Thursday, November 22, 2012

Google to Miami court: Apple is withholding iPhone 5, iPad mini source code

Samsung hast just added the iPhone 5 and iPad mini to its list of accused products (court approval is a mere formality), and wholly-owned Google subsidiary Motorola Mobility wants to do the same in its litigation against Apple in the Southern District of Florida. In that lawsuit, none of the patents-in-suit appears to be standard-essential.

But prior to adding the iPhone 5, iPad mini and possibly other new Apple widgetry to the Miami action, Google's litigators want to perform some infringement analysis. For this purpose, they need to look at the source code of iOS 6, the latest release of Apple's smartphone/tablet operating system, which powers the iPhone 5 and iPad mini. Now Google complaints that Apple has not provided the iOS 6 source code despite a general request for source code production made on May 30 and iOS-6-specific requests on August 7, October 25, and November 6. The last one of those requests was that Apple at least provide a "date certain". Motorola is running out of time because the court set a December 14 deadline for accusations against new products.

Google's motion says that Apple "has, at various times, promised to produce iOS source code by or "shortly after" September 21st, by November 9th, and by November 30th", but two months have passed now since the release of iOS 6 "and almost four months after Apple released its most recent OSX software", whose source code Google also wants to evaluate.

If Apple kept its promise to provide source code by November 30, Motorola would have two weeks to update its infringement contentions on time. But since Apple allegedly didn't produce source code on time, Google is probably concerned that it may at some point have to little time left to add those products to the list of accused technologies. While it's possible that Google makes much ado about nothing here, its concern may be valid. Apple would certainly like the deadline for infringement contentions to pass before Google has taken a detailed look at the iOS 6 source code.

I report on discovery disputes like this one only when they raise some particularly important issues or provide indications of what's going to happen at the substantive level. In this case, with Samsung's attack on the iPhone 5 and iPad mini having received quite some attention, I thought it was worth highlighting that Google's Motorola Mobility has the same new Apple products in its crosshairs.

By the way, the two parties met today at the Oberlandesgericht M√ľnchen (Munich Higher Regional Court) for the world's first Apple-Google appeals hearing. At issue was the photo gallery page-flipping patent over which Apple won a German injunction against Motorola Mobility on March 1, 2012, and a Dutch preliminary injunction against Samsung in August 2011. I took detailed notes of the three-hour court session and will report in more detail later today or tomorrow.

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