Samsung lawyers demand to show them iPhone 5 and iPad 3

Original author: Nilay Patel
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In a lawsuit with AppleSamsung on Friday filed a motion demanding Apple show iPhone 5 and iPad 3 in court. Seriously! Samsung claims that it should see Apple's future products, because devices like Droid Charge and Galaxy Tab 10.1 are likely to hit the market at the same time that both iPhone 5 and iPad 3 and Samsung lawyers want to evaluate whatever similarities so they can prepare for Apple's next possible lawsuit. This is bold, but not entirely unexpected: the step was taken a few days after the judge ordered Samsung to transfer preliminary samples of the Droid Charge, Infuse 4G, Galaxy S II, Galaxy Tab 10.1 and 8.9, so that Apple could determine whether these products should also be part of the lawsuit and possibly file a motion against their entry into the market.

However, the key difference between the two is that Samsung has already unveiled its products, while Apple has traditionally been completely silent about future devices. But there are still some additional nuances, as well as some important inconspicuous moments - let's look at the whole situation.
  • Last week, Apple filed a lawsuit with Samsung asking Samsung to transfer samples of the Galaxy Tab 10.1, Galaxy Tab 8.9, Galaxy S II, Infuse 4G and Droid Charge so that Cupertino could determine whether they should be part of the lawsuit - and is it worth it to ask for a preliminary injunction on Samsung products.
  • The court sided with Apple, largely because Samsung has already released reviews and photos of all of the devices listed. In fact, the order was released a few days after Samsung handed out thousands of Galaxy Tab 10.1 to Google I / O, so the only really unreleased product on the list is Tab 8.9, which was introduced in March and shown in the video.
  • However, the court imposed one important limitation for Apple in order to protect Samsung’s competitive advantage: only lawyers outside Cupertino can look at Samsung’s pre-devices, and not someone from Apple itself. (Which, of course, doesn’t prevent someone from Apple from looking at the Droid Charge or Infuse 4G in retail, but Samsung’s samples are protected in this order.)
  • Apple still has not filed a request for a preliminary injunction, nor has it announced that it intends to do so in the near future.

Now, given that most of Samsung’s products on the list are either already available or fully disclosed, it’s not surprising that Apple won - in fact, it’s more interesting that Samsung decided to fight over such a minor issue with fewer arguments. (And it’s also somewhat interesting that Apple asked to transfer Samsung products, and not immediately impose an injunction on their sale, since they are all already presented.) Now, let's go through Samsung’s application for iPhone 5 and iPad 3 and try to understand what business is happening.

  • Samsung asks the court to require Apple to present the final commercial versions of the next generation iPhone and iPad and their packaging by June 13, 2011, so that Samsung can assess whether there will be confusion between future Samsung and Apple products. If there are no final versions yet, Samsung wants the latest versions of each product.
  • Samsung doesn't really  know that Apple plans to release a new iPhone or iPad; the application is based on “messages from the Internet” and “past Apple practices”. Obviously, this is a significant difference between the requests from Apple and Samsung - Samsung has already revealed its new products, and Apple has not requested anything that has not yet been announced.
  • Samsung says it needs to see the next-generation iPhone and iPad because it believes these products will compete in the market with future Samsung devices, and therefore should be prepared for Apple’s possible request for a preliminary injunction. This seems like a protracted process: Apple actually cannot request a preliminary injunction based on a possible confusion with unrepresented and unreleased products, so Apple lawyers will almost certainly focus on confusion with existing company products.
  • Indeed, Apple told Samsung on May 23 that any possible request for a preliminary injunction would “be based on Apple products already on the market.”
  • Samsung says it doesn't matter because Apple stops selling previous products when it launches new ones, and Samsung needs to be prepared for what can be on the market when and if Apple really makes its request. This is also a bit strange, as Apple keeps the iPhone 3G and iPhone 3GS on the market after the launch of new models. You can bet that Apple will point it out.
  • Samsung also promised to abide by the same rules as Apple - only its lawyers will be able to see Apple products, not someone from Samsung. (Or of us, unfortunately.)
  • Finally, Samsung says that “fundamental justice” requires Apple to showcase its future products, as Samsung must do the same. Typically, Samsung does not refer to any precedent or law for this argument - that is, it simply asks the court to be good.

This is Samsung’s application. It’s rather strange when you think about it: Samsung claims that Apple may request a preliminary injunction, and that this may happen some time after Apple can release a new iPhone and iPad. Too many assumptions - and Apple can completely kill all this argument by filing a request for this injunction on Monday and saying that Samsung has already introduced products that should not go on the market, as they cause confusion with the iPhone 4 and iPad 2, how much there would be no months left until new versions are released. Neither the court nor Samsung needs unreleased Apple products to figure this out. And even if Samsung wins, then Apple will certainly appeal this decision, delaying the general trial before everything settles down ... the process, which will almost certainly be delayed until the iPhone 5 release expected in the fall, turning this entire debate into a somewhat meaningless one. But what happens if Samsung eventually gets the iPhone 5 and determines that Droid Charge infringes on Apple's patents and trademarks? Samsung is going to change the Droid Charge? Possible results are not entirely favorable.

So why did Samsung even tackle this? Perhaps this is a deliberate game for extra pressure. Apple and Samsung held negotiations for a year before going to court, and it is reliably known that there were no significant discussions before the first lawsuit. This means that the negotiations have been at a standstill for a long time, and it is possible that Samsung is trying to put pressure on Apple. This is an interesting and aggressive move, but it emphasizes the fact that neither Apple nor Samsung raised substantive issues in their formal complaints - these are minor skirmishes before starting a real battle. Let's see if there will be anything in this show other than smart legal maneuvering, but now it’s clear that Apple and Samsung are not planning to retreat in the near future.

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