Korean major Samsung wins the latest round, but the UK verdict only suggests that the intellectual property war may go down to the wire

Apple tries to avoid ads that say Samsung’s not at fault

Korean major Samsung wins the latest round, but the UK verdict only suggests that the intellectual property war may go down to the wire

Christopher Williams & Alice Philipson

Apple has launched a bid to overturn a high court judgment that orders it to run embarrassing national newspaper adverts admitting that Samsung did not unlawfully copy the design of the iPad. In a hearing before a panel of three senior judges on Monday, Apple argued that, in finding Samsung had not infringed its design, the trial judge had placed too much emphasis on differences between the design of the back of Galaxy Tab range and the back of the iPad. Michael Silverleaf QC, representing Apple, said the differences highlighted in the ruling amounted only to “decoration” that should not carry significant weight in judging whether Samsung copied. Whereas the back of the iPad is almost featureless, Galaxy Tabs have a separate, different coloured section along one edge that contains the camera and flash. The trial judge found these “unusual details” would mean people would not confuse the designs and that Apple’s minimalist design was “cooler”. “I say he was wrong to take these aspects [of colour] into account at all,” said Mr Silverleaf on Monday. “This [the iPad] is a design about shape. You don’t make a non-infringing design by making the same shape and decorating it.” More weight should have been given to the similarities between the front of the iPad and the front of Galaxy Tabs, he argued. Both designs have a thick black border around their rectangular touch screens. “Too much weight was given to the features of the back and far too little weight to the features of the front,” said Mr Silverleaf. He argued that the trial judge’s ruling that the iPad and Galaxy Tabs belonged to a “family” of earlier devices that included the LG Flatron, a PC monitor with a similar flat screen with a black border, was incorrect. Only Samsung’s design shared enough features with the iPad to be considered part of the same “family”, Mr Silverleaf said. Giving less weight to similarities in their front appearance because older devices also looked similar was therefore wrong, he claimed. The British case is part of a complex global battle that pits Apple against Samsung in intellectual property courts in Europe, the US, South Korea and Australia. Apple believes its main rival “slavishly” ripped off designs and technologies from both the iPad and iPhone in its Android smartphones and tablets and scored the biggest victory so far with a £664m damages award in California. Finding in favour of Samsung in July, the British trial judge ordered Apple “to put advertisements in the relevant newspapers and to put a statement on their United Kingdom website”, admitting its Korean rival had not infringed the iPad design. Henry Carr QC, representing Samsung, on Monday accused Apple of wanting a monopoly over the basic features of a tablet computer. He insisted that the trial judge was right to find that Samsung had exercised its design freedom where it could – on the back of its Galaxy Tabs – and that contrary to Apple’s claims, he had considered each alleged infringing feature individually and as a whole. Mr Carr also accused Apple’s legal team of “exaggerating” images in its appeal submissions to make it appear that the iPad and Galaxy Tabs were closer in thickness, whereas the trial judge found Samsung’s designs “look very much thinner than the Apple design”. “That is important to the informed user,” the trial judge said. The panel of three appeal judges retired to consider their judgment. If Apple loses again, it could apply to the Supreme Court. A separate hearing will consider Samsung’s claim that the registered iPad design is invalid anyway. Daily Telegraph