A couple of weeks ago, Apple brought a motion for sanctions against Samsung for multiple alleged violations of a court order regarding source code. Many media reported on the motion at the time.
Late on Friday, Samsung filed its opposition brief. Samsung claims that it fully complied with a December 22 court order because it provided the relevant source files of the code ultimately shipped on the accused devices. According to Samsung, that order "does not mandate the production of every version of every accused product and functionality".
This is just one of several discovery disputes between these two parties. On Tuesday (March 27, 2012), there will be a hearing that will cover, among other things, a different Apple motion for sanctions (relating to Samsung's alleged withholding of evidence of "copying", which Apple claims could have made an outcome-determinative difference with respect to its denied motion for a preliminary injunction) and a disagreement over depositions of more or less high-ranking Samsung executives. The "copying" issue is the most fundamental one of those discovery issues in my opinion. In that context, Apple might find one or more smoking guns that would make the Lindholm email (a key piece of evidence in Oracle v. Google) pale by comparison.
I have no doubt that the issue of source code production will be sorted out soon. If Apple is entitled to access to certain material, it will get it -- the most that can realistically happen here is a delay, even though an exclusion of certain evidence that might otherwise exonerate Samsung is also a possibility under the law.
What I found most interesting in Samsung's opposition brief were a couple of references to Samsung's continuing efforts to design around Apple's asserted patents:
"Apple has had Samsung's source code for the accused products since December 31, 2011, the source code for the implemented design around as of January 23, 2012 and March 10 and 12, 2012, and information regarding the changes that were implemented (including any design arounds) relating to the source code for the accused products as of February 3, 2012. [...]"
"To the extent that Apple claims that any of Samsung’s productions of design-around source code have prejudiced its ability to engage in its infringement analysis, such arguments ring hollow. Apple has known about such design arounds since at least February 3 and March 8--before the discovery cutoff. Moreover, Apple has had ample opportunity to review and analyze Samsung's timely January 23 source code production, and Samsung's subsequent but limited March 10 and March 12 productions—well before Apple's deadline for expert reports."
A footnote in Samsung's brief even accuses Apple of "willful ignorance" of the code of at least some of the designarounds:
"Indeed, it appears that no one from Apple has inspected the code for Samsung's design around technologies for the '891 or '163 patents [...]; such willful ignorance does not make prejudice."
A declaration in support of that brief claims, based on information and belief (i.e., there isn't necessarily hard evidence), "that no one from Apple has printed any part of the code"
If Samsung provided such source code, Apple can try to bring infringement allegations against those designarounds. The key question here is whether those designarounds truly steer clear of patent infringement, or whether they merely constitute a somewhat (possibly just slightly) different infringement pattern.
Samsung can change its source code every day (theoretically), but litigation is much slower. At some point during such a lawsuit, it will be too late for Apple to present allegations against new implementations. If Apple won a first ruling against certain implementations and a subsequent one was similar to them (and therefore faced the same infringement problem), then Apple could ask for sanctions -- but such designarounds can also raise new substantive questions. For example, almost all of the infringement allegations Apple has brought against implementations of "slide to unlock" in different jurisdictions related to implementations that were intended to be designarounds, but some were nevertheless held infringing by the Munich I Regional Court (in a ruling against Motorola, not Samsung).
If Apple and Samsung don't settle in the near term, we may very well see a cat-and-mouse game in which Apple has to assert the same patent(s) against the same defendant(s) in new lawsuits only in order to catch up with designarounds that may or may not be deemed infringing in the end.
There's significant value to Apple in rulings based on implementations that have subsequently been, or will in the future be, replaced. At the very least any such infringement findings entitle Apple to damages, and any injunctions based on older implementations put Apple in a stronger position, and give Apple more tactical options, should new infringements surface.
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