Edible Apple

After a Judge granted Apple’s motion to see unreleased Samsung devices along with their corresponding packaging materials, Samsung filed a motion of its own requesting to see Apple’s iPhone 5 and iPad 3. Samsung’s clumsy logic was that it needed access to said products in order to compare them to their own product line and better prepare themselves for future legal wranglings with Apple. Samsung’s motion read, in part, that they were “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.”

This, of course, was and is complete nonsense as the case brought forth by Apple only pertains to current iOS products out on the market. Apple’s suit makes no claims about Samsung’s infringement on products that, quite honestly, don’t even officially exist yet. Apple, naturally, claimed that Samsung’s request constituted improper harassment.

Apple’s motion in opposition explained:

Samsung’s Motion to Compel is an improper attempt to harass Apple by demanding production of extremely sensitive trade secrets that have no relevance to Apple’s likelihood of success on its infringement claims or to a preliminary injunction motion. Apple made a compelling showing in its motion to expedite discovery that Apple needs samples of products that Samsung has already announced, distributed, and described, so that Apple can evaluate whether to file a preliminary injunction motion against those products, which look strikingly similar to the distinctive trade dress of Apple’s current products. Samsung has made no such showing about Apple’s future products. Therefore, Samsung’s Motion to Compel should be denied.

That said, Judge Koh denied Samsung’s motion to see Apple’s heretofore unannounced iOS products, despite claims from the Korean-based manufacturer that “fundamental fairness” demanded otherwise.

In an 11-page ruling, Judge Kho wrote that while Samsung is entitled to parity, “this does not mean… that Samsung must have access to prototypes of Apple’s next generation products.”

Remember that Apple was granted access to upcoming Samsung products in part because Samsung had already discussed them publicly at a number of events in addition to actually handing demo versions out as well.

Through all of this, Apple is likely seeking to file a preliminary injunction and get Samsung to settle as quickly as possible. FossPatents highlights a pertinent passage from the Judge’s ruling, however, that Apple should be cognizant of.

Samsung is free to argue, for instance, that there is little likelihood of confusion because consumers will not encounter its products side-by-side with the iPhone 4 or iPad 2, but rather with Apple’s next generation iPhone and iPad. Similarly, as to proximity, Samsung is free to argue that because the iPhone 4 and iPhone 2 will soon be outmoded and reduced in price, they are not being sold (or very soon will not be sold) to the same class of purchasers who are likely to buy new Samsung products. By choosing to allege infringement only of its current products, Apple opens itself up to these arguments.

This, of course, makes sense only partially. For starters, Apple’s infringement claims do focus on software, and that transcends hardware so it’s likely Samsung’s products will be just as “Appley” when the iPhone 5 comes out.

Besides, the trade dress claims Apple is trying to assert are by their very nature quite broad. Koh writes in her ruling:

The concept of “trade dress” is somewhat broader than “trademark,” as it “refers to the ‘total image of a product’ and may include features such as size, shape, color, color combinations, texture or graphics.”

Furthermore, and one problem with Judge Koh’s reasoning here, is that it essentially gives Samsung a free pass to take advantage of the alacrity with which Apple releases new iOS products. In other words, what’s to stop Samsung from copying the iPhone 5 and then arguing that it’s irrelevant because the iPhone 6 is on the way and no one will really be buying the iPhone 5 anymore.

That leaves Apple in a sticky situation where it’s forced to choose between handing over its upcoming iOS products and getting that preliminary injunction they’re undoubtedly working for.

We’ll have more once we settle down with the ruling in its entirety.