Samsung can challenge Apple's photo gallery patent before ruling on infringement

A German regional court has suspended its ruling on infringement until the Federal Patent Court has determined if the patent is valid

Samsung Electronics will be allowed to challenge the validity of an Apple patent before a decision is made on whether Samsung has infringed the patent, the Regional Court in Mannheim, Germany ruled Friday.

The judge decided on Friday to suspend a ruling on Apple's request for an injunction on sales of Samsung's Android products until Germany's Federal Patent Court decides on the validity of the patent in a separate action brought by Samsung.

The court in Mannheim had been set to rule on whether the photo gallery on Samsung's Android phones infringed on Apple's European Patent entitled "portable electronic device for photo management."

"The lawsuit about the patent has been suspended until the decision about the nullity suit, which Samsung has brought to the Bundespatentgericht," Mannheim Regional Court spokesman Joachim Bock said in an email.

Such a delay is unusual, because German patent courts generally allow patent holders to apply for injunctions before the Federal Patent Court has ruled on any challenges to a patent's validity. A compensation system exists should an injunction be granted based on a patent subsequently found invalid.

Judges can decide to wait for a validity verdict if they think the patent is invalid, said Ariane Mittenberger-Huber, spokeswoman for the Federal Patent Court. She could not say whether Samsung had already filed a nullity suit with the Federal Patent Court regarding the photo gallery patent, but there are some patent validity cases involving Apple and Samsung pending, she said.

There is no date set yet for oral proceedings to take place in any of those filed patent validity cases, and they are most likely to begin at the end of the year or the beginning of next year, Mittenberg-Huber added. Determining if a patent is valid typically takes longer than infringement hearings, she said.

If a German court allows an injunction based on a patent, companies can be forced to adjust their devices in such a way that they don't infringe anymore, or to stop selling them in Germany at all. In February for instance, Apple was forced to turn off its MobileMe and iCloud push email services for all German users to comply with an injunction granted to Motorola Mobility. Apple said at the time it believes Motorola's patent is invalid.

Companies often try to work around German injunctions. Apple was granted an injunction against Samsung's Galaxy Tab 10.1 last year by the Düsseldorf regional court that decided the design of the 10.1 is too close to an Apple registered design. This forced Samsung to alter the design of its tablet to circumvent a stop on tablet sales in one of Europe's biggest markets. The adjusted tablet for the German market is called the Galaxy Tab 10.1N and is allowed to be sold by the regional Düsseldorf court, that decided that the device was sufficiently altered. Apple however still pursues a ban on the 10.1N and is set to appeal the decision at the higher regional Düsseldorf court in June.

The court in Mannheim was also set to rule on Friday in another lawsuit in which Apple accuses Samsung of infringing on a utility model,a patent-like intellectual property right available under German law. Apple alleges that Samsung touch devices infringe on its utility model for "List Scrolling and Document Translation, Scaling, and Rotation on a Touch-Screen Display." The decision in this case was moved to May 11, Bock said.

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

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