Issue No. 64 - April/May 2012
Stopped, in the name of the law
by Dr Anthony Lee
Legal wrangling between Apple and Samsung over Apple’s application for an interlocutory injunction barring the import and sale of Samsung’s Galaxy Tab 10.1 into Australia prior to Christmas 2011 demonstrates how an injunction, even of a limited duration, can provide an extremely effective commercial tool.
Put simply, an injunction is a “coercive” remedy which orders another party to do or not to do a particular action. In patent litigation, a final injunction preventing a party from continuing or commencing infringing conduct is usually the primary concern of the patentee. A secondary concern is then compensation for any infringing conduct.
While a final injunction can only take effect once the case has been finally determined, some remedies might be available to the patentee in the interim. In these circumstances, the patentee may apply for an interlocutory injunction to prevent or stop the alleged infringing conduct occurring.
Under Australian law, the Court first looks to whether an applicant for an interlocutory injunction has made out a prima facie case and then whether the balance of convenience and justice favours granting the injunction. Notably, the strength of the prima facie case may also be a factor when assessing the balance of convenience.
In the recent battle between Apple and Samsung, the Australian Federal Court at first instance and the Full Court on appeal differed considerably as to the approach to be taken when assessing these factors.
The Australian proceedings are but one “skirmish” in the worldwide “war” between Apple and Samsung which began in April 2011 when Apple filed suit against Samsung in the USA. The central theme of that complaint and proceedings Apple later brought in other jurisdictions is that Samsung has “slavishly copied” Apple products such as the...