About a month ago it became known that Apple intends to add the Samsung Galaxy S4 smartphone to the list of accused devices in the second California litigation between the two companies. Still in May, Apple identified the patents it says the Galaxy S4 infringes in the same way in which earlier Galaxy devices do. Considering that the Galaxy S4 could substantially increase the damages base should any Apple patents be found infringed at next year's trial, it was clear that Samsung wasn't going to let this addition of its new flagship gadget happen without a fight. It opposed Apple's motion. A hearing is currently scheduled to take place on June 25. Judge Lucy Koh has delegated the related issues to Magistrate Judge Paul S. Grewal.
Late on Tuesday, Apple replied to Samsung's opposition brief (this post continues below the document):
Apple addresses the three pillars of Samsung's opposition argument:
Samsung claims judicial estoppel: Apple had successfully opposed the late-stage addition of the iPhone 4S to the parties' first California lawsuit, so, according to Samsung, it can't now move for a similar addition. But Apple says "[t]he circumstances here are dramatically different". Apple argues that the infringement issues are identical, so basically Samsung just needs to download some Galaxy S4 source files, which it keeps in the same repository as its other source code, and provide sales data (Apple notes that "[r]eports indicate that Samsung has already sold between 6 and 10 million units of the Galaxy S4". By contrast, Samsung's assertions of cellular standard-essential patents against older iPhones targeted Intel/Infineon baseband chips, while the 4S was the first iPhone that came with a Qualcomm baseband chip, raising different implementation and patent exhaustion issues and requiring third-party discovery.
With a view to Apple's pursuit of damages and injunctive relief, Samsung also argues that "demand for the Galaxy S4 is driven by new features that are not accused here (such as 'Air Gesture')", but Apple says Samsung is free to raise such arguments at trial. This is part of Samsung's argument that it would be "prejudiced" by the late-stage addition of the S4. Apple, of course, denies this.
Samsung interprets a recent case-narrowing order by Judge Koh so as to require the parties to select ever smaller subsets from their original lists of accused devices. Apple, however, says "Judge Koh's orders did not limit which products the parties may accuse, only the number of products the parties may accuse". And Apple has said all along that it would be willing to drop another product from the list in order to make room for the S4, if and when it's allowed to add that one.
I wouldn't bet money on Apple obtaining permission to add the S4 to this case. While I don't think Samsung's judicial-estoppel argument is strong (there are different fact patterns between the Galaxy S4 and the iPhone 4S) and furthermore don't believe Samsung would face a huge challenge in responding to the addition of the S4 if granted (and, very importantly, no third parties would be affected), it's quite possible that Judge Koh really meant case narrowing the way Samsung interprets her order. Apple is right that her order didn't explicitly state that new products couldn't replace older ones: she only talked about the number of accused devices. Still, one could understand the spirit of her order to mean that the parties started with certain lists of accused products and should now, step by step, drop products from that list (as opposed to replacing products). I guess this is going to be a key issue at the hearing. I believe the S4 should be added because, in the alternative, the 2014 trial would basically be about products that became obsolete more than a year before the trial, which would be ridiculous. But U.S. patent enforcement is slow and inefficient, and that's generally a problem for Apple and a boon to Samsung.
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