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Samsung gets a win in Oz patent battle

High Court challenge, or 'complete win' for Samsung?

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Friday deadline for Cupertino Samsung has been handed a rare win in its patent battle with Apple, with Australia's Federal Court deciding to overturn the injunction that prevents it from selling its Galaxy 10.1 tablet in Australia.

Originally, a single judge of the court, Justice Annabelle Bennett, had granted Apple's request for an injunction against the sale of the fondleslab, triggering a complaint from Samsung that it would miss the opportunity for Christmas sales of the product.

However, in a full bench sitting, Justices Dowser, Foster and Yates have decided the device can hit the stores after all – although it's not known to The Register how long Samsung will need to get shipments into the country and in front of punters. The only hint is earlier evidence that devices could land here within seven days.

Apple and Samsung are involved in an increasingly-bitter – and spreading – battle over fondleslab patents, with each accusing the other of patent violations. Apple says the Galaxy 10.1 is a slavish copy of the iPad, while Samsung is focussing on the internals, dragging in patents covering wireless technologies that are part of the 3G standard.

Samsung's strategy has been criticized as widening the row far beyond Australia, drawing European authorities into the spat and leading to an EU investigation into whether the row is stifling competition.

Apple is seeking a stay on the decision until next Monday.

If today's decision remains in force, Samsung will have to account for all Galaxy Tab 10.1 devices sold in Australia, and all apps bought by Australian customers, in the shadow of a full hearing in 2012.

Update: The score seems to have ended up one-all: Apple didn't get its preferred stay until Monday, but Justice Foster, who handed down the full bench decision, agreed to stay the order lifting the injunction until Friday, 2 December, at 4pm. He warned Apple that if it were to seek a further extension of the stay, it would need to do so in the High Court. ®

Analysis: A 'complete win' for Samsung?

While the judgment delivered today is nominally nothing more than the lifting of an injunction, it has wide-ranging implications in this case – which is why Apple sought a stay and is probably considering filing before the High Court.

As is noted by the full bench of the Federal Court in its judgment, the short market life of products like the Galaxy Tab 10.1 and a particular version of the Apple iPad mean that what happened today was, in effect, the end-game: “the grant or refusal” of an injunction blocking the sale of the product “will effectively determine the matter on a final basis” (paragraph 18; full judgment here).

If the injunction had continued, the court states, with a full hearing not taking place until 2012, it would have “the practical effect of killing off the Galaxy Tab 10.1 in Australia”.

In that context, it’s no surprise that Apple has said it will seek leave to appeal to the High Court to have this judgment overturned.

But there is more at stake than just an injunction preventing the sale of the Galaxy Tab 10.1. If The Register is reading today’s proceedings correctly, then the Federal Court in full bench is somewhat skeptical regarding Apple’s patent claims.

Regarding some of the claims (paragraph 115) the court has said that some of Apple’s touch screen patent (Australian patent 2005246219) documents “provide greater support for Samsung’s defence of non-infringement than they do for Apple’s case on infringement … If Apple has established a prima facie case at all (which we doubt), it is founded upon a construction argument which, if the evidence remains as it is, is unlikely to succeed at trial.”

A similar statement is made regarding Apple’s heuristics patent (Australian patent 2007286532) in paragraph 160 of the judgment.

“The substance of the matter”, the judges write at paragraph 203, “is that Samsung has had complete success in its appeal from the interlocutory orders made by the primary judge”.

By 4pm on Friday, Apple needs to decide whether or not it accepts this judgment. It was also noted in court today that proceedings in the High Court do not take place as quickly as in the Federal Court. If Apple is unable to get the High Court to urgently reinstate the injunction, the question may be moot. ®

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