Samsung has won a Federal Court appeal to quash an interlocutory injunction preventing the sale of its Galaxy Tab 10.1 device in Australia.
However, head barrister for Apple, Stephen Burley SC, requested a stay from Justice Foster until 4pm 2 December on the basis of an affidavit submitted containing materials relating to the potential harm to Apple, and the time it would take to receive instructions from Apple in the US.
A stay is the legal term referring to the act of suspending of a particular proceeding through the order of the court within a case.
Legal counsel for Samsung opposed the request for a stay, arguing that a stay would not be applicable to this particular case.
“This is not a case where a stay is appropriate because there is no subject matter to preserve, the patents ensued have not been ruled invalid or removed from the register so they will remain on the register and able to be enforced against certain parties by the patentee,” Samsung lawyers argued.
“The cases in which a stay would be relevant include those where there is some question of liberty to the individual which might be at stake or whether there is some particular matter of public importance and this case doesn’t fall into any of those criteria.
“Any stay no matter how short given the pendency of the Christmas trading period would continue to cause substantial injustice and hardship to Samsung.”
Justice Foster granted the stay to Apple, along with leave to file an interlocutory application dated 30 November 2011 and also the affidavit.
“I note the Apple party’s undertaking in support of the stay, I propose to grant a stay… up to and including 4pm Friday 2 December 2011,” Justice Foster said.
Should Apple want to extend the stay, Justice Foster said the company would have to apply to the High Court.
In October, Apple won the temporary interim Federal Court injunction to halt the tablet’s sale until the legal battle between the two companies is resolved. The legal stoush began when Apple filed a lawsuit against Samsung claiming its Galaxy Tab 10.1 infringes on a number of Apple’s patents in relation to the iPhone and iPad.
In granting the interim injunction, Justice Annabelle Bennett claimed that after weighing up the balance of convenience for both parties, the balance had weighed in Apple’s favour.
At the full court hearing last Friday, which took place before a full bench of Justice Foster, Justice Dowsett and Justice Yates, Samsung claimed Justice’s Bennett had made errors in her original ruling and had misunderstood and misapplied the basic requirements of an interlocutory injunction.
“To obtain an injunction the applicant must find significant likelihood of success for it to warrant an injunction,” Samsung lawyers told the court.
According to Samsung’s lawyers, Justice Bennett had failed to determine the ultimate probability of success versus the balance of convenience, the strength of the case of infringement and the strength of the case of validity.
Today’s judgement was handed down by Justice Foster on behalf of a full bench of Justice Foster, Justice Dowsett and Justice Yates, “immediately discharging” the interlocutory relief orders made by Justice Annabelle Bennett on 14 October 2011.
Samsung was order to keep accounts with respect to the Galaxy Tab 10.1 until further order to record comprehensive details including:
- Any Galaxy Tab 10.1 imported into Australia by Samsung for the purpose of promotion sale or other.
- Each Galaxy Tab 10.1 kept in Australia by Samsung for the purpose of promotion sale or supply.
- Each Galaxy Tab 10.1 sold or otherwise supplied in Australia or from Australia by Samsung.
- All sales or other supply in Australia of associated material called apps that are downloaded from the Samsung application store, for Galaxy 10.1 Tab devices in Australia or Galaxy 10.1 Tab devices sold from Australia.
Apple was also ordered to pay any incidentals incurred by Samsung for the appeal case.
The legal battle between the companies has also raged offshore, with ongoing cases in Europe, Asia and North America.
Samsung has flagged plans to file court injunctions in France and Italy in an attempt to block the sale of Apple's iPhone 4S. The preliminary injunctions will request the courts block the smartphone from being sold in France and Italy, alleging infringement of wireless telecommunications patents.
Samsung also flagged plans to launch a modified version of the Galaxy Tab 10.1 in Germany, after sales of the original were banned by a German court.
The company has not yet decided on the exact launch date for the modified tablet, Samsung spokesman Jose Suh said on Thursday, but the new device, the Galaxy Tab 10.1N, has already appeared for sale on the websites of German retailers.
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