A few weeks ago there was a lot of media coverage of a court hearing at which Apple and Samsung were discussing with Magistrate Judge Paul S. Grewal the proposed addition of newer products, such as the iPhone 5 and Galaxy Note 10.1, to their second California lawsuit (not the one that went to trial this summer). However, that desire was old news: I already reported on it on September 20 when the parties filed their proposals that gave rise to the recent hearing.
Late on Thursday, Judge Grewal ruled on the parties' motions to amend their infringement discloures. With one important exception -- Android 4.1 aka "Jelly Bean" -- he took a rather permissive approach that is consistent with the applicable local rules for patent litigation in the Northern District of California, which set a relatively low hurdle for post-deadline amendments to infringement contentions, merely requiring that good cause be shown. So the iPhone 5, Galaxy Note 10.1 and Galaxy S III are "in". They don't raise any new technical issues anyway -- where this really makes a difference is in connection with damages should any infringements be identified. Products that are not accused in one lawsuit require a new, additional lawsuit to collect damages.
It also makes a formal but not substantial difference with respect to possible injunctions. Judge Koh, who is presiding over this lawsuit and being assisted by Judge Grewal on discovery matters, has previously granted injunctions of the "no more than colorably different" kind, which are not limited to a few specifically-named products but relate to all products having substantially the same infringement pattern. By the time any injunction comes down at the end of this lawsuit (the current trial date is in 2014), successors to the products just added to the list will have been launched anyway, placing the emphasis on the question of whether or not a newer product will or won't be more than colorably different from today's technologies as far as the alleged infringements are concerned. If, for example, the iPhone 5 has the same alleged infringement pattern as the iPhone 4, then Samsung's enforcement of a hypothetical injunctions against an iPhone 6 or iPhone 7 would require a "colorably different" analysis starting from the same basis. And even if the iPhone 5 is still on sale at the time, the fact that it was just named won't make it subject to the enforcement of an injunction after software changes that relate to an injunction patent (workarounds etc.).
By adding Android 4.1 ("Jelly Bean"), first released in July 2012 and therefore after the mid-June deadline for regular infringement contentions in this case, Apple would have created a situation in which a slew of later product releases coming with that version of Google's mobile operating system would have been targeted in this lawsuit without the actual products being named. This would have resulted in a potentially open-ended definition of products on which Apple could have later tried to collect damages. A blanket attack on Jelly Bean would also have created a situation in which Google would have made itself totally ridiculous if it had not done everything in its power to join the case as a co-defendant (or at the very least as a formal intervenor).
Judge Grewal agreed with Samsung that "such an amendment would be overbroad and may sweep any number of Samsung devices using the Jelly Bean operating system into this suit" and that "Samsung also does not have any design control over the content of Jelly Bean as it is a Google Android product that Samsung itself did not develop". Moreover, "[t]he court will not permit a sweeping amendment that might apply to devices other than those properly tied to Samsung".
In a formal sense, Apple's motion was also granted with respect to Jelly Bean, "but only as to the Jelly Bean product Apple has specified: the Galaxy Nexus". Apple definitely wanted a more inclusive infringement contention to be allowed. The Galaxy Nexus has been targeted in this lawsuit from the beginning. What Apple just achieved is that the updated version of the Galaxy Nexus running Jelly Bean will also be adjudged by the court. In connection with other products than a Nexus gadget, it might also be useful to Apple if it could later claim that the court determined (if it so did) that the infringing component of the accused product is the Android operating system -- but if a court finds a Nexus device to infringe a software patent, everyone in the industry knows that "stock Android" (Android as made available by Google, without vendor-specific enhancements) is at issue. Of course, the court order may nevertheless trigger Google's formal intervention.
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