A qualified Applology

Also "understated" and "an object
the informed user would want to pick
up and hold", with "a combination of
curves" too -- but much cheaper than
a tablet computer and a good deal
more cuddly ...
The IPKat's very good friend Darren Smyth provided some excellent coverage (here and here) of the Community design right spat between Apple and Samsung over the appearance of Samsung's popular but not-so-cool Galaxy Tablet 10.1 [which is coincidentally the tablet favoured by IPKat team blogger Jeremy].   This dispute was actually not so much about the Galaxy's appearance as its disappearance, which was the end which Apple sought unsuccessfully to achieve.  The action resulted in no little quantity of egg on Apple's face as the company was ordered to place a notice on its website to the effect that it was unsuccessful.  We all then became very interested in the notice's non-appearance.  But now the Kat can report that Apple has done the honourable thing, as can be seen from the notice which appears below, and which you can also read on Apple's website here Appropriately this notice came to the Kat's attention via Darren's own blog here. This is what it says:
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.
Merpel doesn't remember the court ordering Apple to publish that last paragraph, in particular, and wonders whether it might not be regarded as cool ...
A qualified Applology A qualified Applology Reviewed by Jeremy on Monday, October 29, 2012 Rating: 5


  1. Elsewhere it has been suggested that the Apple statement might amount to contempt of Court.

    The jury trial in the USA is looking decidedly flaky.

    Apple's position of principle on FRAND is looking interesting.

    (And the USA Judicial position following Bilski, etc., appears to be moving closer to that of the UK.)

    I own no Samsung products.

  2. I own an Ipad, but next time it will be a Galaxy Tablet. Apple digs its own grave.

  3. Bit snarky. Can't see HHJB being too impressed.

    Also factually inaccurate: "the judge made several important points comparing the designs of the Apple and Samsung products". No, he did not. He made several important points comparing the Apple registered design with the Samsung products. He (correctly) made sure NOT to compare the products with each other, but rather the allegedly infringed registered design (in the form of a drawing, which differed from the iPad in several important respects) with the allegedly infringing product. See paragraphs 3 and 4 of the CoA judgement. Yet, the Apple statement both states and implies that the basis for the judgement was the comparison of the two products as such. It was not.

  4. @Anonymous at 8:50am. You're quite right about what Judge Birss compared -- the design with the allegedly infringing product, rather than one product with another. While the informed user test is used for such comparisons, I suspect that there is an "uninformed reader" test for notices like this, since most laymen are likely to consider this to be a distinction without a difference.

  5. I think the words Apple is looking for are:

    "We lost. Sorry".

  6. "we lost because the judge got it wrong" is what I read. Clear case of contempt for the court.

  7. I suppose technically Apple's statement that Samsung "wilfully copied" the iPad doesn't amount to saying that "the English courts got it wrong", because registered design infringement doesn't hinge on copying: it's perfectly consistent to say "Samsung wilfully copied us, but managed to make the end result sufficiently different to avoid infringing our registered designs".

    But even if it's not technically contempt of court, it's scarcely wholehearted respect of court. "Passive-aggressive" is the term I'd use.

  8. Its worth reading Birss supplementary judgement on this issue. In it he rejected Samsung demand for an injunction agaisnt Apple alleging copying as an unfair limitation on freedom of speech. He stated

    "Mr. Hacon described an injunction of this kind as sinister. I agree that there is a very serious question whether the court should go around granting injunctions purporting to restrain people from saying that they disagree with a judgment. As I think was attributed to Jeremy Bentham, "publicity is the soul of justice" and it is very important that the courts can be held up to public scrutiny and what happens in them can be discussed in public."

    I'm not sure where the notion of an "apology" came from. The courts did not aka for one, they simply asked for the decisions and their effects to be publicised.

  9. Recent newspaper apology afetr loosing yet another libel case:

    "The judge has ordered us to point out that the story about 'celebrity x' being 'stamp collector' was based on uncorroborated witness testimony. We are of course happy to point out that we printed the story in good faith and everyone knows full well that 'celebrity x' is a rampant 'stamp-collector' even though the evidence was not considered wholly accurate [judge actually said it was a work of fiction."

    Obviously, not technically contempt and the newspaper are free to comment on the judgement.

  10. The latest on this is (according to BBC) that Apple have been required to re-publish a "corrected" notice on their website.



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