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Apple files inaccurate evidence in Dutch Samsung case

By Andreas Udo de Haes
August 19, 2011 05:43 AM ET

Earlier this week, Webwereld uncovered a similar case in Dusseldorf, Germany, where Apple has also filed faulty evidence in court. Apple's German complaint contains a picture of an alleged Galaxy Tab 10.1, resized and its aspect ratio distorted so that it resembles the iPad 2 very closely.

Mark Krul, a lawyer at the Dutch firm WiseMen and a specialist in IT and intellectual property law, is astonished by the findings.

"It surprises me that for the second time incorrect presentations of a Samsung product emerge in photographic evidence filed in litigation," he said. "This is not appropriate and undermines Apple's credibility both inside and outside the court room."

Krul said that litigating parties are required by Dutch law to provide "complete and truthful" evidence to the judge, adding that this is even more imperative when infringement on design and copyrights is alleged.

Krul noted a crucial difference with the German case, in which the judge granted a preliminary "ex parte" injunction, without a hearing or an opposition brief from the defendant. In The Hague, Samsung's lawyers lodged an opposition and flagged the flawed evidence.

Krul doesn't presume that the examples of the faulty evidence are malice on the part of Apple's lawyers. "But Apple has certainly some explaining to do, if only to clear itself from the appearance of improper behavior," he said.

Webwereld has briefed Apple and its Dutch counsel, Rutger Kleemans of Freshfields Bruckhaus Deringer, on the results of the investigation and submitted questions to clarify the issue. He declined to respond. Samsung also declined to comment, citing ongoing litigation.

The complaint is only available for viewing at the court in The Hague. Due to these restrictions, Webwereld has made a rendering of Apple's flawed evidence to present the findings visually.

In the Dutch case, Apple seeks a ban on all Galaxy smartphones and tablets in the European Union (E.U), including a complete recall of stock by European distributors and resellers. The court in the Hague will rule on Sept. 15. At the hearing last week, Judge Edger Brinkman stated that if he grants any injunctions against Samsung's products, they would take effect no sooner than Oct. 13.

In Germany on Tuesday, the Dusseldorf District Court changed its preliminary injunction granted last week that prohibited Samsung from selling the Galaxy Tab 10.1 in all E.U. countries except for The Netherlands.

The court, citing uncertainties about jurisdiction, changed its ban to allow Samsung to sell the product in all E.U. countries except for Germany. The first hearing in the case will start next Thursday in Dusseldorf.

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