Edible Apple

With Apple currently looking for an all-encompassing injunction against Samsung in Europe, there’s also some drama a’brewin in Apple case against Samsung here in the US.

In an Initial Joint Case Management Conference Statement filed by Samsung and Apple this week, both parties set forth their own preference for how the timeline of the case should proceed.

Before we get into each party’s respective position, a quick procedural history is appropriate.

As we all know, Apple sued Samsung in April of this year for patent infringement. Samsung subsequently filed 12 patent claims against Apple in a completely separate action. When Samsung, however, was notified that Apple was moving for an expedited trial, they dismissed the aforementioned action and refiled its claims in Apple’s original action.

Apple maintains that Samsung did this with the intent on slowing down Apple’s patent claims. As such, Apple wants Samsung’s 12 patent claims to be dealt with on a completely separate track, something which Samsung is fighting against. In other words, Apple wants an expedited trial for the patent claims it initially filed and wants to deal with Samsung’s counterclaims separately.

Apple writes:

Seeking to obfuscate and delay Apple’s claims, Samsung filed an Answer to the Complaint on June 30 and brought counterclaims based on twelve disparate patents that are unrelated to the subject matter of Apple’s patents. These twelve patents, seven of which purportedly pertain to public wireless communications standards, raise numerous legal, factual, and technical issues that are completely unrelated to Apple’s claims and should be severed and set for trial on a separate track. Samsung itself does not believe that its claims require quick resolution, because it — unlike Apple — has not moved for expedited relief.

Moreover, Apple notes that it has brought counterclaims in response to Samsung’s 12 asserted patents wherein Apple accuses Samsung of wielding their patents unfairly and in ways that run afoul of contract and antitrust law.

Simply put, Samsung’s separate patent claims are thorny, complex, and will needlessly slog down Apple’s desire to litigate the 8 patent claims it initially attacked Samsung with.

As for Samsung, they begin making their point by talking about how innovative a company they are. They make a point of noting that they were in the phone industry long before Apple, that they’re the largest provider of Android-based devices in the world, and that they broke the 1 cm technological barrier in 2001 which went onto spark “the ultra-portable mobile phone revolution” by prompting other companies to create much slimmer form factors.

So, “despite a long history of innovation when it comes to the design and configuration of mobile devices,” Samsung writes, “Apple has accused Samsung of “copying” the “look and feel” of its iPhone, iPod touch, and iPad products.”

Further, Samsung argues that Apple wants to prevent Samsung from using “common, functional, obvious and otherwise unprotectable elements of design patents, trademarks and trade dress, rather than seeking to innovate in the face of legitimate competition from Samsung.”

Now that’s downright funny. Of course Samsung maintains the position that the iPhone design is common, function, and obvious. What better way to get off the hook scott free? The reality, and it’s impossible to dispute, is that the iPhone set a new bar for how people interacted and used their smartphones. If the iPhone design and UI is so common, why was it non-existent until the iPhone hit the market in 2007?

Regarding the physical design of Apple’s products, Samsung writes that features such as rectangular shapes with rounded edges and rounded-square shaped icons for applications are commonly-used and do not warrant legal protection. Moreover, Samsung notes that icon metaphors such as using an image of a yellow legal pad for a notes app or a gears image for a settings app are descriptive and commonplace.

We follow Samsung with respect to its physical design argument, but you have to look at Samsung’s products as a whole. They take from Apple’s design and really do copy, almost pixel for pixel it sometimes seems, Apple’s UI. Indeed, Samsung’s argument here doesn’t really deny the similarities between the UI on Galaxy tablets and smartphones and the iPhone, but rather says that Apple’s implementation was so obvious that their actions can in no way constitute infringement.

That’s a tenuous argument because their are a multitude of ways to create icon metaphors. The fact of the matter is that the iPhone homescreen has become so iconic (sorry for the wordplay) and the device itself so popular that Samsung’s offerings appear to piggyback off of Apple’s tradedress. The depiction of “gears” for example is not the only way to indicate to a user that they’re looking at a settings app but Samsung seemingly wanted to mimic the iPhone UI as closely as possible that they sometimes resorted to downright copying the color scheme and design of Apple’s icons. Of course, gears and the picture of a yellow notepad in hindsight seem obvious, but that’s because the popularity of the iPhone made them seem commonplace.

Our editorializing aside, Samsung also asks the Court to cancel Apple’s “allegedly registered trademarks and trade dress, in addition to declarations of invalidity for all asserted IP, including the utility and design patents.”

As for why Samsung wants their claims and Apple’s consolidated, Samsung argues that doing so will streamline litigation and “conserve resources of both parties and the Court.”

Samsung then notes that the 12 patents it asserts encompass broad areas of technology and relate to the regulating transmission power of data channels, increasing efficiency of data transmission, storing images, and combining data streams to enable simultaneous voice and high-speed data, and scrambling codes. For Apple’s allegedly infringing acts, Samsung asks for treble damages, injunctive relief, and attorneys fees.

So while Apple claims that Samsung’s asserted patents constitute a different matter altogether, Samsung argues that all patent issues pertaining to the iPhone and Samsung’s own mobile products are part of the same all-encompassing legal case.

Now interestingly, and not surprisingly, the two parties are also bickering over discovery issues. Samsung claims that Apple hasn’t been as forthcoming with documents and information as it should have.

Apple argues:

Samsung ignores that Apple made four fact witnesses and its two experts available for deposition. Samsung also ignores that Apple searched for, reviewed, and produced thousands of responsive documents and e-mails and hundreds of drawings in the limited timeframe for Samsung’s preliminary injunction discovery. Rather than address the breadth of Apple’s production, Samsung confuses sketches and notebooks, continues to demand deponents on 30(b)(6) topics that Apple has long explained were unreasonable and overly broad, and insists that Apple respond to discovery that Samsung served after the Court’s deadline.

Samsung fires back:

Apple has yet to address numerous outstanding issues with the discovery related to the Preliminary Injunction motion. These include Apple’s misrepresentation that design patent inventor notebooks did not exist – a representation that was revealed as false only at the recent deposition of an Apple designer and named inventor on the design patents asserted on Apple’s Preliminary Injunction motion – and its continued refusal to produce those notebooks. Apple also failed to produce a witness on a number of 30(b)(6) topics, despite representations on the record to the contrary, and failed to properly answer interrogatories relating to the facts at issue on the Preliminary Injunction motion.

There is also conflict as to the scope/duration of depositions and interrogetories. Apple articulates that their case and Samsung’s are distinct and subsequently warrant different guidelines with respect to discovery. In short, Apple doesn’t want any of the discovery it engages in on account of Samsung’s counterclaims to count against its limits for depositions.

Not surprisingly, Apple wants a deposition limit of 150 hours while Samsung campaigns for 450 hours of total deposition time for each side that can be allocated between each set of claims as each side sees fit. As you can tell, Apple wants to streamline things and proceed quickly while Samsung has the opposite objective.

Samsung writes:

Apple’s proposal that the parties be treated differently for discovery purposes – and not coincidentally in ways that uniformly would favor Apple – is untenable as well as unfair. Samsung believes that the Court should set one limit for the entire case and let each side decide how to allocate their time between claims and counterclaims.

Samsung further writes:

In Australia, Apple erroneously moved to enjoin the sale of a version of the Galaxy Tablet Samsung never planned to release in Australia. To avoid wasting the resources of the Court or the parties on a device that Samsung would not even be selling in Australia, Apple and Samsung entered into an agreement in which Samsung would not release the U.S. version of the tablet in that country—which it had never intended to do. In Germany, Apple secretly filed for an injunction, without any notice to Samsung, and with reportedly doctored evidence. After initially entering the injunction, the German court reversed itself and has since allowed sales of the Galaxy Tab to resume throughout Europe, with the exception of Germany itself. Samsung is challenging the remaining limited portion of the injunction and expect it to likewise be overturned.

That’s a little bit disingenuous.

FOSS Patents tackles Samsung’s Australia spin here while it’s a flat-out lie that Apple’s injunction in Germany was filed for secretly. Florian Mueller of FOSS Patents lays it out:

While it’s true that they weren’t put on notice and that there wasn’t any hearing, Samsung wasn’t forthright enough to admit that it had filed a protective pleading. Samsung wasn’t blindsided — Samsung knew it had this coming, and the court’s decision was based on both Apple’s motion and Samsung’s pre-emptive opposition pleading. This kind of communication strategy on Samsung’s part is old-school spin doctoring and only serves to strengthen my impression that Samsung is in a legally weak position against Apple. If Samsung wants to inspire confidence, it has to understand that half the truth is sometimes tantamount to a whole lie.

Further, the report of “doctored evidence” is also disingenuous. The German court’s ruling wasn’t based on doctored evidence. Indeed, one of the photos included in Apple’s German motion contained an inaccurate illustration comparing the design of the iPad and the Galaxy Tab, but the German court’s ruling was based on a number of exhibits which included actual photo comparisons of the aforementioned devices. Samsung here is being sly here at best.

Also note that the German court temporarily reversed itself as questions were raised about its jurisdiction to prevent sales of the Galaxy Tab throughout Europe. The injunction may very well be reinstated following a hearing on the matter on August 25th.

In any event, Apple asks the Court to “sever Samsung’s counterclaims and schedule them for trial on a separate track”. Apple stresses that it has an urgent need for relief and that Samsung’s products continue to “erode the distinctiveness of core Apple products.”

New infringing Samsung products are rapidly entering the U.S. market. Samsung has stated that it will make a ―major new product announcement‖ at the end of this month. All indications are that Samsung will announce the U.S. release of its next generation Galaxy S2 smartphone. Apple understands that a new infringing Samsung tablet, called the Tab 8.9, is also coming. Apple needs early adjudication of its claims so it can put a stop to Samsung’s copying of Apple’s designs and technology now.

Apple also points out that Samsung never requested expedited relief on its own counterclaims, all the more reason why the two separate claims should be considered separately. Moreover, Apple points out that its claims have already been fast tracked and that both parties have already submitted a number of motions and engaged in discovery whereas discover relating to Samsung’s counterclaims haven’t even begun and, again, relate to completely separate issues and unrelated technologies.

“By any measure,” Apple writes, “combining Apple’s claims and Samsung’s claims would make the case too large and too complex for any single jury. The technologies are varied. The legal issues, including Apple’s antitrust counterclaims, are many… Urgency and logic dictate that the cases be split as Apple has proposed.”

Samsung writes in response:

First and foremost, Apple ignores the Court’s prior decision (over Apple’s opposition) to relate the two cases that the parties filed against each other. To state the obvious, where two separately filed cases have been deemed related, it would be improper and inefficient to sever the same claims which are now styled as counterclaims. Although the Court’s order to relate should be dispositive of Apple’s belated attempt to rehash this issue, Samsung briefly addresses Apple’s arguments and further requests that, if the Court is inclined to consider Apple’s improper request, Samsung be allowed to submit an opposition brief.

…

Apple makes three arguments to justify its improper request to sever. First, Apple asserts that its claims are “straightforward.” However, Apple fails to explain how its twenty-two claims for relief, involving eight utility patents spanning differing types of complex technology, seven design patents, and over a dozen trademark and trade dress registrations and applications are “more suitable for expedited disposition.” Second, Apple argues that the potential release of new Samsung products supports its request for expedited relief. The fact Apple only moved for a preliminary injunction against three Samsung smart phones—and not on the basis of the trademark and trade dress claims used to bolster its motion for expedited discovery—belies any claim that Apple is facing harm that justifies expedited relief, much less expedited disposition of only its claims.

Samsung also notes that many of its employees that remain relevant to the case live in Korea and that combining cases would provide a more cost effective and efficient manner for Apple to depose them once as opposed to twice on account of two separate trial tracks.

Samsung also makes the dubious claim that Apple’s motion shouldn’t be granted because evidence may be lost in the interim.

“One of Apple’s declarants in support of its preliminary injunction motion has already left the company,” Samsung writes, “and it is likely that in the next two years additional important witnesses (and evidence) will become unavailable.”

That’s patently absurd. Former employees of companies are routinely deposed in matters that occur long after they’ve left a particular company. It’s also not clear who Samsung is referring to but it would appear that they’re referring to Apple lawyer and patent portfolio manager Richard Lutton Jr. who left Apple in early July. If that is, in fact, who Samsung is referring to, well then Samsung doesn’t seem quite confident in its position and appears to be grasping at straws.

Making a long story short, here are the proposed schedules for each side.

Apple wants trial to commence on its claims beginning on March 7, 2012 and on Samsung’s claims on June 21, 2013. Samsung meanwhile wants trial to commence on all claims by March 2013 at the absolute earliest.

A hearing and hopefully a ruling on the issue is scheduled to take place on August 24, 2011 at 2 PM.