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Cite as: [2014] EWCA Civ 376

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		Neutral Citation Number: [2014] EWCA Civ 376
		Case No: A3/2013/1432(A)/(B)

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PATENTS COURT)
THE HON MR JUSTICE FLOYD
[2013] EWHC 469 (Pat)

Royal Courts of Justice
Strand, London, WC2A 2LL

1st April 2014

B e f o r e :

LORD JUSTICE MOORE-BICK
LORD JUSTICE RIMER
and
LORD JUSTICE KITCHIN
____________________

Between:

	Samsung Electronics Co Ltd	Appellant/Claimant
	- and -
	Apple Retail UK Ltd Apple Sales International	Respondents/Defendants

____________________

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
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____________________

Henry Carr QC, Mark Vanhegan QC and Brian Nicholson (instructed byBristows LLP)
for the Appellant
Guy Burkill QC and Thomas Hinchliffe (instructed by Freshfields
Bruckhaus Deringer LLP) for the Respondents
____________________

HTML VERSION OF JUDGMENT
____________________

JUDGMENT ON FORM OF ORDER

Lord Justice Kitchin:

Introduction

This is the judgment of the Court. On 11 March 2014 we gave judgment providing our reasons for allowing an application by Samsung for an adjournment of this appeal and dismissing an application by Apple for an order requiring Samsung in substance to elect between this appeal and its central amendment applications. We invited the parties to agree a form of order reflecting our judgment. Regrettably that is not something they have been able to do. There are four issues in dispute and we will address them in turn.

Single hearing?

On 10 March 2014 the EPO issued a communication stating that the central limitation application in respect of the 404 patent can be allowed. The EPO's initial response to the application in respect of the 726 patent has, however, been negative. Samsung is addressing the EPO's concerns but says it is likely that the final determination of that application will take a further few months.

In these circumstances, Samsung submits that the substantive appeal in relation to the 404 patent should not be delayed pending the outcome of the application in relation to the 726 patent. It says that the appeals in relation to the two patents are materially different; that the patents relate to different technology; that at trial the patents were addressed by different legal teams and experts; and that the judge gave separate judgments in relation to them.

We do not believe it is appropriate to split the appeal in the way that Samsung suggests, at least at this stage. Samsung chose to sue Apple for infringement of the 726 and 404 patents in a single action and the judge made one final order in relation to it. The appeal against that order was originally fixed to be heard on 4 or 5 March 2014 with a time estimate of three days. Samsung then asked for an adjournment of the appeal as a whole and it did so for a relatively short period, indicating in submissions that its central amendment applications were likely to be determined by June 2014, if not before, that is to say about three months from the date fixed for the hearing of the appeal. Moreover, as Apple says in response, there are some common issues, including the general question how an appeal should proceed in the light of a central amendment application made after trial. It has therefore chosen to use a single legal team on the appeal. In all these circumstances we are satisfied that it is still appropriate that there should be a single appeal hearing in relation to both patents. Should circumstances change and that not prove practicable, the parties have liberty to apply.

Costs of the applications

Samsung's position in relation to costs is very straightforward. It says that its application has been allowed and Apple's application has been dismissed and, as a result, it should have all of its costs. Apple responds that Samsung has sought and been granted an indulgence and accordingly should pay to Apple all of its costs.

We consider there is some merit in each of these arguments. Samsung has successfully secured the adjournment it sought and Apple has failed in its application to require Samsung to abandon its central amendment applications or have its appeal struck out. Nevertheless, we also believe that Apple is right in submitting that Samsung has sought and been granted an indulgence. It sought an adjournment of the appeal at a late stage and having failed to apply for the amendments now in issue either before the trial or even promptly after the trial. Moreover, Apple has, in our judgment, acted entirely properly in resisting Samsung's application and in bringing what was, in substance, a responsive cross-application. In all these circumstances we have come to the conclusion that a just result would be achieved by making no order in relation to the costs of either application.

Costs of and occasioned and thrown away by reason of the adjournment

Apple submits with considerable force that it should have the costs of and occasioned and thrown away by the adjournment and that we should make an order for their payment now. However, we consider that it is difficult at this stage to determine what these costs comprise and consequently what effect such an order would have. In these circumstances we have come to the conclusion that these costs should be reserved to the appeal so that this court can consider them at that stage in the light of all the circumstances then pertaining. This will mean that the position of both parties is preserved and neither will suffer any prejudice in the meantime.

Permission to appeal

Apple seeks permission to appeal to the Supreme Court on the basis that the matters we have decided raise a significant point of general public importance. We disagree. We have concluded that the filing and pursuit by Samsung of its central amendment applications does not in and of itself constitute an abuse of process. As for Apple's application, this fell to be dismissed because we were satisfied that it could not be said at this stage that pursuit by Samsung of these applications necessarily meant that the appeal itself constituted an abuse of process either. But, as we have endeavoured to make clear, this is entirely without prejudice to Apple's right to advance such submissions and make such applications as it may consider appropriate once the outcome and implications of the central amendment applications are known.

Stay

Apple seeks a stay of all further steps in these proceedings until after the final determination of an application which it has indicated it proposes to make to the Supreme Court for permission to appeal and, if permission to appeal is granted, until determination of the appeal itself. We do not believe it is appropriate to grant such a stay. The form of the patents is not yet settled and we have made no final determination as to whether or not the pursuit by Samsung of this appeal would constitute an abuse of process.

In light of this ruling we invite the parties to agree a draft order and to submit it to this court for approval.