Friday Frippery

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What week would be complete without yet more thrilling news from the Apple / Samsung dispute? This week’s venue of choice is “down under”, where Apple has been granted an interlocutory (interim) injunction prohibiting the sale of Samsung’s Galaxy Tab 10.1 in the Australian market. The decision, handed down yesterday, stretches to 245 paragraphs over 63 pages, so there is little wonder that the majority of the world’s press is simply quoting the Sydney Morning Herald’s distillation of the decision, which reports that:
“Justice Bennett said: “From April 15 when proceedings commenced in the US, Samsung proceeded with its eyes wide open.
“The balance of convenience was almost even ... there were several factors that favoured Apple.” 
The IPKat, however, takes a little more interest in matters of substance than most and so has dutifully gone through the judgment (available here) to bring a little more detail.

Apple, so the tale goes, had alleged that the importation, sale and promotion of Samsung’s Galaxy Tab 10.1 would violate various claims of 13 of its patents, thereby infringing Apple’s rights under s13(1) of the Patents Act 1990 (Cth). Apple also alleged that the sale of the particular model of Galaxy Tab will amount to passing off of the iPad 2 (although this has nothing to do with the current interlocutory action). Samsung, for its part, denied these allegations.

In relation to the application for interim relief, Apple initially sought to rely on the infringement of 5 of the 13 total patents that it considers the Galaxy Tab 10.1 to contravene, however this was eventually reduced to two: Australian Standard Patent No 2005246219, entitled “Multipoint touchscreen” (the Touch Screen Patent); and Australian Standard Patent No 2007286532, entitled “Touch screen device, method, and graphical user interface for determining commands by applying heuristics” (the Heuristics Patent).

The judge, Justice Bennett, considered the application utilising the principles laid down by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], quoting Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623 (per Kitto, Taylor, Menzies and Owen JJ), and accordingly asked whether the plaintiff had: (1) made out a prima facie case; and (2) addressed where the balance of convenience lay?

On the issue of a prima facie case, the judge noted (at [36]) that Apple had:
“…already established a prima facie case of validity by reason of registration of the patents, [and so it was accordingly]… necessary to ascertain whether Samsung’s case on invalidity is sufficiently strong such that, if the evidence remains as it is, there is no longer a sufficient likelihood that at trial Apple will be entitled to relief for infringement of valid patent claims so as to justify the maintenance of the status quo.” 
Cutting a long story short, the Judge was not convinced that Samsung had managed this. There was a prima facie case of infringement.

Moving on, then to the balance of convenience (is dealt with between paras [128] and [243] of the judgment): the Judge noting to begin that the following matters had been agreed between the parties:
  • "at present, Apple has the Australian tablet market “virtually to itself”; 
  • the Australian Galaxy Tab 10.1 would be a “formidable player” in the Australian tablet market; 
  • at least initially, the aim of the launch of the Australian Galaxy Tab 10.1 is to establish a market in the Android platform; 
  • and at least initially, the growth of the market in the Android platform would largely be at the expense of Apple." 
She concluded that the detriment to both parties from an adverse outcome in this case would be significant and that the balance of convenience was “almost evenly weighted”. For both parties, damages would not be an adequate remedy. Nevertheless, there were several factors in the balance of convenience that favoured Apple. While the Judge considered that these factors should, perhaps, not be given the same weighting as “factors such as the detriment and inadequacy of damages to both parties,” they were “nonetheless important”.

Accordingly, in the words of the Judge (at [241]), the balance was swung by the following three factors:
“An interlocutory injunction may, in practical terms, amount to final relief for both parties. However, I give some weight to Samsung’s unwillingness to accept an early hearing date [before March 2010], which would have reduced this effect.
I give some weight, albeit minimal, to my conclusion that from 15 April 2011 Samsung proceeded with preparations to launch the Galaxy Tab 10.1 in Australia with its “eyes wide open”.
Apple’s prima facie case is strengthened by the fact that I have found that it has a prima face case in respect of two separate, registered patents. I give some weight to this.” 
With the balance tilted, even if not by much, in Apple’s favour, the Court awarded Apple its prized injunction. However, this Kat is sure that this is not the last we will hear of Samsung and Apple’s patent spat.
Friday Frippery Friday Frippery Reviewed by Matt on Friday, October 14, 2011 Rating: 5


  1. "What week would be complete without yet more thrilling news from the Apple / Samsung dispute? This week’s venue of choice is “down under”, "

    With also a decision delivered today by the Dutch patent court in the Hague.

    Samsung being denied preliminary injunctive relief as the judge considers that Samsung's position could in affirmative proceedings be considered to be abuse.

    This Kat lover fell of his chair reading this, remembering certain events and positions taken earlier by this Korean company - on which he cannot elaborate any further.
    But if I would have told then that Samsung would be in the position it is now, nobody would have believed me.

    Interesting times. Will Samsung be the new Qualcomm with 5% licensing rates?

    And an issue at stake was the dilemma of essential or not:
    - Defend your patent is essential to the standard. This makes your infringement defence rather easy, but binds you directly to nasty licensing obligations.
    - Indicate that your patent is not essential and spend a lot of time on infringement defence - and be free to enforce your patent in any way you like, up to border detention of two million christmas presents at the port of Rotterdam and Heathrow airport.

    Interesting to see that the court also picks up the reference of Samsung to "Philips - SK Kassetten" - and that the court, with delivering that decision, also indicated that there is room for exceptions in special cases.

    Was that really the case or was that in particular to create an escape route in case Dutch pearl Philips would be at the other side?

    Anyway, this in my opinion directly kicks out the first three legs under the chair of jurisprudence of the Dutch patent court.

    More info in Dutch:

  2. Department of Minuscule EmendationsMonday 17 October 2011 at 18:53:00 GMT+1

    ".. its prized injunction." No apostrophe here, please!



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