Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 179

Declaration of SARA JENKINS IN SUPPORT OF SAMSUNG'S OPPOSITION TO APPLE'S MOTION FOR PRELIMINARY INJUNCTION filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M, #14 Exhibit N, #15 Exhibit O, #16 Exhibit P, #17 Exhibit Q, #18 Exhibit R, #19 Exhibit S, #20 Exhibit T, #21 Exhibit U, #22 Exhibit V, #23 Exhibit W, #24 Exhibit X, #25 Exhibit Y, #26 Exhibit Z, #27 Exhibit AA, #28 Exhibit BB, #29 Exhibit CC, #30 Exhibit DD, #31 Exhibit EE, #32 Exhibit FF, #33 Exhibit GG, #34 Exhibit HH, #35 Exhibit II, #36 Exhibit JJ, #37 Exhibit KK, #38 Exhibit LL, #39 Exhibit MM, #40 Exhibit NN, #41 Exhibit OO, #42 Exhibit PP, #43 Exhibit QQ, #44 Exhibit RR, #45 Exhibit SS, #46 Exhibit TT)(Maroulis, Victoria) (Filed on 8/23/2011) Modified on 8/29/2011 cannot link entry-opposition has not been efiled (dhm, COURT STAFF).

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Apple Again Cites Inaccurate Evidence
in Samsung Patent Case
By Andreas Udo de Haes, webwereld.nl-

Aug 19, 2011 6:20 am

Apple has filed inaccurate evidence again in a case against Samsung, this time in the Netherlands,
where the company is arguing Samsung's Galaxy S smartphones are too similar to its iPhone 3G.
Apple also has an ongoing case in Germany, part of a global intellectual property battle with Samsung in
the mobile phone and tablet market.
In addition to the charges that Samsung's Galaxy devices are "slavish" imitations of Apple's designs, the
two companies are also clashing over several alleged patent infringements. (See also "Samusng Galaxy
vs Apple iPhone: Business Features.")
The first two devices at left show how Apple compared the Galaxy S to
its iPhone 3G by size in court documents. The Galaxy S on the right is
proportionally accurate. Apple's depiction of the Galaxy S has been
resized by 6 percent.

Apple has provided flawed visual evidence of similarities between the iPhone 3G and Samsung's Galaxy
S smartphones to the District Court in The Hague, an investigation by Webwereld.nl, a Dutch IDG

http://www.pcworld.com/article/238488/apple_again_cites_inaccurate_evidence_in_samsu... 8/22/2011

Apple Again Cites Inaccurate Evidence in Samsung Patent Case | PCWorld

Page 2 of 9

publication, has found.
This time, a picture of a Galaxy S smartphone has been resized to match an iPhone 3G.
During the court hearing last week, Samsung's lawyer, Bas Berghuis of Simmons and Simmons, claimed
that Apple has been "manipulating visual evidence, making Samsung's devices appear more similar to
Apple's." Berghuis, however, did not show evidence of his allegations.
Webwereld's investigation found that one of the pictures provided by Apple as evidence in the Dutch
case is either wrong or manipulated.

Size Misrepresented
On page 77 of the complaint, seen by Webwereld, Apple's lawyers have provided a picture of an iPhone
3G next to a Samsung Galaxy S as "an example of the similarity relevant to copyrights."
But the picture Apple submitted of the Galaxy S is inaccurate and does not match the real Galaxy S.
Further analysis has confirmed this assessment. The Galaxy S, introduced in The Netherlands in July
2010, is both taller and wider than the iPhone 3G.
According to Samsung, the dimensions of the Galaxy S are 122.4 by 64.2
millimeters. The iPhone 3G measures 115.5 by 62.1 millimeters. In the
text, Apple confirms that the Galaxy S has "some non-identical elements,
such as the slightly larger dimensions."
But the picture of purported Galaxy S has been resized about 6 percent,
making the Galaxy S appear smaller and more similar to Apple's phone.
The height of the purported Galaxy S that Apple displays matches the
iPhone exactly. The aspect ratio has not been measurably altered.
Apple also provided an unknown number of other pictures of Samsung's smartphones and tablets sideby-side with its own in separate productions, which were not available for inspection. There's only one
picture of an iPhone side-by-side with a purported Galaxy S in the complaint itself.
A legal expert on intellectual property cases, who declined to be named, asserted that when pictures are
filed both in the complaint and in separate productions, those in the complaint would be considered more
important. Visual evidence presented there typically indicates that the plaintiff wants to emphasize its
significance, he said.

Similar Action with Tablet
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

http://www.pcworld.com/article/238488/apple_again_cites_inaccurate_evidence_in_samsu... 8/22/2011

Apple Again Cites Inaccurate Evidence in Samsung Patent Case | PCWorld

Page 3 of 9

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 September 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 in Dusseldorf.

See more like this: apple, samsung, legal issues, iphone
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onceamarine says:
Fri Aug 19 07:09:31 PDT 2011
I was thinking of buying an iPad2 as a gift for my son, but upon reading this BS about Apple they lost
a sale. I bought the Galaxy 10.1. I wonder how many others are doing the same?
REPLY

WallyDuke says:
Fri Aug 19 07:33:03 PDT 2011
onceamarine said

I was thinking of buying an iPad2 as a gift for my son, but upon reading this BS about Apple

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Apple Again Cites Inaccurate Evidence in Samsung Patent Case | PCWorld

Page 5 of 9

they lost a sale. I bought the Galaxy 10.1. I wonder how many others are doing the same?

In my personal opinion, a noble choice! This BS from Apple is completely absurd! Reaks of fear to
me, fear of a fair fight!
REPLY

actech says:
Fri Aug 19 07:42:16 PDT 2011
For 30 years I have admired Apple for it's management and for it's products, and now these
nonsense lawsuits show me that they are not the company that they were in the past and that I used
to admire.
My wife's phone 3GS broke, and she decided to get a Samsung Infuse (which are amazingly better
than the IPhone 3GS and 4) and I am trying to make a final decision on replacing my IPhone 4 with a
Samsung S2 since I am very irritated with Apples latest product offerings and bs lawsuits.
REPLY

Testjb22gton says:
Fri Aug 19 07:48:59 PDT 2011
irritating to see such news.. Good bye Apple, Hello S2 and Tab..
REPLY

mgltacoma says:
Fri Aug 19 07:53:44 PDT 2011
I remember a court evidence of ipad and galaxy tab image alter they said it was apple's minor glitch
mistake. That is not true. We just saw another picture wrong scaling problem with iphone and galaxy
S. That cannot be a mistake on 2 products in 2 different countries. I think they intentionally provided
false evidence. How can MAC people (all about look and design) mess up simple scaling issue of a
product. It is very obvious they are guilty.
REPLY

zeth006 says:
Fri Aug 19 08:05:31 PDT 2011
onceamarine said

I was thinking of buying an iPad2 as a gift for my son, but upon reading this BS about Apple
they lost a sale. I bought the Galaxy 10.1. I wonder how many others are doing the same?

http://www.pcworld.com/article/238488/apple_again_cites_inaccurate_evidence_in_samsu... 8/22/2011

Apple Again Cites Inaccurate Evidence in Samsung Patent Case | PCWorld

Page 6 of 9

If you think that's bad, read up on the cruddy survey they used showing that a large % of their
customers were dissatisfied with Samsung's alleged copying. That evidence got promptly thrown out
because it was a load of crap.
REPLY

zeth006 says:
Fri Aug 19 08:09:15 PDT 2011
Ladies and gentlemen, here lies the problem with our legal system. It's not the few dishonest lawyers
you hear about who make life miserable for honest men and women. It's about the corporate
slimeballs who advise their legal teams to pull off this load of horse****, all in the name of protecting
their own profits. Any self-respecting individual who truly values innovation and private sector
competition should think twice about his product preferences.
REPLY

halofaller says:
Fri Aug 19 08:15:41 PDT 2011
Why is it so hard to call liars liars?
REPLY

twidlerofthumbs says:
Fri Aug 19 08:21:30 PDT 2011
i will play devils advocate here and note that the sizing of the devices is a known fact. i believe that
what apple is pointing out is that the design aesthetically and functionally are its beef. as you cannot
patent or trademark a size. from the picture i would have to agree that the samsung is a slightly
larger clone of the apple device. when scaled uniformly the placement of functional items (eg.
buttons, icons, status/information bar, so on and so on) are almost identical. so again i note that you
can't patent a size however you can patent the layout and interface.
REPLY

AlexLaronsoneski3d9m says:
Fri Aug 19 08:35:59 PDT 2011
Apple most likely was resizing both of the images to fit in the same area, and size. And like
"twidlerofthumbs" said, you can not copyright a size. so that is irrelevant. This is not a reason to go
with a lesser operating system, or to buy a tablet that will not last nearly as long as an iPad would. I
wonder how "oncemarine"'s son felt about getting a cheap peace of junk instead of an iPad...
REPLY

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Apple Again Cites Inaccurate Evidence in Samsung Patent Case | PCWorld

Page 7 of 9

unbound says:
Fri Aug 19 08:40:11 PDT 2011
zeth006 said

Ladies and gentlemen, here lies the problem with our legal system. It's not the few dishonest
lawyers you hear about who make life miserable for honest men and women. It's about the
corporate slimeballs who advise their legal teams to pull off this load of horse****, all in the
name of protecting their own profits. Any self-respecting individual who truly values innovation
and private sector competition should think twice about his product preferences.

I agree except on one point. It isn't always about "...protecting their own profits". In many cases, it's
about increasing profits. The less competition (the only aspect of supply that is relevant in this age),
the higher price they can charge for something that is in demand.
REPLY

lj99 says:
Fri Aug 19 08:48:40 PDT 2011
AlexLaronsoneski3d9m said

Apple most likely was resizing both of the images to fit in the same area, and size. And like
"twidlerofthumbs" said, you can not copyright a size. so that is irrelevant. This is not a reason to
go with a lesser operating system, or to buy a tablet that will not last nearly as long as an iPad
would. I wonder how "oncemarine"'s son felt about getting a cheap peace of junk instead of an
iPad...

Ah no. They failed to keep the proportions correct. If they were resizing to fit an area then they
needed to resize both items so that they accurately reflected their correct ratios. This is basic stuff
especially if you're indicating that one model copied another and you're using visual evidence. Most
people learned these things in geometry class in high school or hell, even in photography class if
you're an art major rather than a math geek.
And, um, you do realize that an iPad is made out of Samsung parts? Typical of an Apple user to
mock something without realizing they are actually mocking one of the manufacturers of their own
device.
REPLY

samuraidrive says:
Fri Aug 19 08:51:51 PDT 2011
Why is it that when I +1 links from PC world it links to the Deutsche version of the story?

http://www.pcworld.com/article/238488/apple_again_cites_inaccurate_evidence_in_samsu... 8/22/2011

Apple Again Cites Inaccurate Evidence in Samsung Patent Case | PCWorld

Page 8 of 9

REPLY

vasic says:
Fri Aug 19 08:51:57 PDT 2011
Images came from Samsung. Apple didn't alter them. Webwereld.nl fails to mention that, but others
do.
Samsung's distorted picture of Tab was made by Samsung to look as similar to iPad as possible in
their marketing materials. Apple just took that image and put it in their legal filing.
Who is doing BS here?
REPLY

There are 55 additional messages in this thread. Click here to read them »

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