The ongoing patent dispute between Apple and Samsung in Australia may require the assistance of a second judge, who will receive technology tutorials in the lead up to the July hearing.
At a directions hearing this morning for the new case brought by Samsung against the commissioner of patents, in which it is seeking to invalidate four patents held by Apple in Australia that are crucial to its suit against Samsung for patent infringement in the Samsung Galaxy Tab 10.1, the commissioner was quickly excused from the new case. This leaves Apple and Samsung to sort out the validity of the patents in parallel with their overarching patent case, which is set to begin on 23 July.
In the lead up to the hearings, Apple and Samsung are still filing evidence for the case, including affidavits from international patent and economics experts. Given the size of the case, Justice Annabelle Bennett indicated that a second judge may be appointed to the case, and that both Bennett and the new judge will be required to receive lessons on the technology involved prior to the hearings.
"With the two-judge concept, the education, even if it is redundant, is probably best for both judges," she said. "I will have had some education by then, which may need to be repeated. You can never hear things too often."
Bennett said that bringing on experts is consistent with how judges in the US have approached technology-focused trials, and in the past she has felt in other cases that she didn't have a sufficient understanding of the technology involved.
Rather than having Apple and Samsung submit all the evidence to Bennett that they may reference in the hearings, Bennett has asked for a "bible" for the case, which will have core documents, outlines of submissions at no more than 15 pages, and information about the patents. She said that the parties should also provide her with empty folders, so that in the course of the trial, any documents the parties wish to be entered can be put in those folders.
"I want to have the minimum documents, and add to them as we go," she said.
As part of the discovery process for seeing how Samsung licensed its 3G patents to other vendors on fair, reasonable and non-discriminatory (FRAND) terms, Apple was provided with a lot of external communication between Samsung and the other vendors. However, Apple today complained that "dozens and dozens" of internal documents from Samsung's "IP Centre" are said to be privileged, and have not been provided to Apple.
Samsung's counsel Ian Wylie told the court that the IP centre within Samsung is populated by lawyers and patent experts, and that almost all of the documents that Apple is seeking were created after Apple commenced litigation across the globe, and relate to Samsung's strategy against Apple in those cases — and therefore would be subject to privilege.
He said that the documents are written in Korean, and that Samsung's legal team in Sydney is in the process of having them translated to English before they could make a decision on what to provide to Apple. Bennett suggested that this matter could be dealt with outside of the case by a referee — a retired judge, or a registrar with patent experience.
Although the size of the case threatens to blow out the duration of the hearings, set to run from 23 July until 12 October, Bennett is keeping a tight leash on all parties in the case, and has said that the case cannot go past 12 October, as she has another trial set down to hear after that date.