As we previously posted, Judge Birss ordered Apple to publish a notice on its website for six months, as well as in several newspapers and magazines, that the Samsung Galaxy tablets do not infringe Apple's designs, to "correct the damaging impression" that Samsung copied Apple's product.
On October 18, 2012, the Court of Appeal affirmed Judge Birss. Of note, the judgment stated:
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.
As noted above, Apple was ordered to publish a notice on its website, which the Court of Appeal affirmed. The notice was recently published on Apple's UK website.
The Guardian reports that Apple's previously published notice, copied below, has been determined to be non-compliant by the court of appeal.
In particular, it appears the following italicized paragraphs have been deemed non-compliant.
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.
Apple's notice has been reported as amounting to a "non-apology" and an attack on Samsung, and it is apparent the court was not please with the notice. As reported by Bloomberg, Judge Robin Jacob said today:
“I’m at a loss that a company such as Apple would do this. That is a plain breach of the order.”
Further, in response to Apple's request for 14 days to make the change to the notice, Judge Jacob reportedly stated:
“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 [their website]. I just can’t believe the instructions you’ve been given. This is Apple. They cannot put something on their website?”