Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 (30 November 2011)
Appeal from decision to grant interlocutory injunction – whether leave to appeal should be granted – principles to be applied when considering grant of interlocutory injunction – need to evaluate strength of the probability of success of applicant – need to take strength of probability into account when assessing the balance of convenience and justice –
infringement – strength of
prima facie case –
invalidity – strength of
prima facie case –
balance of convenience – factors to be considered
On Wednesday we provided our initial thoughts on the decision of Justices Foster, Dowsett and Yates overturning the grant of an interlocutory injunction to Apple, barring the sale of Samsung’s Galaxy Tab 10.1 tablet in Australia. For most readers the case will need no introduction. Anybody needing to catch up can
read back over the various articles we have posted since the dispute began.
Before looking at the decision in more depth, we have to say firstly that Patentology feels somewhat vindicated by the judgment of the Full Court. Way back on 2 August 2011, when the Apple and Samsung juggernaut first rolled into Justice Bennett’s courtroom, we predicted that Apple would not be granted an interlocutory injunction (see
It’s Apple vs Samsung Down-Under as Smartphone War Escalates). From this, we suggested, further consequences would flow, such as an increased likelihood that Apple and Samsung would reach some form of global settlement of their ongoing disputes before the matter could make it to a full trial in Australia.
Justice Bennett put paid to that course of events, by holding a number of days of hearings and then, against all of our expectations, granting Apple its injunction. This was, as the Full Court has now confirmed, an error on her part, meaning that – on this occasion at least – our original prediction was a correct evaluation of the relevant law. An interlocutory injunction in a patent case – preventing sale of an
allegedly infringing product prior to the patentee proving infringement – ought to be an extraordinary remedy only granted in exceptional cases.
Yet the time taken to reach this point has clearly been to Apple’s benefit. If Samsung now releases the Galaxy Tab 10.1 to the Australian market, it will be four months later than its original intended launch date, and less than three weeks before Christmas. Apple’s early wins not only in Australia but elsewhere, such as Germany and the Netherlands, appeared to catch Samsung off-guard. And while the sparring companies are starting to look more evenly-matched, Samsung has certainly had to come back from behind. As matters have transpired, our prediction of a fairly orderly tit-for-tat leading to a truce was simply not to be.
The Australian Minister for Innovation, Industry, Science and Research, Senator Kim Carr, has announced changes to the governments Commercialisation Australia program which will make the grants more affordable and accessible to Australian businesses developing new products, processes or services.
