Apple, Samsung case a 'storm in a teacup'

Apple's Australian court action against Samsung over its Galaxy Tab 10.1 will not make it to trial, and will only cause a minor delay to the product launch, according to a patent and intellectual property lawyer.

Samsung Galaxy Tab 10.1. (Credit: Samsung)

Dr Mark Summerfield, senior associate at Melbourne-based firm Watermark Intellectual Asset Management and author of the blog Patentology, told ZDNet Australia that the legal action between the two tech giants is "a storm in a teacup"; Apple is merely using the timing of the Australian launch of Samsung's tablet to send a message that it will assert its rights.

The action in Australia has already been initiated in almost a dozen other marketplaces around the world, he said, and won't be settled here, being just a manoeuvre in wider "international wrangling" between the two companies.

"High-tech cases like this are very rarely fought out here when no Australian companies are involved. These are imported products and not manufactured here, and you'd rarely see this kind of tech fought out in an Australian court."

Samsung has already agreed to provide Apple with three samples of the product that it plans to release in Australia, and agreed not to advertise, sell or supply the device to consumers until Apple has had seven days to review the product.

Apple could appeal for an interlocutory injunction after the seven-day period expires, but this would most likely be denied because its case is weak and it has the ability to seek damages in the future, according to Summerfield.

"The court will not restrain a party from trading in a product prior to a full trial unless there is an extremely good reason to do so.

"It is not credible that Apple could establish a strong enough case to justify an injunction based upon alleged patent infringement by a product that has not even hit the market yet."

This was especially the case, because the patent issues were mainly software ones, which could be avoided by changing the software, according to Summerfield.

"Even if it's still infringing, it's only a small part of overall product, and the courts generally aren't going to be that keen to slap injunctions on parties on a product of that kind."

This led him to believe that the Galaxy Tab will be released in Australia this month, and that ultimately, both parties will reach a global settlement.

If Apple was seriously pursuing the litigation, it would use the American legal system, he said, which is better equipped for patent litigation and provides better "bang for your buck".