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Australians are making a mockery of a Federal Court injunction banning the sale of Samsung Galaxy Tab 10.1 tablets in Australia by ordering them from online stores.
Meanwhile, in the US, Samsung's own lawyers were left red-faced after being unable to differentiate between Samsung's and Apple's tablets in court.
Samsung has been forbidden by Federal Court Justice Annabelle Bennett from selling or marketing the device in Australia until a full hearing in its patent infringement case with Apple, which isn't expected to take place until next year. Justice Bennett said Apple had a prima facie case that Samsung infringed two of its patents.
But online sellers on eBay, and web stores such as MobiCity.com.au, Expansys, Techrific and dMavo, are bypassing Samsung Australia and obtaining stock from other countries, such as Hong Kong.
GetPrice.com.au lists a slew of Australian sellers offering the Galaxy Tab 10.1 and there are more than 2000 results on eBay. Some, such as MobiCity, offer a 12-month Australian warranty.
Maverick online seller Ruslan Kogan was also selling Galaxy Tab 10.1 units but withdrew them from the market after receiving legal threats from Apple. However, it appears the other sellers, many of which are hosted overseas, do not care about Apple's threats.
"If this is an outcome of the injunction, the harm is not to Samsung, which makes its sales all the same, but to the Australian retailers who do not have the opportunity to compete," said senior patent lawyer Mark Summerfield, from Watermark in Melbourne.
"If we could ask one question of Justice Bennett in the wake of her decision it would be this: does she really believe, in a global consumer economy, that there is any practical value in an Australian court slapping an injunction on a mass-market consumer product that is, in any event, widely available for purchase online?"
Large influx of orders
An unidentified director of dmavo.com.au told ZDNet Australia that he was importing hundreds of Galaxy Tab 10.1 units to cater to a large influx of inquiries following the court injunction. The director told the website that he believed Apple had no basis for legal threats against the business.
Summerfield said those who bought the tablet would have little to fear in terms of legal action but it was likely that the resellers of the device - who are selling it despite the injunction - would be slapped with legal threats from Apple.
The effectiveness of injunctions in the digital age was questioned this year after Twitter users in Britain foiled an attempt by footballer Ryan Giggs to use an injunction to keep details of an alleged affair secret.
In 2009, bloggers and Twitter users thwarted a legal attempt to stop British media from reporting on questions posed by a lawmaker in a parliamentary debate over the dumping of waste in west Africa.
Kogan, founder of Kogan.com.au, said companies needed to understand that we now operate in a global marketplace. Kogan's executive director, David Shafer, said only the local retailers would lose out with the injunction.
"In the age of the internet, an injunction in one jurisdiction doesn't prevent supply of a product into that jurisdiction, it only harms the retailers or resellers in that jurisdiction because they can't be the stores making the sale," Shafer said.
Apple and Samsung did not respond to requests seeking comment.
Patent war a delaying tactic
Summerfield said the patent infringement battles around the world were a strategy by Apple to delay the introduction of a serious competitor in the tablet space.
But even with the Galaxy Tab 10.1 injunction, Samsung is still permitted to sell other tablet models in Australia.
On Friday the Federal Court rejected Apple's request to block or obtain advanced warning of any new Samsung tablet before it goes on sale. Justice Bennett did not sympathise with Apple's fears that such measures were necessary because Samsung might launch a near identical product to the Galaxy Tab 10.1 in future under a different name.
Samsung has yet to comment on its future tablet plans although this week it is slated to launch a new smartphone based on the next version of Google's Android platform.
Apple's global patent infringement battle with Samsung now includes more than 20 cases in 10 countries.
Samsung's lawyers can't spot the difference
In the US, District Judge Lucy Koh said that Samsung's tablet infringed Apple's iPad patents, but added that Apple had a problem establishing the validity of its patents. Apple is seeking to ban sales of the Galaxy Tab 10.1 tablet and the Galaxy S 4G phone in the US, but Koh has yet to make a ruling.
Apple must show both that Samsung infringed its patents and that its patents are valid under the law.
Samsung attorney Kathleen Sullivan argued that in order to defeat an injunction bid, Samsung need only show that it has raised strong enough questions about the validity of Apple's patents.
"We think we've clearly raised substantial questions," Sullivan said at the hearing on Thursday in a San Jose, California federal court.
Apple attorney Harold McElhinny said Apple's product design was far superior to previous tablets, so Apple's patents should not be invalidated by designs that came before.
"It was the design that made the difference," McElhinny said.
Koh frequently remarked on the similarity between each company's tablets. At one point during the hearing, she held one black glass tablet in each hand above her head, and asked Sullivan if she could identify which company produced which.
"Not at this distance your honour," said Sullivan, who stood at a podium roughly three metres away.
"Can any of Samsung's lawyers tell me which one is Samsung and which one is Apple?" Koh asked. A moment later, one of the lawyers supplied the right answer.
A Dutch court on Friday dismissed Samsung's claims of patent infringement by Apple, scuppering its bid to ban the sale of iPhones and iPads in the Netherlands. It also rejected Apple's counterclaims in the case.
The ruling is a blow to Samsung, which has filed patent-infringement claims in France and Italy in order to ban the sale of the iPhone, just as Apple has started marketing the latest edition of its popular gadget iPhone 4S.
"Apple will be taking French and Italian translations of the Dutch ruling with it. This makes it a long shot for Samsung that it could win an injunction in the EU based on its 3G patents," independent intellectual property expert Florian Mueller said.
All Android under threat?
Mueller published a new article over the weekend claiming the Australian injunction gave Apple ammunition to go after all Android device makers. It is not clear whether this will work out, and Summerfield said it might not be viable to launch so many court actions.
But Apple is known for its litigious nature and the Australian court case has revealed that Apple is unwilling to license some of its most valuable iPad patents to competitors, no matter what the price.
Mueller argues that the patents in the case are so broad that they cover all Android products, not just the Galaxy Tab 10.1.
However, Summerfield says the court has not found that the two patents are certainly infringed or that Apple's touchscreen patent is valid. These will be considered at the final hearing, likely next year, which will essentially determine whether to make the temporary injunction on the Galaxy Tab 10.1 permanent and whether Samsung is liable for damages.
"There are ways of doing multitouch that do not involve Apple's 'heuristics'. Indeed, there is prior art showing other approaches, and if Apple's patent is really so broad, then it may be invalid on the basis that it encompasses this prior art," Summerfield said.
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