Apple demanded NO sale of any rival Samsung Tabs in Australia, before it would give Samsung an early trial date. Apple and Samsung met again today in Sydney’s Federal Court to battle it out over Galaxy Tab 10.1.
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The three court judgement panel consisting of Justice’s Dowsett, Foster and Yates listened as Samsung argued against the ban of Tab 10.1 in Australia, following Apple’s claims it infringed on patents and was a carbon copy of its famed iPad.
And some very interesting facts emerged about the parties dispute, in court today, in particular the notion that Apple made a series of private demands on Samsung, before it agreed to an early trial date.
Samsung counsel, Neil Young QC, during his argument against the interlocutory injunction banning the Galaxy Tab 10.1 granted last month by Justice Annabelle Bennett, broached the issue of the final trial hearing date to resolve the matter.
Apple had a “range of undertakings they were insisting on from Samsung” before it would concede to an early trial, Young revealed today.
In fact, in private sessions with Samsung lawyers, Apple said they would agree to a court hearing within the following 1-2 weeks, but only if the Korean’s conceded to a litany of permanent undertakings including:
– Not to sell the US version of the Android Tab 10.1 in Oz, or sell the (modified) Australian version that included other features, and not to sell ANY Galaxy Tabs that contained specific features.
Apple, in return, said it would make “limited claims” and undertake not to pursue other interlocutory relief or other sanctions against its Tab rival.
In other words, Apple had Samsung over a barrel. Samsung desired an early court date as possible in order to resolve the patents issue to allow the highly anticipated Android Honeycomb Tab 10.1 be sold here in Australia prior to Christmas buying period.
There were other versions of the Galaxy Tab including 8.9 and 7.7 released in Europe, which Apple may have feared would be sold instead of 10.1 here.
“Samsung wanted to contest this at final charge,” Samsung counsel said, after one of the Judges asked why the information was not divulged at previous hearings last month.
Its lawyers argued in court today that the terms and conditions put to them by Apple were “grossly unjust” and was “clear recognition” that Apple was looking to get “two bites” of the interlocutory injunction, Samsung’s lawyer noted.
“The whole thing was prejudicial against having an early final hearing,” he argued, saying his client was not ready for an early hearing as there was a “range” of other issues the Koreans wanted to resolve at the trial.
Samsung is currently embroiled in legal battles all over the world including US, Germany, Netherlands and Italy with foe Apple over patents, with Samsung retaliating with counter claims against its wireless 3G technology.
However, the basic tenet of justice was that Samsung should be allowed an early trial, he added, arguing it wasn’t “dragging its heels” over the issue of a final trial date, but “the whole process [with Apple] was fraught” he added.
“Her Hon. [Bennett] found the interlocutory injunction may get final relief for both parties,” which Samsung questioned, arguing it had smothered its fledgling tablet business.
“Her Hon. made a series of fundamental errors” Young argued, adding “the injunction should have been refused,” referring to Justice Bennett’s decision.
“If no injunction was granted Apple would have additional competition.” Samsung’s lawyer also cited other similar Android tabs including Pioneer, Asus and Acer also existed.
But the consequences of being shut out from the tablet market here was “final and dire” for Samsung.
Samsung also reargued their point that no infringement agaisnt Apple took place and is was “commercial imperative” to get the Tab 10.1 on the market, noting its “short life” cycle.
Lawyers for Samsung also argued against Apple’s case that a “presupposed owner” of a patent has some right to an interlocutory injunction, which has been granted in this case, insisting the notion is “wrong” and there was “no guarantee” of an injunction, citing other relevant case precedents.
A final injunction is of little consequence to Apple as the product may have been supeceeded by another Galaxy Tab (10.2 or 10.3) which would mean Apple would be grappling to the same argument for every future tablet model Samsung may produce.
So, a permanent injunction” as demanded by Apple T&Cs for an early trial would have been useful, Samsung counsel noted.
Apple’s demands suggest it saw the Tab 10.1 as a major threat to its iPad market domination in Australia – recent figure show the device accounts for around 73% of the market here, thus dragging out the court date as much as possible was in its interests, in order to prevent its rival from getting its leg into the Aussie market. .
Samsung would be “entirely shut out” from the marketing of the product during the lifetime of Tab 10.1, if this [permanent ban] was allowed to happen, company counsel insisted.
The Tab 10.1 maker is already “concerned with losses” of sales and goodwill associated with the ban.
The company had hoped to relase the Tab here in September but were slapped with an injunction by Apple, preventing it from going to market.
The ‘balance of convenience’ and ‘balance of probabilities’ was two of the main issues concerning Samsung, in their argument today and Mr Young told the court the balance of convenience does not favour Apple, rather it was Samsung who is being “kept out of the market” unable to quantify sales of the device or apps.
Apple must have a strong case to prove validity, otherwise there should be no injunction, he added.
Apple began its evidence just before lunch, arguing the decision to ban Tab 10.1 was “not in error” and not a case of her Hon. Bennett “ticking boses,” said counsel Steve Burley.
The case continues today with Apple lawyers giving more evidence this afternoon.