update Australians won't see the Samsung Galaxy Tab 10.1 tablet next week, because the High Court today extended the order that sees the ban on the device remain in place until next Friday, for the purpose of an expedited special-leave hearing.
The decision means that Samsung's win over Apple on Wednesday in the Federal Court of Australia has turned into a bittersweet victory, with the extension meaning that the Korean gadget makers hurried plans to launch the Galaxy Tab 10.1 before Christmas have been thrown into disarray.
Samsung told the court that it had planned a "high-velocity launch" of the Galaxy Tab 10.1 into the Australian market in order to maximise sales in the fast-moving Christmas sales period.
The court heard that Samsung planned to begin importing the Tab 10.1 at 4.01pm AEDST this afternoon — one minute after the original stay expired — with a view to sell the devices next week. One retailer had already jumped on the Galaxy Tab 10.1 bandwagon yesterday, with Vodafone proclaiming that it is ready for the device.
Justice John Dyson Heydon's orders handed down today see the two gadget giants meeting again on 9 December 2011 for an application for special leave to appeal the verdict handed down by the full bench of the Federal Court (meaning that next Friday's hearing will be about whether or not the High Court will hear the appeal proposed by Apple, as opposed to hearing the appeal itself).
Patent lawyer Dr Mark Summerfield said this week that it is highly unlikely that the High Court would even consider hearing the appeal proposed by Apple.
"If the High Court thinks [the full bench decision] has been misinterpreted, it may be disposed to hear an appeal. However, on the basis of the factual findings, it does not seem that it would make much difference, even if the High Court wants to correct the full Federal Court's legal reasoning. Three out of four Federal Court judges who have looked at the case have found no prima facie case of infringement.
"The High Court would almost certainly not overturn this factual finding, so by any legal reasoning (even Justice Bennett's), an injunction is not appropriate. We therefore think it possible that once Apple's lawyers have read and digested the decision, they may decide, after all, not to spend more of their client's money on a most likely doomed application for special leave," he said.
Justice Heydon noted today, however, that the case had so far seen a disagreement between two judges in the interpretation of patent legislation, demonstrated in Justice Bennett's original ruling and the ruling of the full bench of the Federal Court.
"The decisions in the [two] courts ... show a difference in opinion between two patent judges. The fact that Bennett was reversed shows that Samsung is not without some prospect of success," Justice Heydon said today.
Samsung expressed its outrage at the decision.
"Samsung believes Apple has no basis for its application for leave to appeal and will vigorously oppose this to the High Court," the Korea-based gadget maker said in a comment today.
Updated at 12:11pm, 2 December 2011: added comment from Samsung.