In July, 2012, Samsung had won a judgment in the UK to the effect that its Galaxy Tab computers did not infringe Apple's registered design.
In spite of this, Apple continued to assert, broadly and widely, that Samsung's tablet computers did in fact constitute blatant copying of Apple's design and was therefore wrongful.
Therefore, Samsung went to the court trying to get an injunction barring Apple from making such claims because the claims were causing commercial harm to Samsung within the UK and thereby were negating the effect of the judgment won by Samsung.
Alternatively, Samsung sought a publication order requiring Apple to publicize the fact of the judgment on a long list of Apple websites as well as in certain financial publications. The idea of this order was to clear the confusion created by Apple's continued claims of illegal copying notwithstanding that it had lost on this issue in the UK courts.
The judge hearing the follow-up proceeding issued a very thoughtful ruling (found here: http://www.bailii.org/ew/cases/EWHC/Patents/2012/2049.html) that in fact denied Samsung's request for an injunction against Apple's being able to claim illegal copying. The judge acknowledged the inherent unfairness of barring a party that had lost in a court proceeding from contesting the ruling and from publicly claiming that the ruling was wrong. It thus agreed with Apple that Apple should not be muzzled in asserting its legal right to speak.
The judge then turned to the more limited request made by Samsung for the publication order and described it as follows: "Samsung say that, notwithstanding the fact that Apple have lost this case, they continue to assert that Samsung infringes and that the damage that was caused and has been described there continues to apply. Accordingly, Samsung seek orders that I should require Apple to put on their websites and to put in certain newspapers references to this judgment and a statement that the court has found that the Samsung Galaxy tablets do not infringe." The judge went on to say that he believed "there is a useful purpose in a clear public statement that a product alleged by a rights holder to infringe those rights does not infringe," reasoning that "[t]he more frequently and the more loudly a rights holder has asserted infringement, the more useful it is to have a clear public statement to the contrary."
So, the whole point of the order was to ensure that Apple made a clear public statement to the effect that a UK court had ruled that the Galaxy Tab did not infringe Apple's registered design. Nothing in the order prevented Apple from continuing to assert that it was right and that the UK decision was wrong. Apple had full scope to make these assertions as and when it wanted and has obviously been making them freely.
At the same time, Apple was required to make the clear public statement called for by the follow-on order. Apple appealed this follow-on order and lost. It therefore had exhausted its remedies within the relevant court system and was left with the requirement that it comply.
That is when it purportedly complied by placing a teeny link buried at the bottom of its UK home page that linked to a text that, within the disclosure itself, bombarded the reader with all the reasons why Samsung really did infringe notwithstanding the UK judgment that had been rendered against Apple.
A few thoughts:
1. This conduct by Apple did not merely violate the "spirit" of the order. It clearly violated the order itself. Where Apple had been ordered to make a clear public statement publicizing the fact of the UK judgment, Apple had in fact offered up an obscure link to a statement full of argumentative statements aimed at creating obvious doubt about the question of non-infringement.
2. Apple did this in a context where the order had given it free scope to argue all it liked about its free speech rights to contest the original judgment and to continue claiming infringement on grounds that it disagreed with that judgment. Instead of accepting the order on its terms, Apple went way out of its way to undercut the limited disclosure that it had been required to make.
3. Lawyers say, "pigs get fat, hogs get slaughtered," meaning that when a litigant gets too greedy, it risks having its legal proceeding go badly wrong. Apple had been given a reasonable accommodation by the court addressing its legitimate concerns but it was not content to settle for that. It wanted to do nothing that might acknowledge that Samsung had legitimate issues as well - issues that had been found valid by a UK court and affirmed on appeal. Therefore, Apple decided to respond in a way it deemed clever, in effect defying the judicial authorities who had ruled against it.
4. We can each judge for ourselves whether this was smart or not. My view is that it is conduct unbecoming of lawyers (and of Apple as the principal in the case) and, indeed, is an outrageous affront to judicial authority. Courts and judges are not always right but, when they rule against you and you exhaust your appeals, you had better comply. If you think you are above the law in the sense that you need not comply, you will regret it. Those of us who are mere mortals need to live by these rules. So too does Apple.