Apple has sought access to the source code underlying chips used in past iterations of the iPhone in a bid to strengthen its defence against patent infringement allegations levelled by Samsung.
Andrew Fox, a lawyer representing Apple in the Federal Court of Australia, revealed during a directions hearing on Wednesday that it was seeking to access source code that was given by Intel and Qualcomm to US attorneys for both sides in cases heard in California.
Qualcomm, which sells baseband chips used in Apple’s iPhone 4S, has already provided access to elements of the source code for inspection by Samsung-appointed experts in Australia.
However, it is believed to be the first time that source code or other evidence from Intel - which provided baseband chips for previous iterations of the iPhone - has been raised in the Australian case.
Fox said the source code had been delivered to US attorneys for Samsung and Apple under “a very stringent confidentiality regime” which Australian lawyers for the smartphone giant were seeking to extend locally.
“I can say that Qualcomm and Intel have both indicated that the Australian lawyers are welcome into that confidentiality tent,” he said.
Two local experts would inspect the source code for Apple, which would form part of a new defence the iPhone maker expected to file later this month against Samsung’s ‘657’ patent, covering use of HSPA 3G mobile access technology.
It is one of seven patents Samsung has brought against four Apple products under final hearings now set down for September and October.
“US attorneys have inspected that code and there is a view that’s being formed... that there are additional non-infringement arguments which emerge from that inspection,” Fox said.
Justice Annabelle Bennett agreed to extend the deadline for Apple to submit evidence on the issue until April 18.
Appearing for Samsung, Julian Cooke said the company reserved its position on the application until it, too, received access to the same source code under an extended confidentiality regime.
“We think that needs to be dealt with as soon as possible so as not to delay the conduct of this case in general,” he said.
The move forms part of a tightening legal strategy for both parties globally as the Australian legal teams move towards final hearings.
Samsung was recently granted a request in the US to share contracts and evidence gleaned from Qualcomm’s relationship with Apple with the South Korean firm's legal teams abroad.
It hoped to bolster claims Apple had not secured the proper licenses for use of Samsung’s patents in making the smartphone and that Qualcomm’s patent licenses with Samsung did not extend to Apple.
Galaxy case blows out
Justice Bennett used the same directions hearing this week to repeat warnings on potential blow-outs to the time and amount of evidence involved in hearing the cases before the Federal Court of Australia.
Both the iPhone and Galaxy Tab-related aspects of the case are now set for final hearings over three months later this year, but a final judgment on the iPhone case alone may not be delivered until next year.
Samsung this week produced a new document in its defence against Apple’s allegations of patent infringement on the Galaxy Tab 10.1 tablet, extending to more than 300 pages.
It sought to combat 258 claims surrounding 22 patents that Apple alleges are being infringed in Samsung's products.
Justice Bennett said the case made other litigation before the Federal Court “look like babies”, and proposed any subsequent evidence and affidavits from executives or experts be kept to a minimum.
A potential secondary judge and court-appointed expert may also be required to deal with the mounting evidence in the initial trial, let alone inevitable appeals to an eventual judgment, she said.
“I think we need to have an understanding of how logistically this case can run,” she said.