Samsung Electronics Co Ltd v Apple Retail UK Ltd & Anor

In managing an appeal involving two patents, the court may retain a single hearing where the claims were brought in one action, the trial order was single, and common issues exist, while preserving liberty to apply if circumstances change. Costs are not automatic: even a successful applicant may receive no order where the application secures a late indulgence and the opposing party acted properly. Costs thrown away by an adjournment may be reserved until the appeal. Permission to appeal requires a significant point of general public importance. A stay is inappropriate where patent amendments remain unsettled and abuse-of-process issues have not been finally determined.

Samsung appealed from the decision of the High Court of Justice, Chancery Division (Patents Court), in a patent infringement action concerning the 404 and 726 patents: [2013] EWHC 469 (Pat). Samsung applied to adjourn the appeal pending central amendment applications before the EPO. Apple applied for an order requiring Samsung to elect between pursuing the appeal and the amendment applications. On 11 March 2014 the Court of Appeal allowed the adjournment application and dismissed Apple’s application. This judgment determined the form of order, including the hearing arrangement, costs, permission to appeal and a proposed stay.

Applications determined. The court retained a single hearing for the appeals concerning the 404 and 726 patents. It made no order on the costs of either application, reserved the costs caused or thrown away by the adjournment to the substantive appeal, refused permission to appeal to the Supreme Court and refused a stay.

1. Single hearing. Samsung had sued in one action, the judge had made one final order, and common issues arose, including how the appeal should proceed after post-trial central amendment applications. It was therefore appropriate, at that stage, to retain a single appeal hearing for both patents. The parties had liberty to apply if circumstances changed.
2. Costs of the applications. Success in obtaining the adjournment and resisting Apple’s application did not automatically determine costs. Samsung had sought a late indulgence after failing to make the amendment applications before trial or promptly afterwards. Apple had acted properly in resisting the application and bringing its responsive cross-application. The just order was therefore no order as to costs.
3. Costs occasioned by the adjournment. The court could not yet determine the scope or effect of those costs. They were reserved to the substantive appeal, preserving both parties’ positions and avoiding interim prejudice.
4. Permission and abuse of process. No significant point of general public importance arose. The court reaffirmed that filing and pursuing the central amendment applications did not itself constitute an abuse of process. Nor could it yet be said that pursuing the appeal necessarily constituted an abuse. Apple remained free to renew its submissions once the outcome and implications of the amendment applications were known.
5. Stay. A stay pending a proposed Supreme Court application or appeal was inappropriate because the form of the patents remained unsettled and the court had made no final determination whether pursuit of the appeal would constitute an abuse of process.

1. Court of Appeal (Civil Division) — On 11 March 2014 the court allowed Samsung’s application for an adjournment and dismissed Apple’s application requiring Samsung to elect between the appeal and central amendment applications. By this judgment it settled the form of order, made the costs directions, refused permission to appeal and refused a stay.
2. High Court of Justice, Chancery Division (Patents Court) — The underlying patent proceedings were determined in the judgment reported at [2013] EWHC 469 (Pat), from which Samsung appealed.