Apple win doesn’t apply to Australia: Samsung

1. agreed.

   • some of apples best work was copied from sony ericsson and hp…

     apple’s way down the innovation food chain… still waiting for something unique they’ve offered ever?

2. “Well, it was always unlikely, given the differing legal jurisdictions.”

   Err what?

   I’m waiting for the US import ban, I figure there’ll be a surplus of S3’s out soon :P

3. If the US trade negotiators have their way the whole US software patent and copyright systems will be exported to countries like Australia under the guise of free trade agreements and things like ACTA.

4. Apple and Samsung are both still making great products, and we (in Australia) can still buy them.

   It’s not an either/or proposition. For companies this size, the business of litigation is just another arm of the overall business.

   And to Peter Kelley, the suggestion that trade agreements will lead to the US ‘exporting’ its IP laws is just so much FUD. Firstly, it is not being proposed that this happen. There is no way the Australian patent system can be converted into the US patent system. Secondly, the signing of a treaty or agreement does not change the law in Australia. If implementation of treaty obligations requires a change to the law, that has to be done through the usual channels, i.e. by passing legislation through both houses of parliament by a majority vote.

   For example, the last US-Australia Free-Trade Agreement did result in some substantial changes to the Copyright Act. But despite a great deal of hand-wringing and hair-tearing from the usual suspects, the biggest amendment to our Patent Act was to make the ground of ‘inutility’ available as a basis for pre-grant patent opposition, i.e. something trivial that hardly anybody understands, and even fewer care about.

   As for the pharmaceutical-patent related changes to the Therpeutic Goods Act, again despite much FUD there has been no noticable impact on prices, accessibility of availability of drugs in Australia, or on the viability of the Pharamceutical Benefits Scheme.

   Incidentally, I don’t see the S3 (or the Galaxy Note) getting banned in the US. Apple would have to establish that they are merely ‘colourable imitations’ of the products that have been found to infringe (i.e. that the differences are so minor that there is no need to look at them in any detail to establish whether or not they also infringe). In my view, they are too different, and there would need to be a further trial to look at them.

   • hey Mark,

     “we (in Australia) can still buy them”

     This is precisely the point — both sides are trying to stop Australians being able to buy the others’ products. This isn’t something happening on paper — it’s a real life court action in Australia.

     Renai

     • “it’s a real life court action in Australia”

       Really?! Huh!!! Why did nobody tell me??!!??!?!

       But — gratuitous sarcasm aside — we are talking about a ‘real life court action’ in which Apple’s claims against Samsung will not be heard until next year, where we will not get a decision until perhaps the middle of next year, which will then be appealed, which appeal will then be decided in 2014, and which will then be (or attempted to be) appealed to the High Court.

       Ultimately, some infringements will no doubt be found, and some damages will be awarded (nothing like the inflated sums juries give plaintiffs in the US). But there will be no injunctions, because none of the products accused in the current action will still be on the market.

       People keep asking me what the point of it all is (outside the US). I used to respond with some comments on strategic value and such. But the longer it goes on, the more I wonder if there is really much point at all, and if we should all perhaps just start treating it as the largely irrelevant background noise that it probably is.

       But who am I kidding? So long as writing about Apple and Samsung keeps delivering clicks, we’re all going to keep writing, and talking, about it!

       Mark

       • “there will be no injunctions, because none of the products accused in the current action will still be on the market”

         Mark, you are coming dangerously close to irrational comment here. There’s nothing to stop Samsung or Apple alleging that more current products contain the same patent breaches which previous models (some of which are sold in Australia right now) have been found to.

         You are basically alleging that nothing will happen in Australia — but I don’t think that’s a reasonable assumption at this time, given what has just happened in the US and the actions which both Samsung and Apple have taken locally. We have already seen local injunctions against Samsung tablets being sold.

         This is not irrelevant background noise. It is a wide-reaching case which is also playing out in Australia. I’m sorry, but I won’t tolerate people dismissing it in comments on Delimiter as you seem to be. Please see our comments policy on this matter:

         http://delimiter.com.au/comments-policy/

         • While you think he’s coming close to irrational comments, I’ve seen other tech sites (specifically ars technica) say the same thing. The injunction largely applies to products that are either at the end of their shelf life, or redundant already.

           Heres a link:

           http://arstechnica.com/apple/2012/08/ban-this-apple-lists-8-samsung-devices-it-wants-kept-out-of-the-us/

           By the time this all finishes up in the courts (after appeals etc) pretty much all the devices in that story will be essentially off the market. Any device more recent , such as the Galaxy S3, has steered away from what made them infringing – cant find the link, but its been mentioned a couple of times on more reputable sites.

           There are more stories than just that one doing the rounds, all different (so not just reposting the same story) but all essentially saying the same.

           The opinion that any injuctions will be moot is a fair one. Whether its right or not only time will tell, but if the key court case only went as far as the Galaxy S2, and didnt include the S3 in the sweep, it says a lot about whether apple thought the device infringed or not.

           Or maybe I’m wrong and the S3 wasnt about by the time they had to list all the devices… Thats more than possible :)

           Want a good read though, look at the groklaw story (http://www.groklaw.net/article.php?story=2012082510525390) on where the jury has made mistakes. This is far from over in the US, let alone here.

         • Renai

           You may think I am being irrational, but I do, in fact, have some small idea what I am talking about. Rather than attempt to rehash my full reasoning here, I invite you to read some of the recent posts on my blog (particularly the one including my interview on the WJS online ‘Asia Today’ program, at http://blog.patentology.com.au/2012/08/talking-to-wsj-asia-today-program-about.html), and also the comments which I (and, independently, another Australian patent attorney) gave to Suzanne Tindal at ZDNet (http://www.zdnet.com/au/does-the-us-apple-samsung-verdict-matter-in-australia-7000003275/).

           I do not see anything in your comments policy that makes it OK for you accuse me of irrationality simply because I hold a view – based on extensive and highly pertinent professional experience – that does not accord with your current opinions on the matter.

           I can assure you it is not irrational to assert that there will be no final decision in the Australian case until 2014 — this is highly likely. It is also not irrational to assert that a case founded on allegations that products X, Y, and Z infringe a patent cannot result in an injunction against a different product D. This is how our legal system actually works — once a trial is underway, the judge will not just let the parties keep adding new allegations. For example, if Apple wants an injunction or damages against sales of the Galaxy S3 (not currently part of the case) it has to file a whole new law suit. If it is in the interests of efficiency, the judge may agree to ‘join’ various related suits to be heard in a single proceeding, which is what has happened so far with the various Apple and Samsung claims and counter-claims. However, now the trial is actually underway, this will not happen. There has to be a point at which the scope of the case is closed, otherwise the judicial system simply could not function.

           Cheers,

           Mark

         • hey Mark,

           thanks for your comment.

           I direct you to the following sections of Delimiter’s comments policy, discussing what sorts of behaviour we seek to avoid:

           “Firstly, as before, comments must be more or less ‘polite’, as measured by Australian social standards. This doesn’t mean you need to maintain the sort of conversation level you would use with your mother. It just basically means don’t be rude to other commenters. You may disagree with their opinions, but you should respect their right to hold them.”

           “Comments which display a lack of rationality or reasonableness. For example, a number of commenters on Delimiter over the past year have engaged in the debate, but consistently avoided acknowledging substantive issues raised by other commenters in relation to their argument. Instead, they have deliberately diverted the discussion down another path, annoying many other commenters.”

           “Comments which are highly self-promoting, especially if they don’t disclose conflicts of interest”

           My issue with your comments is firstly that they come across as rude. You present your view as the 100 percent only truth when it comes to patent issues. But this isn’t why your comments concern me. It’s the irrational comments you make.

           For example, I note that in this comment, about the CSIRO case, you claim that all media coverage of the CSIRO case in the US has been biased, and predominantly based on information from the defendants:

           http://delimiter.com.au/2012/04/12/is-the-csiro-a-patent-troll-us-debate-turns-feral/#comment-377655

           Given the wide amount of information available on the trial, this is not a reasonable conclusion. It is just not true that all media coverage of a certain case would be biased, or based solely on the defendants’ views. Thousands of publications have covered this issue globally. Is the New York Times biased? The Wall St Journal?

           In today’s posts, you stated that there will be “no injunctions” in Australia, and that the case could be treated as “largely irrelevant background noise”. Furthermore, you implied that writing about this case globally was all about “delivering clicks”.

           However, you discounted the fact that both Samsung and Apple are legally able to attempt to block the sale of new products in Australia. And in fact, this is *exactly* what we saw in October last year, when Samsung attempted to get the iPhone 4S blocked in Australia.

           http://delimiter.com.au/2011/10/17/samsung-files-suit-to-block-aussie-iphone-4s-sales/

           It is reasonable to suggest that Samsung might attempt to block the sale of the next iPhone in Australia, or that Apple might do the same with a Samsung product — especially in the tablet space, as it did in August 2011 with the then-version of the Galaxy Tab.

           http://delimiter.com.au/2011/08/02/apple-lawsuitcupertino-blocks-australian-galaxy-tab-launch/

           It would be rational to suggest that such actions might be unlikely, if you gave a reason why. And you may be correct that injunctions with respect to the *current* suite of products being debated in court are unlikely. But it is simply not rational to strongly push the view that there “will” be no injunctions with respect to any Samsung or Apple products, as part of this broader issue. Such a claim goes against past corporate behaviour.

           It is this extremism in your posts which concerns me, and which has concerned me in the past. Because of this, I am placing you on a moderate list. You are not banned from commenting on Delimiter, as you have some valuable information in your posts, but I will moderate any future posts before they occur. I consider this a reasonable compromise. This is not a completely open forum: It is a forum of evidence.

           Cheers,

           Renai

         • Fair enough. Your site, your rules. Ciao!

         • Irrational comments? Really??? Defining arbitrarily what is and what isn’t a major subjective thing like irrationality is itself irrational especially in regards to every situation that might or might not occur in comments based on what can only be described as your (the article writers) posted opinion in the first place.

           Though that statement in your TOS might be a nice legal CYA it can also be detrimental to community building, which I gather is your aim with Delimiter.

           Oh and
           >>Such a claim goes against past corporate behaviour.
           The History of both companies would suggest this yes, though Mark is also referring to his experience with knowing how our court system works when it comes to patents and the injunctions that our courts can, but under our system rarely ever order.

           Mark might come across as snarky and rude, but so would I if someone who really isn’t in the profession and with nothing other than lay experience and what they have read stated that I was wrong. If someone tried the same thing to myself on something about say Digital Forensics I think I would be hard pressed to be half as tactful as Mark seems to be.

           This isn’t a dig at you Renai or anyone really, I just hate seeing a site like Delimiter going down this route. I know how much this place means to you but it’s also a community that I want to see grow and prosper (Think an Aussie TechDirt.. HA!). Take this comment of mine as constructive criticism only.

         • “Defining arbitrarily what is and what isn’t a major subjective thing like irrationality is itself irrational especially in regards to every situation that might or might not occur in comments based on what can only be described as your (the article writers) posted opinion in the first place.”

           +1

         • Oh, I’m going to get smacked for this but…. you are dangerously close to an irrational comment there :P

           All Mark Summerfield stated was that any legal action in Aus would be largely ineffective – the damage awards will be low and the time to get a decision is longer than the product ‘s lifespan. This may be wrong, in which case correct him but it’s not irrational. By your own definition:

           Comments which display a lack of rationality or reasonableness. For example, a number of commenters on Delimiter over the past year have engaged in the debate, but consistently avoided acknowledging substantive issues raised by other commenters in relation to their argument. Instead, they have deliberately diverted the discussion down another path, annoying many other commenters.

           He not avoided acknowledging any substantive issues – let alone repeatedly, nor has he tried to divert the discussion elsewhere. He just has a different PoV.

           However I’d note, at risk of death, that a certain someone has on several occasions now jumped into an otherwise friendly chat, and without any real reason diverted from the issues at hand by referring to the comments policy.

5. Given how many of samsung’s products (circuits, screen, etc) goes in apples products I’d really love to see Samsung cancel or refuse to sell its tech to Apple.

   I know there is competing products out there they could use, but I think it would send a strong warning to those litigious folks at apple.

   • For Samsung to do such a thing would impact Samsung as much as Apple. It would be a **MAJOR** revenue loss for Samsung, additionally Apple could then go seek a new supplier for these screens/pcb’s/chips/etc further hurting Samsung by removing them as the dominant supplier, hence factories would close, R&D would be scaled back, etc. All to prove a message……but to whom? ;-)

   • Imagine a world in which all IT hardware and software industry inventions must be patent listed and available for licensing to all without discrimination using one internationally recognised standard agreement that comes with a capped pricing structure that is based on a percentage of licensee sales revenues (multiplied 10x if failed to license). Imagine it. Apple v Galaxy would be a much smaller argument with no products being removed from shelves. Yes, my utopia would destroy and reshape the industry as we know it but who really likes these few mega powerful companies dictating the creativity of our industry/consumption?

     • Imagine a world where the assembly line was patented back in the 1800’s. We wouldnt have cars, or electronics, or even electricity.

       Take it to a ludicrous level, imagine if Grok the caveman patented fire. Or the wheel…

       • i see your point… but patents do expire you know. I think they last something like 20 years, correct me if I’m wrong. so if someone were to come up with something as revolutionary as fire, it becomes public property anyway but after a they have had their chance to profit from it.

6. I really love Apple products, But the attitude of the management really ticks me off, I am really getting tired of getting ripped off by them, How is it that when the Aussie dollar was quite allot higher than theirs we still had to pay $300 to $400 more for the same thing? I say good on Samsung and bye bye Apple!

7. Hey everyone,

   just a brief note that Apple has added the Galaxy SIII and the Note to one of its US patent suits:

   https://appleinsider.com/articles/12/08/31/apple_adds_samsungs_flagship_galaxy_s_iii_galaxy_note_to_amended_galaxy_nexus_complaint.html

   Cheers,

   Renai

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