In the New South Wales registry of the Federal Court of Australia this morning, Justice Foster heard lawyers for Samsung present their initial submissions in their attempt to secure a hearing before a Full Bench of the Federal Court of Australia appealing against the injunction granted by Justice Annabelle Bennett on 13 October 2011 (see Australian Court Bars Sale of Samsung Galaxy Tab 10.1). A ‘Full Bench’ of the Court is a panel of three judges, not including the original judge, who will determine whether or not there was any error made in the initial judgment. Samsung must persuade a majority of the panel – i.e. at least two judges – that Justice Bennett ‘got it wrong’.
ZDNet reporter Luke Hopewell was in court for the hearing, and reports that Samsung complained against Justice Bennett’s decision on multiple grounds, including that she was in error in placing excessive weight on Samsung’s alleged ‘unwillingness’ to move to an early final hearing, and that she gave too little consideration to the damage to Samsung’s reputation with Australian retailers which would result from the injunction (see Samsung contests Galaxy Tab injunction). Further coverage of the hearing is available on itnews.com.au (see Samsung granted full bench appeal on Galaxy Tab 10.1).
Samsung should be pleased with Justice Foster’s response. In particular, appealing a preliminary injunction is generally a two-step process – first the appellant must obtain ‘leave’, or permission, to take the matter to a Full Bench of the Court and then, if leave is granted, it is still necessary for the appeal proper to be heard. However, Justice Foster has effectively short-circuited the process, by ruling that the application for leave should be heard on an expedited basis by a Full Bench of the Court, which will – either concurrently, or sequentially – also decide the substantive case on appeal.
In practice, this means that Samsung will almost certainly have the opportunity to present its full appeal case to the panel, most likely in a single hearing over no more than one day. An appeal should not require the many days of testimony heard by Justice Bennett in the original trial, because it addresses only whether she applied the law correctly in her decision, and does not revisit the facts presented before the primary judge.
We are not greatly surprised by the line of appeal being pursued by Samsung. As we wrote previously (see Samsung Appeals, Retaliates, in Patent War With Apple):
Samsung might argue that in reaching a final conclusion, Justice Bennett took an incorrect approach to weighing up the balance of convenience. Her approach was to enumerate all of the factors presented by the parties, and in each case determine whether the balance favoured one party or the other, or was evenly weighted. She then effectively tallied up the individual results to arrive at the final decision. An alternative approach might be to take all of the factors into account as a whole since, in any given case, some factors may be more important than others.
Samsung’s submissions today are akin to this approach. According to Samsung’s argument, it was wrong to give particular weight to whether or not Samsung showed willingness to cooperate in expediting proceedings in assessing the balance of convenience. As Samsung has pointed out, there is no previous judgment in which a similar approach has been adopted.
Meanwhile, as reported by Fairfax Media, Apple may be expanding its campaign against online retailers who are bypassing the injunction by organising their own parallel imports of Galaxy Tab 10.1 tablets originally distributed into overseas markets, such as the US, Singapore and Hong Kong (see Apple threatens Samsung tablet sellers).
A date is yet to be set down for the Full Court hearing, but will no doubt be scheduled shortly.
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