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The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj
Friday, November 09 2012 @ 01:28 PM EST

The latest order has been published now by the UK court that ordered Apple to place a notice on its website and in newspapers and magazines stating that the court had found that Samsung had not copied Apple's design patent. Since Apple did not comply with the order in its estimation, adding materials that were not ordered and in addition were "false", the judges ordered Apple to pay Samsung's lawyers' fees on an indemnity basis, and they add some public humiliation:
31. As to the costs (lawyers' fees) to be awarded against Apple, we concluded that they should be on an indemnity basis. Such a basis (which is higher than the normal, "standard" basis) can be awarded as a mark of the court's disapproval of a party's conduct, particularly in relation to its respect for an order of the court. Apple's conduct warranted such an order.

31. Finally I should mention the time for compliance. Mr Beloff, on instructions (presumably given with the authority of Apple) told us that "for technical reasons" Apple needed fourteen days to comply. I found that very disturbing: that it was beyond the technical abilities of Apple to make the minor changes required to own website in less time beggared belief. In end we gave it 48 hours which in itself I consider generous. We said the time could be extended by an application supported by an affidavit from a senior executive explaining the reasons why more was needed. In the event no such application was made. I hope that the lack of integrity involved in this incident is entirely atypical of Apple.

Apple. Your brand is being ruined by misplaced trust in a losing super-aggressive legal strategy.

Here's what the judges thought was false, essentially that what Apple added to the notice conflated issues that are not the same:
20. Even if that were not so, it cannot be legitimate to break up the ordered notice with false material. And the matter added was indeed false. Before introducing the quotes from HHJ Birss it begins:
In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products.
But the Judge was not comparing "the Apple and Samsung products." There is not and has never been any Apple product in accordance with the registered design. Apple's statement would clearly be taken by ordinary readers and journalists to be a reference to a real Apple product, the iPad. By this statement Apple was fostering the false notion that the case was about the iPad. And that the Samsung product was "not as cool" as the iPad.

21. I turn to the last paragraph. I do not think the order as made precluded any addition to the required notice if that addition had been true and did not undermine the effect of the required notice. But I do consider that adding false and misleading material was illegitimate. For by adding such material the context of the required notice is altered so that it will be understood differently.

22. Here what Apple added was false and misleading. I turn to analyse it. The first sentence reads:

However, in a case tried in Germany regarding the same patent, the court found that Samsung engaged in unfair competition by copying the iPad design.
That is false in the following ways:

(a) "Regarding the same patent." No patent of any kind has been involved in Germany or here, still less "the same patent."

(b) As regards the Community Registered Design, the German Courts held that neither the Galaxy 10.1 nor the 8.9 infringed it. As to the 7.7 there was for a short while a German provisional order holding that it infringed. Whether there was a jurisdiction to make that order is very doubtful for the reasons given in my earlier judgment but in any event the order had been (or should have been) discharged by the time the Contested Notice was published.

(c) There is a finding and injunction, limited to Germany alone, that the 10.1 and 8.9 infringe German unfair competition law. But the statement is likely to be read as of more general application.

23. The second sentence reads:

A U.S. jury also found Samsung guilty of infringing on Apple's design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc.
That is misleading by omission. For the US jury specifically rejected Apple's claim that the US design patent corresponding to the Community Design in issue here was infringed. The average reader would think that the UK decision was at odds with that in the US. Far from that being so, it was in accordance with it.

24. The third sentence reads:

So while the U.K. court did not find Samsung guilty of infringement, other courts have recognized that in the course of creating its Galaxy tablet, Samsung wilfully copied Apple's far more popular iPad.
This is calculated to produce huge confusion. The false innuendo is that the UK court came to a different conclusion about copying, which is not true for the UK court did not form any view about copying. There is a further false innuendo that the UK court's decision is at odds with decisions in other countries whereas that is simply not true.

25. The reality is that wherever Apple has sued on this registered design or its counterpart, it has ultimately failed. It may or may not have other intellectual property rights which are infringed. Indeed the same may be true the other way round for in some countries Samsung are suing Apple. But none of that has got anything to do with the registered design asserted by Apple in Europe. Apple's additions to the ordered notice clearly muddied the water and the message obviously intended to be conveyed by it.

The court also found Apple's compliance with the order regarding newspapers and magazines "lackadaisical at best":
7. Although it is a lesser matter than the dispute about what Apple did on its website, I have to record that Apple's compliance with the newspaper advertisement order was lackadaisical at best. The order required publication "in the earliest available issue" of the specified newspapers and magazines. I would have thought that self-evidently meant what it said – get the advertisements into each publication as soon as possible.

8. What Apple chose to do as regards the newspapers and magazines was less than that. Its Vice President Worldwide Marketing Communications said he understood the approach to be adopted was "to co-ordinate adverts across those publications in order to ensure the widest readership possible is exposed to the advert on the same day." That apparently meant to Apple so far as the newspapers were concerned the same day, but not the magazines which had longer lead times. Apple accordingly arranged for November 16th for all the newspapers. I note in passing that it is not said that November 16th was the earliest possible date even for just all the newspapers. I would be surprised if it were, given that our order was made on 18th October.

9. So there was self-evident non-compliance with the newspaper/magazine aspect of the publicity order. Apple did not contend otherwise. Its breach of that part of the order is clearly an additional factor justifying the indemnity costs order we made against Apple.

The court probably doesn't even know about the scrolling issue. But really, do you need more? Anyway, I gather Apple has fixed it now. To a degree, anyway.

I'm told by a reader in the UK that this sanction is the highest there is in the "loser pays" category, that Apple will have to pay for everything the lawyers cost Samsung, not just fees but parking, phone calls, and from day one. Indemnity in the sense that Samsung is to be made whole for being put through all this, I guess.

As for how long the new notice should be in place and why they felt it had to be done:

29. Given our finding that the Contested Notice did not comply with our order and did not achieve what was intended there was no dispute but that we should order it be removed. There was dispute as to what should go up in its place. Apple contended that no more was needed on its home page. We thought otherwise. The Contested Notice had had over a million hits. It was necessary that the fact it was misleading be brought home. Only a notice on Apple's homepage could be sure to do that. We were of course conscious that a notice on the homepage was highly undesirable from Apple's point of view, but its own actions had made it necessary. We also thought that a rather longer period was needed than the one month period of the original order. We ordered that the notice and link should stay up until 15th December. The notice on the homepage had to make it clear that the Contested Notice was inaccurate and did not comply with the first order.

30. We also thought it appropriate that the correct statement – the notice required by the original notice – should appear without modification or addition. Apple's previous modifications and additions made it clear that it should not be allowed to do the same or something similar again. Of course that did not preclude it from making statements elsewhere – even untrue ones which might amount to a libel or malicious falsehood. That would amount to a prior restraint which would obviously be inappropriate. All we required is that the notice we ordered should appear unvarnished or unembellished in any way.


  


The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj | 360 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Apples corporate culture typical of a former underdog
Authored by: IMANAL_TOO on Friday, November 09 2012 @ 01:43 PM EST
From I can see Apple's corporate culture is typical of a
former underdog. After decades of being outclassed and
ridiculed by other companies they have for the last few
years being able to produce some margins.

This has made the former street sweepers very self-assured
to the point that they think this position will last for a
long time. With this attitude from Apple I think
they will be halved in size within three years.

Apple - nouveau riche at its worst.


---
______
IMANAL


.

[ Reply to This | # ]

corrections thread
Authored by: designerfx on Friday, November 09 2012 @ 01:47 PM EST
post corrections here

[ Reply to This | # ]

  • 31 twice - Authored by: Anonymous on Saturday, November 10 2012 @ 04:00 AM EST
newspicks thread
Authored by: designerfx on Friday, November 09 2012 @ 01:48 PM EST
newspicks discussion here

[ Reply to This | # ]

Off Topic Here
Authored by: SilverWave on Friday, November 09 2012 @ 01:50 PM EST
:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Comes Stuff Here
Authored by: SilverWave on Friday, November 09 2012 @ 01:51 PM EST
:-|

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Well this is a refreshing change :-)
Authored by: SilverWave on Friday, November 09 2012 @ 01:52 PM EST
Ouch!

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj
Authored by: esni on Friday, November 09 2012 @ 02:08 PM EST
So I Apple still dont compy in full, whats the next step the court could take?

---
Eskild
Denmark


[ Reply to This | # ]

Corporate group think?
Authored by: Anonymous on Friday, November 09 2012 @ 02:13 PM EST
What were apple thinking of?

I get the impression of a corporate culture within which there is a substantial
gap between reality as externally perceived and what is preceived or at least
possible to express internally.

I have come across this sort of corporate group think before in large successful
US companies. There is an internal reality quite different from the external
reality and challenging it can be hard and career damaging. In the long run
external reality has a way of forcing itself into the fantasy but only when the
financial consequences are substantial.

If the internal reality is that apple inveneted everything to do with tablets
and smart phones and that every other device is a copy and when challenging this
even when ordered to do so by a court is not acceptable then Apples behaviour
becomes more understandable.

In this context why did the very well respected and successful british executive
John Browett leave Apple after just 6 months? He would not be the sor tof person
who would feel conformity outweighed reality.

[ Reply to This | # ]

The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj
Authored by: kuroshima on Friday, November 09 2012 @ 02:19 PM EST
Why am I having the mental image of the judge taking a
(bitten) apple, sticking it in a spit, and slowly roasting
and (lam)basting it?

Seriously, I know that this is probably going to be pocket
change for Apple, but enough mosquito bites and even the
mighty feel light headed...

[ Reply to This | # ]

The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj
Authored by: Anonymous on Friday, November 09 2012 @ 02:42 PM EST
On the 6th December I would have so much fun with the following statement in front of Judge Koh:

Of course that did not preclude it from making statements elsewhere – even untrue ones which might amount to a libel or malicious falsehood.

Every time Apple makes a statement, I would ask them is this one of the falsehood's the UK High Court is refereeing to :-)

[ Reply to This | # ]

Apple Fan Reaction
Authored by: Anonymous on Friday, November 09 2012 @ 03:42 PM EST

I think the reactions of the rabid Apple fans, and such retractions they might
conceivably make will be interesting. Or the lack of reaction.

I use Apple. Heck, I have my own recording studio, including a legally
purchased copy of Logic, and some really expensive hardware. I use it
because in my opinion, there's nothing better for the price. Certainly I've
never seen any Windows or Linux software that can match it.

But they are sounding more and more like Microsoft, spoiled brats who are
unhappy that they can't get their way.

Wayne
http://madhatter.ca


[ Reply to This | # ]

Makes me feel proud
Authored by: Anonymous on Friday, November 09 2012 @ 03:56 PM EST

In general, I love the UK court system. Sometimes it gets it wrong, often it's
constrained by stupid laws imposed by the Government, but broadly speaking, it's
just superb.

[ Reply to This | # ]

The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj
Authored by: Anonymous on Friday, November 09 2012 @ 04:39 PM EST
Concerning the new statement on Apple UK's site, even after they've removed the
dynamic resizing javascript code, you still cannot see it even on a 1080p screen
with the browser maximized without scrolling down. They've stuck it at the very
bottom. You basically need a 1440p screen or something similar to see it.

[ Reply to This | # ]

Shall be posted everywhere
Authored by: Anonymous on Friday, November 09 2012 @ 05:32 PM EST
"The reality is that wherever Apple has sued on this registered design or
its counterpart, it has ultimately failed"

"But! but! but!"

No, let me point that out again, that by law, "The reality is that wherever
Apple has sued on this registered design or its counterpart, it has ultimately
failed"

The judges in the UK really get it, and a loss shouldn't be able to be spun into
a win.

[ Reply to This | # ]

Karma: It Counts! n/t
Authored by: joef on Friday, November 09 2012 @ 05:33 PM EST
.

[ Reply to This | # ]

Understandable English
Authored by: Anonymous on Friday, November 09 2012 @ 06:01 PM EST
This is written in English that I can understand. Is this
normal for UK judges? Or have the judges decided that Apple
can't understand legalese and need to be spoken to in another
language, one that doesn't obfuscate and equivocate?

[ Reply to This | # ]

The UK Court Sanctions Apple, Hopes "Lack of Integrity" In Notice Incident Is Not "Typical" ~ pj
Authored by: Anonymous on Friday, November 09 2012 @ 06:24 PM EST
31. Finally I should mention the time for compliance. Mr Beloff, on instructions (presumably given with the authority of Apple) told us that "for technical reasons" Apple needed fourteen days to comply. I found that very disturbing: that it was beyond the technical abilities of Apple to make the minor changes required to own website in less time beggared belief.

Ha. In Apple's defense, it probably takes only 10 minutes to modify their website.

It probably takes 14 days to get authorization to modify their website.

Authorization from marketing, who are out schmoozing with clients, approval from legal, who are busy suing other companies, and permission from corporate hq, who are busy patting themselves on the back for the great job they're doing.

[ Reply to This | # ]

Just for fun...
Authored by: Anonymous on Friday, November 09 2012 @ 06:43 PM EST
I posted the following to the Apple.com Website Feedback:

"At the bottom of the page an image obscures some text which makes the text
that is visible difficult to comprehend. I believe this is deliberately in
violation of and defiance of the Court Order. It will be so suggested to the
Court."

I don't expect a reply from Apple.

Praxis

[ Reply to This | # ]

  • Just for fun... - Authored by: Anonymous on Friday, November 09 2012 @ 10:16 PM EST
    • Just for fun... - Authored by: Anonymous on Saturday, November 10 2012 @ 07:54 AM EST
    • Just for fun... - Authored by: Anonymous on Saturday, November 10 2012 @ 09:06 AM EST
atypical
Authored by: Anonymous on Friday, November 09 2012 @ 06:44 PM EST
pj, why did you reword atypical (as written in the order) to
not typical.

[ Reply to This | # ]

Contempt of court and UK/US Extradition treaties
Authored by: ThrPilgrim on Friday, November 09 2012 @ 07:01 PM EST
I have been thinking about how, if Apple is found in contempt of court, the
Judge could ensure that a senior US official of Apple could be forced to answer
for the contempt.

Extradition can be a long and tortuous process. The Judge could bypass all of
that by placing a European ban on all Apple products until a US Official turns
up in their court and answers the charge.

---
Beware of him who would deny you access to information for in his heart he
considers himself your master.

[ Reply to This | # ]

Oh dear, what a shame, too bad.
Authored by: Ian Al on Saturday, November 10 2012 @ 05:47 AM EST
Just because they lied to the buying public, the notice has to remain up until
15th December. Isn't that the best part of the Christmas sales period?

I bet that takes the wind out of their sales.









Yes, I know. Same pun, two days running. You are going to see it right up to
15th December!

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Creative interpretation
Authored by: Anonymous on Saturday, November 10 2012 @ 06:20 AM EST
Is there more tolerance in US courts for high-profile companies interpreting
court orders creatively or has Apple just got a bad case of
we're-a-big-US-company-mister-little-British-judge that has earned them this
attitude adjusting rogering?

[ Reply to This | # ]

Dripping with sarcasm
Authored by: Anonymous on Saturday, November 10 2012 @ 10:23 AM EST
I hope that the lack of integrity involved in this incident is entirely atypical of Apple.
Huh. It is rather obvious that the "entirely atypical" wording is hyperbole. But it is also rather obvious that in the case of these court proceedings, Apple would be well-advised to match its further behavior to this hyperbole because disappointing the judge's "hope" is not going to be a winning move.

[ Reply to This | # ]

Award Time
Authored by: albert on Saturday, November 10 2012 @ 05:49 PM EST
I nominate Sir Robin Jacob, along with Judge Posner and Judge Alsup, for the
Groklaw Judges Who 'Get' IP Award.

[ Reply to This | # ]

  • Award Time - Authored by: jmc on Sunday, November 11 2012 @ 04:55 AM EST
    • Award Time - Authored by: Anonymous on Sunday, November 11 2012 @ 08:37 AM EST
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