Samsung fires back in Apple Oz Galaxy suit

update In the latest developments in the ongoing patent saga between Samsung and Apple, Samsung today revealed a plan to countersue Apple for patent infringement within its flagship iPad tablet while pledging to push back its official launch date to the end of next month.

Samsung Galaxy Tab 10.1(Credit: Samsung)

Legal representatives from both parties met for a directions hearing in the NSW Federal Court today, where barrister David Catterns, acting for Samsung, revealed to the court a plan to countersue Apple once the case made it to trial.

"Our cross claim will include a cross claim of infringement for a number of our patents that have been infringed by their [Apple's] iPad," Catterns told Justice Annabelle Bennett today, adding in a statement that its counter-claim would also encompass the Apple iPhone.

Apple Australia originally sued Samsung after it felt that the gadget maker was infringing on its patents in its upcoming Samsung Galaxy Tab 10.1. Samsung contested the allegation, saying that Apple Australia was basing its claims on the US version of the Galaxy Tab 10.1. The two parties at the time agreed to an undertaking that would see Samsung hold its shipment of the Australian version of the Galaxy Tab 10.1 until Apple had the chance to study three of the units, seven days before the proposed release of the device to market.

Apple Australia told the court that it had received the units last Thursday, and had until this Thursday to complete its investigation. Representatives acting for Apple Australia told the court that they had found two patents that Samsung had allegedly violated, in the investigation process, that support the Apple case. Apple Australia has also added another patent to the laundry list of existing alleged infringements.

The interlocutory relief originally agreed to in the legal stoush expires on Thursday, with the court hearing that unless Apple can acquire further relief in the case, Samsung could easily launch its tablet on Friday.

Catterns, acting for Samsung, told the court that the company had intended to release the device on the week of 12 September, most likely on the Thursday or Friday, but, due to uncertainty in the legal proceedings, Samsung agreed to push the release of the Galaxy Tab 10.1 until the week of 30 September to allow for legal action to proceed. Samsung also agreed that it would give Apple Australia 48 hours' notice before releasing the device to market.

Catterns added that any further interlocutory relief in the form of an injunction would be inappropriate and biased against Samsung, adding that Apple has failed to submit any real evidence to the court support its case.

"There is no evidence ... and this is not an appropriate time to grant an interim injunction till Friday.

"We oppose our friends getting an extra interlocutory order," Catterns said, adding allegations that Apple had sought to misuse legal injunctions in other jurisdictions to block the sale of the Galaxy Tab 10.1.

Apple Australia fired back at the claim, stating that it was ready with evidence to submit.

"We're ready to file evidence if necessary. We can be at the court tomorrow to protect ourselves," Apple's legal counsel told the court.

"We're ready to turn up for an interlocutory fight," Catterns responded.

Samsung and Apple reconvened before the court this afternoon after almost a day of negotiations, with Apple pledging to appear before the court to explain the patents included in the case, so that the court can make an informed judgment.

Short minutes of order agreed to in court saw Apple banned from adding new patents to the court case. The gadget giant, however, is allowed to present new patent claims, meaning that Apple is barred from obtaining new patents to sue Samsung with, but can present patents that it already owns to the court. Samsung claims that the order was necessary after Apple added a heuristics patent to the case at midnight last night.

The two parties will meet for a hearing on 26 September, while explanatory hearings are set to take place on Friday.

Samsung reaffirmed in a statement this afternoon that it will hold the sale of the Samsung Galaxy Tab 10.1 until the week of 26 September, but was at pains to point out that the hold on the product does not represent an injunction.

"Samsung has agreed to delay the launch of the Galaxy Tab 10.1 pending the court's decision in the week commencing September 26, 2011. It should be noted that the court has not issued an injunction against the sale of the Galaxy Tab 10.1, and the court did not make any ruling during today's hearing.

"Samsung will continue to actively defend its right to launch the Samsung Galaxy Tab 10.1 in Australia in order to ensure that consumers have a wider selection of innovative products to choose from," the company said in a statement.

Updated at 4:38pm, 26 August 2011: added information from the afternoon's hearing and statement from Samsung.