Beloff baked, Apple roasted, Britons unscrewed

Outside the British legal profession,
few people appreciate what
barristers have to go through in order
to earn their humble crust --- 

It is a well known fact that Kats, being quiet and somewhat retiring creatures, do not usually look forward to the onset of November and to the sudden surfeit of fireworks (on which see Guy Fawkes Night here and Diwali here) which shakes them from their customary repose. However, a couple of guest Kats were treated to an enjoyable display in the Court of Appeal this morning and are now reconsidering the accepted wisdom about not being partial to pyrotechnics.

The event in question was yet another hearing in the long-running tablet wars saga. The sacrificial guy on this occasion was Apple's counsel, none other than the Honourable Mr Michael Beloff QC. The guest Kats use the word "sacrificial" advisedly [though perhaps "fall guy" would do just as well] since the unfortunate Mr Beloff had not appeared for Apple at the previous hearing (that "honour" had fallen to Lord Grabiner QC) but Mr Beloff was nevertheless given prominence at the top of the bonfire on this occasion. To say that he emerged somewhat singed would be an understatement.

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. The order issued by the Court set out the actual words which Apple was required to publish.

The statement which Apple was required to publish, together with the version actually published by Apple, can be seen on Darren Smyth's IP Alchemist weblog here. As can be seen, while the statement as published contained the actual words ordered by the Court of Appeal, it also contained a whole lot more. Not totally surprisingly Samsung took umbrage and applied to the Court of Appeal for an order requiring Apple to publish a corrective statement and to do certain other things.

One suspects that Apple's "Guy" knew beforehand that he was likely to be subject a certain amount of "heat" [as did every member of the IPKat's large and varied circle of people claiming exclusive knowledge of the impending proceedings], but he can have been left in no doubt from the outset when Lord Justice Longmore indicated to Samsung’s counsel, Henry Carr QC, [could this be the fabled "South Square Slugger", wonders Merpel] that the Court first wished to hear from Michael Beloff. It appeared that the learned Lord Justice had decided to light the blue touch paper immediately because his opening comment to Mr Beloff was the the Court took a “pretty dim view” of what Apple had done. Further kindling was provided by Sir Robin Jacob, who said that he was “completely at a loss to understand how a company like Apple could do such a thing and then go on justifying it” [Katnote: Sir Robin is never at a loss to understand anything, is that he completely understands why Apple did it, but that Apple was at a loss to explain how it thought it could get away with it before a British Court].

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.

By now the fire was catching hold and the smell of melting plastic was plainly detectable, but the point of no return may well have been when Mr Carr produced an article from the highly respected online forum The Register (motto: "Biting the hand that feeds IT") commenting on the statement published by Apple,the  headline of which read (or perhaps screamed) “APPLE: SCREW YOU, BRITS, everyone else says Samsung copied us….. But we will apologise because the judge said we had to”.   While that in itself was not accurate (Apple was not required by the Court of Appeal to apologise) this probably simply confirmed the conclusions which the judges had already reached regarding the overall impression created by the statement. So a well-timed can of petrol, thrown on to the bonfire by Mr Carr, ensured that the nicely warming bonfire turned into a total conflagration.

Firework parties tend to save their biggest explosion until the end -- and the guest Kats are pleased to report that this event was no exception. After the judges had retired and then come back [Sir Robin seems to have made a second career of this: is any reader keeping a tally of his judicial lead roles and cameos since we all wished him well -- and indeed farewell -- when he exchanged bench for chair and became an academic?] to announce that they were going to require Apple to publish a corrective statement on its UK home page (with reasons to be published later), there then followed a discussion regarding how long Apple would need to comply. As this stage a decidedly barbecued Mr Beloff sought a period of 14 days, saying that he was informed by Apple that there were technical reasons why it could not be done any quicker [goodness, says Merpel, one of Apple's selling points is the speed of its applications].

Kitchin LJ then asked how long it would require to take down the existing statement to which the response was 24 hours [The IPKat is astonished at this. He can take down a blogpost in a matter of minutes, and replace a few paragraphs of text in little more than that, even without any number of kindly old members of the judiciary to help him with his wording, as Apple have had]. Kitchin LJasked: if Apple could take down the offending statement in 24 hours, why could a new one not go up in the same time? The response from the now flaming Beloff was that, while he appreciated that this was surprising, he was assured by his clients that there were technical reasons. At that point sizeable rocket spouting sparks and flames emanated from the general direction of Sir Robin Jacob. He told Mr Beloff that he could not “believe the instructions which [Mr Beloff] had been given", that Mr Beloff’s instructions “were not good enough” and that if that point was to be pursued he (Sir Robin) would require “an affidavit from the Head of Apple setting out in full detail” why it would take 14 days for Apple (with considerable emphasis on the word "Apple") to do this. The guest Kats present in Court, glowing happily and comfortably in the warmth of the proceedings, are pleased to report that, despite considerable temptation, the Court onlookers managed to refrain from issuing a chorus of "Oooos" and "Aahhs" as the sparks gently disappeared -- although one of them was sure that he did catch a faint refrain of "Light up the sky with Standard Fireworks"

In the end Apple was given 48 hours to put up the new statement or apply to the Court for an extension supported by the evidence referred to by Sir Robin.

Again, as is common at the end of firework parties, there was one final damp squib when the now totally charred Mr Beloff sought leave to appeal to the Supreme Court -- citing as a point of general public importance the question as to the circumstances in which previously awarded injunctions may be varied. Your dedicated reporters are pleased to report that the Court of Appeal had obviously prepared for this event in accordance with normal Health & Safety guidelines because Longmore LJ in no time managed to produce a very large bucket of cold water and pour it over that particular squib, thus extinguishing any remaining dying embers.

Merpel comments that if all firework parties are this much fun, maybe she will reconsider her plans about staying in and washing her fur on the night of 5 November. In the meantime she awaits the written judgment in eager anticipation, hoping to see more sparks flying.

KATNOTE:  this post has been brought to you through the ceaseless toil of the excellent Gary Moss (EIP), for whom no katpat is big enough.  Gary, we are all in your debt (figuratively speaking ..)