In the second California lawsuit between Apple and Samsung, currently scheduled to go to trial in March 2014, the parties still have the opportunity to amend their infringement contentions by adding new gadgets to the list of accused products. At some point closer to the trial the door will have to close to these additions, but we're not there yet, and the hurdle ("good cause") is low as I explained after the court granted Samsung's addition of the iPhone 5 and Apple's addition of a couple of Samsung products including the Galaxy Note 10.1. In the same post I also noted that the court nevertheless requires those contentions to be specific to devices and did not allow Apple to broadly attack Android 4.1 (Jelly Bean).
Late on Wednesday, Samsung brought a motion to include three Apple products that were not yet available when Samsung brought its previous motion to supplement its infringement contentions (October 1):
the iPad 4 and iPad mini (announced on October 24; U.S. release of WiFi-only versions on November 2, and of 4G versions on November 16), and
the fifth generation of the iPod touch (announced on September 12, thus before Samsung's last motion to supplement, but not available before October 9).
The penultimate sentence of Judge Grewal's order that granted the most recent additions of products last week makes it clar that Samsung's motion is certain to be granted at least with respect to the two new iPads (I'll talk about the iPod further below):
"Given the early stage of this litigation and the reasoning of this order, the court notes that Apple should think twice before opposing similar amendments reflecting other newly-released products -- e.g. the iPad 4 and iPad mini -- that Samsung may propose in the near future."
Samsung followed up on this within less than a week of the order, so it's a foregone conclusion that the iPad 4 and iPad mini will be put before the jury as accused devices whenever this case finally goes to trial.
The court's permissive attitude -- permissive because of the applicable local rules -- may ultimately allow Apple to bring more amendments to its contentions, simply because Samsung has a broader range of product offerings. Also, Android update cycles are shorter than Apple's.
For the new iPads, there won't be any surprises, but with the iPod, it's slightly more complicated. I think Samsung also has a pretty good chance of its motion being granted, but in addition to its motion to amend its contentions, "Samsung also seeks the Court's clarification that its original contentions properly allege infringement of U.S. Patent No. 7,672,470 by three prior generations of the iPod Touch, or in the alternative, Samsung seeks leave to add these products to its infringement contentions". This shows that Samsung isn't sure it has previously attacked the iPod in a sufficiently clear form. For the '470 patent, Samsung actually used the iPhone 4S as an exemplary product in its infringement claim chart and only in a footnote said that the same infringement theory would apply to "all Apple products including a built-in speaker and an external audio output port, including, without limitation, all models of iPhone, iPad, Mac, MacBook and iMac". So the iPod wasn't listed. Samsung can argue that the sentence contained the words "without limitation", and it can also argue that the fifth-generation iPod touch was released only recently, but in the discovery process Apple has already objected to Samsung's position. The iPod is not a priority product for this blog, so I'm not going to research this in detail. Suffice it to say that the court may very well rule on this permissively, but since it previously denied Apple a sweeping attack on Android 4.1, it might also hold Samsung to a certain stand of specificity and say that it would have had to actually name the iPod product line at an earlier stage of the proceedings. Judge Grewal's warning to Apple that it should not waste everyone's time by opposing the addition of the iPad 4 and iPad mini therefore does not necessarily apply to the iPod question. It's a threshold issue.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: