The Australian Battle

Apples Claim for Interlocutory Injunction

Apple kicked off its campaign of lawsuits against Samsung in
Australia on 28th July 2011 by filing an application for interim injunction
seeking to restrain Samsung from launching its Galaxy Tab 10.1 in
Australia1. Apple initially relied on certain claims of 10 of its patents
against Samsung but for the purpose of an interim injunction it selected
five out of these patents. This claim was further reduced to three claims
of two patents when Samsung gave an undertaking in the court that it
would not incorporate the features of two of these patents and the claim
of one patent was withdrawn by Apple itself. Apples claim for interim
injunction was now reduced to claim 6 of Australian Standard Patent No
2005246219, entitled Multipoint touchscreen (the Touch Screen Patent)
and

Claims 1 and 55 of Australian Standard Patent No 2007286532,

entitled Touch screen device, method, and graphical user interface for
determining commands by applying heuristics (the Heuristics Patent)
Overview of the Patents Involved
1. Multipoint Touchscreen or the Touch Screen Patent
(Australian Standard Patent No 20052462192)
A touchscreen is an input device normally layered on the top of an
electronic visual display of an information processing system. A user
can give input or control the information processing system through
simple or multi-touch gestures by touching the screen with a special
stylus/pen and-or one or more fingers. IBM Simons was the first
1http://koreauniversitylawreview.korea.ac.kr/xe/?
module=file&act=procFileDownload&file_srl=1168&sid=5632b705a624f19907de8d5b4
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popular smartphone to incorporate the touch screen system. The

problem faced by the manufacturers was that the touch screen
devices were unable to detect multiple touches on the panel. This
patent covered the method by which the devices were able to detect
multiple touches on the screen.
Apples Claim of Infringement
Apple relies on claim 6 of the Multitouch Patent for infringement.
The claim states as
A touch panel having a transparent capacitive sensing
medium configured to detect multiple touches or near
touches that occur at a same time and at distinct locations in
a plane of the touch panel and to produce distinct signals
representative of a location of the touches on the plane of
the touch panel for each of the multiple touches, the
transparent capacitive sensing medium comprising:
a first layer having a plurality of lines that are electrically
isolated from one another and formed from a transparent
conductive material; and
a second layer spatially separated from the first layer and
having a plurality of lines that are electrically isolated from
one another and formed from a transparent conductive
material, the second conductive lines being positioned
transverse to the first conductive lines, the intersection of
transverse lines being positioned at different locations in the

2
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plane of the touch panel, each of the conductive lines being

operatively coupled to capacitive monitoring circuitry,
wherein the first layer and the second layer are disposed
on two sides of an optically transmissive member.

The parties were in dispute over the construction of the phrase

Disposed on both sides of same transmissive member. Apple submits
that there is no technical meaning of the word and points out to its
definition in the Macquarie Dictionary (3rd ed, Macquarie, 2003), means
to put in a particular or the proper order or arrangement. Apple thus
contends that the word disposed simply means placement. According to
Apple the construction of claim should not be restricted to the layers
being placed on side of the same optically transmissive member. Apple
further submits that the specifications of the claim 6 require that the
layers be placed on sides of two different optically transmissive members
that is to say that the optically transmissive member consists of more
than one member. Apple points out that the two layers of the Australian
Galaxy Tab 10.1, are both optically active and together form an optically
transmissive member.
Samsungs Defense
Samsung on the other hand contends that it has not infringed the
multitouch patent as asserted by Apple. Samsung contends that its
Galaxy Tab 10.1 does not has a structure which is covered by the claim 6.
Samsung asserts that to meet the requirements of the claim the
conductive layers have to be present on both sides of the same optically
transmissive member and the claim does not encompass a structure
wherein the layers are coated on two sides of different optically
transmissive member. In addition to this Samsung also had a second line
of defense against Apples claim of infringement of the touch screen
patent. Samsung claimed that the patent was invalid due to the want of

novelty. In the view of the Korean Company there was sufficient material
available in the prior art to declare this invention obvious. Specifically
Samsung points out to the Integration of a Clear Capacitive Touch Screen
with a 1/8-VGA FSTN-LCD to form and LCD-based Touch-Pad by AK
Leeper (the Leeper Article).

Samsung also relies on an international

patent, WO 2004/061808, the inventors of which are Mulligan et al (the

Mulligan Patent). On the other hand Apple denies the same by saying
that their invention in novel and the prior art pointed out by Samsung
does not has all the ingredients of Apples patent.

The Heuristic Patent

In addition to the multitouch patent Apple also relied on claim 1 and
55 of the Heuristic Patent for the purpose of obtaining the interim
injunction. The method covered in this patent is the one by which a
device having a touch sensitive display determines the command
entered by the user and produces the results accordingly. Generally the
computer systems are designed to take in an accurate command and to
execute it accordingly.

The heuristic method for interpreting the

command was not incorporated nor was required to be used until the
invention of the devices with touch sensitive displays.
In devices other than the one having the touch screen the user can
input the exact command using the computer mouse or keyboard and
get the desired result. However the problem arises while using a touch
sensitive computer system where the commands entered are often not
accurate and the system needs to interpret the command by itself and
produce the desired result. For example while scrolling a user will almost
never scroll through the screen in a perfectly horizontal way and up to a

precise height, therefore the device will have to be one which is capable
of applying different heuristics to determine the command and produce
the desired result for the users.
Apples Claim of Infringement
Apple relies on claim 1 and 55 of the Heuristic Patent for the
purpose of obtaining the temporary injunction. The claims are as
follows
Claim 1 of the Heuristics Patent is:
A computer-implemented method, comprising:
at a computing device with a touch screen display,
detecting one or more finger contacts with the touch
screen display,
applying one or more heuristics to the one or more finger
contacts to
determine a command for the device; and
processing the command;
wherein the one or more heuristics perform the functions
of:
determining that the one or more finger contacts
correspond to a one-dimensional vertical screen scrolling
command rather than a two-dimensional screen translation
command, based on an angle of movement of the one or
more finger contacts with respect to the touch screen
display; and
determining that the one or more finger contacts
correspond to a two-dimensional screen translation command
rather than a one-dimensional screen translation command,
based on an angle of movement of the one or more finger
contacts with respect to the touch screen display.
Claim 55 is:
A computer-implemented method of any one of claims 1
to 26, wherein

the one or more finger contacts correspond to a finger

gesture with an initial movement and a subsequent
movement, and wherein
the function of determining that the one or more finger
contacts correspond to a one-dimensional vertical screen
scrolling command rather than a two-dimensional screen
translation command includes identifying the entire finger
gesture as the one-dimensional vertical screen scrolling
command and basing the determination on the angle of
movement of the initial movement of the finger gesture, and
wherein
the function of determining that the one or more finger
contacts correspond to a two-dimensional screen translation
command rather than a one-dimensional vertical screen
scrolling command includes identifying the entire finger
gesture as the two-dimensional screen translation command
and basing the determination on the angle of movement of
the initial movement of the finger gesture
The parties are in dispute over the based on the angle of movement
of the fingers integer. Apple contends that the angle of movement is not
a substantial part of the claim and the way the device understands and
interprets the commands is not necessarily linked with the angle of
movement. Apple claims that the invention covered in this claim is
simple the way by which a computer device having a touch screen
display responds to the finger gestures and does not necessarily deal
with the way the underlying software works. Apple says that the
invention is to a method in which a heuristic performs the function of
determining whether the finger contacts correspond to a vertical scrolling
command or a two-dimensional translation command and that the
Heuristics Patent is not concerned with the way in which the heuristic
does so.
On Apples construction, the heuristics response is to the sliding
movement of a finger on the screen at an angle which will determine the
location of the finger, T2, being a second touch point at a predetermined
time interval after T1, the first touch point. The angle of the movement

from T1 to T2 on the touch screen is the determining factor which is used

by the heuristic to formulate a command for the device. That is, claim 1
is concerned with a computer-implemented method in which the heuristic
interprets a users intention to perform a vertical scroll or a twodimensional translation, whereby the intention is expressed by a
predominantly vertical or diagonal angular finger movement on the touch
screen.

Apple says that the heuristic does not calculate an angle but

interprets the users intention to perform a vertical scroll command or a

translation command based on the angle of the users finger movement
on the touch screen.
Samsungs Defense
Samsung on the other hand insists that the angle of movement
intiger is an integral part of ths heuristic patent and cannot be ignored
for the purpose of construction. Samsung argues that the Heuristics in
this method performs its function of interpreting the imprecise input by
determining the angle of movements of the finger gestures. Contrary to
Apples construction Samsung argues that it is clear beyond arguments
that the angle of movement is the determining factor used by the
Heuristic in Apples devices and the same is covered under this patent.
Samsung says that there is no infringement by the Australian
Galaxy Tab 10.1 on the basis that the determination in the Australian
Galaxy Tab 10.1 is not implemented based on an angle of movement of
the one or more finger contacts. Samsung contends that the scrolling
method of the Australian Galaxy Tab 10.1 does not measure angles or
use angles in its determination of whether the users command is a onedimensional

scrolling

command

or

two-dimensional

translation

command. Rather, Samsungs scrolling method compares the positions

of the users contact points on the touch panel relative to two channels
on the touch panel.

Summarily Samsungs defence to infringement is that the Samsung

method sets up two channels and determines one-dimensional or twodimensional outcomes by presence or absence within the chan
Summary of Patent Contentions

Apples original lawsuit consisted of different claims of about ten

patents. However for the purpose of obtaining temporary injunction on
the sale of Galaxy Tab 10.1 Apple choose five out of these patents. These
five patents were further reduced to two when Apple decided not to
include the claims of two more patents for the purpose of obtaining
injunction and Samsung gave the undertaking in the court that it would
not include the features of a third patent in the Galaxy Tab 10.1
The patents at issue for the purpose of temporary injunction were now
reduced to two. The Multitouch Patent entitled .
And the Heuristic Patent entitled ... As far as the
Multitouch Patent in concerned both the parties were in dispute over the
construction of the term Disposed on the same side of an optically
transmissive member. Apple insisted that the term has no technical
meaning and refers only to the arranged of the layers. According to the
makers of the iPhone the construction of the claim was not limited to a
situation where the conductive layers were present on both sides of the
same optically transmissive member. Apple furthered its stance by
saying that the claim does not prohibit presence of two optically
transmissive glass members and goes on to say that there can also an an
additional layers between the sides of the optically transmissive member
and the conductive layers.
Samsung on the other hand argued that the claim 6 of the touch
screen patent is limited to a situation where the conductive layers are
present on the sides of the same optically transmissive member and if

there are more then one optically transmissive members then there is no
case of infringement. In case Apples construction were accepted
Samsung also took the defense that the asserted patent is invalid in the
light of the prior art available on record. Specifically Samsungs relies on
Integration of a Clear Capacitive Touch Screen with a 1/8-VGA FSTN-LCD
to form and LCD-based Touch-Pad by AK Leeper (the Leeper Article) and
an international patent, WO 2004/061808, the inventors of which are
Mulligan et al (the Mulligan Patent).
As far as the Heuristic Patent is concerned the issue was on the term
Angle of Movement. Apples contention was that term angle of
movement only refers to the way the Heuristic interpret the imprecise
input by the user. Apple argues that the method covered in the patent is
the means by which a Heuristic interprets the command and does not
exactly cover the way in which the underline software works.
Samsung on the other hand contends that the anlge of movement
integer is an integral part of Apples Patent. Samsung say that it is clear
beyond argument that the heuristics perform its function by determining
the angle of movement of fingers with respect to the touch screen
display. Samsung claims that its devices do not infringe the heuristic
patent because Samsungs Galaxy Tab 10.1 does not use the angle of
movement to determine the command. Samsungs device differentiates
between vertical scroll command and the two dimensional screen
translation command by determining the presence or absence of finger
gestures between two pre-determined points/channels on the touch
screen.
Analysis of the Case
As Apple was seeking an interim injunction so the court had to keep
two basic requirements of an interim injunction in mind while making an
order. These requirements were firstly the existence of a prima facie case

in favor of the applicant and secondly the balance of convenience. As far

as the matter of prima facie case is concerned the applicant has to prove
that there is a likelihood of it being successful at the trial. The applicant
needs not be establish the fact that the chances of it being successful are
more than the chances of its failure.
As the question of the validity of the Multitouch Patent was raised by
Samsung so the court had to decide about the relevance and strength of
this claim of invalidity for the purpose of ascertaining Apples prima facie
case. Samsung was of the view that mare grant of a patent is not
sufficient proof for the establishment of a prima facie case when it comes
patent

infringement.

Samsung

coated

the

following

authority

Australian High Court

[Whether the plaintiff has made out a prima facie
entitlement to relief] in the present case is not complicated
by the special considerations which generally arise in a
patent action where there is a substantial issue to be tried as
to the validity of the patent. In such an action the plaintiff's
prima facie case must be a strong one so far as the question
of validity is concerned, for he asserts a monopoly and must
give more proof of the right he claims than is afforded by the
mere granting of the patent The general practice in that
kind of case has long been to refuse an interlocutory
injunction unless either the patent has already been judicially
held to be valid or it has stood unchallenged for a long
period Even if the patent is an old one which for this
purpose is generally taken to mean more than six years old
it has been said that an interlocutory injunction will
generally be refused provided that the defendant shows by
evidence "some ground" for supposing that he has a chance
of successfully disputing the validity of the patent at the
trial This should be read, however, with Sir George Jessel's
statement in Dudgeon v Thomson (1874) 30 LT 244which
divides into three classes the cases in which an injunction
may be granted before the hearing in such a case. They are:
(1) cases where the patent is an old one and the patentee
has been in long and undisturbed enjoyment of it; (2) cases
where its validity has been established elsewhere and the
court sees no reason to doubt the propriety of the result; and

of

(3) cases where the conduct of the defendant is such as to

enable the court to say that, as against the defendant
himself, there is no reason to doubt the validity of the patent
Summarily Samsungs contention was that as the question was raised
on the validity of the Multitouch Patent held by Apple, Apple had to show
more proof of it being valid and had to show proof the this patent will
sustain the validity test at the trial level and that merely the fact that the
makers of iPhone have been granted this patent will not be sufficient to
constitute a prima facie case in Apples favor. Apple however rebutted by
giving reference to a number of citations that the principles pointed out
in this case as pointed out by Apple were under the old patent law where
the requirements of obtaining a patent were not as strict as they are now
a days. Similarly Apple contends that, if a patentee is able to show that
there is a prima facie case of patent infringement, then the existence of a
triable question on validity is unlikely to displace that prima facie case.
The second inquiry that the court had to make was about the balance
of convenience. The court had to determine whether the inconvenience
or injury that Apple would be likely to suffer if an injunction were not
granted outweighs or is outweighed by the inconvenience or injury that
Samsung would suffer if the injunction were granted. The court had to
consider every factor that could possible serve as a indicative of balance
of convenience. These factors could include for example the fact that at
the time Apple was seeking the injunction it had the tablet market
virtually to itself. Secondly the apparent reason for Samsung to launch
the Australian Galaxy Tab was to complete with Apple in the tablet
market and to provide the consumers with an alternative to Apples
tablet in the form of an Android based tablet. Similarly the court had to
determine whether awarding damages would be an adequate remedy for
either party. Similarly as the life cycle of the tablet devices is very short
so is the injunctive relief an equivalent to grant of a final relief?

The

strength of Apples prima facie case was also amongst the factors for the
determination of balance of convenience.
The Decision
On October 13, 2011 the court granted an injunction in favor of Apple
restraining Samsung from the launch of its Galaxy Tablet 10.1.
Throughout the case the principles settled in ONeill served as the bench
mark for the court for the purpose of determining Apples right to claim
an interlocutory injunction. The ONeill sets out two parameters. Firstly
the applicant needs to establish a prima facie case in its favor. For this
the applicant has to show that there exists a likelihood of it being
successful at the trial stage. For this the applicant does not necessarily
has to show that the chances of it being successful at the trial stage are
greater than the chances of its opponent being successful. The second
thing that the applicant has to show is that the inconvenience it will
suffer in case an injunction were refused outweighs the inconvenience
that the respondent will suffer in case an injunction is granted.
The court was of the view that Apple had established a prima facie
case for an entitlement to relief on the Heuristics Patent, even though
Samsung had also established a prima facie case of the invalidity of the
Touch Screen Patent. Similarly Apple had also established a prima facie
case of entitlement to relief on the Touch Screen Patent. The balance of
convenience also tilted in Apples favor in the view of the court. Hence a
decision was made in favor of Apple restraining the release of its
competitors device Galaxy Tab 10.1 in Australian markets till the final
disposal of the case.
Time for Samsung to Turn The Tables
Samsung filed appeal from the decision of the court granting
injunction to Apple. The first hurdle Samsung faced was to get its
leave for appeal approved. It is a well settled principle in

Australian case law that in order a leave for appeal be approved

the applicant has to satisfy the court on two grounds
1. Whether, in all the circumstances of the case, the decision
is attended by sufficient doubt to warrant its being
reconsidered by the Full Court; and
2. Whether substantial injustice would result if leave were
refused supposing the decision to be wrong.
In this case the effect of the injunction was of finality, as the life
cycle of the tablet computers is very short and the effect of granting
injunction was equal to finally disposing of the matter in favor of
Apple. Samsung thus had a very bright chance of getting its leave to
appeal allowed.
At the first stage Samsung had to show to the court that the decision
of the primary court was attended by sufficient doubt. At this stage
Samsung could argue that its cross claim relating to invalidity of the
Touch Screen Patent was not given proper weight age. Similarly
Samsungs argument that its devices do not infringe the heuristic
patent was not given proper consideration. The second factor that
the court had to ascertain was that a substantial injustice would
result if the leave to appeal was refused considering the decision of
the primary court to be wrong. The stakes in the case were pretty
high. Again the factor in favour of Samsung was that the life cycle of
the tablet computers have a very short. Apple had the tablet
computer market virtually to itself at that time. Therefore there was
no doubt that if the decision of the primary judge was considered to
be wrong, a substantial injustice would be the result in case leave to
appeal were not granted.
Samsung successfully crossed the first hurdle as its leave to appeal
got accepted. Samsung filed the appeal on multiple grounds including

for example the primary judge erred in holding that Apple established
a prima facie case of infringement on both asserted patents, the
primary judge erred in holding that the balance of convenience lies in
favor of Apple, the primary judge erred by concluding that the refusal
of Samsung to accept an early final hearing was a factor to be
weighed while deterring the balance of convenience, that the refusal
of an interlocutory injunction would deprive Apple of its statutory
right and this factor over weights the factor that the effect of
injunction is of finality in this case and many other similar grounds. In
response to this notice of appeal, Apple file notice of contention. In
this notice of contention Apple denied all the ground of appeal taken
by Samsung.
The Appeal
In analyzing the appeal the court first considered the purpose of
granting the interlocutory injunction and found out that it was a well
satteled principle in Australian law that it was the duity of the court to
ensure that the grant of injunction does not frustrate the legal
process itself. The primary judge had to look to keep two factors in
mind firstly that weather to grant an injunction or not and secondly
whether the grant of injunction will frustrate the process of the court
itself or not. As both parties agreed that the effect of injunction was
equivalent to finaly disposing off the case, so the grant of injunction
will almost frustrate the process of the court as far as Samsungs
case was concerned.
Samsung contented that the primary judge made mistakes in
applying certain principles of law which were necessary to be applied
with deciding the fate of an application for interlocutory relief. For
example Samsung said the primary judge was not only obliged to
analyze the competing patent contentions of the parties, but Her

Honour was also under obligation to assess the strength of Apples

prima facie case (if any) to warrant the grant of interlocutory relief.
Similarly Her Honour did not assess the strength of Samsungs prima
facie case on invalidity of claim 6 of the Touch Screen Patent and did
not compare it against the strength of Apples case of infringement.
Samsung similarly argued that the primary judge did not clearly
decide upon the construction of the asserted claims. As one of the
major dispute between the parties was on the construction of the
claims. Her Honor did not decide that which of the constructions
forwarded by the parties was correct and declared the claim to be
open claim.
The Problem with Apples case on Touch Screen Patent

As discussed above, Apple asserted three claims of two patents for

the purpose of obtaining the interlocutory injunction i.e claim 6 of the
Touch Screen Patent and claim 1 and 55 of the Heuristic Patent. The
Touch Screen Patent related to structure of the Touch Panel of the
touch screen devices. This patent covered the method which was
used to make touch screens capable of detecting multiple touches on
the touch screen. The contention between the parties was the
construction of the phrase disposed on side of an optically
transmissive member. Samsung contended that the claim is limited
to a situation where both layers are both side of single optically
transmissive member, and the member is composed of only one
layer. Apple on the other hand contends that the construction of the
claim describes an optically transmissive member which could be
composed of more than one member, and the layers are directly
applied to it. Apple also argued that the even if Samsungs
construction was to be accepted the Galaxy Tab 10.1 still infringes

the claim as the layer are directly applied to that optically

transmissive member.
If we denotes two layers of the touch panel of Samsungs touch
screen as layer D and E then the problem faced by Apple is that at
one hand Apple will have to argue that the layers D and E both
collectively form an optically transmissive member and there is no
difference between both of them for the purpose of construction. On
the other hand Apple will have to argue that layer E for example
should be ignored, in order to prove that the layers are placed on
both sides of an optically transmissive member. Samsung also drew
attention to section 116 of Australian Patent Act according to which
the court can take into consideration the amendments that have
been made in the claim, in order to be able to understand and clearly
construct the claim. Samsung went on to say that the amendments
made in claim 9 of the Touch Screen Patent were specially to omit a
multilayered structure out of the scope of the claim.
In addition to the Touch Screen Patent, Apple also relied on claim
1 and 55 of Heuristic Patent for the purpose of obtaining the
interlocutory injunction. As described above Heuristic Patent is used
by the touch enabled computer devices to determine the command
form imprecise input gestures of finger touches. The rival contentions
of the parties were again based on the construction of phrase based
on the angle of movement with respect to the touch screen surface.
The primary judge had held that Apple has established a prima facie
case of infringement in respect of the touch screen patent. The angle
of movement was an integral part of the specification.
Samsung contended that the in the Galaxy Tab 10.1, the process
for determining the relevant command is as follows. A first user
contact on the screen is detected and an X (horizontal) channel and a

Y (vertical) channel are generated around the touch point. The touch
panel logic then identifies the location of the users second touch
point at a pre-defined period of time after the first contact is
detected. The location of the second touch point is then compared
with the locations of the X and Y channels previously generated by
the first touch. The software then interprets this as an instruction for
screen movement, relevantly a one-dimensional screen scrolling
command or a two-dimensional screen translation command, and
then processes the command accordingly. Apple on the other hand
contends that the angle of movement is not integral part of the claim
and is just an indicative of the command and not the way by which
the Heuristic determine and interpret the command. According to
Apple the heuristic may apply the number of other algorithms to
determine the command.
After deterring the existence and strength of the prima facie case
for Apple on both asserted patents the next question infornt of the
appellate court was to determine whether or not the question of
balance of convenience was determined correctly by the primary
judge. The primary judge had found that the balance of convenience
of almost evenly poised and tilted slightly in favour of Apple. The
factors taken into consideration by Her Honour were the strength of
prima facie case of Apple, Samsungs refusal to accept the early final
hearing of the suit and the fact that Apple had asserted two patents
which were already registered. During the course of the interlocutory
application there was a suggestion for early final hearing of the case
from the honorable judge. Apple proposed that it was willing for an
early final hearing of the suit on the following conditions.
Apple would limit the product in dispute at the final hearing to the
[Galaxy Tab 10.1] Limit the patents relied on at the final hearing to
the heuristics patent 532, the touch screen patent 219 and the

selective rejection patent 177. Limit the claims relied on at the final
hearing to those set out in Apples written submissions dated 26
September 2011.

Rely on its evidence already filed in the

proceeding. Provide an undertaking to the Court on a no admissions

basis not to sue the Respondents in Australia in respect of the
[Galaxy Tab 10.1] for infringement of the remainder of the patents
listed in the Amended Application. Provide an undertaking to the
Court on a no admissions basis not to seek interlocutory relief in
respect of the [Galaxy Tab 10.1] for infringement of patents other
than those in points 2 and 5 above.
Samsung would Provide an interim undertaking to the Court on a no
admissions basis not to import, offer to supply, supply, offer for sale
or sell in Australia the [Galaxy Tab 10.1], whether or not it includes
the zoom bounce functionality, until the determination of the matter.
Provide a permanent undertaking to the Court on a no-admissions
basis not to import, offer to supply, supply, offer for sale or sell in
Australia the US version of the [Galaxy Tab 10.1].
The question of early final hearing was raised multiple times after this
and Samsung insisted that it was not willing for an early final hearing.
Samsung argued that this was a case which was going to have a
huge impact on their business, therefore the Korean company was
not prepared for early final hearing of the case until at least one year.
Samsung argued that it had diverted all its energy in defending the
claims made by Apple for the purpose of obtaining temporary
injunction and it has not worked out the case on the basis of final
hearing. The council for Apple argued at the same time that as the
effect of grant or refusal of the interlocutory injunction would be of
finality even then Samsung was not prepared for an early final
hearing, hence this factor should be weighed heavily against
Samsung while considering the question of balance of convenience

and justice. While discussing the question of balance of convenience

in the reason for judgment her Honour noted that Samsungs
unwillingness to accept an early final hearing was a factor to weighed
and weighed against Samsung for considering the question of
balance of convenience and justice.
The full court however criticized the finding of the primary judge
that the refusal of Samsung to accept an early final hearing is a factor
to be weighed against it. It was the view of the court that it was not
just to penalize any party who was unwilling to accept a suggestion of
the court. Similarly the court observed that Apple only put forward its
proposal and did not elaborate how this proposal is reasonable and
should be acceptable for Samsung. The view of the court was that
Apples proposal was not reasonable for Samsung in the same way as
Samsung proposed order was not acceptable for Apple.