Apple v Samsung DownUnder

At (Foss Patents‘) last count, the war between Apple and Samsung now ranges across 4 continents and 11 different courts in 9 countries. (For the start of the war, start here.)

As of yesterday, one of those countries is Australia where, on Apple’s application for an interlocutory injunction, in return for an undertaking as to damages Samsung gave undertakings:

  1. Until the determination of this proceeding or further order of the Court, the respondents and each of them, by themselves, their servants or agents or otherwise, without admission of liability will not without the licence of the first applicant, import, promote, offer to supply, supply, offer for sale or sell in Australia the Galaxy Tab 10.1 device the subject of paragraph 3 of the affidavit of Reginald Leones affirmed 28 July 2011.
  2. Until the determination of this proceeding or further order of the Court, the respondents will on the provision of suitable confidentiality undertakings, provide to the solicitors for the applicants 3 samples of the version of the Galaxy Tab 10.1 device intended for launch in Australia at least 7 days prior to the date of intended distribution to sales channels for the purpose of review and analysis.
  3. Until the expiration of the 7 day period referred to in paragraph 2 above, without any admission of liability, the respondents and each of them, by themselves their servants or agents will not:
(a)     advertise;
(b)	seek expressions of interest from consumers in relation to;
(c)	sell;
(d)	authorise or facilitate the advertisement by third parties of; or
(e)	otherwise supply to consumers,
the device referred to in paragraph 2 above.

At least as reported in the media here, Apple’s claim doesn’t appear to be relying on trade dress but, rather, the more concrete rights conferred by patents. According to the Sydney Morning Herald, the patents in dispute are:

Standard Patents
- 2008201540: List scrolling and document translation, scaling, and rotation on a touch-screen display
- 2005246219: Multipoint touchscreen
- 2007283771: Portable electronic device for photo management
- 2009200366: List scrolling and document translation, scaling, and rotation on a touch-screen display
- 2007286532: Touch screen device, method and graphical user interface for determining commands by applying heuristics
Innovation Patents
- 2008100283: List scrolling and document translation, scaling, and rotation on a touch-screen display
- 2008100372: Electronic device for photo management
- 2009100820: Unlocking a device by performing gestures on an unlock image
- 2008100419: Unlocking a device by performing gestures on an unlock image
- 2008101171: Portable electronic device for imaged-based browsing of contacts

The Court would have required an undertaking as to damages as part of the price for awarding an interlocutory injunction pending trial if it had been pressed to decide the application.

Samsung subsequently issued a press release claiming in effect that it’s all a misunderstanding and it was never going to release the US version of its Galaxy Tab 10.1.

From the perspective of a US patent lawyer, Samsung’s position looks pretty weak. On the other hand, Patentology thinks Samsung hasn’t conceded much and has the upper hand.

Samsung is making a special version of the Galaxy Tab for Australia?

  • http://blog.patentology.com.au Patentology (Mark Summerfield)

    I think you’ll find that Florian Mueller (FOSSPatents) is German, and not a lawyer (self-described ‘IP activist-turned-analyst’).

    And of course Samsung has not announced a specific launch date or time frame — they just undertook not to do this kind of thing until at least seven days after providing the three product samples to Apple.  They are pretty much constrained by their agreement not to do anything that might be construed as promoting the product.  Although, it has to be said that Apple is doing a pretty good job of that for them!

    • http://ipwars.com iWarwick

      Well, it will definitely be interesting to see what happens. One can’t expect that Apple has gone to war against one of its major suppliers only to back down meekly especially as Samsung seems to be attacking the core of Apple’s tech darling status: the iPhone and iPad.