Samsung claims delayed launch will kill Galaxy Tab

Last-minute negotiations for early final hearing fall through.

Samsung will all but abandon plans to bring its Galaxy Tab 10.1 tablet to Australia should its launch be delayed a further two weeks, the Federal Court heard on Tuesday.

The South Korean manufacturer had initially planned to launch the 10.1-inch tablet on August 11 but had agreed to three subsequent delays due to its ongoing patent battle with Apple.

Federal Court Justice Annabelle Bennett sought to make an interlocutory judgment this week on whether Samsung could sell the Galaxy Tab in Australia ahead of final hearings.

Time was of concern to both parties, given the limited lifespan of products in the rapidly moving technology industry.

Samsung sought an interlocutory ruling that would allow it to sell the tablet before the Christmas season and ahead of the final hearings.

But counsel said it would be required to the launch the product by mid-October at the latest in order to capitalise on sales momentum.

Apple had accused Samsung of deliberately delaying the final hearings in order to escape a permanent injunction of the Australian version of the tablet before it launched a new device.

Last-minute deal dumped

Samsung had previously argued for the final hearing to occur next year so that it could have more time to prepare its case.

But the tablet maker's legal representative Neil Young revealed this week that it had proposed to strike a deal with Apple over the weekend that would result in an early final hearing.

“It’s clear that the parties are a considerable distance apart in trying to emulate a basis on which there could possibly be an early final hearing,” Young told the court.

“The commercial imperatives from Samsung’s point of view are that the proposals that Apple has made are simply not acceptable. They won’t work.

“The only circumstances in which we would agree to a final hearing are circumstances in which the product is on the market [and] meets the Christmas sales requirements.”

Apple lead barrister Stephen Burley said the company sought clarification on parts of Samsung’s offer, without accepting or rejecting it.

He argued that Samsung’s offer indicated that it was able to prepare a “limited and confined case by November”.

Burley accused Samsung of attempting to “have its cake and eat it too” by offering a limited, early final hearing this year as long as there was no interlocutory injunction preventing the Galaxy Tab’s sale until then.

Justice Bennett had previously alluded to the possibility of a final hearing as early as November.

“The whole reason we’re here is to prevent the launch and maintain the status quo,” Burley said. “The status quo at present is that Samsung hasn’t launched its infringing device.”

In the absence of an agreement for a limited, early hearing, Young said Samsung would be prepared to face the courts for a final hearing in March at earliest.

The parties are also yet to face proceedings under a cross-claim filed by Samsung against Apple in September. The South Korean manufacturer contended Apple had infringed on several of its patents around wireless communications in making the iPhone and iPad devices.

Galaxy Tab dead by March

Samsung would “not be seeking an urgent hearing” on the initial case unless a decision regarding the temporary or permanent sale of the Galaxy Tab 10.1 could be reached by October, he said.

“If we miss the Christmas sales period, then the commercial value of the product will largely disappear," Young said. "The product would be commercially dead by March 2012 or shortly thereafter.”

Young argued that other Android-based tablets had reached the market without Apple’s interference.

Australian telcos Optus and Telstra had introduced seven-inch, Android-based tablet devices last year. PC manufacturer Acer had five-, seven-, and ten-inch tablets.

Samsung had also released a thicker version of its tablet - dubbed the Galaxy Tab 10.1v - in Australia earlier this year.

Young described Samsung as a “first mover” to introduce a 10.1-inch Android tablet. Other Android devices did not have “the same attractive thinness” as the Galaxy Tab 10.1 it proposed to launch, he said.

Both parties argued that it would be difficult for them to quantify loss and damages suffered from the case.

Should Galaxy Tab 10.1 sales reduce iPad 2 sales, Burley said the popularity of Apple’s App Store, the prominence of its iOS operating system and sale of other Apple devices would also be affected.

In the past two months since the case was introduced to the court, Apple has reduced its patent claims against Samsung from 13 to two.

Samsung had agreed at various points in the ongoing trial to remove feature infringing Apple patents, including a bouncing animation upon zooming on an icon and an algorithm for rejecting inadvertent finger movements on a touch screen.

The patents still under dispute in the Federal Court related to the manufacture of a capacitive touch screen and how the device corrected a user’s finger movements when scrolling vertically on a screen.