Apple invokes French law in iPhone hearing

 

Australian courts to hear international agreement.

Apple has sought to derail a bid by Samsung to have the iPhone 4S pulled from Australian shelves by alleging the patents involved fall under French laws.

The South Korean electronics giant has asserted three patents and 28 claims against the fifth generation of Apple's iPhone in claims aired before the Federal Court of Australia for the first time today.

Samsung wants a temporary injunction even though current stocks of the iPhone are low or sold out.

It alleges Apple infringed on the three patents in iPhone 4S by failing to license their use directly from Samsung.

The iPhone 4S uses wireless baseband chips supplied by Qualcomm, which has its own agreement to license the patents.

Apple barrister Cameron Moore told a preliminary hearing Tuesday that although Samsung's three patents are registered in Australia, they could ultimately fall under French jurisdiction.

The patents underpinned wireless communication standards developed by the European Telecommunications Standards Institute (ETSI), allowing the iPhone 4S - among other smartphones - to operate over 3G networks in Australia and elsewhere.

Samsung’s membership with ETSI requires it to irrevocably license the relevant patents in a fair, reasonable and non-discriminatory (FRAND) manner to chip makers and device manufacturers that implement the patents.

Arguments over the application of FRAND licenses are legally accountable to French patent law under the ETSI agreement.

Apple counsel’s plans to produce evidence from French law experts to support its case that FRAND agreements are relevant to the Australian case.

It is believed to be the first time FRAND licenses have been tested in an Australian court.

Moore said, however, that Apple would ultimately argue it did not infringe Samsung's patents. 

He also questioned why Samsung is seeking an injunction - rather than monetary damages.

"Because Samsung indicated it will license its patents on FRAND terms, it's not apparent to us why damages are not an adequate remedy in these proceedings," he said.

FRAND relevance?

Samsung counsel Cynthia Cochrane said the South Korean manufacturer would dispute the relevance of FRAND obligations in Australia.

But she alleged that Apple had failed to meet its obligations under FRAND in any event.

"There are obligations in this regime - we say we're not in breach of our obligations and the obligations cut both ways - there are obligations on Apple and that is something we'll need to explore," she said.

"We offered a license to Apple and they declined to negotiate."

Watermark senior associate and intellectual property expert Mark Summerfield said Apple would be required to argue an injunction would unbalance its convenience in order to use the FRAND dispute, and inherently international law, as a defence.

"There is nothing in Australian patent law that would make any sorts of these agreements in any way determinative of whether or not there's infringement occurring, whether or not patent claims are valid or whether or not a patent should be enforced against one party or another," he said.

"The act says that if, without authorisation, you do any of the things covered by the patent claims, you're infringing and damages or other relief can be rewarded.

"The issue will get complicated here because it will depend upon the terms on which Qualcomm licenses the technology from Samsung and not merely upon the exhaustion of the patent rights which occurred." 

International test

Samsung asserted similar patents against the iPhone 4S in the US, France - where the FRAND issue is most pertinent - and Italy, though none of these courts had decided on how to deal with the matter.

A Dutch court denied Samsung an injunction over the iPhone 4S after confidential documents revealed the South Korean manufacturer had sought a 2.4 percent royalty license for the price of each chip in Apple products per patent allegedly infringed, which it deemed to be unreasonable.

Samsung also seeks to apply the same patents, part of a wider portfolio of seven patents, in Australia against Apple's iPhone 3G, iPhone 3G S, iPhone 4 and iPad 2 products in a separate cross-claim yet to be heard.

The FRAND patents differed from those enforced by Apple against the Samsung Galaxy Tab 10.1 tablet in Federal Court over recent months, Moore argued.

He said Apple's own patents are proprietary and designed for Apple's sole use.

Documents galore

Apple and Samsung used the directions hearing to continue to dispute the nature and scope of documents required for further hearings.

Though a hearing scheduled for Friday is expected to revolve largely around the FRAND issue, the parties are also set to argue on the balance of convenience should Justice Annabelle Bennett grant an injunction against the iPhone 4S.

Apple had sought a copy of a patent license between Samsung and Qualcomm but received a "heavily redacted" version which Moore said provided little detail on the nature of the agreement between the companies.

An amended version would likely be sent to Apple this week though Samsung counsel Cochrane said the scope of the document made it difficult to provide information without revealing other confidential provisions.

Apple also sought Samsung to produce the details of its 2007 settlement with Ericsson in the British High Court, which also dealt with similar patents under a FRAND-related dispute.

Samsung, in return, hoped to gain access to the source code for the iPhone 4S' firmware in order to probe for further detail on potential patent infringements.

The Korean firm also called on Apple to produce the agreements that Cupertino had formed with the three major Australian mobile carriers for all four generations of the iPhone released locally, in a bid to establish a balance of convenience in Samsung's favour.

Cochrane argued that handset subsidies provided to Apple since the launch of the iPhone 3G in 2008 had come at the expense of relevant subsidies to Samsung phones.

However, Justice Bennett raised concerns that the potential pile of material invoked in the case would overrun the case hearing, scheduled to occur over four days this month.

Moore described the present case as "twice as complicated" as the Galaxy Tab 10.1 injunction hearing.

"The more complicated the interlocutory hearing is going to be, the more impossible it's going to be," Justice Bennett said.

"If you want a judgment out on this before the end of the year it's going to be in everyone's interests to try and make [the scope of discovery] as narrow as possible."

The case hearings could ultimately extend to six days, which Justice Bennett said could become more like a final, rather than interlocutory, hearing for the case.

Updated: Confidential documents in Dutch court stated Samsung wanted 2.4 percent of the chip price for every patent it alleged Apple had infringed in the iPhone.

Copyright © iTnews.com.au . All rights reserved.


Apple invokes French law in iPhone hearing
 
 
 
Top Stories
Hockey flags billion-dollar Centrelink mainframe replacement
Claims 30 year-old tech is holding Govt back.
 
Ombudsman wants to monitor warrantless metadata access
Requests ability to report publicly.
 
Frugality as a service: the Amazon story
Behind the scenes, Amazon Web Services is one lean machine.
 
 
Sign up to receive iTnews email bulletins
   FOLLOW US...

Latest VideosSee all videos »

The great data centre opportunity on Australia's doorstep
The great data centre opportunity on Australia's doorstep
Scott Noteboom, CEO of LitBit speaking at The Australian Data Centre Strategy Summit 2014 in the Gold Coast, Queensland, Australia. http://bit.ly/1qpxVfV Scott Noteboom is a data centre engineer who led builds for Apple and Yahoo in the earliest days of the cloud, and who now eyes Asia as the next big opportunity. Read more: http://www.itnews.com.au/News/372482,how-do-we-serve-three-billion-new-internet-users.aspx#ixzz2yNLmMG5C
Interview: Karl Maftoum, CIO, ACMA
Interview: Karl Maftoum, CIO, ACMA
To COTS or not to COTS? iTnews asks Karl Maftoum, CIO of the ACMA, at the CIO Strategy Summit.
Susan Sly: What is the Role of the CIO?
Susan Sly: What is the Role of the CIO?
AEMO chief information officer Susan Sly calls for more collaboration among Australia's technology leaders at the CIO Strategy Summit.
Meet the 2014 Finance CIO of the Year
Meet the 2014 Finance CIO of the Year
Credit Union Australia's David Gee awarded Finance CIO of the Year at the iTnews Benchmark Awards.
Meet the 2014 Retail CIO of the Year
Meet the 2014 Retail CIO of the Year
Damon Rees named Retail CIO of the Year at the iTnews Benchmark Awards for his work at Woolworths.
Robyn Elliott named the 2014 Utilities CIO of the Year
Robyn Elliott named the 2014 Utilities CIO of the Year
Acting Foxtel CIO David Marks accepts an iTnews Benchmark Award on behalf of Robyn Elliott.
Meet the 2014 Industrial CIO of the Year
Meet the 2014 Industrial CIO of the Year
Sanjay Mehta named Industrial CIO of the Year at the iTnews Benchmark Awards for his work at ConocoPhillips.
Meet the 2014 Healthcare CIO of the Year
Meet the 2014 Healthcare CIO of the Year
Greg Wells named Healthcare CIO of the Year at the iTnews Benchmark Awards for his work at NSW Health.
Meet the 2014 Education CIO of the Year
Meet the 2014 Education CIO of the Year
William Confalonieri named Healthcare CIO of the Year at the iTnews Benchmark Awards for his work at Deakin University.
Meet the 2014 Government CIO of the Year
Meet the 2014 Government CIO of the Year
David Johnson named Government CIO of the Year at the iTnews Benchmark Awards for his work at the Queensland Police Service.
Q and A: Coalition Broadband Policy
Q and A: Coalition Broadband Policy
Malcolm Turnbull and Tony Abbott discuss the Coalition's broadband policy with the press.
AFP scalps hacker 'leader' inside Australia's IT ranks.
AFP scalps hacker 'leader' inside Australia's IT ranks.
The Australian Federal Police have arrested a Sydney-based IT security professional for hacking a government website.
NBN Petition Delivered To Turnbull's Office
NBN Petition Delivered To Turnbull's Office
UTS CIO: IT teams of the future
UTS CIO: IT teams of the future
UTS CIO Chrissy Burns talks data.
New UTS Building: the IT within
New UTS Building: the IT within
The IT behind tomorrow's universities.
iTnews' NBN Panel
iTnews' NBN Panel
Is your enterprise NBN-ready?
Introducing iTnews Labs
Introducing iTnews Labs
See a timelapse of the iTnews labs being unboxed, set up and switched on! iTnews will produce independent testing of the latest enterprise software to hit the market after installing a purpose-built test lab in Sydney. Watch the installation of two DL380p servers, two HP StoreVirtual 4330 storage arrays and two HP ProCurve 2920 switches.
The True Cost of BYOD
The True Cost of BYOD
iTnews' Brett Winterford gives attendees of the first 'Touch Tomorrow' event in Brisbane a brief look at his research into enterprise mobility. What are the use cases and how can they be quantified? What price should you expect to pay for securing mobile access to corporate applications? What's coming around the corner?
Ghost clouds
Ghost clouds
ACMA chair Chris Chapman says there is uncertainty over whether certain classes of cloud service providers are caught by regulations.
Was the Snowden leak inevitable?
Was the Snowden leak inevitable?
Privacy experts David Vaile (UNSW Cyberspace Law and Policy Centre) and Craig Scroggie (CEO, NextDC) claim they were not surprised by the Snowden leaks about the NSA's PRISM program.
Latest Comments
Polls
Which bank is most likely to suffer an RBS-style meltdown?





   |   View results
ANZ
  20%
 
Bankwest
  9%
 
CommBank
  12%
 
National Australia Bank
  17%
 
Suncorp
  24%
 
Westpac
  19%
TOTAL VOTES: 1514

Vote