Motorola's Xoom tablet does not infringe on Apple's designs, German court rules

Apple had asked for a Europe-wide ban on sales of the Motorola device

Motorola's Xoom tablet (called the Xyboard in the U.S.) does not infringe on some of Apple's community designs, the regional court of Dusseldorf ruled on Tuesday. Apple wanted a Europe-wide ban on the Motorola tablet, a court spokesman said.

Apple tried to get the Motorola Xoom banned in Europe because it said Motorola infringed on three of its community design rights, unitary industrial design rights that protect the intellectual property of products sold in the European Union. The judge decided that the Xoom does not resemble the iPad enough, said Andreas Vitek, spokesman for the regional Dusseldorf court.

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Motorola filed a counter claim against Apple, demanding that the court decide that Apple's community designs were invalid, Vitek said. However, the judge also denied that claim, he said, adding that while both companies lost their claims, Apple had to pay two thirds of the litigation costs and Motorola should pay one third. Vitek could not say how much each company had to pay.

All three community designs used in the case cover iPad designs, and all three designs have an invalidity procedure pending, according to the database of the Trade Marks and Designs Registration Office of the European Union. This means that an application for a declaration of invalidity has been filed against that specific design, and that the invalidity request will be examined.

Community design 1222905-0001 contains drawings of an iPad-like device as does community design 001222905-0008. Community design 001222905-0002, however, contains photos of the first iPad. All three the designs were registered in July 2010 and in all three registrations Jody Akana is credited as the designer.

Apple cited a different community design to request a ban of Samsung's Galaxy Tab sales in Europe last year. In that case, Apple's iPad-related community design 000181607-0001 was enough to give Apple a preliminary injunction against the Tab 10.1, temporarily blocking sales of the tablet in the Europe.

The community design used against Samsung has also an invalidity procedure pending. It was registered in 2004 and designed by Bartley K. Andre. This design consists of drawings of an iPad-like device and is categorized as a "handheld computer" instead of a "portable display device" as the other three community designs used against Motorola are.

Apple declined to comment on Tuesday's ruling and Motorola did not respond to a request for comment.

The European ban against the Galaxy Tab 10.1 was lifted last August in all E.U. countries but Germany. Apple won a permanent ban on the 10.1 in Germany in September. To circumvent that ruling, Samsung modified the appearance of the tablet and created the Galaxy Tab 10.1N, which Apple also attacked in German courts.

Apple is still pursuing a ban on the altered Galaxy Tab 10.1N and appealed a ruling of the regional Dusseldorf court that decided the 10.1N was sufficiently altered. The higher regional court of Dusseldorf is set to rule in the 10.1N appeal case next Tuesday, said Vitek.

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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