Samsung's Australian lawyer Neil Young has accused Apple's legal team of "ambush litigation" by bringing up new defences mid-trial to disprove infringement upon Samsung's 3G patents.
The Federal Court in Sydney returned on Thursday and Friday for days four and five of the patent-infringement case between Apple and Samsung, dealing with Samsung's counter-claim that the iPhone 4, 4S and iPad 2 infringe on three 3G patents held by Samsung.
The past two days have been devoted to Australian Patent number 2006241621: "method and apparatus for transmitting/receiving packet data using predefined length indicator in a mobile communication system". The patent details how to reduce the amount of data sent over a radio link by reducing the packet header size.
This is a standard, as part of UMTS, to ensure efficient delivery of voice over internet protocol (VoIP) data over a packet network.
As he had done with, Apple counsel Cameron Moore attempted to highlight how the baseband chipset provided by Qualcomm and used in Apple's devices implements this 3G standard in a different manner to how Samsung's patent outlines that standard.
Young today objected to Apple's assertion in the court, because he said that this argument was not brought up prior to today.
"Apple should not be permitted to raise that point in that fashion [...] we had no understanding that this was an issue. If it is allowed, we want a fair opportunity to address that point, because it comes to us as a surprise."
Young said it was "ambush litigation".
"Had it been raised [prior to today's hearing], it would have been addressed by evidence of the experts."
Justice Annabelle Bennett hasn't yet decided whether she will reject Apple's argument or instead hear Samsung's objections to that argument.
Young said that allowing Samsung to voice objections is only "second best" to rejecting Apple's argument, but that the company is open to it.
Moore further argued that Samsung's case only compares its patent to the standard, and not to how Qualcomm's baseband chipset carries out that function. He also added that Apple itself is only just coming to understand how the chipset works, because it was built by Qualcomm and not by Apple.
"It concerns functions, or alleged functions, carried out by the baseband chipsets. That is not Apple's chipset. Apple acquires that from third-party vendors," Moore said.
"There is a lot of things about the chipset that Apple just does not know.
"What we are doing in this case is zeroing down to a very, very specific [part] talked about in this chipset, which is not Apple's product."
Moore also noted that while iOS does have VoIP-like applications, such as Skype, Apple is not aware of whether it uses the compression method to transfer VoIP traffic as described in the patent.
"We don't know, because it is a specific type of VoIP, and it talks about compressed headers and we don't know whether our device does that or is capable of doing that."
Bennett set aside the VoIP argument, and said that Apple should consider whether it wants to bring it in later. Bennett added that part of the trouble with Samsung's counter-claim is that it is a very broad assertion of infringement against Apple, and that the speed of the case being put together meant that evidence had not been fully formed by the time of the hearing.
Bennett said that instead, the parties should focus on the argued points of difference around the construction of the patent, versus how Apple's devices implement it — including segmentation, the use of multiple channels, power factors and rate matching.
Samsung has received Qualcomm's source code to examine the methods used in the baseband devices. Young said that Samsung is seeking additional source code from Intel, and, once this is received, Samsung will be able to compare how the device operates compared to the standard.
"We will seek access to the source code and try to address the issue through that evidence," Young said. "There may be a simple experiment that can address the issue."
Bennett groaned at the mention of more experiments being conducted, but indicated that in the interest of fairness, small allowances should be made.
"I believe we should be in a position in this case where parties are not caught by surprise, and if they are, we take reasonable steps to remedy it."
At the end of Friday's hearing, Young handed up a confidential document that sought to address the reason why Apple and Samsung have each separately said that they are willing to negotiate to license the patents while claiming that the other party is unwilling to do so. Bennett suggested that on Monday, the case could go to mediation if this is the case — but she said that the document did not answer whether both are in fact willing to negotiate.
Both parties agreed to look to provide additional documentation.