Samsung is appealing an Aussie judge's decision to ban its Galaxy Tab 10.1 from sale saying that she “misunderstood and misapplied” basic requirements of the law.

The appeal in the patent infringement case is being heard by the full bench of Judges including Justice Dowsett, Justice Foster and Justice Yates. The three have not made a decision yet but appeared to support a number of Samsung's arguments that elements of her reasoning were “grossly unjust”.

Apple won a temporary injunction banning sales of Samsung's tablet in Australia until a final hearing could take place next year. Samsung's lawyer claimed Justice Bennett did not attempt to properly evaluate the strength of Apple's case for infringement or whether the patents in question were invalid. She decided Apple had a prima facie case for patent infringement without conducting the proper tests, he said.

A temporary ban of the product would render it dead for this market, as it would be overtaken by newer models. The Galaxy Tab 10.1 is “stopped dead in its tracks”, perhaps at a critical time in the development of this market, he told the court. One of the judges appeared to agree saying that if you have a fast moving product which if taken off the market, it "destroys the opportunities available to the newcomer and preserves the monopoly of the incumbent then you'd have to have a very close look at the strength of the case.”

Samsung would have agreed to an early final hearing in March next year but Apple's terms which included that Samsung be prevented from launching both the Galaxy Tab 10.1 and other tablet products in Australia until the final hearing were unreasonable. One of the judges appeared to agree with this and another was critical of Apple's claim that, had the Samsung tablet been allowed to launch, Apple would suffer huge harm. He sceptically asked Apple's lawyer whether “the whole of Apple's going to come tumbling down” if Samsung had been permitted to sell the tablet until the final hearing.

More here.