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UK Judges Respond to Apple's Snarky Notice: Take It Down and Tell That It Was Untrue ~pj Updated 5Xs
Thursday, November 01 2012 @ 09:24 AM EDT

The UK judges have now responded, Bloomberg News reports, to Apple's snarky notice about Samsung not copying (with Apple's additions that it still thinks it does) by ordering Apple to remove the notice within 24 hours and replace it with one telling the world that what it posted was untrue and incorrect:
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.”

While Tim Cook is cleaning out executives, maybe he should take a look at the lawyers who are leading Apple into this kind of unnecessary trouble and brand tarnishment by such super-aggressive strategies?

I actually saw at least one lawyer who wrote on his blog that what Apple did was great. Patently Apple viewed it like this:
In a bizarre legal twist, Apple has finally posted an apology on their UK Homepage to Samsung as a UK judgement demanded of them. Yet Apple-Legal decided to play by the letter of the law and used it as an opportunity to set the record straight about Samsung copying the iPad design and more. In the end, Apple took a tough situation and turned water into wine.
Not any more. There are consequences now that are worse than before. Apple tried to argue that they followed the letter of the law in the original notice, as does Patently Apple. But there is something called the spirit of the law too, and if you follow one and thumb your nose at the other, things can go wrong, because people notice. Judges are not stupid. Not that I believe what Apple did obeyed the letter of the law either. Nor did the judge in the UK.

It's never all right to show disrespect to a court of law, and lawyers above all others should take the lead in demonstrating that respect. The rule of law actually depends on it, which is another way of saying that civilization itself depends on it. Otherwise, it's back to pistols at dawn, or worse.

Update: The Guardian has more details now too:

At a hearing in the court in London on Thursday morning, the judge told Apple that it had to change the wording of the statement within 48 hours, carry it on its home page, and use at least 11-point font.

Apple tried to argue that it would take at least 14 days to put a corrective statement on the site – a claim that one judge said he "cannot believe".

Darren Smyth of EIP Partners said: "The objection was that Apple had added to the statement that the court of appeal had ordered, so did not comply with the original order, and furthermore that the additions were not accurate.

"Apple must now within 48 hours publish a correction on their homepage with a link to the corrected statement in not less than 11-point font."

So now we don't know if it's 24 or 48 hours, but it's pronto and get it right this time, either way.

Update 2: Jacqui Cheng at ars technica has a bit more:

Apple tried to argue that it would take 14 days to post an updated notice on its website, but the request was shot down. In fact, Judge Jacob made it clear that Apple's actions are beginning to make him testy.

"I would like to see the head of Apple make an affidavit setting out the technical difficulties which means Apple can’t put this on" its site, Jacob said. "I just can’t believe the instructions you’ve been given. This is Apple. They cannot put something on their website?"

The notice must be on Apple's UK website until December 14.

Update 3: We finally have a complete blow by blow account, thanks to patent lawyer Gary Moss, EIP, who sent the news from the courtroom to The IPKat. Apple was given 24 hours to remove the incorrect notice, and an additional 24 hours to get the new one up. And here's why the UK court justices orginally thought Apple should have to have a notice:

Followers of the Tablet Wars will recall that on 18 October 2012 the Court of Appeal, having found for Samsung and ruling that it did not infringe Apple’s Registered Designs, required Apple, among other things, to publish on its UK website a clarifying statement. The Court decided that the statement was needed because Apple had chosen to pursue an interim injunction in Germany despite the fact that His Honour Judge Birss QC was seised of the issue of whether Samsung was infringing throughout the entirety of the EU. In the view of the Court, that had potentially caused uncertainty in the minds of the public as to the status of Apple's claims. The purpose of the statement was to clear up any potential misunderstandings....

Michael Beloff manfully attempted to dodge the increasing flames and justify what Apple had done. His primary point was that the earlier order had not prohibited Apple from making additional statements and, indeed, in the course of the earlier hearing Mr Carr had said that Apple could “say what they like”. However the Court clearly thought that that was intended to mean, and was understood as meaning, “say what they like ELSEWHERE”. As Lord Justice Kitchin LJ: what if there had been three pages in between the two paragraphs which they had ordered, or a book? At this juncture the smoke signals were coming thick and fast from the general direction of the judiciary and the heat was rising.

The Court was particularly unimpressed with the fact that, in its view, the paragraphs which had been added were clearly wrong. In particular it will be noted that, in the final paragraph, Apple had said “in a case tried in Germany regarding the same patent, the court found that Samsung engaged in unfair competition by copying the iPad design” [Emphasis added]. The Court took exception to the use of the words “the same patent” since the British action did not involve any patent, being solely concerned with registered design. Similarly, the Court did not like the statement that the Judge Birss had "made several important points comparing the designs of the Apple and Samsung product" [Emphasis added]. As the Court pointed out, Judge Birss made no findings in relation to the Apple PRODUCT – his findings were in relation to the Apple REGISTERED DESIGN.

So that's exactly why the notice, which referenced the German ruling, was viewed as being so inaccurate, plus another reason I haven't seen mentioned elsewhere. So now it's all pretty clear that Apple did some rather fancy legal dancing, and it didn't work.

The wording of the notice published in The Financial Times yesterday is provided in a graphic on The Register.

Update 4, Sat. 6:10 AM, EDT: Apple's UK site now has on its homepage the following at the bottom of the page:

On 25 October 2012, Apple Inc. published a statement on its UK website in relation to Samsung's Galaxy tablet computers. That statement was inaccurate and did not comply with the order of the Court of Appeal of England and Wales. The correct statement is at Samsung/Apple UK judgement.
It's on the home page, as ordered, but you do have to scroll down to see it. And some are indicating that Apple may have resized the graphic to ensure that it is not seen unless you scroll down. If anyone has a cached version of the UK homepage from two days ago, I'd love to check that.

The link takes you to this notice:

Samsung / Apple UK judgment

On 9 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 Community registered design No. 0000181607-0001. A copy of the full judgment of the High Court is available from www.bailii.org/ew/cases/ EWHC/Patents/2012/1882.html.

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


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