The Federal Court has granted leave to Samsung to appeal a temporary ban on the sale of its Galaxy Tab 10.1 tablet in Australia.
The appeal will take place before the full bench of the Federal Court. A date is expected to be set for late next month, despite arguments by Apple seeking to delay it until next year.
Justice Lindsay Foster today expedited Samsung's requests for the full bench appeal during an interlocutory hearing in Sydney.
"I'm quite firmly of the view that the matter should proceed," he said. "I think we have to expedite [this]."
Samsung argued that Justice Annabelle Bennett made an "error of law" in handing down the temporary injunction against sales of the tablet in Australia on October 13.
Justice Bennett, Samsung said, erred in her judgment on "matters of principle" in failing to properly evaluate the cases on either side for infringement or the interplay between arguments for a case of prima facie - or possible success on first examination - and balance of convenience.
Lead counsel Neil Young argued that Justice Bennett had "misapplied" the judgment of the ABC v O'Neill High Court case in 2006, which she used to grant the injunction based on the possibility Apple could prove Samsung had infringed on the raised patent claims in a final hearing.
Early hearing "grossly prejudicial"
Young argued that Samsung's refusal during the initial interlocutory hearing to accept a proposal for an early final hearing had been used as a "black mark" against it in Justice Bennett's decision.
The hearing, initially proposed for November by Apple last month, would require the parties to proceed on the existing patent claims with no new evidence.
It would also require Samsung to agree to a permanent injunction on sales of the US version of the Galaxy Tab 10.1, conditions that Young characterised as "grossly prejudicial".
Samsung had declined the early hearing date, opting instead to continue with the interlocutory hearing which ultimately led to the temporary ban on tablet sales.
"[The November hearing] would deny [Samsung] to properly litigate its rights," Young said. "There is no case that sanctions that approach."
"Her Honour [Justice Bennett] accepted that it was not optimal - which was an understatement if I've ever seen one."
Galaxy may live
Much of the argument on Thursday revolved around the possibility of whether an expedited appeal would revive chances of the Galaxy Tab 10.1 succeeding in the Australian market.
Samsung lawyers had argued in the initial interlocutory case before Justice Bennett that further delays to the tablet's release after mid-October would kill any chance it had of gaining traction due to potential loss of Christmas sales.
The interlocutory injunction imposed by Justice Bennett would not necessarily exclude the launch of a similar tablet device.
Legal counsel for Apple Stephen Burley quoted from an affidavit on Thursday that revealed Samsung had potentially lost places reserved for the Galaxy Tab 10.1 in Christmas campaigns being orchestrated by major retailers including JB Hi-Fi and Myer.
One unidentified retailer had allegedly told Samsung it had "used up all your goodwill" and was "living on borrowed time" as a result of the tablet's continued delays.
However, Young argued that an affidavit lodged from Tyler McGee, vice president of Samsung Australia's telecommunications division, showed damage was likely to be ongoing after October as result of consumer impatience with the device's launch and the continued use of parallel imports by resellers of the device.
The "commerciality" of the device would like die off a year after its initial launch, Young said.
Appeal date arguments
The opposing parties had difficulty agreeing on a court date for the appeal.
Apple pushed for the appeal to take place in February next year, citing Samsung's own arguments that a mid-October judgment against the Galaxy Tab maker effectively dampened any hopes of gaining traction with the tablet before Christmas.
Potential hearing dates in November also conflicted with Samsung's interlocutory applications against the Apple iPhone 4S, which are scheduled to be heard next month in front of Justice Bennett.
Similar cases brought by Samsung in Italy and France have both faced adjournments as courts in the respective countries refused to immediately rule on the application.
