Samsung Over First Hurdle in Bid To Overturn Apple Injunction

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).

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Tags: Appeal, Apple-v-Samsung, Australia, Interlocutory injunction, Smartphone wars

Contact Lens Cleaning Method ‘Inherently’ Anticipated by Prior Use

Abbott Medical Optics, Inc v Alcon Laboratories, Inc [2011] APO 79 (26 September 2011)

Opposition – novelty – whether claimed method anticipated by prior published instructions and prior use where benefits of method previously unrecognised – whether ‘strict proof’ of prior use required

This decision, issued by Delegate Dr B. Akhurst, concerns methods for the care of contact lenses.  In particular, the invention at issue is directed to the use of a single solution for cleaning and disinfecting contact lenses.

The interesting aspect of the decision is its analysis of novelty in the case that the claimed method may have been taught/performed before the relevant priority date, even though the actual inventive contribution or discovery of the later inventor may not have been previously disclosed or recognised.

In some other jurisdictions, such as the US, this situation would fall under the ‘doctrine of inherency’.  In Australia, there is no formal legal ‘doctrine’ of inherency although – as this decision demonstrates – this does not mean that it is necessarily possible to obtain a patent based merely on the discovery of a previously unknown property of a known process or composition.  In place of any distinct doctrine, the notion of inherency is itself inherent in the established tests for novelty of a claimed invention.

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Tags: Australia, Inherency, Novelty, Opposition

Apple Pursues Australian Online Retailers Over Galaxy Tab Sales

News Limited’s national daily paper, The Australian, is reporting this morning that Apple has written to Queensland-based e-commerce provider eTail Solutions – which is associated with online retailer mobicity.com.au – requesting that it cease sales of Samsung’s Galaxy Tab 10.1 to Australian customers.  (Unfortunately the full article, Apple ups the ante on Galaxy, is behind the newspaper’s new paywall, and requires a subscription for viewing in its entirety.)

Despite its ‘.com.au’ domain, Mobicity is based in Hong Kong, where the Galaxy Tab 10.1 is widely available.  While it is an infringement to import patented products into the country, putting a stop to the imports would most likely require Apple to obtain a further injunction against Mobicity.  The Federal Court of Australia could – and indeed probably would – issue such an injunction, however it would be necessary then to apply to a Hong Kong court in order to enforce it against Mobicity.  As we have previously noted, there are no provisions in the Australian patent law which would enable Apple to have goods seized by customs upon entry to the country.

We are not at all surprised by Apple’s action (see Samsung’s ‘Eyes Wide Open’ Sinks Australian Galaxy Tab 10.1 and Samsung Appeals, Retaliates, in Patent War With Apple for previous discussion on this topic), although it remains to be seen how far it is willing to go in pursuing individual retailers.

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Tags: Apple-v-Samsung, Australia, Injunctions, Smartphone wars

Jobs Biography Reveals Irrational Android ‘Thermonuclear’ Reaction

In the lead-up to today’s accelerated launch of Walter Isaacson’s authorised biography of Steve Jobs, much of the publicity has centred on Jobs’ self-professed animosity towards Google generally, and Android in particular.

Of course, some of the most inflammatory material has been provided to the media to generate publicity for the book.  For example, as reported in the Daily Mail (Steve Jobs vowed to use his ‘last dying breath’ destroying iPhone rival Android in a ‘thermonuclear war’), Jobs swore ‘I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this.’  He also vowed to ‘spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong.’ 

For Jobs, it seems, the battle over smartphone technology was not about money, as he reportedly told former Google CEO Eric Schmidt, ‘I don't want your money. If you offer me $5 billion, I won't want it. I've got plenty of money. I want you to stop using our ideas in Android, that's all I want.’

Now that we have been able to obtain a copy of the book (ironically via Amazon for our Kindle, or Kindle reader on Windows or Android), we can confirm that all this is indeed covered in Isaacson’s biography.  Indeed, the book contains a great deal more regarding Jobs’ grievances against Google (‘outside of Search, Google’s products – Android, Google Docs – are shit’), Adobe (‘I put Adobe on the map, and they screwed me’), Microsoft (‘Bill [Gates] is basically unimaginative and has never invented anything….  He just shamelessly ripped off other people’s ideas’) and Dell (email to Michael Dell: ‘CEOs are supposed to have class.  I can see that isn’t an opinion you hold.’)

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Tags: Android, Book review, Smartphone wars

Assuming Next-Day Delivery of Mail an ‘Error’

TransLang Technology Ltd v Twister B.V. [2011] APO 70 (6 September 2011)

Opposition – request for extension of time to serve Statement of Grounds and Particulars – delay in postal delivery – whether ‘all due care’ taken – whether ‘circumstances beyond control’ – whether ‘error or omission’

In this recent Patent Office decision, Delegate Dr S.D. Barker was required to consider a delay by the opponent, Twister B.V., in serving a Statement of Grounds and Particulars of opposition upon applicant TransLang Technology Ltd, which arose due to slow delivery by Australia Post.  Specifically, the Statement was mailed by the opponent’s attorneys from the Sydney CBD on Wednesday, 6 April 2011, in order to meet a deadline for service upon the applicant – whose attorneys were also located in the Sydney CBD, about three blocks away – of Thursday, 7 April 2011.

The delivery in fact took three business days, arriving on Monday, 11 April 2011, four days after the deadline.

These facts, which were set out in a Statutory Declaration made by Twister’s attorney, were not in dispute.  What the Delegate had to determine was whether they provide a basis for grant of an extension of time for service of the Statement, and on what grounds.

The opponent’s attorney argued that an extension should be granted because the delay had occurred despite all due care on his part.  However, the Delegate determined that assuming next-day delivery did not constitute the requisite standard of care.  The extension was granted nonetheless, on the alternative basis that it was a relevant ‘error’ on the part of the attorney to rely upon Australia Post to deliver an article the next day within the same metropolitan area.

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Tags: Australia, Electronic communications, Extensions of time