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Samsung tablet ban 'grossly unjust'


The Samsung Galaxy Tab 10.1
The Samsung Galaxy Tab 10.1 Photo: Supplied
Samsung argues that the judge who ordered its Galaxy Tab 10.1 to be banned from sale in Australia “misunderstood and misapplied” basic requirements of the law and elements of her reasoning were “grossly unjust”.

The appeal in the patent infringement case is being heard by the full bench including Justice Dowsett, Justice Foster and Justice Yates - who haven't made a decision yet but appeared to support a number of Samsung's arguments
Apple was successful in October in winning a temporary injunction banning sales of Samsung's tablet in Australia until a final hearing could take place next year. Despite the injunction, several online sellers have made a mockery of the ruling by importing the Galaxy Tab 10.1 from overseas and offering it to Australians.

“We contend that the primary judge made a series of fundamental errors in her disposition of the interlocutory application. They were all errors of principle,” Samsung's lawyer told the court.

“Her honour misunderstood and misapplied the basic requirements concerning interlocutory injunctions as laid down in [previous cases]."

Samsung's lawyer claimed Justice Bennett did not attempt to properly evaluate the strength of Apple's case for infringement or whether the patents in question were invalid. He said she decided Apple had a prima facie case for patent infringement without conducting the proper tests.

He said that given a temporary ban of the product would effectively render it dead for this market - as it would be overtaken by newer models - “the strength of the prima facie case has to be extremely high to justify relief”.

“It [the Galaxy Tab 10.1] is stopped dead in its tracks, perhaps at a critical time in the development of this market,” he said.

One of the judges appeared to express sympathy with this argument, saying: “If you have a fast moving product which if taken off the market, destroys the opportunities available to the newcomer and preserves the monopoly of the incumbent then you'd have to have a very close look at the strength of the case.”

Samsung's lawyer detailed how his side believed Justice Bennett did not abide by the precedents set out in previous similar cases. He also went through the judgment and the relevant patents in heavy detail, outlining where he believes Justice Bennett erred and why Samsung's product differed from Apple's iPad.

“In summary it is our submission that a review of the judgment, the whole judgment, shows that her honour misunderstood the concept of prima facie case,” Samsung's lawyer said.

“In our submission this court will need to re-exercise the power to determine whether to grant or not grant an interlocutory injunction given the errors that were committed by the primary judge.”

Samsung said Justice Bennett's decision to penalise Samsung in her judgment for failing to agree to an early final hearing of the case was “grossly unjust”.

He said Samsung would have agreed to an early final hearing in March next year but Apple's terms – such as that Samsung be prevented from launching both the Galaxy Tab 10.1 and other tablet products in Australia until the final hearing – were unreasonable.
“Samsung is then punished by her honour because it was unwilling to agree to an unfair hearing,” he said.
One of the judges appeared to agree with this proposition and another was critical of Apple's claim that, had the Samsung tablet been allowed to launch, Apple would suffer huge harm. He sceptically asked Apple's lawyer whether “the whole of Apple's going to come tumbling down” if Samsung had been permitted to sell the tablet until the final hearing.

Apple's lawyers rejected Samsung's arguments and said Justice Bennett had made “no error in principle” and had carefully considered a complex case. He said she would have been keenly aware of the serious consequences of granting Apple the temporary ban on the tablet.

“It was not a case of her honour ticking boxes but rather engaging in a careful and detailed review,” Apple's lawyer said.
Both sides acknowledged there was an element of “game playing” in their court battle.

Separately, Samsung has launched several counter-claims against Apple and in a case running in the Federal Court claims Apple's iPhone models infringe its patents.

The Australian court cases are part of a global war between Apple and Samsung, which was kicked off by Apple after it claimed Samsung “slavishly copied” its iPad.

Source: smh.com.au

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