Samsung keeps Apple's eyes off secret docs

Samsung has convinced the Australian Federal Court not to release some confidential documents relating to the ongoing court battle over patents with Apple.
Written by Josh Taylor, Contributor

Samsung has been handed a small victory in the long-running patent dispute case over the Galaxy Tab 10.1, the iPad 2, and the iPhone 4 and 4S in Australia, with the court agreeing to keep a number of documents from Apple's eyes as they were created when the company considered suing Apple for patent infringement.

The case between Apple and Samsung in Australia began in July 2011, and the full hearing for the case by Justice Annabelle Bennett commenced in July 2012.

While Apple brought the case against Samsung for the alleged infringement of its patents in the Galaxy Tab 10.1, the first few months of the case has focused on Samsung's countersuit that the iPhone 4, 4S, and the iPad 2 infringed on Samsung's 3G patents.

The patents that Samsung has relied upon for the suit are what are known as standards-essential patents, meaning that the technology must be included within 3G devices in order to operate. Samsung is required to license these technologies on fair, reasonable, and non-discriminatory (FRAND) terms.

Samsung has alleged that Apple never obtained licenses for these patents prior to using them in the iPhone and iPad. Apple has alleged that the licensing terms that Samsung sought from Apple were not reasonable and not on the same level as those offered to other third-party vendors.

As part of the discovery process, Apple sought access to thousands of documents from Samsung, and unhappy with what Samsung had produced, asked for more documents from the company. A senior legal counsel with Samsung, Jae-Hwan Kim, wrote an affidavit to the court explaining that a number of the documents Apple was seeking would fall under privilege because they were created by Samsung's intellectual property centre for the purposes of legal advice for potential litigation.

The dispute over access to these documents was heard by Justice Dennis Cowdroy separate to the main case before Bennett.

Apple alleged that, despite the fact that the documents were created by the IP centre, there was no evidence to suggest they were created for the purpose of litigation, and Kim is not in a position to decide whether the documents should be kept secret because he is employed by Samsung. In response, the Korean tech giant said that the IP centre's function is to formulate and advise on litigation strategy, so the documents should be kept under wraps.

In a judgment handed down on December 10, and published to the public on Monday, Cowdroy found that Kim's affidavit doesn't explain how each individual document was related to litigation, and therefore, should not be the subject of privilege. The court also found that because he is an employee, Kim's affidavit cannot be relied on as to whether the documents were privileged.

Cowdroy also said that the documents created in the IP centre aren't automatically guaranteed privilege.

"The Court concurs with Apple's claim that such robotic repetition, without detailed description or explanation, gives the Court little confidence that the document for which privilege is claimed was brought into existence for the dominant purpose of the litigation."

But, "despite the shortcomings" in Samsung's claim, Cowdroy found overall that the documents might fall under the privileged protection, and ruled that more than half the documents Apple had sought access to were protected by privilege.

"From such inspection, the Court has satisfied itself that those documents were prepared in anticipation of litigation at a time when litigation was reasonably contemplated, or prepared after the commencement of litigation for the purpose of assisting in the preparation of the litigation."

Several documents that were partially redacted prior to being given to Apple, now must be given to Apple in full, however.

The case is set to resume at the end of January 2013. Since the commencement of the trial, the case has been heard over 50 days and will be heard through the majority of 2013 until at least December 13, 2013.

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