Apple 2.0

Covering the business that Steve Jobs built

How Apple bent the truth in its Samsung tablet 'apology'

November 12, 2012: 12:50 PM ET

PolitiFact would have given the company's assertions a "pants on fire" rating

The "false and misleading" text. Click to enlarge.

FORTUNE -- Many Apple (AAPL) aficionados got a kick out of the company's impudent response to a London High Court's order that it "clear the fog" it created by suing Samsung in the U.K. for allegedly copying the iPad's design -- a lawsuit it lost both in trial and appeal.

Ordered to post a two-paragraph corrective on its website and in the British press, Apple not only dragged its heels, but it broke up the required paragraphs and interspersed language of its own devising -- including a bit about a judge ruling that the Samsung Galaxy Tab was "not as cool" as the iPad -- language that was, according to Samsung, false and misleading. (See London court not amused.)

The court agreed. And in a judgment published Friday it admonished Apple in the strongest terms, ordered it to pay Samsung's legal fees on an "indemnity basis" (i.e. all possible costs, including parking, phone calls, etc. from day one), and spelled out precisely where Apple, in the language it added, basically lied.

In the body of its judgment the court goes through Apple's additions sentence by sentence with the eye of a fact checker:

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."

Lord Justice Kitchin and Lord Justice Longmore, the other two members of the three-judge appeals panel, concur.

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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