But as the judgment was being handed down in Sydney this afternoon by Justice Foster, Apple was granted a short stay, meaning that Samsung will not be able to sell its Galaxy tablet until Friday at 4pm. The Samsung Galaxy Tab 10.1 Samsung lawyer Peter Chalk opposed the stay, saying it served "to prolong the injustice held against Samsung". "Any stay, even of a short duration, should not be granted," Mr Chalk said. He later added that any stay "given the dependency of the Christmas trading period would ... cause substantial injustice and hardship to Samsung". But Apple won the stay it applied for so that it could prepare an appeal to the High Court. It originally asked Justice Foster for a stay that would last until 4pm Monday.

"I think that if you wish to extend that stay you will have to do that in the High Court," Justice Foster told Apple legal counsel Stephen Burley SC. a Peter Black, IP law lecturer at Queensland University of Technology, said he would be "astonished" if the High Court granted Apple special leave to appeal the case, let alone grant a further stay. "When the stay is lifted on Friday, Samsung will be free to sell their Galaxy Tab," he said. The reason why the High Court wouldn't grant special leave or a further stay, Mr Black said, was because there was "no uncertain issue of law" raised in the judgment.

"This is an application of well established law," he said. "The High Court will usually take cases when there is a novel question of law and almost never takes cases on an interlocutory basis." Samsung had argued that the judge who ordered its Galaxy Tab 10.1 to be banned from sale in Australia, Justice Annabelle Bennett, "misunderstood and misapplied" basic requirements of the law and said elements of her reasoning were "grossly unjust". Justice Dowsett, Foster and Yates appeared to agree. "In our view, her decision was clearly wrong and should be set aside," they wrote in their judgment. They argued that Bennett did not include in her written decision any assessment of the strengths of Apple's case, as she was required to do before granting the injunction blocking the Galaxy tablet from sale.

The justices also said they believed Apple was unlikely to succeed at trial, writing that current evidence failed to show that selling the Galaxy in Australia infringed on Apple's touch screen patent. On looking at whether Samsung infringed one of the two patents Apple put forward as allegedly being infringed upon, the three justices said Justice Bennett "failed to evaluate" the competing constructions of Apple's heuristics patent. "She should have found that there was no arguable case of infringement of the heuristics patent," their ruling said. They also said she should have found that Apple's case "was so weak that it did not justify the grant of an interlocutory injunction", which Justice Annabelle Bennett had granted in order to ban the tablet from sale. In a statement this afternoon, Samsung said it was pleased by the decision to lift the preliminary injunction.

"We believe the ruling clearly affirms that Apple's legal claims lack merit," the statement said. Samsung said it would later make an announcement about market availability. The decision to support Samsung's appeal is a boost for the South Korean technology company before the busy pre-Christmas shopping season. JB Hi-Fi chief executive officer Terry Smart said it was too early to confirm when the retailer would stock the tablet. "While we don't know stock availability as yet we will be stocking the tablet as soon as it's available to us.

"The tablet market continues to grow and I'm sure the Galaxy tablet will be a successful product." Harvey Norman, Dick Smith, Bing Lee and David Jones have also been contacted for details about their plans to stock the tablet. Apple and Samsung have been locked in an acrimonious battle in 10 countries involving smartphones and tablets since April, with the Australian dispute centring on touch screen technology used in Samsung's new tablet. Apple successfully moved to block Samsung from selling its tablets in Germany and a case in the Netherlands has forced Samsung to modify some smartphone models. The legal battle in Australia does not stop at tablet computers. Samsung has sought to block sales of Apple's latest iPhone 4S, which went on sale in early October, by filing preliminary sales injunction requests in four countries including Australia.

An Australian court has agreed to hear that case in March and April next year, with sales allowed to continue as normal before the hearing on alleged patent infringements. - with Reuters, AP and Stephanie Gardiner This reporter is on Facebook: /bengrubb