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Apple's "We're Not A Bit Sorry" Bratty and Not Cool Notice That Samsung Didn't Copy ~pj Updated 3Xs
Friday, October 26 2012 @ 12:13 PM EDT

Apple has posted on its website, as ordered by the UK court, and upheld on appeal, a rather ungracious notice that Samsung did not copy Apple according to the UK court (but Apple adds it still thinks it does and other courts agree with it). I would like to show it to you, so you can see the kind of legal advice Apple is following, because what the UK court held was that nobody would imagine that a Samsung phone is an iPhone.

Apple did not provide you with a link to the order telling Apple to publish a notice on its websites either, so here it is. Ask yourself as you read it and then read Apple's notice if it followed the order's spirit or even its letter, except in the most strained way.

First, Apple tells what happened in the UK, but then it quotes the part of the order that said how Samsung's products are not "as cool", which isn't what the court told Apple to say, adding that there was no injunction ordered. Samsung had asked for an injunction stopping Apple from claiming that Samsung was copying, telling the court that after Samsung's victory in the UK, what Apple said was contrary to the ruling. Apple had said right afterward, "It's no coincidence that Samsung's latest products look a lot like the iPhone and the iPad. This kind of blatant copying is wrong and, as we've said many times before, we need to protect Apple's intellectual property." That is exactly what the UK court had just ruled Samsung had not done.

But the court felt cautious about whether it had jurisdiction to order an injunction and also whether it was appropriate to do so pending appeal, plus the freedom of speech issue. The end result is that what Samsung thought they would do, they did. I doubt anyone, even Samsung, imagined Apple would do it inside the notice itself but it has, adding this final paragraph:

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. 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. 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 willfully copied Apple's far more popular iPad.
What has happened to Apple? This, ladies and gentlemen, is what happens when you see yourself as being in a Holy War and listen only to your lawyers, who probably keep telling you that this will work out well in the end for you. (Cf. SCO Group.)

But lawyers are not skilled in brands, in PR, and nobody with enough clout is telling Apple, I gather, with sufficient authority that it's behaving like a brat. Talk about "not as cool". What has happened to Apple? Do you still feel like buying their products when you read something like this? I don't. I'd be ashamed to take it out of my bag in public. And I'll tell you exactly why: it's not all right with me for a corporation to publicly show disrespect to a court of law, and that's how I view this event.

Here's what Samsung asked the court to order Apple to put on its website:

"On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronics (UK) Limited's Galaxy Tablet computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's registered design 000181607-0001. A copy of the full judgment of the High Court is available via the following link [insert hyperlink]."

The defendant shall arrange for the following notice to be published in The Financial Times; the Daily Mail; The Guardian; Mobile Magazine; and T3 magazine: "On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronics (UK) Limited's Galaxy Tablet computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's registered design 000181607-0001. A copy of the full judgment of the High Court is available via the following link [insert hyperlink]."

And here's why the court decided it should issue an order to put the notice on Apple's UK website and pay to put the notice in newspapers:
45. Samsung say that, notwithstanding the fact that Apple have lost this case, they continue to assert that Samsung infringes and that the damage that was caused and has been described there continues to apply. Accordingly, Samsung seek orders that I should require Apple to put on their websites and to put in certain newspapers references to this judgment and a statement that the court has found that the Samsung Galaxy tablets do not infringe.

46. In terms of policy, I accept that there is a useful purpose in a clear public statement that a product alleged by a rights holder to infringe those rights does not infringe. The more frequently and the more loudly a rights holder has asserted infringement, the more useful it is to have a clear public statement to the contrary. However, that purpose is also the fundamental purpose and the reason for the court's declaratory jurisdiction. Samsung have the benefit of that public declaration.

47. Is there a sufficient reason in this case to use the court's injunctive power to compel the rights holder to put a statement on its home page and to pay for an advertisement in the newspapers? It seems to me that an important element in this case is the evidence that I have been shown from Mr. Stone's witness statement of specific commercial harm caused to Samsung as a result of Apple's assertions.

48. I also bear in mind the question of freedom of speech under Article 10. It seems to me that that question is very different in the context of the order I am now being asked to make than it was in the previous case. The reason for that, apart from anything else, is that the order that I am making as far as freedom of speech is concerned is precisely the same as the order which the court can make under Article 15 of the Enforcement Directive.

49. Mr. Hacon, in summary, makes three points. First of all, he says Apple are not making the assertion any more. Second, he says that nothing in the order in relation to the newspapers is something that Samsung could not do for itself. They are big boys and they can pay for advertisements in newspapers. Third, Mr. Hacon refers to prejudice to Apple that would be caused by putting a statement on their website. Essentially the argument is that by putting a reference to Samsung on Apple's website, that risks diverting sales to Samsung so that Samsung essentially are getting free advertising from Apple.

50. As to the first point, I need to consider what Apple are saying now. I have cited one example that has been said by Mr. Hely on Apple's behalf since the judgment was handed down.

51. In my judgment, Apple are carefully trying to say something which contains an innuendo that Samsung infringe without actually saying it. The reference to copying is exactly that. It is clear that copying plays no part in this case for Registered Community Design infringement, but to many people outside the circles of intellectual property law to say something infringes a Registered Community Design and to say someone copied your design or your product is to say the same thing.

52. As to Mr. Hacon's second point, it is true that Samsung can pay for advertisements themselves, but I do not agree that the only point of an order requiring a party to put an advert in a newspaper is about who pays for the advert. That argument would also apply to the order made under Article 15 itself. It seems to me that an important part of what is going on under Article 15, which would apply just as much in this case, is that it is the person in question, in this case Apple, who are being required to put these advertisements in the newspaper, it is not just about who pays for it.

53. As to the third point, the prejudice to Apple, I must say I seriously doubt there will be any real diversion of sales but I cannot rule it out and that would be potentially prejudicial to Apple.

54. However, it seems to me here that the fact of Apple's statements after trial and the fact of the harm caused by similar assertions to Samsung in the past is a matter which balances that prejudice. I recognise that these are two different prejudices to Samsung and to Apple and in many ways they are not comparable but it seems to me nevertheless to some extent that one does cancel and balance against the other.

That's the part of the order that Apple not only ignored but undercut with its ignoble notice.

Here's what the appeals court said the notice should be, for only one month, and they allowed it to be a link on the home page with the notice on an internal, linked to page. Here's the wording it proposed:

85. I turn to the form of the publicity order. No more than that which is proportionate is necessary. As regards the newspaper publicity we had no complaint about the detail of that and, subject to the wording, I would affirm Judge Birss's order. As regards publicity on the Apple home web page, Mr Carr realistically recognised that Apple had a genuine interest in keeping it uncluttered. He proposed that instead of requiring the notice to be on the web page itself, it would be sufficient if there were a link provided from that to the notice. There are some links already provided. All that need be added is a link entitled "Samsung/Apple UK judgment." I think that would be appropriate and proportionate.

86. As regards the period for which the link should appear, Mr Carr recognised that a one month period would probably suffice. So I think it should be required for a month from the date the order of this Court is made. But for the fact that Apple have agreed to obtain discharge of the order of the Oberlandesgericht I would have considered a longer period necessary.

87. Finally I should say something about the notice itself. We heard no discussion about that. Plainly Judge Birss's Schedule has been overtaken by events. Subject to anything that may be submitted by either side I would propose the following:

On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited's Galaxy Tablet Computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link [link given].

That Judgment has effect throughout the European Union and was upheld by the Court of Appeal on ….. A copy of the Court of Appeal's judgment is available on the following link […]. There is no injunction in respect of the registered design in force anywhere in Europe.

Here is what Apple posted instead, in full:
Samsung / Apple UK judgment On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link www.bailii.org/ew/cases/EWHC/Patents/2012/1882.html.

In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products:

"The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design."

"The informed user's overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool."

That Judgment has effect throughout the European Union and was upheld by the Court of Appeal on 18 October 2012. A copy of the Court of Appeal’s judgment is available on the following link www.bailii.org/ew/cases/EWCA/Civ/2012/1339.html. There is no injunction in respect of the registered design in force anywhere in Europe.

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. 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. 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 willfully copied Apple's far more popular iPad.

Update 2: That's not quite untrue, but it's not exactly the whole story either. Here is what the judge in the UK wrote about the German case:
6. This dispute is being litigated between the parties in other countries. The validity case is before OHIM. In Germany the first instance court in Düsseldorf held that the Galaxy tablets infringed the design but on appeal the Düsseldorf Court of Appeal decided there was no infringement. However the German court did grant an injunction on the Samsung tablets on a different basis under German unfair competition law. In the Netherlands Apple lost at first instance and on appeal. Both the German and Dutch proceedings are preliminary proceedings. It was not disputed that Apple has the right to start full infringement proceedings in those countries and that the preliminary decisions are not binding. This action is the first substantive hearing in the Community of the issue of infringement.
Emphasis added. As for the US jury, that's not exactly untrue, what Apple wrote, but it's not the full story either. Here's the US jury's verdict form [PDF]. The jury did not find that Samsung's Galaxy 10.1 infringed the design patent that the UK court was talking about. From the judge's order in the UK, here's what that case was about:
This action concerns Community Registered Design No. 000181607-0001. The design belongs to the defendant (Apple). Among the named designers are Sir Jonathan Ive and Steve Jobs. The claimant (Samsung) seeks a declaration that three of its Galaxy tablet computers (the Tab 10.1, Tab 8.9 and Tab 7.7) do not infringe.
And that is what Samsung established to the UK court's satisfaction. The Galaxy Tab 10.1 is exactly the one that the judge in the US case had said probably did infringe but which the jury found, after the trial, did *not* infringe (see page 7 of the form). So the US court did not contradict the UK ruling, as Apple implies, although the same jury found other things infringed. So is what Apple said true? It's as true as some things a used car salesman might say. True as far as it goes. But not all you need to know to come to a correct conclusion. - End Update 2.]

Now, Apple took two paragraphs from the order, but they left some things out that are in the order in between those two paragraphs. I notice Apple gave us only the tiniest clue that they'd left material out, the quotation marks, something only folks taught grammar by their grannies, like me, would likely even notice. Let me fill in the blanks they left out, so you are not misled:

68. The products making up the design corpus are not purely functional designs like engine parts. Although the informed user in this case will be a person interested in the functioning of the products concerned, how they work and their performance, the informed user in this case is someone interested in the aesthetics. How a product looks matters to the informed user.

69. I find that the informed user in this case will consider the products side by side. These products are sold to the public in shops and on websites. There is nothing in this case to make a side by side comparison impractical or uncommon....

178. Having gone through the various features individually it is necessary to pull it all together and consider the overall impression of the Apple design on an informed user.

179. The way the seven features are written, four of them relate to the front of the product, the rear and sides are addressed in two ((v) and (vi)) and the overall position summed up in feature (vii). The front is important but there is a risk of overemphasis. The design is for an object which is hand held and therefore does not simply rest on a desk with its back invisible. The informed user, who is particularly observant, will pick up these objects and will look at the back.

180. In evidence Apple emphasised the way in which Samsung offered the tablets for sale on the internet, with more views of the front than of the back. I do not regard that evidence as having much to do with this case. The informed user will not simply look at images of these products on websites.

181. Viewed without the design corpus, the appearance of the front surface of the Apple design would be given significant importance but that significance is reduced by the presence of identical features in the design corpus. The Apple design has a relatively thin profile but not excessively so. If the product was roughly 25cm long (c.f. the Tab 10.1) it would be about 1.5cm thick, comparable to the thickness of a finger.

182. The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.

The overall impressions compared

183. I remind myself that the informed user is particularly observant, shows a relatively high degree of attention and in this case conducts a direct comparison between the products.

184. To my eye the most important similarities are as follows:

i) The view from the front is really very striking. The Galaxy tablets are not identical to the Apple design but they are very, very similar in this respect. The Samsung tablets use the very same screen, with a flat glass plate out to a very thin rim and a plain border under the glass.

ii) Also neither Apple nor Samsung have indicator lights or buttons on the front surface or obvious switches or fittings on the other surfaces. There are some subtle buttons on the edges of the Galaxy tablets but they do not contribute to the overall impression. There is an overall simplicity about the Samsung devices albeit not as extreme as the simplicity of the Apple design.

iii) The thinness enhancing effect of the sides creates the same impression. It causes both the Apple design and the Galaxy tablets to appear to float above the surface on which they rest. However the details of the side edges are not the same. The Apple design has a pronounced flat side face which the informed user would see clearly (and feel). It is absent from the Samsung tablets.

185. There are some minor differences but to my eye there are two major differences. The most important difference between the Samsung Galaxy tablets and the Apple design is the thinness of the Galaxy tablets. The next most significant difference is the detailing on the back of each of the tablets.

186. It is hard to appreciate relative thickness from drawings and photographs. A product made to the Apple design and of similar length would be about twice as thick as any of the Galaxy Tabs. The product to the Apple design will look thinner as a result of the side curves but the same visual effect on the edges of the Galaxy Tabs makes them look even thinner. Resting on a table side by side the surface of a product made to the Apple design will be noticeably above these tablets. To an informed user, the Galaxy tabs do not merely look like a thin version of the Apple design, they look like a different, thinner design of product.

187. The back of the Apple design is the place in which there are fewer constraints on design freedom (apart from being generally flat) and more variety in the design corpus. The curving of the rear surfaces of the Galaxy Tabs is a bit different from the Apple design but not significantly so. What strikes the informed user is the detailing on the back faces of the Samsung products. I will consider the Tab 7.7 since to my eye that has the least visually prominent detailing. If the Tab 7.7 does not infringe, then neither does the Tab 10.1 nor Tab 8.9. The informed user will see that in this product Samsung has exercised the available design freedom by having visible detailing on the rear of the articles. To have this sort of detail on the back would strike the informed user as unusual.

188. Are these two differences enough to overcome the similarity at the front and the similarity in overall shape? Apple submitted that the front face and overall shape are what matters because the informed user will principally spend his time looking at the front face and holding the object in his hand. I do not regard the overall shape as very significant but there is a very obvious visual similarity at the front. In my judgment the key to this case is the strength or significance of that similarity. As I have said the significance of the near identity of the front surfaces of these products is reduced to a degree by the existence of similar fronts in the design corpus. The question is – to what degree?

189. This case illustrates the importance of properly taking into account the informed user's knowledge and experience of the design corpus. When I first saw the Samsung products in this case I was struck by how similar they look to the Apple design when they are resting on a table. They look similar because they both have the same front screen. It stands out. However to the informed user (which at that stage I was not) these screens do not stand out to anything like the same extent. The front view of the Apple design takes its place amongst its kindred prior art. There is a clear family resemblance between the front of the Apple design and other members of that family (Flatron, Bloomberg 1 and 2, Ozolins, Showbox, Wacom). They are not identical to each other but they form a family. There are differences all over these products but the biggest differences between these various family members are at the back and sides. The user who is particularly observant and is informed about the design corpus reacts to the Apple design by recognising the front view as one of a familiar type. From the front both the Apple design and the Samsung tablets look like members of the same, pre-existing family. As a result, the significance of that similarity overall is much reduced and the informed user's attention to the differences at the back and sides will be enhanced considerably.

190. The informed user's overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.

Conclusion

The Samsung tablets do not infringe Apple's registered design No. 000181607-0001.

In short, what the court really said was that nobody would imagine that a Samsung phone is an iPhone. Maybe if you look only at a picture of the front of the phone you might momentarily wonder which is which, but that's not how people decide to buy a phone, and there are sufficient differences overall that nobody would ever buy one thinking it was the other. And that means that Apple was pushing a stupid legal theory, one that the UK court didn't accept. Citing the California verdict by a jury accused of misconduct is surely the cherry on top of Apple's childish notice.

Really, what has happened to Apple? Litigation isn't like the good old days where you could brand only at events. It's all over the Internet, and you wouldn't be human if you didn't find Apple's disdainful "compliance" with the UK order graceless and unattractive.

Update: Or maybe this is the cherry on top. Here's the Apple UK home page in two parts. Can you find the notice?

They put it at the very bottom, next to the other things nobody much reads, terms of use and cookies policy.

Update 3: And now the UK judges have responded, according to Bloomberg News, by telling Apple to remove that notice and put up what they told it to say, plus an additional note that what it put up before was untrue:

Apple Inc. (AAPL) was criticized by U.K. judges in a patent lawsuit with Samsung Electronics Co. (005930) for posting a notice on its website that was “untrue” and “incorrect.”

The U.K. Court of Appeal in London ordered Apple to remove the statement within 24 hours and place a new notice acknowledging the inaccurate comments. The Cupertino, California-based company was told by the same court last month to post the initial notice as part of a ruling that Samsung’s Galaxy tablets didn’t copy the design of Apple’s iPad.

“I’m at a loss that a company such as Apple would do this,” Judge Robin Jacob said today. “That is a plain breach of the order.”

Maybe now all the media, and some lawyers, who thought what Apple did was so cute and smart will realize that it's not OK, it was never OK, and it never will be OK to disrespect a court order, even if you don't personally agree with it.

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