With all the craziness that has happened in the patent wars between Apple and Samsung, by far the craziest was the ruling on July 9, 2012. That was the day that Apple was ordered to take out an ad out in print and on their website saying that Samsung did not copy Apple’s products. The exact words used by Judge Colin Birss of London’s High Court of Justice was that Samsung’s products were “not as cool” as Apple’s iPads.
Apple half heartedly complied with the order and Samsung called them on it by saying Apple’s words were “false and misleading”. While on appeal a different judge, Sir Robin Jacob, who actually came out of a semi retirement to sit on this appeal, agreed with Samsung’s argument and ordered Apple to pay Samsung’s legal fees on an “indemnity basis” (i.e. all possible costs, including parking, phone calls, etc. from day one).
Sir Jacob even took it a step further by going through the “apology” line by line and added rebuttals, as you can see below.
Apple wrote:
In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products.
The court’s response:
The Judge was not comparing “the Apple and Samsung products.” There is not and has never been any Apple product in accordance with the registered design. Apple’s statement would clearly be taken by ordinary readers and journalists to be a reference to a real Apple product, the iPad. By this statement Apple was fostering the false notion that the case was about the iPad. And that the Samsung product was “not as cool” as the iPad.
Apple wrote:
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.
The court’s response:
That is false in the following ways:
(a) “Regarding the same patent.” No patent of any kind has been involved in Germany or here, still less “the same patent.”
(b) As regards the Community Registered Design, the German Courts held that neither the Galaxy 10.1 nor the 8.9 infringed it. As to the 7.7 there was for a short while a German provisional order holding that it infringed. Whether there was a jurisdiction to make that order is very doubtful for the reasons given in my earlier judgment but in any event the order had been (or should have been) discharged by the time the Contested Notice was published.
(c) There is a finding and injunction, limited to Germany alone, that the 10.1 and 8.9 infringe German unfair competition law. But the statement is likely to be read as of more general application.
Apple wrote:
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.
The court’s response:
That is misleading by omission. For the US jury specifically rejected Apple’s claim that the US design patent corresponding to the Community Design in issue here was infringed. The average reader would think that the UK decision was at odds with that in the US. Far from that being so, it was in accordance with it.
Apple wrote:
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 wilfully copied Apple’s far more popular iPad.
The court’s response:
This is calculated to produce huge confusion. The false innuendo is that the UK court came to a different conclusion about copying, which is not true for the UK court did not form any view about copying. There is a further false innuendo that the UK court’s decision is at odds with decisions in other countries whereas that is simply not true.
The reality is that wherever Apple has sued on this registered design or its counterpart, it has ultimately failed. It may or may not have other intellectual property rights which are infringed. Indeed the same may be true the other way round for in some countries Samsung are suing Apple. But none of that has got anything to do with the registered design asserted by Apple in Europe. Apple’s additions to the ordered notice clearly muddied the water and the message obviously intended to be conveyed by it.
Sir Robin Jacob, who wrote the judgment, ends with these words:
“I hope that the lack of integrity involved in this incident is entirely atypical of Apple.”
It’s that last line at the end using “lack of integrity” which brings this story back into the news. Florian Mueller over at Foss Patents found Sir Robin Jacob’s name on an expert list in a separate case before the ITC. That party that hired him was none other than Samsung. The current case doesn’t involve Apple at all, It’s between Samsung and Ericsson, but it may still make the people in Cupertino scratch their collective heads on this one.
Even though there is no impropriety here and no laws are being broken, it’s the look of it that could raise some eyebrows. Sir Jacob is a patent expert and will no doubt help Samsung in the this case but as Mueller correctly points out “What would people say if Judge Lucy Koh, a few months after denying Apple a permanent injunction against Samsung, returned to private practice and was hired as an “expert” by Samsung in a German litigation with Ericsson?”
That wouldn’t sit right and in a way neither does this.