Despite recent setbacks, Apple vows to crush the pesky Samsung rebels.
Experts think that Australia's ban rejection could influence Apple's pending U.S. ban request

In his waning days, late Apple, Inc. (AAPL) co-founder and chief executive Steven P. Jobs proclaimed, "I will spend every penny of Apple's $40 billion in the bank, to right this wrong. I'm going to destroy Android, because it's a stolen product."

Well it looks like Apple is going to have to keep spending, because it was just dealt a major defeat by the world's largest (international) Android phone maker Samsung Electronics Comp., Ltd. (KS:005930).  Apple saw one of its largest legal victories against an Android device maker -- its ban on Samsung's sales of its Galaxy Tab 10.1 tablet in Australia -- dashed in an instant.

I.  Apple has Seen Initial Win Slowly Erode

The original ban was put in place by Justice Annabelle Bennett said that Apple had a prima facie case regarding infringement, or in English, that it appeared at first glance that Samsung's infringement was self-evident given the facts.  

Specifically, she said that Samsung appeared to be infringing on an Apple touch-input heuristics patent (AU 2007286532) and a patent involving the manufacturing process used to make the iPad/iPad 2 touch screen (AU 2005246219).  The decision came in October; over two months after Samsung agreed to temporarily halt sales while Justice Bennett ponder the preliminary injunction.

Cheered by the win, Apple looked to extend its reach to Samsung tablets of all sizes, banning the Galaxy Tab 7 and Galaxy Tab 10.1v, which had not yet been explicitly banned in the region.  Apple's lawyer stated, "Samsung says Galaxy Tab 10.1, we say any tablet device."

It was there that it was dealt its first setback in the Australian court campaign.  Justice Annabelle Bennett dismissed the request for more preliminary injunction bans, saying she was not convinced that this "rolling mandatory injunction" (as Samsung's attorney labeled it) was warranted.  She commented, "It does seem to me not to be warranted that the sort of order that you've sought be applied."

Following that decision, Samsung offered to make peace with Apple in October, but Apple refused.

II. Judges Blast Ruling That Granted Apple's Preliminary Injunction Sales Ban

This week Apple's original victory appears on the verge of being erased by an Australian federal appeals court, opening the way for Australian gadget fans to enjoy the popular Galaxy Tab 10.1 tablet -- just in time for the holidays.  The full three-judge bench -- Justices John Dowsett, Lindsay Foster and David Yates -- unanimously agreed that the ban did not make sense.

They called elements of Justice Bennett's reasoning for her decision "grossly unjust" and complained that she "misunderstood and misapplied" the basics of Australian law regarding preliminary injunctions, according to Australia's Sydney Morning Herald.

The panel apparently took special offense at Justice Bennett's claim that Samsung had infringed on Apple's touch heuristics patent, stated that she failed to evaluate whether competitors' constructions, including Samsung were truly materially the same as Apple's.  They commented that if she had "she should have found that there was no arguable case of infringement of the heuristics patent."

The panel said that Apple had "difficulties" proving the pertinent claim 6 of the touch screen manufacturing patent.  And they seemed even less convinced of the merits of Apple's assertions regarding the heuristics patent, commenting, "On the present state of the evidence we are unable to see that Apple has established a prima facie case of infringement of either claim 1 or claim 55 of the Heuristics Patent."

About the only positive for Apple is that the panel stated that Samsung's examples of prior art were weak enough not to offer self-evident (prima facie) evidence of infringement.

Samsung Galaxy Tab
The Samsung Galaxy Tab 10.1 is almost set to make its Australian debut after Samsung dealt Apple a court defeat. [Image Source: 9to5Google]

The Panel decided to briefly halt the lifting of the sales ban, allowing Apple to appeal.  Most experts seem to think that Apple will likely appeal, but that any such appeal is unlikely to convince the court to vacate their strong stance.

Samsung, wasn't a fan of the delay.  Samsung's legal representative Peter Chalk said the delay would "prolong the injustice held against Samsung".  He comments to the Sydney Morning Herald, "Any stay, even of a short duration, should not be granted..given the dependency of the Christmas trading period would … cause substantial injustice and hardship to Samsung'."

III. Apple Faces Increasing Adversity in Proving its Claims in Australian Court

If Apple exhausts its appeal, its only hope now is to wait for the main hearing in the case, which could be months away given Samsung's refusal to engage in an expedited trial.  While Apple could win in that hearing and gain another injunction, experts say this outcome may be unlikely as the preside Justice Bennett will likely be concerned with getting admonished again by the Appellate court that smacked her so hard regarding her first injunction.

Each loss for Apple at this point is a big deal, as the international legal community is watching the outcome of different cases.  While courts in America or Germany obviously give no legal precedence to Australian court decisions, judges often do keep tabs on their foreign peers' decisions in major international legal conflicts like this.

Further, Samsung is growing its mobile device family's sales at a much faster pace than Apple.  Apple already saw its fleeting smartphone sales lead stolen by Samsung earlier this year.  If Apple cannot unilaterally win bans on Samsung's tablets, it risks a similar fate in this market, which it currently owns a majority stake in.

IV. Apple Rejects Samsung's German Redesign

But Apple seems determined to continues its late co-founder's legal crusade to the bitter end.  The company has rejected Samsung's redesign effort in Germany, filing a request to ban the Galaxy Tab 10.1n variant, according to DOW Jones Newswires.

In September Apple won a decision from a German Judge who ruled that Samsung's tablet appeared to be infringement of Apple's intellectual property.  Unlike the Australian case where it asserted technical intellectual property, in Germany Apple made its case for infringement on a design (artistic) basis.  The German ruled that Galaxy Tab 10.1, 8.9, and 7.7 all looked too much like the iPad in their "minimalist" designs and a preliminary injunction was put in place.

Rather than fight the patent as Samsung has done in cases where Apple asserted technology infringement claims, Samsung simply gave its tablet a makeover, changing the frame and back panel slightly and moving the positioning of different elements.  The result Galaxy Tab 10.1N design aired earlier this month.

Apple apparently was not satisfied with these changes.

The ongoing German dispute reflects on one of Apple's two chief legal strategies -- to assert that its design patents granted it sole artistic license to produce the kind of modern, minimalist tablet designs that the market demands.  Apple's second strategy -- as seen in the struggling Australian case -- is to prove that some aspect of the technology used to make Android tablets or create features inside the Android operating system was lifted from Apple's patented mobile work.

In the U.S. Apple is throwing the kitchen sink at Samsung, seeking a preliminary injunction on both a design and technology patent basis.

Sources: Sydney Morning Herald, DOW Jones Newswires

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