Samsung lawyers want to show them iPhone 5 and iPad 3

In a trial with Apple , Samsung on Friday filed a motion demanding that Apple show the iPhone 5 and iPad 3 in court. Seriously! Samsung claims that it should see Apple’s future products, because devices like Droid Charge and Galaxy Tab 10.1 are likely to hit the market at the same time as the iPhone 5 with iPad 3, and Samsung lawyers want to evaluate any possible similarity so that they can prepare for the next possible lawsuit from Apple. This is bold, but not entirely unexpected: the move was taken a few days after the judge ordered Samsung to transfer preliminary samples of Droid Charge, Infuse 4G, Galaxy S II, Galaxy Tab 10.1 and 8.9, so that Apple could determine whether these products should also to be part of the claim and possibly file a petition against their entry into the market.

However, the key difference between these two requests is that Samsung has already introduced its products, while Apple has traditionally been completely silent about future devices. But there are still some additional nuances, as well as some important imperceptible moments - let's consider the whole situation.

• Last week, Apple filed a lawsuit asking Samsung to hand over samples of the Galaxy Tab 10.1, Galaxy Tab 8.9, Galaxy S II, Infuse 4G and Droid Charge so that they can decide in Cupertino whether they should be part of the lawsuit - and whether to apply with a requirement of a preliminary injunction on the flow of Samsung products on sale.
• The court sided with Apple, largely because Samsung has already released reviews and photos of all the listed devices. In fact, the ruling was released a few days after Samsung distributed thousands of Galaxy Tab 10.1 to Google I / O, so the only really unreleased product on the list is Tab 8.9, which was introduced in March and shown in video.
• However, the court imposed one important limitation for Apple in order to protect Samsung’s competitive advantage: only lawyers outside Cupertino can look at Samsung pre-devices, and not any of Apple itself. (Which, of course, does not prevent someone from Apple from looking at a Droid Charge or Infuse 4G at retail, but Samsung’s samples are protected in this ruling.)
• Apple has not yet filed a request for a preliminary injunction, and also did not report that it intends to do so soon.

Now, given that most of the Samsung products on the list are either already available or fully disclosed, it’s not surprising that Apple won - in fact, it’s more interesting that Samsung decided to fight primarily because of such a minor issue, having fewer arguments. (And it's also somewhat interesting that Apple asked to transfer Samsung products, and not immediately impose an injunction on their sale, since they are all already represented.) Now let's go through Samsung's petition to get an iPhone 5 and iPad 3 and try to understand that going on.
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• Samsung is asking the court to require Apple to submit final commercial versions of the next-generation iPhone and iPad and their packaging by June 13, 2011, so that Samsung can assess whether there will be confusion between future Samsung and Apple products. If there are no final versions yet, Samsung wants the latest versions of each product.
• Samsung doesn't really know that Apple plans to launch a new iPhone or iPad; The petition is based on "messages from the Internet" and "Apple's past practice." Obviously, this is a significant difference between the requests of Apple and Samsung - Samsung has already revealed its new products, and Apple has not asked for anything that has not yet been announced.
• Samsung says it needs to see the next-generation iPhone and iPad, because it believes that these products will compete in the market with future Samsung devices, and therefore should be prepared for Apple’s possible preliminary injunction request. This is similar to delaying the process: Apple actually cannot request a preliminary injunction based on possible confusion with unrepresented and unreleased products, so Apple lawyers will almost certainly focus on confusion with existing company products.
• Indeed, Apple told Samsung on May 23 that any possible request for a preliminary injunction "will be based on Apple products that are already on the market."
• Samsung says it doesn’t matter, because Apple stops selling previous products when it launches new ones, and Samsung should be ready for what can be on the market, when and if Apple actually makes a request. This is also a bit strange, since Apple retains the iPhone 3G and iPhone 3GS on the market after launching new models. You can bet Apple will point it out.
• Samsung also promised to follow the same rules as Apple - only its lawyers will be able to see Apple products, and not anyone from Samsung. (Or of us, unfortunately.)
• Finally, Samsung says that “fundamental justice” requires Apple to show its future products, as Samsung should do the same. Tellingly, Samsung does not refer to any precedent or law for this argument - that is, it simply asks the court to be good.

That is the Samsung petition. It's rather strange if you think about it: Samsung claims that Apple may request a preliminary injunction, and that this may happen some time after Apple can release a new iPhone and iPad. Too many assumptions - and Apple can completely kill all this argument by submitting a request for this injunction on Monday and saying that Samsung has already introduced products that should not get into the market because they cause confusion with the iPhone 4 and iPad 2, how many there would be no months left until the new versions were released. Neither the court nor Samsung needs unreleased Apple products to figure this out. And even if Samsung wins, Apple will certainly appeal against this decision, delaying the general proceedings before everything settles ... a process that will almost certainly be delayed until the expected release of the iPhone 5 in the fall, turning the whole dispute into a bit meaningless. But what happens if Samsung eventually gets an iPhone 5 and determines that the Droid Charge violates Apple patents and trademarks? Samsung is going to change Droid Charge? Possible results are not entirely favorable.

So why did Samsung even do this? Perhaps this is a deliberate game for added pressure. Apple and Samsung negotiated for a year before going to court, and it is reliably known that before the first lawsuit, there were no significant discussions. This means that the negotiations were at a standstill for a long time, and it is possible that Samsung is trying to put pressure on Apple. This is an interesting and aggressive move, but he underlines the fact that neither Apple nor Samsung have touched upon the substantive issues in their formal complaints - these are minor clashes before the start of a real battle. We'll see if there will be anything other than clever legal maneuvering in this show, but now it’s clear that Apple and Samsung are not planning to retreat anytime soon.