Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
900
NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)
Exhibit 45
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La Semaine Juridique Edition Générale no. 46, November 14, 2011, 1250
Establishment of the prohibition against contradicting oneself
Case note by Dimitri Houtcieff
attorney (partner), Professor of law
General legal principles
Summary
A party which itself has lodged and investigated an appeal against a ruling having resulted in the partial cassation
of that ruling cannot, without contradicting itself to the detriment of the opposing parties, assert before the court
of appeal the circumstance that it was deprived of legal personality at the time of the proceedings having led to
those decisions.
Cass. com., Sept. 20, 2011, no. 10‐22.888, F P+B: JurisData no. 2011‐019424
THE COURT – (…)
o Whereas, according to the contested ruling, handed down on appeal after cassation (Cass. com., July 10, 2007, no. 06‐
12.056), the company Nergeco holds two European patents, respectively granted under no. EP 0 398 791, to cover a “Door
with liftable shutters, reinforced by horizontal bars,” and under no. EP 0 476 788 for a “door with liftable,” respectively;
whereas the patentee and the company Nergeco France, holder of a license pertaining to the French part of these patents
(the Nergeco companies), brought infringement proceedings against the companies Mavil and Maviflex; whereas, ruling by
decision dated October 2, 2003 on appeal raised by the Nergeco companies, on January 16, 2001, of the judgment handed
down on their action on December 21, 2000, the Lyons court of appeal received the counterclaim seeking the invalidity of
patent EP 0 476 788, on the contrary rejected that pertaining to patent EP 0 389 791, held that the “Fil’up” door models
exploited by the defendants constituted the infringement thereof, and ordered an interlocutory judgment assessment on
the damage; whereas that ruling was quashed solely in the provisions thereof having pronounced the cancellation of
claims 2 to 9 of patent EP 0 476 788; whereas, by ruling dated January 31, 2007, handed down in the presence of the
company Gewiss France, called in forced intervention, as representing, by merger, the company Mavil, the Paris court of
appeal, jurisdiction on appeal, declared Nergeco France admissible to bring infringement proceedings for patent EP 0 476
788, its license agreement only, however, being enforceable against third parties as of June 3, 1988, and pronounced the
invalidity of claim 5 of patent EP 0 476 788; whereas in parallel, the Lyons court of appeal ruled by decision dated
December 15, 2005, stating, on the one hand, that, among the “Fil’up” model doors by Mavil and Maviflex, only the
“trafic” versions were infringing, while deciding, on the other hand, that the doors manufactured and marketed by Mavil
and Maviflex under the name “Mavitrafic” constituted an infringement of patent EP 0 398 791, and ordering, lastly, an
assessment to evaluate the damage; whereas the proceedings before the court of appeal on referral continuing after the
submission of the court‐ordered expert opinion, the Nergeco companies requested compensation for their damage;
whereas Maviflex having been the subject of a safeguard procedure by judgment dated July 6, 2006, Messrs. Sabourin and
Sapin were respectively appointed agent and official receiver; (…)
And on the sole ground of the appeal, considered in the third branch thereof:
In light of the principle according to which no‐one may contradict himself to the detriment of another:
o Whereas to declare the claims that the Nergeco companies lodged against Gewiss France inadmissible, the ruling holds
that the fraud by that company has not been proven and that it has been established that the source of the irregularity
consisting of bringing proceedings against an entity lacking legal personality lies in a lack of vigilance of the Nergeco
companies;
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o Whereas by ruling in this way, while Gewiss France, which itself had lodged and prepared the appeal against the ruling of
December 15, 2005 having resulted in the partial quashing of that ruling, could not, without contradicting itself to the
detriment of the Nergeco companies, claim, before the court of appeal, the circumstance that it was deprived of legal
personality during the proceedings having led to those decisions, the court of appeal violated the abovementioned
principle;
On these grounds (…):
o Quashes and annuls, in all provisions thereof (…) so justice may be done, sends them back before the Paris court of
appeal, with a different composition; (…)
Ms. Favre, pres., Ms. Pezard, chief clerk, Mr. Petit, senior judge, Mr. Mollard, ref. att. gen.; Me. Bertrand, SCP Bénabent,
SCP Hémery et Thomas‐Raquin, att.
The existence of a principle of consistency could appear to be an act of faith rather than a truth (on which, not. D. Houtcieff, Le
principe de cohérence en matière contractuelle, préf. H. Muir‐Watt : PUAM, 2000, 2 vol. ; D. Mazeaud, Loyauté, solidarité,
fraternité : la nouvelle devise contractuelle ?, in L’avenir du droit, Mélanges en hommage à François Terré : Dalloz, 1999, no. 12,
p. 615 ; B. Fages, Le comportement du contractant, préf. J. Mestre : PUAM, 1997, no. 644 and f. ; D. Houtcieff, Essai de
maïeutique juridique : la mise au jour du principe de cohérence, Étude : JCP G 2009, doctr. 463). Although they claimed to be
able to deduce the existence of rules of positive law from this [principle], the thurifers of the prohibition against contradicting
oneself to the detriment of another could not refer to any text. Although certain proposals to reform the law of obligations
auger its consecration (See not., Pour une réforme du droit des contrats, Groupe de travail de l’Académie des sciences morales
et politiques, under‐dir. F. Terré : Dalloz, 2009, art. 6), it has never been embodied in legislative words. Here, however, the
jurisprudence has reached the end of its transformation: this ruling handed down on September 20, 2011 by the commercial
chamber of the Court of Cassation should convince even those who only believe what they see of the existence of a principle of
consistency (we thank our colleague Christian Larroumet for having drawn our attention to this decision).
Let us summarize the heart of the facts. A company had, in the case under discussion, brought infringement proceedings
against another company. [After its claims were] rejected, the plaintiff lodged an appeal before the Lyons court of appeal: by a
decision dated December 15, 2005, the latter partially accepted the counterclaims by the respondent. The ruling was, however,
censured on appeal by the latter: the parties were referred back to the Paris court of appeal. It then appeared that the
respondent company had been dissolved after a merger even before the appeal was initiated before the Lyons court of appeal,
without the appellant company having been notified: it had in fact lodged an appeal against the absorbed company…
Recognizing before the Parisian judges that the procedure before the Lyons court of appeal had become irregular due to the
loss of legal personality of the absorbed company, the appellant claimed, however, before the referred court of appeal, that the
procedure had been regularized by the absorbing company, inasmuch as the latter had taken its case before the court of
appeal, thus taking over the proceedings on its behalf. The Paris court of appeal refused to hear that argument, holding that the
claims by the appellant company against the absorbing company were inadmissible. The commercial chamber of the Court of
Cassation censured that decision, based on the “principle that one may not contradict oneself to the detriment of another”: by
ruling in this way, it asserts that, as the absorbing company itself had lodged and investigated the appeal against the ruling
dated December 15, 2005 having resulted in the partial cassation of that ruling, could not, without contradicting itself to the
detriment of the appellant company, claim, before the court of appeal, the circumstance that it was deprived of legal
personality during the proceedings having led to those decisions, the court of appeal violated the aforementioned principle.”
This therefore establishes the existence of a normative principle according to which no‐one may contradict himself to the
detriment of another set out by this ruling recorded in the Bulletin. One will not be surprised by this: this principle was
suspended for some time (1): in this sense, the principle of consistency is revealed more than it is consecrated. It nevertheless
remains for the jurisprudence to precisely distill the elements, so that the prohibition against contradicting oneself does not
reveal itself to be a new seed of legal insecurity (2).
1. Revelation of the principle of consistency
However spectacular it may be, this ruling is limited to perfecting a widely‐supported jurisprudence. Although the judges
remained silent as to their foundation, many decisions in fact appear only to be explainable through the idea of a prohibition
against contradicting oneself to the detriment of another. How can one understand, without resorting to that principle, that a
ruling be censured for refusing to admit the fault of an insurer that, after having claimed the ten‐year nature of certain
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disorders to require the payment of increased premiums from the insured party, had then contested the corresponding
coverage to replace it with the less expensive “performance flaw” coverage (Cass. 3rd civ., Jan. 28, 2009, no. 07‐20.891: D. 2009,
p. 2008, note D. Houtcieff)? How can one explain, without detouring through a contradiction, that a given bank having had the
accounts connected by a unity agreement operate independently can no longer take advantage of that contractual clause (Cass.
com., March 8, 2005, no. 02‐15.783: D. 2006, p. 155, obs. D. R. Martin and H. Synvet; Rtd com. 2005, p. 397, obs. D. Legeais;
RTD civ. 2005, p. 391, obs. J. Mestre and B. Fages; RDC 2005, p. 1015, obs. D. Mazeaud; Rev. Lamy dr. civ. July/August 2005, p.
5, note D. Houtcieff)? How to grasp, without recourse to the principle of consistency, that the protection of the consumer rights
be refused to one who first presented himself as a building professional (Cass. com., May 3, 1994, no. 92‐17.273: Bull. Civ. 1994,
IV, no. 168) or that the jurisprudence refuses the delegator the right to claim payment from the delegate before the operation
is undone (Cass. com., Apr. 28, 1987, no. 85‐17.093: Bull. Civ. 1987, IV no. 103; RTD civ. 1987, p. 760, obs. J. Mestre. – Cass.
com., Apr. 16, 1996: D. 1996, p. 571, note Ch. Larroumet; D. 1996, somm. P. 33, obs. L. Aynès. – Cass. com., Apr. 16, 1996: D.
1996, p. 571, note Ch. Larroumet; D. 1996, somm. P. 333, obs. L. Aynès. – Cass. com., Apr. 29, 2002, no. 99‐15.072: D. 2002, p.
1835, obs. F. B. and p. 2674, note D. Houtcieff; Defrénois 2002, p. 1239, note R. Libchaber. – Cass. com., Feb. 14, 2006, no. 03‐
17.457: Bull. civ. 2006, IV, no. 37; RTD civ. 2006, p. 319, obs. J. Mestre and B. Fages; D. 2007, p. 753, obs. D. R. Martin), so that
he “does not contradict the order he has given” (L. Aynès, obs. ff Cass. com., Apr. 16, 1996, afor.; Adde D. Houtcieff, De la
paralysie de la créance du délégant: petite métaphysique d’une pragmatique sanction, in Mélanges Christian Larroumet:
Economica, 2009)? Although the judges were careful not to say it explicitly, the demonstrations of the prohibition against
contradicting oneself to the detriment of another were no less numerous (for other examples, See our aforementioned art. and
th.).
It nevertheless remained to establish the foundation of this jurisprudential structure: thus we sometimes saw some pleaders
ask the Court of Cassation to recognize the “principle of consistency” (See e.g. Cass. 2nd civ., Oct. 11, 1995, no. 93‐19.644,
unpub.). The opportunity to satisfy them was missed by a ruling handed down on February 27, 2009 by the Plenary Meeting of
the Court of Cassation, unless it wished once again to make a sacrifice to the so‐called “baby steps” technique: it in fact
asserted that “the mere circumstance that a party contradicts itself to the detriment of another does not necessarily create a
ground for rejection” (Cass. ass. plén., Feb. 27, 2009, no. 07‐19.841: JurisData no. 2009‐047173; JCP G 2009, II, 10073, note P.
Callé; D. 2009, p. 723, obs. X Delpech and p. 1245, note D. Houtcieff). Doubtlessly the circumstances of the case at hand do not
lend themselves to punishing the contradiction that the judges on the merits believed they could establish by reproaching a
pleader for claiming a different position from that which it had claimed… against another party in another case! The very
negative formulation of the principle of consistency could, however, pass for hesitation to take the step of firmly and
definitively establishing it.
Alas! The commercial chamber crossed that line. In truth, this slow gestation was necessary for the prohibition against
contradicting oneself to be set out in a principle that can be cited by the Court of Cassation. The formulation of such a principle
is in fact always the result of a maturation process. As written by Boulanger long ago, “strictly speaking, the jurisprudence does
not have (…) a creative power. The principles then exist even when they are not expressed (…). The statement of an unwritten
principle is a manifestation of the “spirit” of a law” (Principes généraux du droit et droit positif in Études offertes à G. Ripert, Le
droit privé au milieu du XXe siècle: LGDJ, 1950, t. 1, p. 50, no. 21). Before these legal maieutics, the principles are in suspension.
Once formulated by the judge, “they include an authority, a rigor and an applicability that would not otherwise have the diffuse
wish of the lawmaker that they express and materialize” (J.‐L. Bergel, Théorie générale du droit: Dalloz, coll. Méthode du droit,
rd
3 ed. 1999, no. 74). It was thus necessary for the judges and deciders to colligate multiple cases so that the Court of
Cassation could extract the essence therefrom by upholding the existence of a principle of consistency. Its work is not yet
complete: it remains to define what specifically is covered and meant by this contradiction that must henceforth be eliminated.
2.
Meaning of the principle of consistency
The positive affirmation of the principle of consistency is not neutral. Until now, the prohibition against contradicting oneself to
the detriment of another was only the fruit of the doctrinal and a posteriori interpretation of the jurisprudence: this principle is
henceforth normative. It no longer serves only to allow the reading of past decisions, but also to anticipate future rulings by
governing behaviors generally and abstractly. It is then crucial to discern the concrete contours and asperities thereof. This
need is even more pronounced inasmuch as the field of the prohibition against contradicting oneself is vast. The procedural
context of this decision must not be abusive. Certainly, the procedure, tilled by the behavior of the parties, is a field ripe for
contradiction (for a recent example of the sanction of the “incompatibility” of two positions by a party: Cass. 2nd civ., Oct. 20,
2005, no. 03‐13.932: JurisData no. 2005‐030316; Bull. civ. 2005, II, no. 257; JCP G 2006, I, 133, no. 14, obs. L. Cadiet). The
contradiction can, however, flourish elsewhere: contractual inconsistency is thus trivially punished.
It is true that certain aspects of the principle of consistency appear to be solidly moored. It also appears that the punishment of
the contradiction consists of making the contradictory behavior resulting from a ground for rejection ineffective. Other faces of
the prohibition against contradicting oneself must, however, be baptized through practice, not the least of which include: the
affirmation of the principle of consistency indeed rests on the determination of what a punishable contradiction encompasses…
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Because it is based on logic rather than sentiment and equity, the principle of consistency has the advantage of being less
subjective than other concepts, such as good faith or equity. Its abstract formulation still, however, remains as rich with
potential as dangers. Reasoning solely on the procedural field, and as we have already written in these columns, “We must not,
through the principle of consistency, prohibit a pleading party from changing legal arguments, or invoking a ground it only
discovered late in the process. Do we not have the right to make mistakes or change procedural strategy?” (P. Callé, note ff.
Cass. ass. plén., Feb. 27, 2009, aforementioned). Consistency is not the same as fixity: forgetting this would dangerously damage
the freedom to organize one’s defense. Likewise, a party’s inconsistent behavior cannot prevent it from invoking a ground of
public order…
In sum, the punished contradiction can only be considered restrictively. The regulating Court understood it well, as attested by
st
its jurisprudence relative to arbitration: since the 2005 Golshani ruling (Cass. 1 civ., July 6, 2005, no. 01‐15.912: JurisData no.
2005‐029326), which set out the rule of the prohibition against contradicting oneself in this field, the Court of Cassation has
more often dismissed its application (Cass. soc., July 11, 2007, no. 06‐44.335, unpub. – Cass. com., Apr. 8, 2008, no. 06‐18.362:
JurisData no. 2008‐043529; Bull. civ. 2008, IV, no. 85. – See however Cass. 1st civ., June 20, 2006, no. 04‐19.636: JurisData no.
2006‐034127; Bull. civ. 2006, I, no. 316; Dr. famille 2006, comm. 176, note M. Farge. – Cass. soc., Sept. 25, 2007, no. 06‐43.155:
JurisData no. 2007‐040593). It is not, however, definite that the judges on the merits perceived the imperative of a restricted
interpretation, as attested by a recent ruling by the Paris court of appeal (CA Paris, pole 5, ch. 8, May 24, 2011, no. 10/09266:
Bulletin Joly Sociétés 2011, p. 780; Gaz. Pal. 2011, our Chronique de droit des contrats, coming soon [thanks to our colleague B.
Fages for informing us of this decision]). In the case at hand, a company was made up of three partners with equal shares, each
also being a co‐manager. One of them was revoked: he contested the deliberations by the general meeting deciding to increase
the remuneration of the two remaining co‐managers by citing the abuse of the majority. The Paris court of appeal granted his
request. Noting that the other resolutions of the same meeting—reorganization of the departments, breaking of an employee’s
trial period, and moving—aimed to reduce the company’s costs, while the increased remuneration of the co‐managers
increased them, it held that “these decisions by the meeting are inconsistent, if not contradictory, to one another”: it deduced
invalidity based on the abuse of the majority from this.
As equitable as this last solution may appear, it cannot—and must not—be based on the prohibition against contradicting
oneself to the detriment of another. First, one cannot follow the Parisian judges in the distinction they make between
inconsistency and contradiction: contradiction is not open to degrees, but rather exists or does not exist. Secondly, the
contradiction is assessed with respect to “another”: the contrariness as regards the company interest cannot hide the fact that
the considered decisions targeted the managers on the one hand, and the employees on the other. There was therefore no
“contradiction to the detriment of another.” The principle of consistency must not become the legal cloak of such rulings
whereof the only real foundations are equitable.
Make no mistake! It would be unfounded, and frankly contradictory, for the author of these lines to criticize the establishment
of a principle of consistency that he has been calling for over the last ten years already. Quite on the contrary, one must
celebrate that the regulating Court has been able to update this principle that frustrated positive law: deduced from the
jurisprudence, here it is ready to bring about new solutions. It should, however, be applied rigorously and cautiously under
penalty, playing sorcerer’s apprentice with the principle of consistency, of seeing it erode the very legal security it is
intended to help guarantee…
General legal principles. – Principle of consistency. – Procedural incident. – Principle that no‐one may contradict himself to
the detriment of another
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