Samsung’s lawyers demand to see the iPhone 5 and iPad 3

We always knew the Apple / Samsung lawsuit would produce some major fireworks, and Samsung just lit off a corker: the company filed a motion Friday night asking Apple to turn over the iPhone 5 and iPad 3 as part of the discovery process. Seriously! Samsung claims that it needs to see Apple’s future products because devices like the Droid Charge and Galaxy Tab 10.1 will presumably be in the market at the same time as the iPhone 5 and iPad 3, and Samsung’s lawyers want to evaluate any possible similarities so they can prepare for further potential legal action from Apple. It’s ballsy, but it’s not totally out of the blue: the move comes just a few days after the judge ordered Samsung to hand over pre-production samples of the Droid Charge, Infuse 4G, Galaxy S II, and Galaxy Tab 10.1 and 8.9 so Apple could determine if those products should also be part of the lawsuit and potentially file a motion to block them from the market.
Now, the key difference between the two requests is that Samsung had already announced its products, while Apple has maintained its traditional iron silence about future devices. But there’s some additional nuance involved as well, as well as some bigger-picture implications — let’s walk through the entire situation, shall we?

• Last week, Apple asked the court to order Samsung to hand over samples of the Galaxy Tab 10.1, Galaxy Tab 8.9, the Galaxy S II, the Infuse 4G, and the Droid Charge so Cupertino could figure out whether they should be part of the lawsuit — and whether to ask for a preliminary injunction preventing Samsung’s products from going on sale.
• The court sided with Apple, in large part because Samsung had already released review units and photos of everything listed. In fact, the ruling came just days after Samsung handed out thousands of Galaxy Tab 10.1s at Google I/O, so really the only unreleased product on the list is the Tab 8.9 — a product that was announced in March and has been handled on video.
• The court imposed one important condition on Apple in order to protect Samsung’s competitive edge, however: only Cupertino’s outside lawyers are allowed to look at Samsung’s pre-release hardware, not anyone from Apple itself. (Of course, there’s nothing stopping someone at Apple from running out and picking up a Droid Charge or Infuse 4G at retail, but pre-production samples that come from Samsung under this order are protected.)
• Apple hasn’t yet filed for that preliminary injunction, nor has it said it’s going to anytime soon.

Now, given that most of the Samsung products on the list were already either available or fully disclosed, it wasn’t surprising that Apple won — in fact, it’s more interesting that Samsung had chose to fight back on such a minor issue in the first place, since it had so little at stake. (And it’s also somewhat interesting that Apple even asked for Samsung’s products in discovery instead of just filing for an injunction from the get-go, since they had all been announced already.) It’s a tell: no little compromises means no big compromises are in the works. So now let’s step through Samsung’s motion to see the iPhone 5 and iPad 3 and try to get a sense of what’s actually happening in context.

• Samsung’s asking for a court order requiring Apple to produce “the final, commercial versions” of the next-generation iPhone and iPad and their respective packaging by June 13, 2011, so it can evaluate whether there’ll be confusion between Samsung and Apple’s future products. If the final versions aren’t available, Samsung wants “the most current version of each to be produced instead.”
• Samsung doesn’t actually know Apple is planning to release a new iPhone or iPad; the motion is based on “internet reports” and “Apple’s past practice.” Obviously this is a critical difference between Apple’s request and Samsung’s — Samsung had already disclosed its new products, and Apple didn’t ask for anything that wasn’t already announced.
• Samsung says it has to see the next-gen iPhone and iPad because it believes those are the products that will actually be on the market against future Samsung devices, so it has to be prepared for Apple’s potential motion for a preliminary injunction. That’s kind of a stretch: Apple can’t really file for a preliminary injunction based on potential confusion with unannounced, unreleased products, so Apple’s lawyers will almost certainly focus on confusion with the company’s existing products.
• Indeed, Apple told Samsung on May 23 that any potential motion for a preliminary injunction “would be based on products Apple currently has in the market.”
• Samsung says that doesn’t matter because Apple tends to discontinue previous products when it launches new ones, and it has to be prepared for what might be in the market when and if Apple actually files its motion. This is also a bit strange, since Apple kept both the iPhone 3G and iPhone 3GS on the market after launching new models. You can bet Apple will point that out.
• Samsung’s also promised to abide by the same rules as Apple — only its lawyers will get to see anything Apple produces, not anyone at Samsung. (Or us, unfortunately.)
• Lastly, Samsung says “fundamental fairness” requires Apple to give up its future products, since Samsung had to do the same. Tellingly, Samsung doesn’t reference any precedent or law to bolster this line of argument — it’s basically just asking the court to be nice.

So that’s Samsung’s motion. It’s pretty strange, if you think about it: Samsung is arguing that Apple might file for a preliminary injunction, and that it might happen sometime after Apple might release a new iPhone and iPad. That’s a lot of assumptions — and Apple can basically kill this entire line of argument dead by filing for that injunction Monday morning and saying that Samsung’s already-announced products should be blocked from market because they’ll cause confusion with the iPhone 4 and iPad 2 for however many months remain before the new versions are released. Neither the court nor Samsung really need to see Apple’s unreleased products to deal with that. And even if Samsung wins, Apple will definitely appeal the decision, putting the entire case on hold while things get sorted out… a process that will almost certainly stretch past the iPhone 5′s expected release in the fall, rendering this entire argument somewhat moot. And what happens if Samsung eventually gets the iPhone 5 and determines that the Droid Charge infringes Apple’s patents and trademarks? Is it going to change the Droid Charge? The potential outcomes aren’t entirely favorable here.
So why is Samsung even pursuing this? I think it’s a calculated gamble for additional leverage. Apple and Samsung held negotiations for a year before giving up and heading to the courts, and I’m reliably informed that there haven’t been any substantive settlement discussions since Apple first filed its complaint. That means talks have been at a standstill for a long time now, and I wouldn’t be surprised if Samsung was trying to put some additional heat on Apple to try and kick negotiations back into gear. It’s an interesting and aggressive move in its own right, but it also highlights the fact that neither Apple nor Samsung have addressed the actual merits of their complaints in formal replies — this is a minor skirmish before the real battle begins. We’ll see if this sideshow accomplishes anything beyond clever lawyerly maneuvering, but for right now it’s clear that Apple and Samsung aren’t planning to back down anytime soon.