicit commitment to use its proprietary technology in devices that use Android 3 and higher. Although Samsung committed to changes in products using earlier versions of Android after the August verdict, it did not do the same for its more recent products, Kleemans said. Apple did not name the specific products that are still infringing on its patent, but instead argued for a ban based on Android versions used.

Samsung's lawyers disagreed. "It is up to Apple to show where it is and where it is not used," said Berghuis van Woortman, of the infringing technology.

Besides a ban on infringing products, Apple demanded Samsung pay damages and share part of its profits from the infringing products. The judges will take six weeks to reach a verdict; judge Peter Blok, who presided over the team of judges, said the court would rule on Nov. 14.

Loek covers all things tech for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com