02 December 2011

High Court Grants Apple Further Galaxy Tab Reprieve

This morning at 9.30am, Justice Heydon heard arguments from Apple requesting an extended stay of the orders made on Wednesday by the Full Federal Court, overturning the injunction barring Samsung's Galaxy Tab 10.1 tablet computer from the Australian market.

The Federal Court granted a stay of its orders until 4pm today, to give Apple an opportunity to launch an application for Special Leave to appeal to the High Court.  While it would be impossible to schedule a hearing on such an application before the end of the week, the Federal Court determined that any further stay of the orders would be a matter for the High Court.

After hearing arguments from both sides, Justice Heydon granted Apple's request for a further stay, finding that the extension is necessary ‘to preserve the subject matter of a Special Leave application’, and ensuring that it will now be at least a further week before Samsung is able to bring stock of the Galaxy Tab 10.1 into Australia.

In Court this morning, Samsung's lawyers revealed that the company had plans in place to commence importing the tablet over the weekend, unless prevented from doing so by an extended stay of the Federal Court's orders.  With Justice Heydon indicating that an expedited Special Leave Hearing could be convened next Friday, they further argued that Samsung would only suffer greater injustice if delayed by yet another week.  Samsung also urged Justice Heydon not to confuse the interest of the public in the case (i.e. the level of media coverage) with the public interest.

Apple, naturally, argued for maintenance of the 'status quo', i.e. for the stay of the Federal Court's orders to continue, pending any hearing on an application for Special Leave.  It's lawyers also rehashed the argument that damages would not be an adequate remedy if Apple were ultimately to win at trial, due to the ongoing revenue from apps and accessories, and the fact that user become locked-in to either the Apple or Android 'ecosystem'.

And, in a new argument, Apple's lawyers contended that the order of the Full Federal Court for Samsung to maintain records in relation to Galaxy Tab 10.1 revenues (for the purpose of calculating compensation) would be inadequate because it fails to take into account associated purchases, such as Android-based phones, that might be made by Galaxy Tab owners.

Although the case has already been heard to death before a total of four Federal Court justices, and the prospects of a successful application for Special Leave to appeal are surely slim, Apple and its lawyers will tonight be celebrating the gain of at least one more week of exclusion of the Galaxy Tab from the Australian market. And that would leave Samsung with no more than two shopping-weeks before Christmas.

Thanks to @lukehopewell and @j_hutch for live tweeting from the High Court in Sydney.


Trev said...

Our wonderful legal system at work. The product is now effectively dead before Christmans.

Gees, Apple are talking themselves up some huge damages if they eventually lose the final case. Not just tabs, but all the SGS II's and Galaxy Nexus' that Samsung will have lost sales and need to be taken into account. Also lost app sales. etc.
Of course Apple in a damages hearing will then argue the opposite. Samsung don't have an eco-system blah, blah. /rant.

Patentology (Mark Summerfield) said...

Thanks for your comment Trev.

I am a patent attorney, so of course I represent clients with patents, and believe the system serves a useful purpose, when it works properly.

But even I find it hard not to see all this as an abuse of process.  As I have written in my previous article, I believe that the Full Federal Court decision is a good one, which places interlocutory injunctions in patent cases back on the appropriate footing, as an extraordinary remedy available only in exceptional cases.  And, all hype aside, this case is not exceptional in any relevant sense.

However, I am not sure that Justice Heydon had much alternative  The High Court is not obliged to grant Special Leave (and I hope and believe it will not), but it is obliged to hear the application, and it might well influence the outcome if the market is flooded with Galaxy Tabs in the intervening week.

The fun will start, however, when Justice Gummow has the opportunity to grill Apple's lawyers in the High Court next Friday!  Or, at least, let's hope so.

Tolrankedcolleges said...

Yes it's legal and wonderfull.
Hope galaxy unbanned after some time.

Topranked said...

Yes it's legal and wonderfull.
Hope galaxy unbanned after some time.

Dylan Xavier said...

Mark what is Justice Gummow  and Justice Heydon background? who and what principles do they stand to favor ?

Patentology (Mark Summerfield) said...

Hi Dylan

Justice Gummow is generally regarded (not least by himself) as the most experienced patent judge on the bench of the High Court.  He spent ten years on the bench of the Federal Court before being elevated in 1995, and he is widely believed to be the primary author of a number of significant patent decisions since issued by the High Court.

From the Special Leave transcripts I have read, he is often the main inquisitor in patent cases, and almost invariably knows the relevant case law at least as well as cousel appearing before him.  Frankly, I think it must be a bit scary!

Justice Heydon was appointed from the NSW Court of Appeal in 2003.  State courts do not hear patent matters, so he inevitably has less experience in this area of the law.

The other Federal Court graduates are Chief Justice French, and the two Susans - Justices Crennan and Kiefel.

They are High Court judges.  They will decide without fear or favour! :-)

Incidentally, a Special Leave hearing is strictly limited to a total of 20 minutes.  It's pretty intense, and for the most part the Court has probably reached a decision on the papers filed beforehand.  Only in a close case are the arguments likely to make much difference.

Dylan Xavier said...

So if its a 20 min Hearing will samsung's council also be there? or will it just be apple. Also how long before we know the outcome?

Patent Law Attorney said...

The latest blow came on 3 December, when the iPad maker failed to convince US District Judge Lucy Koh in San Jose to
block Samsung from selling its allegedly patent-infringing tablets
and smartphones in North America.

Back in April 2011, Apple filed a lawsuit against Samsung,
citing patent infringement and unfair competition. In its opening manifesto, Apple claimed that "Samsung has chosen to slavishly
copy Apple's innovative technology, distinctive user interfaces,
and elegant and distinctive product and packaging design, in
violation of Apple's valuable intellectual property rights."

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