Ben Coogan

Two judge or not two judge – that is the question

Ben Coogan

16 July 2013

Designs Patents

Two Judge Panel Hearing the Trial in Apple v Samsung – the way of the future?


On 25 February 2013, for the first time in Federal Court history, a two judge panel was appointed to determine the Apple v Samsung patent dispute [1], with Justice David Yates being appointed alongside Justice Annabelle Bennett. These hearings are ongoing and are expected to run through the remainder of 2013.

There has been surprisingly little reported on this development and the case itself has only been lightly reported on when compared with some other “mega-litigation” cases such as C7 or ASIC –v- Storm Financial.


Why a two judge panel?


The usual course in Australia is for a single judge to hear a trial. However, in this case, it has been reported that due to the volume of complexity of the matters, a second judge is required to determine the issues [2].


This is understandable given that 19 Apple patents have been sued upon. Furthermore, Samsung has a cross-claim seeking to revoke some of those patents and has also alleged that Apple has infringed some of its patents. This is huge patent infringement matter for Australia where usually only one or two patents with a small number of claims are litigated.


Commentators have suggested engaging a second judge as a useful form of case management to ‘alleviate the burdens on appellate courts’ [3]. Furthermore, it has been said that adopting an additional judge would ensure more objectivity and reduce the risk of external influences [4].


Justice Bennett and Justice Yates will hear the issues separately (which should assist in eliminating inconsistent judgments) but it is unclear as to how the final decision will be determined.


Potential pitfalls?


Having a dual panel raises interesting speculation as to how conclusions will be reached in relation to the separate issues and how the judgment will be brought together for a final decision. For instance, will there be a decision on construction of the patent first by one of the judges and then a consideration of the infringement and validity issues? An Order of Justice Bennett dated 21 June 2013 would suggest that these issues are being heard concurrently. However, it is not clear.


Evidentiary issues are a major concern, particularly in relation to cross-examination of witnesses. For example, where there are conflicting decisions on the admissibility of evidence, what is the outcome?


What does this mean in where there are hearings before Justice Yates and Justice Bennett at the same time in terms of the parties’ costs? Clearly, there must be a need for two separate legal teams – this may create ‘left hand / right hand’ issues. This must also increase the legal costs for the parties involved.


It is unclear how these, and other such issues, have been or will be reconciled by the court.


Do other countries use a two judge panel?


A two judge panel has been frequently used in South Africa [5]. It is also used in the United States of America in limited cases (not patent cases) and has been used in India on at least one occasion.


The German courts, admittedly a civil jurisdiction, use two courts in patent litigation proceedings. In this respect, we understand that there is a rather strict separation between infringement proceedings and nullity (validity) proceedings (termed dual-track proceedings). As a result, in patent litigation in Germany, two parallel law suits are common, although once a nullity suit is filed; the infringement suit may be stayed. Therefore, it is not possible to raise allegations of invalidity of the patent as a defence in the infringement court as you can in Australia. If the infringement suit is not stayed, then recent decisions bring together these two strands, requiring the same claim interpretation for infringement and validity proceedings.


There are also other countries which have a similar bifurcated patent litigation system.


So, is the two judge panel the way of the future for Australia’s mega-litigation?


The short answer is that we simply do not know enough and it is too early to tell.


However, given the Federal Court’s desire to use its resources efficiently and deliver judgments as soon as it can after trial, we are of the view that provided the judges’ roles are adequately identified and potential pitfalls are kept in mind and in hand, this method is an expeditious and a useful means of attempting to achieve this.



[1]  Apple Inc v Samsung Electronics Co Ltd

[2]  Hutchinson, J., ‘Legal twist in Apple, Samsung case’, February 26, 2013 AFR 11

[3]  The Hon Mr Justice DA Ipp, ‘Reforms to the adversarial process in Civil Litigation – Part II’ ALJ 69

[4]  Ibid

[5]  Ibid