Edible Apple

And so the plot thickens in the ongoing legal battle between Samsung in Apple.

Two weeks ago, Samsung was ordered to provide the court with 5 of their unreleased products, complete with packaging, as to compare them to Apple’s own offerings. While Samsung argued that doing so would put it at a competitive disadvantage, Judge Lucky Koh explained in her ruling that Samsung has been pro-actively showcasing its upcoming products both in print and via the distribution of demo units.

In particular, the design and appearance of Samsung’s forthcoming products and packaging are directly relevant to Apple’s trademark, trade dress, and design claims. Because these claims are subject to consumer confusion and “ordinary observer” standards, the products themselves and the packaging in which they are sold are likely to be central to any motion for preliminary injunction.

All told, Samsung was ordered to hand over devices, packaging, and package inserts for the following products: The Galaxy S2, the Galaxy Tab 8.9, the Galaxy Tab 10.1, the Infuse 4G, and the Droid Charge.

Not to be outdone, Samsung’s lawyers filed a motion on Friday night requesting to see a few of Apple’s unreleased products – namely the next-gen iPhone and the iPad 3.

Originally discovered by This is my next, Samsung claims that it needs access to Apple’s next-gen products so they can compare them to its own products like the Galaxy Tab 10.1 and the Droid Charge and better prepare for future legal wranglings. Specifically, Samsung writes that it is “entitled to samples of the next generation iPhone and iPad”… “in order to prepare its defense against any preliminary injunction motion brought against Samsung by Apple for trademark or trade dress infringement.”

It’s an undeniably bold move, albeit baseless at the same time.

First and foremost, Apple’s legal beef with Samsung is that its products infringe on current iOS devices. The form factor and “look and feel” of upcoming Apple products have nothing to do – just yet- with the current litigation. Notably, Apple already informed Samsung that any motions for an injunction would be based on Apple’s current lineup of iOS products. By all accounts, Samsung’s motion is a weak attempt to give Apple a taste of its own medicine and we’d be exceedingly surprised if this motion ends up going anywhere.

Moreover, the products requested by Samsung have been discussed at length by Samsung executives and have been subject to extensive marketing and promotional campaigns of varying degrees. As for Apple, there has been no official word that the iPhone 4S (or iPhone 5) and the iPad 3 will hit the market, or even exist for that matter. Recognizing this, Samsung’s motion is based on belief ascertained from the Internet and “Apple’s past practice.”

Further, Samsung wants Apple to produce the “final, commercial versions” of the iPhone and iPad. Barring that, they want to see the “most current version of each to be produced instead.” Okay Samsung, here’s an iPhone 4 and iPad 2 for ya!

Oddly enough, Samsung argues that “fundamental fairness” demands that Apple hand over its future products. After all, if Samsung is doing it, then Apple should be forced to do the same. Unfortunately for Samsung, however, that’s not how our legal system works. We thankfully don’t live in an eye for an eye society and you need to have some solid evidence behind your legal requests.

But Samsung is persistent, writing: “It would put Samsung at a significant disadvantage in this litigation if the Court allowed Apple access to Samsung’s future products, and the freedom to prepare its motion for a preliminary injunction with those products in its possession – all the while knowing what Apple’s future product development plans include – but prevented Samsung from gaining access to Apple’s future products so that it could prepare its defense to Apple’s motion during this same time frame.”

Exemplary backwards reasoning, right there. Not to beat a dead horse, but Apple’s future products are heretofore unknown. As noted by Judge Koh, the Samsung products Apple is demanding to see are anything but unknown.

Nilay Patel of This is my Next astutely points out:

So that’s Samsung’s motion. It’s pretty strange, if you think about it: Samsung is arguing that Applemight file for a preliminary injunction, and that it might happen sometime after Apple might release a new iPhone and iPad. That’s a lot of assumptions — and Apple can basically kill this entire line of argument dead by filing for that injunction Monday morning and saying that Samsung’s already-announced products should be blocked from market because they’ll cause confusion with the iPhone 4 and iPad 2 for however many months remain before the new versions are released. Neither the court nor Samsung really need to see Apple’s unreleased products to deal with that.

Samsung in this case is represented by the law firm of Quinn Emanuel Urquhart & Sullivan with attorney Charles Verhoeven leading up the charge. In 2010, Verhoeven was named one of the top 100 lawyers in California.