As is commonly the case in applications for an interlocutory injunction, Appledid not seek to rely on all of the claims it has made against Samsung. This does not prejudiceApple’s right to rely on these claims at a final hearing.
In support of its claim for the interim injunction, Apple initially sought to relyon the alleged infringement of five patents. Apple no longer seeks to rely on one of these patents. Samsung has undertaken not to include the features of two of these patents in theAustralian Galaxy Tab 10.1 until a final judgment is delivered or a further order of the Court ismade. Accordingly, Apple’s claim for the interim injunction relates to the alleged infringementof three claims of two patents:
Claim 6 of Australian Standard Patent No 2005246219, entitled “Multipointtouchscreen” (
the Touch Screen Patent
Claims 1 and 55 of Australian Standard Patent No 2007286532, entitled “Touch screendevice, method, and graphical user interface for determining commands by applyingheuristics” (
the Heuristics Patent
As set out by the High Court in
Australian Broadcasting Corporation v O’Neill
(2006) 227 CLR 57, there are two main inquiries to undertake in determining whether to grantan interim injunction.
The first inquiry is whether Apple has made out a “prima facie case” in thesense that there is a probability that at a final hearing it will be entitled to relief. Therequirement of a “prima facie case” does not require Apple to show that it is more probable thannot that it will succeed at trial. Apple needs to show that it has a sufficient likelihood of success.
The second inquiry, often referred to as the “balance of convenience”, involves aconsideration of whether the inconvenience or injury that Apple would be likely to suffer if aninjunction were refused outweighs or is outweighed by the inconvenience or injury whichSamsung will suffer if the injunction were granted.
The Court is required to determine whether to grant the interim injunction within