Apple and its lawyers have, perhaps inadvertently, misled the judge of a Düsseldorf court by filing flawed evidence of the similarity between the iPad 2 and Samsung's Galaxy Tab 10.1 tablets based on an inaccurate picture, an investigation by Webwereld.nl, a Dutch IDG publication, has found.
Last week, the German court ordered a preliminary injunction against the distribution of the Galaxy Tab 10.1 in all of Europe, except the Netherlands, where a separate and broader case is under way, in what has become a global war between Apple and Samsung for intellectual property rights on their products and technologies.
But it appears that Apple has failed to provide the German judge with accurate evidence. At least one of the Galaxy Tab 10.1 pictures that Apple provided as evidence in the German case is either wrong or manipulated. Photographic evidence submitted by Apple, found on page 28 of the German complaint, shows two pictures: the iPad 2 and the alleged Galaxy Tab 10.1, accompanied by Apple's claim that the "overall appearance" of two products is "practically identical."
But the picture Apple submitted of the Tab is inaccurate and does not match with the real Galaxy Tab 10.1, Webwereld discovered. Further investigations have verified this assessment. The Galaxy Tab due on the European market is taller and more oblong than the iPad 2. However, the shape of what Apple's claims to be a Tab 10.1 resembles the iPad very closely.
The picture of the alleged Galaxy Tab provided by Apple is cropped and its aspect ratio is distorted. According to Samsung, the Tab measures 256.7 x 175.3 millimeters, which translates to an aspect ratio of 1.46. The Tab pictured in the complaint however has an aspect ratio of 1.36. The bottom is about 8 percent wider than the actual one.
As a result, the aspect ratio of the purported Tab is actually closer to the aspect ratio of the iPad 2, which is 1.30. In short: the shape of the alleged Galaxy Tab 10.1 in Apple's complaint matches the iPad 2 more closely than it matches the actual Tab.
Arnout Groen, a lawyer with the Dutch firm Klos Morel Vos & Schaap, specialized in intellectual property rights litigation, is baffled. "This is a blunder. That such a 'mistake' is made in a case about design rights can scarcely be a coincidence. ... The aspect ratio of the alleged Galaxy Tab is clearly distorted to match the iPad more closely. Inasmuch as this faux pas will have consequences for the case is of course up to the judge. But at least a reprimand by the German judge seems to be in order."
Groen explains that litigating parties are required by law to provide "complete and truthful" evidence to the judge. This applies regardless of whether flawed evidence is provided intentionally or mistakenly, says Groen, adding that this obligation is even more crucial in an ex parte decision, as the evidence presented to the judge is one-sided.
This requirement is the same in Germany, confirms Florian Müller, a German intellectual property consultant. He reckons the flawed visual evidence could have serious consequences for the case, "provided that any differences between the product shown in Apple's complaint and the actual product are outcome-determinative," says Müller.
He doubts that Apple's lawyers attempted to mislead the court. Müller argues the picture in the German complaint could be of a pre-release prototype, which showed up during discovery procedures in Apple's case against Samsung in the U.S. last April.
The Galaxy Tab 10.1 has been available to reviewers at least since May. Apple's complaint in Germany is dated August 4. "But even if the picture they presented was merely obsolete as opposed to forged, this could raise the prospects of a reversal of fortunes at the August 25 hearing in the Düsseldorf district court," says Müller.
Webwereld has briefed Apple and its German counsel, Matthias Koch of Freshfields Bruckhaus Deringer, on the results of the investigation, and submitted questions to confirm or refute the conclusions and to clarify the issue. They declined to respond. Samsung also declined to comment, citing ongoing litigation.
In Düsseldorf, Apple filed the case "ex parte": the judge decided on the infringement claims without a hearing or an opposition brief by the defendant, Samsung. The Korean company only filed a preemptive "protective letter"' without having seen the complaint. This also means that Apple's complaint was the principal evidence on which the judge decided to issue a temporary injunction.
Apple alleges infringement of registered models, so-called Community Designs. These registrations cover all European countries. What's more, a single judge from one E.U. member state can rule on infringement of these designs for the whole of Europe, as happened in Germany last week.
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