Continuing the tit-for-tat war in the courtroom between Apple and Samsung, the latter has filed a motion to get its hands on Apple's iPhone 5 and iPad 3 as part of the discovery process in an ongoing patent dispute. The problem? The iPhone 5 and iPad 3 don't exist yet.
Or, at least, they don't exist in the sense that Apple has announced absolutely nothing about either device. Samsung still wants its hands on samples of the products, however, in hopes that giving them the once-over will allow Samsung to "prepare its defense against any preliminary injunction motion brought against Samsung by Apple for trademark or trade dress infringement."
The idea wasn't necessarily Samsung's to begin with: Apple last week asked a California district court to order Samsung to turn over a variety of its devices, including the to-be-released Galaxy Tab 10.1 tablet. The court agreed, but imposed the condition that only Apple's external lawyers would be allowed access to any of Samsung's pre-production products.
The entire point of the exercise was to allow Apple to determine whether additional Samsung products should be added to a lawsuit the company filed April 15, in which the company alleged that that Samsung "chose to copy Apple's technology, user interface and innovative style in these infringing products." That includes everything from the features of Apple's iPad and iPhone all the way down the devices boxes and packaging.
Apple has not yet filed for a preliminary injunction to bar Samsung from selling the corresponding devices–including its Galaxy S phones and tablets, Epic 4G, and Nexus S–nor does it plan to do so anytime soon.
Nevertheless, "the design and appearance of Samsung's forthcoming products and packaging are directly relevant to Apple's trademark, trade dress, and design claims. Because these claims are subject to consumer confusion and 'ordinary observer' standards, the products themselves and the packaging in which they are sold are likely to be central to any motion for preliminary injunction," said federal judge Lucy Koh in her mid-May ruling.
So what's the likelihood that Samsung's lawyers will be able to see Apple's to-be-announced (if they exist) devices? Samsung's lawyers call the issue one of "fundamental fairness" in their request–more a good faith gesture by the court than a legally enforceable principle per se. Or to borrow another phrase, "I'll show you mine if you'll show me yours."
However, Apple's maintained that any preliminary injunction–were one to come–would be based on Apple products that are currently available for purchase. As well, Samsung doesn't actually have any knowledge that Apple's planning to release either the iPhone 5 or iPad 3. Apple, on the other hand, knew Samsung's product lineup based on the company's press releases, photographs, and other released material surrounding the devices.
There's also the big elephant in the room: How could Apple file for a preliminary injunction against Samsung, claiming that the company's devices are too similar those that Apple has yet to disclose or release? Where's the potential for consumer confusion there ?