Samsung hearing plan draws Apple ire

update Apple has slammed a hearing deal proposed by rival litigant Samsung today, saying that splitting the issue into three separate cases would confuse the case and evade the necessary "rigorous analysis" in the courtroom.

(My trusty gavel image by Brian Turner, CC2.0)

Samsung took Apple to court over patents that it has allegedly infringed upon in its iPhone models from the 3GS iPhone onwards. Samsung has been pushing for the case to be heard as quickly as possible, but Apple said in December that it would not be ready for a hearing on the case in March, saying that it needed more time for preparation.

At stake are three matters: 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's most recent proposal saw the Korean-based gadget maker offer a deal where the two parties would have each matter — the patent case, the FRAND case and the competition case — separated into three parts, with the first starting in April. Samsung stated its plans before Christmas to propose splitting the matters, but Apple said then that there is too much overlap between the split portions.

Apple vehemently rejected Samsung's proposal to split the case this morning before Justice Annabelle Bennett, saying that it is a prime example of sloppy case management.

"It seems to be proposed that patent matters ... are treated as a deliberately split-up case, with settlements to be heard at different times. There are huge problems with the proposition," said Stephen Burley QC, representing Apple.

One of Apple's primary concerns remains the presentation of witnesses and subject-matter experts to the court. Apple claimed that both it and Samsung would need to rely on the same witnesses in different sections of the case, meaning that they would need to be called twice or even three times to give evidence before the court.

"[Samsung's] proposal that they're suggesting ... is that the patent-infringement case experts be cross-examined before evidence is even filed in the overlapping competition and infringement cases, which requires further cross-examination of the same witnesses at a later date," Burley QC said in objection, adding that breaking the three cases up would see the parties fighting on multiple fronts.

"It's also an extraordinary step to take as a matter of case management — to deliberately start a case knowing it can't finish is an extreme step," he said, adding that "there is no urgency that requires such a step."

Neil Young SC, appearing for Samsung, disagreed with Apple's assertions, saying that splitting the cases is nothing new.

"The idea of having a stage-based hearing broken up into parts is common practice. It's simply an adjournment, where we then address the later stage of a case. Your Honour originally set aside six weeks in March and April ... that time has been set aside, and we desire to use it. These issues aren't going to go away unless they're resolved by a court," Young said.

Samsung also shot down Apple's claim that hearing from multiple witnesses at different times would cloud the case, saying that technical testimony does not change over time.

"There's no reason to see why that purely technical evidence can be in any dispute."

Samsung mounted its own offensive in court, saying that Apple only filed the competition-law counterclaim — which alleges that Samsung was singling out Apple when it could have gone after any phone manufacturer or network carrier — after it lost its appeal to have the Galaxy Tab 10.1 banned in Australia. Samsung also said that Apple has brought its most recent timetable restrictions upon itself.

"Apple made no reference at all to raise a competition case ... even though they had [formally set out] a case in the US. It's set for trial in June or July, and there was 13 days set aside ... for that hearing. A conscious decision was raised in Australia that [a competition-law case] would not be raised in [local] proceedings.

"There is no evidence that Apple did any work to prepare evidence prior to 20 December relating to the competition case. It appears to be a matter which appeared during 2012," Samsung said.

After hearing a day's worth of submissions, Justice Bennett proposed that both parties submit to the court a draft set of short minutes that sets out what has to happen and when, so that the two can come to a middle ground on hearing dates.

"It's not good enough ... to set down a date and say it'll all happen by then. Give me a set of short minutes that take care of all the steps that need to take place between now and the hearing, [like] experts meeting [and] who needs to apply," Bennett said.

The case was adjourned until next Wednesday.

Updated at 4.30pm, 3 February 2011: added last three paragraphs on Bennett's orders to the parties.

Michael Lee also contributed to this article.