Bloomberg News

Australia Appeals Judge Questions Fairness of Samsung Tablet Ban

November 27, 2011

Nov. 25 (Bloomberg) -- An Australian appeals court judge questioned the fairness of a ruling that granted Apple Inc.’s request to ban the sale of the iPad2’s biggest rival in a legal dispute with Samsung Electronics Co. over patent infringement.

“The result looks terribly fair to Apple and not terribly fair to Samsung,” Federal Court Justice Lindsay Foster said today at a hearing in Sydney on Samsung’s appeal for the ban to be overturned.

Federal Court Justice Annabelle Bennett issued an injunction Oct. 13 barring the sale of the Galaxy 10.1 Tab in Australia until Apple and Samsung resolve the patent dispute at trial. Bennett failed to consider the “dire consequences” of the ban on Samsung, which has been “entirely shut out” from marketing the device, Neil Young, Samsung’s lawyer, said today.

The suit is part of a legal battle between the companies in at least four countries that began in April, when Apple accused Suwon, South Korea-based Samsung of “slavishly” copying its designs. Samsung plans to scrap Australian sales of the newest Galaxy tablet if it can’t meet the Christmas shopping season, since missing that will render the device “dead,” Young said at an Oct. 4 hearing.

Justice John Dowsett said the panel would try and rule early next week on Samsung’s request to lift the injunction.

“I find it hard to believe Apple couldn’t keep accounts” to determine the effect of the sale of the Galaxy 10.1 and claim damages if it were successful in its patent accusations, Dowsett said.

Playing Games

Burley previously argued that Samsung’s decision not to agree to an early trial unless the injunction was lifted was “tactical game-playing” and factored into Bennett’s ruling to maintain the ban.

The introduction of the Galaxy tablet at 600 Australian stores would also affect sales of iPhones, Mac computers and applications because people who buy one device tend to purchase other related products, Burley said.

“We’re talking about a period of three months and all of Apple will come tumbling down?” Dowsett said. That’s “very speculative,” he said.

While Young made his 2 1/2-hour presentation to the three- judge appeal panel today with few interruptions or questions, Apple’s lawyer Stephen Burley was quizzed repeatedly by two of the judges, who questioned his arguments and Bennett’s reasoning. Judges’ questions aren’t necessarily indicative of their final decision.

Weak Case

Bennett failed to evaluate Apple’s chances of winning its patent-infringement claims at trial as she was required to under Australian law, Young told the panel earlier today. Had Bennett done so, she would have concluded Apple had a weak case and turned down the request for an injunction, he said.

Samsung countersued after Cupertino, California-based Apple’s original suit filed in the U.S. in April. In Australia, Samsung is claiming iPhones and the iPad2 infringe its patents on wireless transmissions, while Apple says the Korean company’s tablet computer infringes at least two patents.

Bennett ordered on Nov. 15 that a trial on Samsung’s claims be held in March, against objections from Apple, which had sought a later date.

The case is Samsung Electronics Co. v. Apple Inc. NSD1792/2011. Full Court of the Federal Court of Australia (Sydney).

--Editors: Lena Lee, Douglas Wong

To contact the reporter on this story: Joe Schneider in Sydney at jschneider5@bloomberg.net

To contact the editor responsible for this story: Douglas Wong at dwong19@bloomberg.net


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