Following on from the initial hearing in relation to Samsung’s appeal against the injunction imposed against the Galaxy Tab 10.1 in Australia (see Samsung Over First Hurdle in Bid To Overturn Apple Injunction), on 2 November 2011 Apple and Samsung again appeared before Justice Foster, who has now laid out the timetable for the appeal to be heard by a full bench of the Federal Court of Australia.
According to orders issued following the appearance, the application for leave to appeal, along with the appeal itself (if allowed) will be heard on 25 November 2011. Justice Foster has set a schedule for the day which will see Samsung present its principal case between 9.30 am and 12 noon, followed by Apple’s case in answer between 12 noon and 1.00 pm, continuing after lunch between 2.00 pm and 3.30 pm. Samsung will have the last word in reply between 3.30 pm and 4.00 pm.
Judgment is likely to be fairly swift. It is not out of the question that the court could issue a ruling – either confirming or lifting the injunction – almost immediately, with detailed reasons to be published at a later date. In any event, a final decision is likely to be handed down in less than a week. This means that if Samsung is successful in its appeal, it may still get stock of the Galaxy Tab 10.1 into shops in time for the last-minute Christmas rush (not to mention the post-Christmas sales).
While the Commonwealth Courts Portal entry does not (at the time of writing) list the panel of three judges who will hear the appeal, according to a tweet from Fairfax Media’s Asher Moses, the full bench will be made up of Chief Justice Pat Keane, Justice John Dowsett and Justice David Yates. Correction: the panel will be Justices Foster, Dowsett and Yates.
FEDERAL COURT ‘FORM GUIDE’With the spring racing carnival in full swing, we think that a guide to the ‘form’ of the judges may be in order!
Chief Justice Pat KeaneCorrection: Chief Justice Keane will not be hearing the appeal.
While you might imagine that the Chief Justice of the Federal Court of Australia would be the longest-standing (or sitting) judge on the panel, you would, in fact, be mistaken.
The additional duties of the Chief Justice are largely administrative, and do not require that the occupant of the role be a judge of long standing in the Federal Court. In fact, Chief Justice Keane was appointed directly into the role on 22 March 2010. He had previously served (since 2005) on the Court of Appeal to the Supreme Court of Queensland.
Intellectual property matters generally, and patent cases in particular, are not usually heard in state courts, with the Federal Court having original jurisdiction in most instances.
As far as we have been able to determine through searches of the judgments of the Federal Court, Chief Justice Keane has not sat on a single patent case in which a decision has been issued since his appointment to the court. He has no particular background in patent law, and is therefore an unknown quantity.
Justice Foster (this section added in update)Justice Lindsay Foster was appointed a judge of the Federal Court of Australia in 2008.
He is a graduate of the University of Sydney with the degrees of Bachelor of Arts, Bachelor of Laws and Master of Laws. After practising as a solicitor in Sydney, he spent some time working in the corporate world. He was admitted to the New South Wales Bar in 1980 and was appointed Senior Counsel in 1994.
At the Bar, Justice Foster specialised in commercial law, competition law, equity and administrative law.
Justice Foster heard the case of Bitech Engineering v Garth Living Pty Ltd  FCA 1393 at first instance, finding that the patentee's claims were valid, but not infinged. This decision was overturned on appeal, with the Full Court finding in favour of the patentee (see below, under Justice Yates).
He also heard the appeal from the Patent Office opposition decision in Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd (Administrator Appointed)  FCA 465, in which the appeal was allowed without any substantive analysis, due to the non-appearance of the respondent (which had been placed in administration), and a corresponding lack of any evidence upon which to decide the appeal (see Well-Known Innovation Patent Takes the Next Step... Just!).
This appears to be the extent of Justice Foster's experience in hearing substantive patent matters. Reports of the hearings so far in relation to the present appeal give the impression that he may be somewhat sympathetic to Samsung's position. It is possible that his background in commercial and competition law may lead him to adopt a more cautious approach to interfering in a competitive market prior to a full trial, and therefore to view interlocutory injunctions less favourably. However, at this stage this is pure speculation on our part.
Justice DowsettJustice John Dowsett is the longest-serving judge on the panel for Samsung’s appeal, having been appointed to the Federal Court in 1998.
With regard to patent matters, the most recent judgment to which he contributed was the Full Court appeal in the Seafood Innovations case,  FCAFC 83, in which his co-panellists were Justices Bennett and Greenwood. The appeal court in that case overturned the first instance decision which went against the patentee, unanimously finding the Seafood Innovations patents to be valid and infringed (see Fishy Business — Bass Baked by ‘Stunning’ Appeal).
With Justices Heerey and Finn, Justice Dowsett also found in favour of the patentee in the 2008 appeal decision Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag  FCAFC 121.
On the other hand, in a series of decisions on a dispute between Occupational and Medical Innovations Ltd and Retractable Technologies Inc, also issued in 2008, Justice Dowsett found against the patentee, concluding that the patents asserted in the case were not infringed. He also sat on the appeal panel, with Justices Heerey and Kiefel, in the case of Merck & Co Inc v Arrow Pharmaceuticals Limited  FCAFC 91, which upheld the first instance decision finding the patent in suit to be invalid.
Justice YatesWhile Justice David Yates is – like Chief Justice Keane – a relative newcomer to the Federal Court, having been appointed on 30 November 2009, he is also probably the most experienced in intellectual property matters generally, and patent cases in particular.
Prior to his appointment to the bench, Justice Yates was a Senior Counsel widely regarded as one of the leading Australian barristers specialising in patent law. Indeed, this appears to be his true calling, as evidenced in the speech he gave on the occasion of his swearing in when he said:
Very early on I also started to be briefed in patent cases. That was a most wonderful gift. That area of work came to be the most treasured part of my practice. I have never made any secret of the fact that, whether as junior counsel or senior counsel, I would crawl over broken glass for a patent brief.
In his short time on the bench, Justice Yates has contributed to decisions in three significant patent appeals:
- Bitech Engineering v Garth Living Pty Ltd  FCAFC 75, with Justices Bennett and Sundberg, which overturned the first instance decision, and found in favour of the patentee (see On Appeal, Simulated Flames from Direct Light Found Infringing);
- Australian Mud Company Pty Ltd v Coretell Pty Ltd  FCAFC 121, with Justices Bennett and Gilmour, which upheld the first instance decision finding against the patentee (see Australian Appeals Court Further Clarifies ‘Purposive Construction’); and
- Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth  FCAFC 132, with Justices Bennett and Nicholas, which upheld the appeal by finding against the patentee (we will report on this recent decision shortly).
It would no doubt be most instructive to have the benefit of Justice Yates’ earlier ruminations on the question of when it is, or is not, appropriate to grant an interlocutory injunction. Unfortunately we do not.
CONCLUSIONRecent published decisions do not suggest that Justices Dowsett or Yates have any particular leanings either in favour of, or against, patents and patentees. Their judgments have gone both ways. Both have sat on appellate panels with Justice Bennett, and concurred with her opinions, but this does not mean that they will necessarily agree with her in this case.
Chief Justice Keane is an unknown quantity in patent cases.
Samsung needs to persuade at least two of these three judges that Justice Bennett – currently the most experienced of the Federal Court judges in hearing patent cases – got it wrong in her decision to grant an interlocutory injunction against the Galaxy Tab 10.1.
Justice Bennett admitted herself that the original decision was a close call. It may therefore not require much to tip the balance in the other direction. We would not bet on the outcome – or run a book. It looks to be evenly balanced, and could go either way.
Update: the presence of Justice Foster on the panel, with his background in competetion law, seems more likely to work to Samsung's favour than Apple's. We emphasise again, however, that this is purely speculation on our part.