Late on Monday, Apple and Samsung submitted statements in response to Judge Koh's April 24, 2013 order to narrow their second California case. Narrowing will occur in several steps until the spring 2014 trial. Ultimately, by February 6, 2014, the parties will have to limit their asserted patents claims to five (per side) and their accused products to ten (per side).
The purpose of the responses Apple and Samsung submitted yesterday was to identify 22 accused products per side. The filings reveal a major new disagreement: Apple has analyzed the Galaxy S4, Samsung's new top-selling product, and "has concluded that it is an infringing device and accordingly intends to move for leave to add the Galaxy S4 as an infringing product". Apple's current list of 22 accused products does not include the S4, but a footnote contains the statement from which I just quoted. Apple says it will drop another product from its list of 22 accused products once it has permission to add the S4 to this litigation.
The parties previously had some disagreements on the accused products in this action, but found common ground in January. Apple's announcement of its plan to include the S4, which "began shipping in late April 2013" according to Apple's filing, comes at a point in time when the court actually wanted the parties to drop, not add, products from the list. But given the commercial significance of the S4, Apple's desire is understandable, and the trial is still more than ten months out.
Another disagreement between the parties is how many stock keeping units can be grouped as a single product with a view to the limitations in this case. Samsung says it "heavily customizes software to carrier specifications" and considers different versions of the same product line that are sold through different carriers as different products. Samsung is right that this is also the way it worked at the 2013 trial, but it's unclear whether Samsung's customizations have any bearing on the infringement analysis the jury will have to perform next year. Apple says that it asked Samsung to identify relevant differences but "Sasmung refused". Apple also notes that its preliminary injunction against the Galaxy Nexus also related to all versions "even though that product was on more than one carrier". And Samsung's own product list does not list different carrier-specific versions of the iPhone separately. Apple furthermore criticizes that Samsung does not list separate generations of the different Mac product lines.
The court had (as Apple recalls in its filing) encouraged the parties to reach an agreement on "representative products", simplifying things for the jury by letting it evaluate only one product if multiple devices implement an accused feature in the same way. It's unlikely Samsung will agree to this as it wants to capitalize on the fact that it offers many more products than Apple does. Unless the court orders a "representative products" approach, or at least makes it very clear to Samsung that it will order this if necessary, I don't think Samsung is going to do Apple the favor to let it accuse (and potentially collect damages on and seek injunctions against) more products than otherwise. The dispute the parties are having over the S4 could make the court realize that it needs to resolve the "representative products" issue sooner rather than later.
Based on yesterday's filings, Apple accused the following Samsung products (as I wrote above, one of them would have to be dropped to make room for the S4 if the court allows its addition):
Exhibit II 4G
Galaxy Note 10.1
Galaxy Note II
Galaxy Player 4.0
Galaxy Player 5.0
Galaxy Rugby Pro
Galaxy S II
Galaxy S II Epic 4G Touch
Galaxy S II Skyrocket
Galaxy S III
Galaxy Tab 7.0 Plus
Galaxy Tab 8.9
Galaxy Tab 2 10.1
This is Samsung's current list:
iPod Touch (5th generation)
iPod Touch (4th generation)
iPod Touch (3rd generation)
iTunes (including iTunes Match)
Apple TV (3rd generation)
Apple TV (1st generation)
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