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Apple Tries to Attack Android Jelly Bean Directly in ApplevSamsungII
Tuesday, November 06 2012 @ 01:24 PM EST

Apple is trying to supplement its claims, significantly asking to add Android Jelly Bean itself, among others to its *other* Apple v. Samsung litigation in California. Samsung partially opposes. It doesn't care if Apple adds the Galaxy Tab 10.1, for example, as long as it gets to add iPhone 5. But it strongly opposes letting Apple add Jelly Bean.

I thought you'd like to read all the filings, even if, like me, you are sick to death of Apple and its patent aggression. This isn't the trial with the jury foreman issue; this hasn't gone to trial yet. But it's the same two judges, the Hon. Lucy Koh presiding, and Paul Grewall, the magistrate. He held a hearing on this yesterday, and he's taken the issue under advisement.

Here are the filings listed -- I didn't get all the exhibits yet, so if you read a Declaration listing them all, and you see one you want to read particularly, sing out and I'll get it first:

269 - Filed & Entered:   10/05/2012
Motion to Amend/Correct
Docket Text: MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions filed by Apple Inc.(a California corporation). Motion Hearing set for 11/6/2012 09:00 AM in Courtroom 8, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. Responses due by 10/19/2012. Replies due by 10/26/2012. (Attachments: # (1) Declaration Declaration of Emily Fedman, # (2) Exhibit 1 to the Declaration of Emily Fedman, # (3) Exhibit 2 to the Declaration of Emily Fedman, # (4) Exhibit 3 to the Declaration of Emily Fedman, # (5) Exhibit 4 to the Declaration of Emily Fedman, # (6) Exhibit 5 to the Declaration of Emily Fedman, # (7) Exhibit 6 to the Declaration of Emily Fedman, # (8) Exhibit 7 to the Declaration of Emily Fedman, # (9) Exhibit 8 to the Declaration of Emily Fedman, # (10) Exhibit 9 to the Declaration of Emily Fedman)(Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

270 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, filed by Apple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 11, # (2) Exhibit Exhibit 12, # (3) Exhibit Exhibit 13, # (4) Exhibit Exhibit 14, # (5) Exhibit Exhibit 15, # (6) Exhibit Exhibit 16, # (7) Exhibit Exhibit 17, # (8) Exhibit Exhibit 18, # (9) Exhibit Exhibit 19, # (10) Exhibit Exhibit 20, # (11) Exhibit Exhibit 21, # (12) Exhibit Exhibit 22)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

271 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, filed byApple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 24, # (2) Exhibit Exhibit 25, # (3) Exhibit Exhibit 26, # (4) Exhibit Exhibit 27, # (5) Exhibit Exhibit 28, # (6) Exhibit Exhibit 29, # (7) Exhibit Exhibit 30, # (8) Exhibit Exhibit 31, # (9) Exhibit Exhibit 32, # (10) Exhibit Exhibit 33, # (11) Exhibit Exhibit 34, # (12) Exhibit Exhibit 35)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

272 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, > filed byApple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 37, # (2) Exhibit Exhibit 38, # (3) Exhibit Exhibit 39, # (4) Exhibit Exhibit 40, # (5) Exhibit Exhibit 41, # (6) Exhibit Exhibit 42, # (7) Exhibit Exhibit 43, # (8) Exhibit Exhibit 44, # (9) Exhibit Exhibit 45, # (10) Exhibit Exhibit 46, # (11) Exhibit Exhibit 47, # (12) Exhibit Exhibit 48, # (13) Exhibit Exhibit 49, # (14) Exhibit Exhibit 50, # (15) Exhibit Exhibit 51)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

273 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, > filed by Apple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 53, # (2) Exhibit Exhibit 54, # (3) Exhibit Exhibit 55, # (4) Exhibit Exhibit 56, # (5) Exhibit Exhibit 57, # (6) Exhibit Exhibit 58, # (7) Exhibit Exhibit 59, # (8) Exhibit Exhibit 60, # (9) Exhibit Exhibit 61, # (10) Exhibit Exhibit 62, # (11) Exhibit Exhibit 63, # (12) Exhibit Exhibit 64, # (13) Exhibit Exhibit 65, # (14) Exhibit Exhibit 66, # (15) Exhibit Exhibit 67, # (16) Exhibit Exhibit 68, # (17) Exhibit Exhibit 69, # (18) Exhibit Exhibit 70)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

274 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, filed byApple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 72, # (2) Exhibit Exhibit 73, # (3) Exhibit Exhibit 74, # (4) Exhibit Exhibit 75, # (5) Exhibit Exhibit 76, # (6) Exhibit Exhibit 77, # (7) Exhibit Exhibit 78, # (8) Exhibit Exhibit 79, # (9) Exhibit Exhibit 80, # (10) Exhibit Exhibit 81, # (11) Exhibit Exhibit 82, # (12) Exhibit Exhibit 83, # (13) Exhibit Exhibit 84, # (14) Exhibit Exhibit 85, # (15) Exhibit Exhibit 86, # (16) Exhibit Exhibit 87)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

275 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, filed byApple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 89, # (2) Exhibit Exhibit 90, # (3) Exhibit Exhibit 91, # (4) Exhibit Exhibit 92, # (5) Exhibit Exhibit 93, # (6) Exhibit Exhibit 94, # (7) Exhibit Exhibit 95, # (8) Exhibit Exhibit 96, # (9) Exhibit Exhibit 97, # (10) Exhibit Exhibit 98, # (11) Exhibit Exhibit 99, # (12) Exhibit Exhibit 100, # (13) Exhibit Exhibit 101, # (14) Exhibit Exhibit 102, # (15) Exhibit Exhibit 103)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

276 - Filed & Entered:   10/05/2012
Exhibits
Docket Text: EXHIBITS re [269] MOTION for Leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions [268] Exhibits,, filed by Apple Inc.(a California corporation). (Attachments: # (1) Exhibit Exhibit 105, # (2) Exhibit Exhibit 106, # (3) Exhibit Exhibit 107)(Related document(s)[269]) (Lyon, Hervey) (Filed on 10/5/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF).

10/09/2012 - 277 - CLERK'S NOTICE RESETTING TIME ON NOVEMBER 6, 2012 MOTION, Set/Reset Deadlines as to 269 MOTION to Amend/Correct 268 Exhibits,, Apple Inc.'s Motion to Supplement Its Disclosure of Asserted Claims and Infringement Contentions: 11/6/2012 9:00 AM Motion reset to 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. ***This is a text only docket entry, there is no document associated with this notice.*** (ofr, COURT STAFF) (Filed on 10/9/2012) (Entered: 10/09/2012)

10/09/2012 - 278 - NOTICE of Corrections to the Declaration of Emily Fedman in Support of 269 MOTION for Leave to Amend Its Disclosure of Asserted Claims & Infringement Contentions by Apple Inc.(a California corporation) (Attachments: # 1 Exhibit Amended Exhibit to the Declaration of Emily Fedman)(Lyon, Hervey) (Filed on 10/9/2012) Modified text on 10/10/2012 (dhmS, COURT STAFF). (Entered: 10/09/2012)

10/15/2012 - 279 - RESPONSE (re 267 First MOTION for Leave to Supplement Infringement Contentions ) filed byApple Inc.. (Selwyn, Mark) (Filed on 10/15/2012) (Entered: 10/15/2012)

280 - Filed & Entered:   10/16/2012
Notice of Appearance
Docket Text: NOTICE of Appearance by Michael Richard Heimbold (Heimbold, Michael) (Filed on 10/16/2012)

281 - Filed & Entered:   10/16/2012
Notice of Appearance
Docket Text: NOTICE of Appearance by Huan-Yi Lin (Lin, Huan-Yi) (Filed on 10/16/2012)

282 - Filed & Entered:   10/16/2012
Notice (Other)
Docket Text: NOTICE by Samsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC of Withdrawal of Patrick M. Shields as Counsel (Attachments: # (1) Proposed Order)(Shields, Patrick) (Filed on 10/16/2012)

283 - Filed & Entered:   10/17/2012
Order
Docket Text: ORDER Granting Withdrawal of Patrick M. Shields as Counsel of Record. Signed by Judge Lucy H. Koh on 10/17/2012. (lhklc3, COURT STAFF) (Filed on 10/17/2012)

284 - Filed & Entered:   10/19/2012
Motion for Pro Hac Vice
Docket Text: MOTION for leave to appear in Pro Hac Vice (Filing fee $ 305.) filed by Apple Inc.(a California corporation). (Valek, Michael) (Filed on 10/19/2012) Modified on 10/22/2012 *** NO RECEIPT # PROVIDED BY COUNSEL TO INDICATE THAT FILING FEE HAS BEEN PAID *** (dhmS, COURT STAFF).

285 - Filed & Entered:   10/19/2012
Opposition/Response to Motion
Docket Text: OPPOSITION to ( [269] MOTION for leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions ) filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co., Ltd.(a Korean corporation), Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: # (1) Declaration of Michael Fazio ISO Samsung's Opposition, # (2) Exhibit A-J to Fazio Declaration)(Fazio, Michael) (Filed on 10/19/2012) Modified text on 10/22/2012 (dhmS, COURT STAFF). 10/22/2012 - 286 - REPLY (re 267 First MOTION for Leave to Supplement Infringement Contentions ) filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co., Ltd.(a Korean corporation), Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: # 1 Declaration of Michael Fazio ISO Samsung's Reply, # 2 Exhibit A-C to Fazio Declaration)(Fazio, Michael) (Filed on 10/22/2012) (Entered: 10/22/2012)

287 - Filed & Entered:   10/24/2012
Clerks Notice
Docket Text: CLERKS NOTICE requesting filing fee for [284] Pro Hac Vice Application (dhmS, COURT STAFF) (Filed on 10/24/2012)

10/26/2012 - 288 - REPLY (re 269 MOTION for leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions ) filed byApple Inc.(a California corporation). (Attachments: # 1 Declaration Declaration of Jason Lo, # 2 Exhibit A to the Declaration of Jason Lo, # 3 Exhibit B to the Declaration of Jason Lo, # 4 Exhibit C to the Declaration of Jason Lo, # 5 Exhibit D to the Declaration of Jason Lo, # 6 Exhibit E to the Declaration of Jason Lo)(Lyon, Hervey) (Filed on 10/26/2012) (Entered: 10/26/2012)

289 - Filed & Entered:   10/29/2012
Notice of Appearance
Docket Text: NOTICE of Appearance by Amardeep Lal Thakur (Thakur, Amardeep) (Filed on 10/29/2012)

290 - Filed: 10/29/2012
Entered: 10/30/2012
Filing Fee Received
Docket Text: Filing fee paid re [284] MOTION for leave to appear in Pro Hac Vice ( $ 305.00, receipt number 54611012729 ). (dhmS, COURT STAFF) (Filed on 10/29/2012) (dhmS, COURT STAFF).

291 - Filed & Entered:   10/31/2012
Order on Motion for Pro Hac Vice
Docket Text: Order by Hon. Lucy H. Koh granting [284] Motion for Pro Hac Vice for Michael Valek.(lhklc3, COURT STAFF) (Filed on 10/31/2012)

293 - Filed & Entered:   11/01/2012
Notice of Appearance
Docket Text: NOTICE of Appearance by Victoria F. Maroulis (Maroulis, Victoria) (Filed on 11/1/2012)

294 - Filed & Entered:   11/01/2012
Notice of Appearance
Docket Text: NOTICE of Appearance by Kevin P.B. Johnson (Johnson, Kevin) (Filed on 11/1/2012)

295 - Filed & Entered:   11/01/2012
Notice of Appearance
Docket Text: NOTICE of Appearance by Todd Michael Briggs (Briggs, Todd) (Filed on 11/1/2012)

296 - Filed & Entered:   11/05/2012
Terminated: 11/06/2012
Motion for Pro Hac Vice
Docket Text: MOTION for leave to appear in Pro Hac Vice of Nina S. Tallon ( Filing fee $ 305, receipt number 0971-7250787.) filed by Apple Inc.. (Tallon, Nina) (Filed on 11/5/2012)

297 - Filed & Entered:   11/06/2012
Order on Motion for Pro Hac Vice
Docket Text: Order by Hon. Lucy H. Koh granting [296] Motion for Pro Hac Vice for Nina Tallon.(lhklc3, COURT STAFF) (Filed on 11/6/2012)

298 - Filed & Entered:   11/06/2012
Motion Hearing
Docket Text: Minute Entry: Motion Hearing held on 11/6/2012 before Magistrate Judge Paul S. Grewal re [267] First MOTION for Leave to Supplement Infringement Contentions filed by Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC, Samsung Electronics America, Inc. and re [269] MOTION for leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions filed by Apple Inc. The Court takes matters under submission; written order after hearing to be issued. (Court Reporter: Irene Rodriguez.) (ofr, COURT STAFF) (Date Filed: 11/6/2012)

I've started reading them, but I haven't finished so we'll read them together. One hilarious filing explains to the court that Apple's law firm in this case uses Microsoft Word, and a paralegal downloaded materials, renamed them and then uploaded them, and somehow there were a number of mistakes in the result.

I can tell you for sure that when things go really wrong, lawyers often do blame the paralegal. It's handy. I'm guessing he or she is blaming Word. Just a guess. Anyway, it made me laugh.

Here's what Apple wants to do, including about Jelly Bean, from Apple's memorandum of points in support of its motion:

I. Introduction Pursuant to Patent Local Rule 3-6, Apple Inc. (“Apple”) moves for leave to amend its Disclosure of Asserted Claims & Infringement Contentions (“Infringement Contentions”) to (1) include additional, recently-released, products made, used, offered for sale, or sold by Samsung; (2) make minor clarifying changes to several charts previously served in a timely manner on Samsung; and (3) include information that was mistakenly omitted, but previously disclosed to Defendant Samsung Electronics Co, Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively, “Samsung”).1

Good cause exists for Apple to amend its Infringement Contentions. With respect to the first category, Apple seeks to add claim charts for the newly-released Samsung Galaxy Note 10.1, which was released after Apple served its original Infringement Contentions. The Galaxy Note 10.1 was first released in the United States on August 16, 2012. Shortly after the release of the Galaxy Note 10.1, Apple investigated whether that product infringes the asserted patents. Having now determined that it does infringe – and in a manner remarkably similar to how the already-accused devices infringe – Apple seeks to amend its contentions to include this product. The first category also encompasses minor updates to the Infringement Contentions for the Galaxy S III. At the time Apple served its Infringement Contentions, Samsung’s Galaxy S III mobile phone had been released outside of the United States, but was not yet available in the United States. As part of Apple’s diligence, Apple purchased a Galaxy S III from the United Kingdom, and prepared its Infringement Contentions based on the analysis of that device. Subsequently, Samsung officially released the Galaxy S III in the United States. Because there are minor aesthetic differences between the mobile devices released in the United States and those previously released in the United Kingdom, Apple seeks to update its contentions to include screenshots and descriptions specific to the products released in the United States. This change introduces no new infringement theories or asserted claims. Finally, Apple seeks to explicitly include within its contentions the Jelly Bean operating system that has been incrementally released for the Samsung Galaxy Nexus from July 2012 through September 2012. The inclusion of the Jelly Bean operating system will not increase the number of claims asserted or introduce any new infringement theories.

With respect to the second category, Apple seeks to amend the claims charts for United States Patent No. 8,046,721 (“the ’721 patent”), United States Patent No. 5,666,502 (“the ’502 patent”), United States Patent No. 8,074,172 (“the ’172 patent”), and United States Patent No. 8,014,760 (“the ’760 patent) to more explicitly account for Samsung’s induced infringement of these patents, which is already alleged in initial Infringement Contentions on p. 13:16-27. Apple simply seeks to provide more specific detail as to Samsung’s induced infringement without introducing additional claims or infringement theories, such as by indicating where in Samsung’s official product documentation it has encouraged users to practice the asserted claims. The other minor changes that Apple seeks to make also includes adding references to different carriers for certain devices, modifying United States Patent No. 8,086,604 (“the ’604 patent”) and United States Patent No. 6,847,959 (“the ’959 patent”) claim charts to contain exemplary language, correcting incorrect screen shots in several claim charts, and to correct a mistaken reference to a different device for the Galaxy SII (T- Mobile) ’502 claim chart. These changes will add no new claims or infringement theories to those previously asserted by Apple. For the Court’s convenience, a list of these non-substantive changes is attached as Exhibit A to this Motion.

Finally, Apple seeks to supplement its infringement contentions with six claim charts and certain claims for specific devices that were inadvertently omitted when Apple served its Infringement Contentions on June 15, 2012. At that time, Apple served 139 exhibits spanning over 8,000 pages. In the course of providing these disclosures, Apple inadvertently failed to serve six claim charts and to include certain claims as to some alleged devices. Importantly, the claim charts that were omitted do not add any additional products to this case, nor do they inject into this case any claims that were not previously asserted against other products. Accordingly, there would not be any new claim construction issues, and the claim construction process would not be affected. For the same reasons, there would not be any new invalidity or unenforceability issues.

Further, granting this Motion would not prejudice Samsung or affect the pretrial and trial schedules. Other than for products that were released after Apple first served its Infringement Contentions, the changes at issue do not introduce any claims that were not previously asserted, nor any devices that were not previously accused. Moreover, the infringement theories are entirely consistent with the infringement theories Apple previously disclosed when it first served its Infringement Contentions. Accordingly, the amendments at issue will not expand the scope of discovery nor fundamentally alter either party’s infringement, invalidity, or claim construction positions. Moreover, fact discovery in this case is set to continue until July 8, 2013, and the trial is a year and a half away, on March 31, 2014. Samsung will therefore suffer no prejudice should this motion be granted.

II. Statement of Relevant Facts

On June 15, 2010, Apple timely served its Infringement Contentions on Samsung. (Fedman Decl., ¶ 3, Exh. 2.) Apple’s Infringement Contentions accused 19 devices and asserted 37 total claims for 8 patents. (Id.) Given the number of accused devices, and the number of claims these devices infringed, Apple’s Infringement Contentions included 139 exhibits spanning over 8,000 pages.2 (Id.)

Apple now seeks to amend its Infringement Contentions to include one additional, recently-released, product made, used, offered for sale, or sold by Samsung. In particular, Apple seeks to add infringement charts to include the Samsung Galaxy Note 10.1 device. The Samsung Galaxy Note 10.1 was released on or about August 16, 2012, after Apple had served its initial Infringement Contentions. (Fedman Decl., ¶ 16, Exh. 5.) The claims that Apple seeks to assert against this device were already asserted against other Samsung devices. Moreover, the new infringement allegations are entirely consistent – and indeed, virtually identical – to the infringement allegations with respect to the already-accused products. Accordingly, this proposed amendment will add no new claims to the case. (See Fedman Decl., ¶ 22, Exhs. 10-12.)

Additionally, Apple seeks to update its infringement contentions with respect to the Samsung Galaxy S III in order to take into account minor aesthetic differences between the version of the device sold in the United Kingdom and the versions of the device sold in the United States. At the time Apple served its initial Infringement Contentions, the Galaxy S III had not been released in the United States; thus, those Contentions were based on a device that Apple had acquired in the United Kingdom. The United States version of the device was first released for one carrier on June 20, 2012, and on July 11, 2012 for other carriers. (Fedman Decl., ¶ 29.) Due to supply problems, the devices for all carriers were not always immediately available on the release date. The update at issue does not introduce any new theories of infringement.

Lastly for this category, Apple seeks to explicitly include within its contentions the Jelly Bean operating system that has been incrementally released for the Samsung Galaxy Nexus from July 2012 through September 2012.3 The inclusion of the Jelly Bean operating system will not increase the number of claims asserted or introduce any new infringement theories.

____________
1 Apple seeks to: (1) include of three claim charts which were inadvertently omitted from the Infringement Contentions (Exhibits 141, 142, and 143) (please note that Exhibit 143 was inadvertently marked as Exhibit 87 when produced to Defendants); (2) add claims 13-15 of the ’721 patent for the Galaxy SII Epic 4G Touch; and (3) add claims 1, 2, 4, 5, and 13 to several devices for the ’502 patent.

2 Four days later, on June 19, 2012, Apple provided charts that included minor corrections and changes to which Samsung did not object.

3 The Jelly Bean operating system was rolled out on a staggered basis to Galaxy Nexus devices for different carriers. Galaxy Nexus devices for Verizon did not receive the update until approximately September 21, 2012.

Yikes. 139 exhibits. Sigh. The part about the scapegoat paralegal begins on page 10. And here are more details from the Declaration [PDF] of Emily Fedman, the first exhibit attached to Apple's motion:
5. As we finalized the infringement contentions for our patents, each attorney would place the final version of the Word document into a designated shared network folder.

6. A Gibson Dunn paralegal would then download the charts in Word from the time, the paralegal would rename the charts to conform to a universal naming convention and assign exhibit numbers to each PDF file. Those PDF files were then saved into a different folder created by the paralegal in the Apple case files on Gibson Dunn’s file system. From there, the paralegal placed these files onto an FTP site.

7. Apple’s counsel also prepared documents providing an overview of its infringement contentions. Exhibit 139 to Apple’s Infringement Contentions contained a table summarizing which Samsung devices Apple accused of infringing which claims of which Apple patents (the “Claims Summary Table”). This document was also placed on the FTP site.

8. The log in and password information for the FTP site was then emailed to Samsung’s counsel so that they could access and download the infringement contentions.

9. Gibson Dunn’s security policies require that all content be automatically deleted from Gibson Dunn’s FTP sites after 7 days.

10. In the process of uploading the Word files to the proper shared network folder, downloading the files in Word, renaming and assigning exhibit numbers to the files, converting the files to PDF and finally uploading them to the FTP site, miscommunication among the team members lead to the omission and mislabeling of certain claim charts from the FTP site. Additional details of these errors will are provided in the paragraphs below.

It makes me smile to know that Apple's lawyers don't use Apple products.

So, this is the basis, or one of them, for asking to add some of the things Apple now wants to add. They have to have a good reason to add claims at this point in the litigation, because the standard the judge is supposed to follow includes whether the party seeking to supplement could have done so earlier and just didn't. As you might expect, Samsung brings that -- and other things -- to the court's attention in its opposition [PDF], saying that Apple is trying to "indefinitely extend" its claims to cover all Jelly Bean products, including those not even in the market yet. It's a partial opposition -- Samsung doesn't care about the claims charts that Apple goofed on, but what it does oppose is adding new claims without good cause:

I. INTRODUCTION

Apple’s Motion for Leave to Amend its Disclosure of Asserted Claims & Infringement Contentions addresses several categories of proposed changes to Apple’s infringement contentions. Apple groups its proposed amendments into three categories: (1) products and operating systems released after Apple’s original contentions; (2) “non-substantive changes”; and (3) previously omitted claim charts. See Dkt. 269 at 1-2. Apple’s summary of its proposed amendments ignores a fourth category – Apple’s proposed amendments to assert five additional claims against seventeen products that have been in the case from the beginning. See Dkt. 269 at 8. Samsung does not oppose certain of Apple’s proposed amendments, including the addition of the newly-released Galaxy Note 10.11; the proposed “non-substantive changes” to a number of claim charts; and the addition of claim charts that were omitted from Apple’s June 15, 2012 contentions, but that Apple provided to Samsung in June or August. Samsung opposes Apple’s motion to amend its infringement contentions to the extent that the proposed amendments would substantively change and/or expand Apple’s contentions without good cause. Specifically, Samsung opposes: (1) Apple’s attempt to indefinitely expand the scope of its allegations by asserting infringement against the “Jelly Bean” version of Android; (2) Apple’s request to add three new claim charts more than three months after its infringement contentions were due simply because Apple omitted them when it served its contentions; and (3) Apple’s effort to assert five additional claims against each of the seventeen originally accused devices.

Patent Local Rule (“Patent L.R.”) 3-6 permits amendment of contentions only “by order of the Court upon a timely showing of good cause.” Patent L.R. 3-6. This “good cause” inquiry “considers first whether the moving party was diligent in amending its contentions.” Acer Inc. v. Tech. Props., Ltd., 2010 WL 3618687, at *3 (N.D. Cal. (San Jose Div.) 2010). If a moving party fails to demonstrate diligence, “the inquiry should end.” Id. at *5 (citations omitted)....

C. Apple Should Not Be Allowed Potentially Unbounded Expansion of the Scope
of its Contentions Through the Addition of “Jelly Bean”

Apple also seeks leave to amend its contentions to include the “Jelly Bean” version of Android. The Jelly Bean version of Android was rolled out to some devices in July 2012. Fazio Decl. Ex. H. Apple did not move to amend its infringement contentions to add “Jelly Bean” until October 5, 2012. Apple has not demonstrated the necessary diligence.

More importantly, Apple’s request to amend its contentions to “explicitly include within its contentions the Jelly Bean operating system,” is far too broad. See Dkt. 269 at 2, 4. “Jelly Bean” is a new version of Android that was released by Google, Inc., beginning in or around July 2012. “Jelly Bean” is not within Samsung’s control, and Google may release different versions or builds over time. In addition, “Jelly Bean” could be loaded on devices that are not currently at issue in this litigation, including products that have not even been released yet. Apple appears to be requesting blanket permission to sweep any such products into this case, which could significantly increase the number of devices at issue without adequate disclosure to Samsung, resulting in substantial prejudice to Samsung.

_________
1 Samsung has also served a motion to amend its infringement contentions to add the newly released iPhone 5. See Dkt. 267. Samsung does not oppose Apple’s request to add the Galaxy Note 10.1 to its contentions to the extent that Samsung is also granted leave to amend its infringement contentions to add the iPhone 5.

As for Apple and its stupid design and software patents, Apple needs to cut it out. This attack on Android is unseemly. It violates the Apple brand. Just compete in the market, will you?

The USPTO needs to cut it out too. Here's a new design patent Apple just got, ars technica reports:

On Tuesday, after review by a patent examiner, the United States Patent and Trademark Office awarded Apple an additional design patent relating to the iPad's "ornamental" design. The ornamental design feature encapsulated in US Patent D607,286 for a "Portable display device" appears to be a literal rounded rectangle. But whether or not this patent would be useful against Apple's rival and alleged "copy cat" Samsung in court is unclear.
More rounded corners. Believe it or not.

Here's the point: Other companies get to make phones and tablets. Get over it, please.


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