Apple Blocks Samsung Galaxy Tab Import in Australia

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Apple has blocked the import of Samsung’s Galaxy Tab 10.1 multimedia tablet in Australia thanks to a court agreement. The iPad maker has sued Samsung in Australia, as well as eight other countries, over patent infringement claims, and now the company has agreed to keep the Galaxy Tab 10.1 out of the country until their court room battle has been resolved.

Want a Galaxy Tab 10.1? Not in Australia.Samsung’s Galaxy Tab 10.1 will be hard to come by in Australia

The agreement, according to Bloomberg, means Samsung won’t advertise or sell the Galaxy Tab 10.1 in Australia until the lawsuit has been resolved, or the court grants approval for in-country sales. In exchange, Apple will pay Samsung an unspecified amount should it lose the lawsuit.

Apple and Samsung have been locked in a legal battle over patent infringement claims for several months. Both companies have alleged that the other’s mobile devices use patented technologies without proper licensing. Both have filed lawsuits in the U.S. and other countries.

Samsung is also facing a potential import ban in the United States, too. Apple filed for a preliminary injunction in U.S. District Court in Northern California in early July to block the import of the Galaxy S 4G, Driod Charge, Infuse 4G and Galaxy Tab 10.1. A ruling hasn’t been announced yet.

Apple hasn’t commented on its agreement with Samsung in Australia.

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Comments

jimothy

This is really bad news for Samsung. It could result in the loss of dozens of sales.

daemon

Samsung agrees to stop selling the Galaxy Tab 10.1 in a country that it has never sold the Galaxy Tab 10.1 in nor advertised the Galaxy Tab 10.1?

That was some low lying fruit….

skipaq

This is not about Samsung as much as it is about Android. If patent and court decisions begin to add up against them then confidence in what Google is offering will be undermined. These companies will likely turn to someone else for an OS. They could develop their own; but that would lead to so much fragmentation that such a plan has little chance of success.

Anyone who thinks Apple’s target is anything other than Android is making a serious business error. I don’t know which way these legal battles will shake out; but these OEM’s have to be screaming in Google’s collective ears.

mhikl

Will be interesting to see how an Apple distractor would interpret Australia’s move, should he dare to raise his pout. Also of some interest are the sweet points made on AppleInsider that 74% of Version customers await Apple?s new iPhone and 42% of its Android customers are interested in switching to Apple.

Questions, questions, so many questions.

Has Android reached the summit of its sprint; is there a tipping point to obliteration within sight of this twisted crawl; will the long wait for iPhone 5 unleash dancing in the street, the lionization of Apple style and innovation? Has Apple finally taken the gloves off and chosen to let slip the dogs of war?

Now, back to Julius Caesar.

Lee Dronick

Has Android reached the summit of its sprint; is there a tipping point to obliteration within sight of this twisted crawl; will the long wait for iPhone 5 unleash dancing in the street, the lionization of Apple style and innovation? Has Apple finally taken the gloves off and chosen to let slip the dogs of war?

Now, back to Julius Caesar.

?There is a tide in the affairs of smart phones?
Which taken at the flood, leads on to fortune;?
Omitted, all the voyage of their life
?Is bound in shallows and in miseries.?

Anyone who thinks Apple?s target is anything other than Android is making a serious business error. I don?t know which way these legal battles will shake out; but these OEM?s have to be screaming in Google?s collective ears.

It is going to be interesting that is for sure. Kind of like the other side of the coin with Lodsys going after app developers; Will Google step in with their legal legions to help the OEMs as Apple did for their developers?

mhikl

Sir Henry,
Well done, brave knight.
to knaves that doubt
the kindred spirit of fair Apple.

Your skills fare exceed mine when it comes to the quote. I know enough to mangle the bard’s words but your trusty eye sees clear through the mist. Has Shakespeare been a life long quest or did your turn on the seas, like Conrad’s, give you time to relish his works?

But back to point.

Apple just astounds me. Like the little train that thought it could, it now consumes the news. There are so many Apple sites, so many places where it is the discussion, and all this revolves around what should be a boring business title. It truly is the grand movie star who gets more alluring with the slightest move of the hand or perceived glance of the eye. How it must drive the distractors mad! What other business company demands such poetry.

Lee Dronick

Your skills fare exceed mine when it comes to the quote. I know enough to mangle the bard?s words but your trusty eye sees clear through the mist. Has Shakespeare been a life long quest or did your turn on the seas, like Conrad?s, give you time to relish his works?

I started reading him, and other classics, when I was quite young.  However, it wasn’t till much later that I really started to appreciate him. For about 10 years, until last year, I was doing graphic arts and webpage design for a community theater; They also got me into doing set design and construction as apparently I am the only person in the area that can do angles and arches. Anyway one of the Directors who is an authority Shakespeare gave me some books about the Bard and that was the tipping point. These days I do readings at the San Diego Shakespeare Society meetings debating with myself if I dare open the Pandora’s Box of acting. I highly recommend the book Shakespeare’s Wordcraft by Scott Kaiser

Apple just astounds me. Like the little train that thought it could, it now consumes the news. There are so many Apple sites, so many places where it is the discussion, and all this revolves around what should be a boring business title. It truly is the grand movie star who gets more alluring with the slightest move of the hand or perceived glance of the eye. How it must drive the distractors mad! What other business company demands such poetry.

It is amazing how Apple seems to have the business and media world so often focused on them. There is a skill in that and very few people can pull it off.

Nemo

While I am not competent to opine on Australian law, Apple’s agreement with Samsung appears to be a private agreement among the parties rather than a court’s injunction.  However, one must ask, why would Samsung enter into such an agreement, if it was confident in its case?  Why would Apple make such an agreement, if it though that it would lose the case in chief? 

Let me do some speculating.  I imagine that at a private conference in the Justice Annabelle Bennett’s chambers, Apple showed sufficiently strong evidence and arguments in support of its request for an injunction over Samsung’s opposition that Justice Bennett indicated or even said that she was prepared to grant Apple’s injunction, unless Samsung could show something stronger in opposition to Apple’s request for an injunction, and Justice Bennett scheduled further briefing and a hearing on an injunction. 

At a recess in the proceedings, Samsung and Apple started to negotiate.  Samsung could see that Apple was going to win an injunction, which, if Australian law is similar to ours, means that Justice Bennett was prepared to conclude that Apple would win on the merits in the case in chief.  Apple, for its part, wants to stop the sale of infringing Galaxy Tabs in Australia.  So we have the basis for a deal, which reminds me of the deal that Apple struck with Psystar.  Samsung agrees not to advertise, sale, or otherwise distribute the Galaxy Tab in Australia, unless it wins the case or until the parties reach a settlement that permits Samsung to sell the Galaxy in Australia.  In consideration, Apple agrees that if Samsung wins the case, it will pay Samsung some damages, liquidated damages, for not being able to sell the Tab in Australia.  Thus, Samsung avoids Justice Bennett handing down an injunction, while Apple achieves its objective of blocking the sale of the Galaxy Tab in Australia.

But this kind of agreement, if I am close to being right in my speculations, supra, shows that Samsung has a very weak case and expects to lose.  Obtaining an injunction before judgment in the case in chief is a high standard.  That Samsung cut a deal to avoid an injunction indicates that it is in serious trouble.  That Apple would agree to pay liquidated damages—an agreed amount of damages in lieu of actual damages—which is almost certainly less than what Samsung’s actual damages would have been, indicates that Apple is convinced that it will never have to make that payment.

Of course, we still must finish the case, and anything can happen, but this appears to be a very bad development for Samsung.  And I bet that Samsung’s engineers and designers are urgently at work redesigning the Galaxy Tab to remove as much of IP, which Apple has alleged to be infringed, as they can, while still producing a tablet computer that people will want to buy.

And a word about the commercial viability of Android as a mobile OS that is available without having to pay a monetary royalty.  That proposition is starting to unravel.  Microsoft is already obtaining substantial royalties from Android OEMs for its IP, mostly without even having to fight an infringement lawsuit.  So several major Android OEMs are already paying a monetary licensing fee for Microsoft’s tech in Android devices.  And Microsoft and Samsung are in negotiations now to get Samsung to pay such a licensing fee. 

Oracle appears to have Google in serious legal jeopardy in a case before the Hon. William Alsup, where Judge Alsup, in a Daubert order rejecting Oracle’s expert’s opinion on its damages, discussed a highly incriminating email from Andy Rubin to the troika then leading Google.  In that email Rubin admits that Google negotiated with but never got a license from Sun for Java and that the troika must decided to either abandon all development of a Java IDE for Android and use Microsoft’ tech, or simply use Java without permission and be prepared to defend that decision.  We all know what the troika decided to do.  With this evidence of intent, if Oracle can prove infringement, Judge Alsup, while he has no desire to disrupt industries or curtail competition, will have little choice but to apply a severe sanction to Google for competing unfairly by infringing on Oracle’s IP rights in Java.

And, of course, Apple is aggressively pursuing Android OEMs for alleged infringement of its IP.  And Apple, if successful, isn’t interested in licensing its IP.  Apple will want the courts to enjoin the infringing practices of Android OEMs with an order banning the distribution and sale of infringing Android devices and the sequestration and destruction of all infringing Android devices in the United States and in any other country where such remedies are available.

So I think that if you are an Android OEM or developer, you’ve got to start looking at your options.

Bosco (Brad Hutchings)

With this evidence of intent, if Oracle can prove infringement, Judge Alsup, while he has no desire to disrupt industries or curtail competition, will have little choice but to apply a severe sanction to Google for competing unfairly by infringing on Oracle?s IP rights in Java.

This is a totally meaningless conclusion without your “over-under” on damages. If it costs $100M and being found a gross, deliberate infringer copycat info-commie to own more than 50% of a multi-billion dollar market, I’ll take that all the way to bank, and anyone who wouldn’t is a loser.

Your over-under number and where the number actually ends up will tell us how seriously to take IP maximalists like you in future skirmishes. So let’s have it!

I’ll give you two numbers… The first is a judgement or settlement. My number is $200M. Any number that or less basically means that big companies can infringe all they like and the courts will impose compulsory licensing. That’s better in my view than letting big companies use patents to just obstruct others from innovating in their own way.

The second number… Oracle gives up on Java and sells it to Google. $1B.

Nemo

Dear Bosco:  Judge Alsup did not conclude that any amount of damages for Oracle was the right or wrong amount.  What he concluded was that Oracle’s expert’s opinion on damages did not meet the Daubert standard for being admissible expert opinion, as set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and as now codified in Fed. R. of Evid. 702.  Rule 702 provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

Under R. 702, the judge is the gatekeeper on what satisfies the Daubert standard and, thus, on what may be heard by the trier of facts, be that judge or jury.  What Judge Alsup found, as that gatekeeper, was not that billions of dollars in damages for Oracle was wrong but that Oracle’s expert opinion supporting its damages did not meet the Daubert standard, supra.  And see Daubert at 589 for the U.S. Supreme Court’s statement of standards for admissible scientific evidence.  After rejecting Oracle’s expert opinion, Judge Alsup ordered Oracle to provide an expert opinion by a date certain that does comply with R. 702.  Oracle, thus, can come back with the same damage amount or even a larger amount, provided that it, in Judge Alsup’s judgment, meets the Daubert standard. 

So no, Google’s $100 million number is not the amount of damages at stake in Oracle v. Google.  However, Judge Alsup isn’t affording Oracle n number of opportunities to submit an expert opinion on damages that, in his view, satisfies the Daubert standards.  Oracle has one more shot, and I expect that, after reviewing Judge Alsup’s order rejecting its first expert opinion on damages, Oracle will produce an expert opinion on its damages that satisfy Judge Alsup view of the Daubert requirments, and it will probably be a wee bit more than $100 million, but it will be an expert opinion so clearly and indisputably within the requirements of R. 702, as laid out by Judge Alsup in his order rejecting the prior expert opinion, that Judge Alsup will permit it.

But we shall see.

Bosco (Brad Hutchings)

Nemo, you’re hiding behind process. That’s why I’d like your number for what the decision or settlement will be. Two other questions for you:

1. If your number is correct, was it worth it for Google to just proceed as it did?

2. If my number is correct, was it worth it for Google to just proceed as it did?

A third question is:

3. As an officer of the court, would you be offended if “infringement” just becomes a mechanism to cost-effective compulsory licensing? (The policy wonk in me is delighted by that possibility and even more delighted that aggressive protection of IP might be leading to it.)

Nemo

Oh yes, and if Judge Alsup or the jury finds intentional infringement, Google could be liable for treble damages, that is, three times the amount of Oracle’s actual damages, plus all of Oracle’s legal fees and other expenses incurred in prosecuting its infringement action. 

And Bosco, since I can’t whip an expert opinion on Oracle’s damages out of my ass or at least, unlike you, choose not to, I don’t have an estimate of Oracle’s damages if it prevails.  I will leave that to Oracle, Google, Judge Alsup, and if the case goes to a jury, to the jury.

Bosco (Brad Hutchings)

I didn’t ask you to pull a number out of your ass. Nor did I ask for a detailed analysis of damages. I asked for the [i[expected value (another probability concept) of this case. I asked it in the context of weighing, as a business decision, whether infringing, even deliberately, might just be good business. Surely, if you won’t give me a number, you’ll at least recognize that there might be a fairly high threshold where what your lawyer brethren take so seriously is just rounding error on market advantage gained grin.

Nemo

Bosco, you’re right I am hiding behind the law, but I often do that and hide my clients behind the law too.  It has been a very effective strategy, as court seem to respect the law.  Here the relevant law is the Daubert standard.  I expect that Mr. Jacobs will more effectively hide Oracle behind it in Oracle’s second and most likely final attempt at offering an expert opinion on damages.

And infringement litigation is often licensing by other means.  That is and has ever been one of its legitimate purposes, as the courts determines parties’ disputed rights.  Once the courts make that determination of the parties’ rights, either the court seized of the matter or the parties through settlement often reach a licensing deal.  However, since we are dealing with property rights, as set forth in Title 35 of the United States Code, the owner of patent rights needn’t grant a license but may simply ask the court to issue an injunction enforcing its right to prevent others from making, using, offering to sell, or selling any patented invention, within the United States or importing into the United States any invention that infringes on the patented invention.

Nemo

Dear Bosco:  I know that you don’t have a clue of how difficult it is and the degree of required expertise in market economics, finance, the particular product markets at issue, the particular products at issue, and access to market and manufacturer’s data, ect. that it takes to come up with a decent estimate of damages.  So you’ll simply have to take my word for it that with out that expertise and data, estimating Oracle’s damages can’t be done off the cuff in any way that is useful for any purpose other than pure fantasy.

Nemo

And finally, Bosco, Judge Alsup isn’t limited to a judgment for damages, as I said, supra, he can issue an injunction banning all imports of infringing Android devices, ordering the sequestration and destruction of all infringing Android devices, prohibiting the sale or other distribution of infringing Android devices, ordering Google to remove the infringing elements of Java from all current and future versions of Android. 

Now, you tell me whether an injunction of that scope would be even a viable business outcome for Android, Android OEMs, and/or Android developers.  And, if Judge Alsup finds intentional infringement or an intention on Google’s part to simply the absorb the damages and continue infringing, as he did with Psystar, precedent and law virtually requires him to issue an injunction that will remedy current infringement and prevent future infringement.

However, we aren’t there yet.  Oracle must still prove infringement on at least some of its important IP claims.  But if it does, given the intent that Oracle seems to have discovered, Google could be hit with not only punishing damages but with an injunction of broad scope to remedy current and prevent future infringement of Oracle’s IP rights in Java.

Bosco (Brad Hutchings)

Oh Nemo, if only I could promote the value of those in my profession without having to assign numbers to their value. I would be invaluable grin.

If you think litigating this is a good idea for Oracle (as you seem to), or that Apple litigating against various large targets is a good idea (again, as you seem to), you most definitely have some scale of number in your mind. I think you’re holding back more so you can call a lower number an actual victory rather than a meaningless moral one.

How about this… Knowing how lawyers pitch their clients on litigation strategies, do you think Larry Ellison would have signed off on suing Google with an expected $200M outcome given that he bought Sun for $7.5B? How about an expected $500M outcome?

Nemo

Bosco:  I haven’t done that analysis of the value of the likely legal outcomes for either Oracle or Apple, because I don’t have the information and solo expertise to do it, but Bruce Sewell, Esq., Apple’s General Counsel, has done that analysis for Apple, and Dorian Daley, Esq., Oracle’s General Counsel, has done it for Oracle.  However, I don’t think that either of them will share their analysis with us.

And my brothers Sewell and Daley work for their respective companies, Apple and Oracle, not for any outside law firms.  But even an outside law firms has a fiduciary duty to give its client its best advice in stating the probability of various legal outcomes of proposed or ongoing litigation.

Once thing is certain, Larry Ellison and Steve Jobs authorized their companies’ various infringement actions, and both seem to be happy enough with how things are going so far to continue.

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