The Australian Apple/Samsung 2013 Year Planner is Here!

With 2012 drawing to a close, Patentology is pleased to announce the availability of the Australian Apple/Samsung 2013 year planner.

This handy reference is an absolute must-have for the wall or desktop of numerous Australian IP lawyers, patent attorneys, Federal Court employees, tech journalists, patent litigation enthusiasts and – of course – Federal Court Justice Annabelle Bennett.

Justice Bennett recently timetabled a number of new hearing dates in the second half of 2013, bringing the total number of court days set down next year in the Australian Apple v Samsung case to 123.  Yes, you did read that correctly – one hundred and twenty-three.  This is in addition to the 46 days of hearings which will have taken place by the end of this year, not including last year’s interlocutory proceedings, and various dates that have been set down for administrative purposes (e.g. management conferences and directions).

Our 2013 year planner – a larger version of which is available by clicking on the thumbnail above – should therefore prove invaluable to to the many individuals involved in this gargantuan case.  It will help senior counsel to organise the expenditure of their substantial fees on European sojourns during the northern summer, while less-experienced articled clerks and junior associates will be able to plan when they might be able to grab a few hours of sleep, or invest a little time in any surviving relationships they may have outside of work!

It does not appear that any of the dates that have been reserved by Justice Bennett are speculative, or merely for contingency.  By all accounts, she has been meticulous in time-tabling the trial, and every set of dates is scheduled for hearing of a specific aspect of the case.

THE 2012 YEAR IN REVIEW

When hearings-proper in the Australian Apple v Samsung trial got underway in July, there was some continuing interest from the media.  We last wrote about the case after the first week of the trial (see Apple v Samsung – Trial Commences, But Will It Matter?)  Even then, when court dates were set down only up until October this year, we expressed some doubt as to the relevance of any judgment, which we did not expect to issue until some time next year.  Since then, however, the day-to-day routine of protracted court proceedings has produced little of sufficient interest to warrant significant media coverage.  By contrast, a comparatively speedy jury trial in the US, culminating in a US$1 billion verdict, provided plenty of worthy content (see, e.g., Billion-Dollar Jury Verdict a Blow to Samsung – But How Bad Is It?).

There are a number of different elements to the Australian litigation: Apple’s claims of infringement by Samsung; Samsung’s claims of infringement by Apple; both parties’ allegations that various asserted patent claims of the other are invalid and unenforceable; both parties’ defences based on non-infringement; and Apple’s defences based on theories of patent exhaustion (i.e. that its chip supplier Qualcomm was licensed to exploit the Samsung patents) and on Samsung’s obligations to license its standards-essential patents (SEPs) on FRAND (fair, reasonable and non-discriminatory) terms.

From what we have been able to ascertain via the various court orders, and the minimal reporting of the case, most of these aspects have been at least part-heard so far, and it seems that hearing of the FRAND issue may be substantially concluded by the end of this year.

One specific issue that appears to have delayed hearing of Samsung’s claims that Apple’s products infringe its SEPs is the necessity to provide actual evidence of this infringement.  As we noted back in July this year, Samsung appeared initially to argue that the Apple devices must implement its patented technology, because it forms part of a standard to which Apple’s products are required to conform, in order to operate correctly with installed 3G networks.  In reply, Apple essentially argued that they don’t know whether their own products infringe, either because the relevant technology is embedded within Qualcomm’s chips, or because the patented techniques are ‘optional’ features of the standard, and need not be implemented in the claimed manner.

The strategy of asking a court to infer infringement based upon standards-compliance appears to have worked in some other jurisdictions, e.g. Korea (see South Korea is Not a ‘FRAND Rogue State’!)  However, Australian courts will generally require a patentee to prove infringement by showing that the accused product actually practices the claimed invention.

This is indeed the way the case has proceeded.  And for Samsung to prove infringement, it needs to establish exactly what functions are implemented within the Qualcomm chips used in the Apple products.  For this it requires Qualcomm’s source code, which Qualcomm naturally considers to be proprietary and confidential.  Justice Bennett has, in fact, issued orders for Qualcomm to produce its relevant source code, however these orders are subject to confidentiality constraints (sometimes known as a ‘protection order’).  In particular, the source code will be provided to Apple and Samsung’s external counsel only (i.e. their Australian lawyers), and will not be available to any employees of either company, including their in-house legal counsel.

Until this source code has been provided, and analysed (presumably by independent experts also subject to confidentiality agreements), Samsung’s substantive infringement case cannot proceed.

THE 2013 YEAR IN PREVIEW

January is the height of the Australian summer, and a time when many organisations (including the Federal Court) are either closed, or operating with substantially reduced staffing levels.  The parties will therefore not return to court for the new year until 31 January 2013, when seven days have been set down for further hearing of Samsung’s claims that Apple infringes three of its declared SEPs relating to 3G communications technology.

A further 12 weeks have been set down, commencing on 25 February 2013, for hearings in relation to Apple’s various claims against Samsung.  This solid block of dates in our year planner should prove useful even to people not involved in the case, since the New South Wales public holidays falling within this period are readily identifiable as rare points of white in an ocean of red crosses: Easter (29 March – 1 April); ANZAC Day (25 April); and the Queen’s Birthday (10 June).

A mid-year break may allow those who can afford the time to take those aforementioned northern vacations, although doubtless there will still be many minions beavering away to prepare for what may or may not be the final onslaught in the second half of the year, when a portentous 40 days (and 40 nights) has been set down for the purpose of completing the hearing of Samsung’s cross-claim against Apple.

BEYOND 2013

It now seems highly unlikely that Justice Bennett will issue a decision in the case until mid-2014. That decision will be subject to appeal, and the appeal process will itself run for around a further 12 months. Assuming that the High Court is not inclined to grant Special Leave to either party for a further and final appeal, it will therefore be at least the middle of 2015 before any final ruling in the case.

And let us be absolutely clear about this – the final ruling will apply only to the products which are actually named in the current lawsuits, i.e. products already on the market prior to the commencement of the main trial, including Samsung’s Galaxy Tab 10.1 and Galaxy S II smartphone, as well as Apple’s iPhone 3G, iPhone 4, iPhone 4s and iPad 2.

The new generation of products, released by both companies since the trial commenced, as well as future products yet to hit the market, will be unaffected by any decision in this case.

CONCLUSION

Our opinion regarding a long-term solution to this dispute has not changed since we wrote the following back in July:

At some point in the not-too-distant future it will be better business for Apple to collect on its patents, rather than continue to spend time, money and energy on enforcing them.

What is less clear is whether Apple is actually capable of being this coldly pragmatic. It is plainly a strong element of their corporate culture (fostered by Steve Jobs) to feel highly proprietorial towards their technology. For example, Tim Cook has insisted that Apple is not ‘the developer for the world’, though Patentology has previously asked the question ‘why not?’.

It is nice occasionally to be able to say ‘we told you so’ (hopefully without being too annoying), and Apple’s recent global settlement with HTC proves that it is capable of being pragmatic!

We doubt that Apple will – yet – settle so readily with Samsung.  The point at which it becomes good business to license rather than fight HTC – which is not a serious global competitor to Apple – is clearly different from the point at which it would be ready to settle with the world’s leading manufacturer of smartphones.  Certainly there is a great deal of money to be made in collecting licence fees from Samsung, but there is more to be made by Apple selling its own products, and for now it does not appear ready to settle and allow Samsung to focus all of its attention on beating Apple in the marketplace.

However, the settlement with HTC does suggest that an end to its legal disputes is on Apple’s agenda, if the terms are right.  It seems hard to imagine the current situation persisting into 2014 and beyond without Apple and Samsung reaching some form of truce.  It may therefore be that, having monopolised a significant proportion of Australia’s legal and court resources for, perhaps, more than two years, the parties might settle their differences, and discontinue proceedings.

And if this happens, it is hard to say whether Justice Bennett would be angry about the massive waste of the court’s time it would represent, or relieved that she does not have to write a judgment based on nearly 200 days of hearings!

Tags: Apple-v-Samsung, Australia, FRAND, Infringement, Smartphone wars