Apple telco contracts kept from view

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Apple telco contracts kept from view

Samsung on the back foot.

Samsung has failed in its bid to solicit contracts between Apple and mobile carriers, a setback in its attempt to have the iPhone 4S pulled from Australian shelves.

The South Korean manufacturer sought evidence that Apple had "contractually obliged" Australian carriers Telstra, Vodafone and Optus to provide greater subsidies for the iPhone than for competing smartphones.

Those subsidies, it alleged, improved the attractiveness of all four generations of the iPhone released locally since 2008.

Samsung is seeking an interlocutory injunction against the iPhone 4S in Australia, based on three wireless communications patents.

Justice Annabelle Bennett initially agreed on Wednesday to enforce Samsung's request for the contracts should the parties fail to agree on the elements of the telco contracts being sought.

Apple could have been required to hand over unredacted copies of the agreements covering the launch and distribution of each iPhone in Australia.

Though telcos have refused to comment, it is believed the notion that the contracts could be revealed had worried at least some of the carriers involved.

A representative from one of the telcos was present in the hearing Friday.

However, it appeared the set conditions were met on Wednesday, when Apple's legal counsel Freehills responded to the questions posed by Samsung barristers Blake Dawson that afternoon.

In the letter, Freehills allegedly told the opposing side that Apple had included "no such requirement" for carriers to provide "better" subsidies.

Justice Bennett agreed the answer was sufficient based on Samsung's initial requests.

"They've looked at the terms and they've said quite clearly that it does not contain any such requirement," she said. "I don't think you could get a clearer answer."

However, Samsung counsel Julian Cork continued to push for a full look at the contracts.

"We're not satisfied with the answer your honour," he said. "The reader of the contract will have to consider all of the contract to determine what's in it."

Justice Bennett said any further pressure on revealing the full contracts would require negotiation with the telcos themselves over confidentiality arrangements.

"This is a full contract fight on a very tangential point," Justice Bennett argued. "Is it worth taking two or three days of this hearing?"

Samsung eventually agreed not to push the matter further but reserved the right to negotiate further on specific elements of the contracts.

The matter is but one of several disputes over evidence between the parties that had so far yielded seven boxes worth of material for Justice Bennett to read before Tuesday next week.

Apple had filed 13 affidavits and Samsung 10 since October 28 alone, while Apple barrister Stephen Burley SC said Friday that Apple's counsel had received 120 pages worth of reply to its evidence from Samsung's lawyers on Friday morning.

"This case is not set down for weeks," Justice Bennett said.

Other matters appeared to be resolved, including Samsung's access to the firmware used in the iPhone 4S' baseband chip, supplied by Qualcomm.

A software expert had approximately two hours' access to the firmware and would submit his findings by Sunday.

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