Apple seeks to delay possible iPhone ban

update Samsung is pushing for the court case that could see the ban of sales of the iPhone 4S in Australia to be heard as soon as possible, while Apple seeks to delay the case.

At stake are three matters: three patents relating to 3G technology that Samsung claims have been used without permission, the ability to use the technology under a fair, reasonable and non-discriminatory (FRAND) licence and issues of competition law.

Samsung has been pushing to keep to an existing final hearing date of 8 March 2012; however, Apple has stated that it would be impossible for the company to be ready in time, citing technical issues.

Apple claims that in order to properly submit evidence for its case, it would need to consider whether Samsung's technology is not only used in its own devices, but also in those of all competitors in the market, such as Motorola and Nokia, as well as all network-services providers, such as Telstra and Optus. It argued that the proposed trial dates were scarcely realistic, and said that while it may be possible to have its case heard in the currently proposed schedule, it does not take into account preparation time.

Justice Annabelle Bennett appeared unconvinced of the need to interrogate competitors and network-service providers, at one point interrupting Apple's lawyers and exclaiming, "Seriously?"

Apple also claimed that there was no real matter of urgency for Samsung, as the technology that it is claiming Apple infringes upon would have been in place for several years, as far back as the iPhone 3GS. Even in the case of the iPhone 4S, Apple's lawyers submitted confidential sales figures to Justice Bennett, stating that Samsung simply "stood by and watched" as it moved "very large quantities" of stock.

Samsung's lawyers did not go on to dispute this argument. Instead, it pushed on finding a way to ensure that the case continued to its schedule. Apple's lawyers in the US have, according to Samsung, claimed that there is some overlap between the US case and the Australian case. Using this as a basis for its argument, Samsung said this demonstrates that the time frame for the Australian case should be similar to that of the one in the US.

It said that it would not be unreasonable to split the competition law aspect of the case into a separate case. By considering just the patent and licensing issues, Samsung said that Apple would able to produce the evidence for its argument on time.

However, splitting the case is no small task, given the necessity to avoid any overlapping of issues that could be solved in a single court case. Justice Bennett said that this was not a decision that should be made "on the run", and required a more formal application.

Apple argued that there would be a significant overlap between the two cases because of the need to bring technical experts in to discuss the technical issues in both the competition law case and the patent case. Samsung's lawyers did not see it that way, considering the two issues to be separate. Who is right will only be determined once the case gets under way and is examined in further detail.

The hearing dragged on until Bennett said that neither party had sufficiently presented their argument for her to comfortably make a fully reasoned decision about when the case would be heard.

"I'm not going to do it this week. I can't. I'm physically not capable of it. If the parties want to turn up on public holidays, I'll consider it, but I'm not saying I will," she said, referring to the fact that both parties had taken up the entire day in what should have been a simple matter, and that the timing of the year meant that physical resources are scarce.

Justice Bennett said that the issue of the final hearing dates would stand over until 3 February next year. Samsung, unhappy that the problem is still up in the air, raised concerns that Apple would use the opportunity to "sit on its hands" and further delay the case. Apple's lawyer reassured the court that there would be "no slacking off", but reaffirmed that it is not abandoning its application to have the hearing dates vacated.

Meanwhile, Apple has issued Samsung with a new statement of claim. It believes Samsung has infringed its rights over 10 of its patents, nine new phones and four registered designs. Samsung today clarified that the additional claims do not relate to protective cases as has been indicated in media reports, but are related to the "utility of mobile devices and design rights related to the external appearance of devices".

Updated at 5:36pm, 21 December 2011: added information on Apple's additional statement of claim.