Judge tells Samsung: No Apple sneak peeks for you!

Samsung has no right to 'prototypes of Apple's next-generation products' in patent, trademark dispute

A federal judge yesterday denied Samsung's request to see samples of Apple's next-generation iPhone and iPad, court documents show.

In an order issued Tuesday, U.S. District Court Judge Lucy Koh rejected Samsung's May motion to force Apple to give the Korean electronics giant "a sample of the final, commercial version of the next generation iPhone that Apple will release, whether that product will be known as the 'iPhone 4S,' 'iPhone 5,' or some other name."

"Ultimately, the essence of Apple's claims is that Samsung has copied Apple's products," said Koh in her order, using the past tense. "Common sense suggests that allegations of copying are necessarily directed at Apple's existing products, to which Samsung has access and could potentially mimic, and not at Apple's unreleased, inaccessible, next-generation products."

Samsung and Apple have been battling in the courtroom since mid-April, when Apple accused Samsung of "slavishly" copying the iPhone and iPad with several smartphones and the Galaxy Tab tablets. Apple claimed that Samsung's devices infringed on 10 Apple patents and violated two trademarks.

At the time, Apple asked the court for a preliminary injunction that would bar Samsung from selling devices in the U.S. that allegedly violate its patents and trademarks.

Last month, Apple filed a motion demanding that Samsung show it several of its newest smartphones and tablets as part of the lawsuit's discovery phase. Koh granted Apple's motion, in large part because most of the devices Apple sought were already released or had been publicly shown.

Samsung wanted Apple to reciprocate, but asked to see the next iPhone and iPad, arguing its smartphones and tablets would compete against and be compared to those future products, not the current iPhone 4 and iPad 2.

Koh didn't buy Samsung's argument.

"The Court agrees that the possibility that Apple will introduce next-generation iPhone and iPad products in the near future may have some effect on the likelihood of confusion analysis," Koh wrote. "The Court also agrees that Samsung should be entitled to parity in discovery related to the preliminary injunction motion. This does not mean, however, that Samsung must have access to prototypes of Apple's next-generation products."

Apple has confined its infringement claims to its current iPhone and iPad, not future models, Koh explained as she rejected Samsung's motion. "Apple is entitled to do this, and the Court must consider the claims that Apple actually brings," said Koh.

She also contrasted the Samsung and Apple requests to see each other's products, noting that the former's smartphones and tablet were in the market or had been unveiled, while the latter is notoriously secretive and has said nothing about its next iPhone or iPad.

"Apple maintains a strict policy of not commenting on future products and takes extensive measures to protect information about its unreleased products," Koh said. "Unlike Samsung, Apple has not publicly announced or described the products Samsung seeks to obtain. Instead, Apple closely guards this information as a trade secret."

Most analysts believe Apple will not start selling a new iPhone until September, breaking with its practice the last four years, when it launched new models in June or July.

Koh also used her order to discuss Samsung's rights in fighting Apple's demand for an injunction, saying that although Samsung can't see samples of the next iPhone and iPad now, it can later argue that those devices, not the current models, should be what are compared to its products.

"Samsung is free to argue, for instance, that there is little likelihood of confusion because consumers will not encounter its products side-by-side with the iPhone 4 or iPad 2, but rather with Apple's next-generation iPhone and iPad," Koh said. "[And] Samsung is free to argue that because the iPhone 4 and iPhone 2 will soon be outmoded and reduced in price, they are not being sold (or very soon will not be sold) to the same class of purchasers who are likely to buy new Samsung products."

A trial date for the case has not been set.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer, or subscribe to Gregg's RSS feed . His email address is gkeizer@computerworld.com.

Copyright © 2011 IDG Communications, Inc.

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