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An “Apology” Like No Other

An “Apology” Like No Other

My wife and I thoroughly enjoy the movie The Legend of Bagger Vance. One of our favorite scenes is the following exchange between the two principal characters, Adele (played by Charlize Theron) and Rannulph (Matt Damon):

Rannulph: There something you wanted to tell me?

Adele: Well, I’m trying to think of how to say it, Junuh.

There is a purpose to this visit…

…and that’s to apologize.

I’m not an apologetic woman, it takes me longer to organize my thoughts.

I want to seem properly contrite for having gotten you into this match…

…but not seem what I did was ill-intentioned, since it wasn’t.

Rannulph: What exactly are you apologizing for?

Adele: For publicly humiliating you.

Rannulph: That’d be a good thing to apologize for.

Adele: However, I think that…

Basically, what I’m trying to say is…

…that I’m sorry.

But it’s not my fault.

You’re the one to blame.

Rannulph: That’s one hell of an apology, Adele.

While it’s not often that you see something from the silver screen play out in real life, that little exchange is essentially what happened. If you remember back in July, we told you about a judge in the UK telling Apple that they needed to publicly apologize to Samsung in newspapers and the Apple EU websites, stating that Samsung did in fact not copy the iPad. The judge clearly stated that the notice should provide details about the ruling that Samsung’s Galaxy tablets don’t infringe on Apple’s registered designs. Apple appealed the decision, but lost. They were then ordered to follow through with the judgement. Fast forward almost four months, and Apple has indeed published a notice. First off, let’s just post the full statement made by Apple on their UK website:

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 notinfringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the Highcourt 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.

Now I don’t know about you, but this is about the worst example of following a judge’s orders I have seen in a long time. Here’s exactly what the judge told Apple to do [bold is mine]:

Within seven days of the date of this Order the Defendant shall, at its own expense, (a) post in a font size no small than Arial 14 pt the notice specified in Schedule 1 to this Order on the home pages of its EU websites (“the Defendant’s Websites”), as specified in Schedule 1 to this order, together with a hyperlink to the judgment of HHJ Birss QC dated 09 July 2012, said notice and hyperlink to remain displayed on the Defendant’s Websites for a period of one year from the date of this Order or until further order of the Court (b) publish in a font size no small than Arial 14 pt the notice specified in Schedule 1 to this Order on a page earlier than page 6 in The Financial Times, the Daily Mail, The Guardian, Mobile Magazine and T3 magazine.

The following notice shall be posted and displayed upon the Defendant’s Websites….

“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].”

Now one could argue that Apple complied with the judge’s order because they do in fact include the text from the judge. However, they then proceed to completely invalidate his statement by essentially stating that he was misinformed because other courts have found that Samsung does in fact copy Apple. Of course they neglect to mention anything about what the Court of Appeals had to say in their rejection of Apple’s appeal (emphasis is mine):

Because this case (and parallel cases in other countries) has generated much publicity, it will avoid confusion to say what this case is about and not about. It is not about whether Samsung copied Apple’s iPad. Infringement of a registered design does not involve any question of whether there was copying: the issue is simply whether the accused design is too close to the registered design according to the tests laid down in the law. Whether or not Apple could have sued in England and Wales for copying is utterly irrelevant to this case. If they could, they did not. Likewise there is no issue about infringement of any patent for an invention.

So this case is all about, and only about, Apple’s registered design and the Samsung products. The registered design is not the same as the design of the iPad. It is quite a lot different. For instance the iPad is a lot thinner, and has noticeably different curves on its sides. There may be other differences – even though I own one, I have not made a detailed comparison. Whether the iPad would fall within the scope of protection of the registered design is completely irrelevant. We are not deciding that one way or the other. This case must be decided as if the iPad never existed.

What we have here is a blatant attempt by Apple to continue Steve Jobs’s legacy of a “reality distortion field” in how they view the world. The Court of Appeals went further to speak out against Apple’s attempts within the EU to go around the UK judge’s orders in sections 78-88 of the appeal ruling, stating that in order to make sure there was no doubt as to what the UK courts had ruled,

“Apple itself must (having created the confusion) make the position clear: that it acknowledges that the court has decided that these Samsung products do not infringe its registered design. The acknowledgement must come from the horse’s mouth. Nothing short of that will be sure to do the job completely.”

I fully expect the UK Court of Appeals to come down hard on Apple with this notice, given that they did not make things clear. Instead they spent more time attempting to discredit the judgments and trying to save face. This could very well be grounds for the UK Court to hold Apple in contempt and impose heavy fines, so we shall see what the next few weeks brings.

I purposely left out the last bit of the exchange between Rannulph and Adele.

Adele: So, you want my apology or not?

Rannulph: No.

Does this seem fitting? Let’s see how Samsung responds.

_________
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