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Apple Can't Add Jelly Bean to Apple v. Samsung 2 Trial, only Galaxy Nexus ~pj
Friday, November 16 2012 @ 07:11 AM EST

The Magistrate Judge in Apple v. Samsung 2, the litigation still in the early pre-trial phase in California District Court, has ruled [PDF] on the parties' motions to add products to the case.

Samsung's motion to add iPhone 5 was granted. Apple's motion [PDF] was partly granted and partly denied. It can add the Samsung Galaxy Note 10.1, the Samsung S III, and the Galaxy Nexus, which runs Android Jelly Bean. Apple cannot add Android Jelly Bean itself. That's a huge block of what I'd call a sneaky move on Apple's part, one that did not get past this judge.

It's not unusual for parties to be allowed to add newer products to a case, as long as they don't bring in new claims or theories of infringement and so long as they act fast and there's no prejudice to the other side.

Apple had asked to be allowed to add Android Jelly Bean to the list of infringing products, which Samsung opposed [PDF]. However, the magistrate judge, Hon. Paul Grewall, noticed that this would be an open-ended claim that could sweep all kinds of products into the case, including ones not related to Samsung and over which it has no control since it doesn't develop Jelly Bean, and he has denied that part of the motion except for allowing Apple to add one specific product, the Samsung Galaxy Nexus, which happens to use Jelly Bean:

Lastly for this category, Apple proposes to add the Jelly Bean operating system to its claims. The Jelly Bean operating system is the new version of the Google Android system that is used on all Samsung mobile devices, including those named by Apple in this suit. The Jelly Bean operating system was first released in July 2012.

As the moving party, Apple bears the burden of showing that it “acted with diligence in promptly moving to amend when new evidence is revealed.” Apple fails to do so. Apple merely alleges in one paragraph of its October 5 motion that the Jelly Bean was released in July 2012, and inclusion of the system “will not increase the number of claims asserted or introduce any new infringement theories.”

This is insufficient to show diligence for making a substantial change to the infringement contentions.

Turning to the question of prejudice, it is problematic that Apple makes no reference in its initial briefing to the infringement theories or patent claims it wishes to charge against Jelly Bean. Samsung would be prejudiced by the lack of specificity in Apple’s proposed amendment because it will not have notice to the claims it must defend against. Moreover, as Samsung correctly noted, such an amendment would be overbroad and may sweep any number of Samsung devices using the Jelly Bean operating system into this suit. The Jelly Bean operating system is used on numerous Samsung devices. Samsung also does not have any design control over the content of Jelly Bean as it is a Google Android product that Samsung itself did not develop. The court will not permit a sweeping amendment that might apply to devices other than those properly tied to Samsung. The court will allow this proposed amendment, but only as to the Jelly Bean product Apple has specified: the Galaxy Nexus.

So that attempted trick has failed. Courts do seem to be waking up to the Apple maneuvers, wouldn't you say? Some in the media are reporting that Jelly Bean was added to the case, but it was not except to this limited extent, that the Galaxy Nexus product was added to the case, and it uses Android Jelly Bean. But Google develops Jelly Bean, not Samsung. So Jelly Bean itself was *not* added to the case.

This judge also seems to have caught on to Apple's legal extremism to some extent, also, telling Apple:

Given the early stage of this litigation and the reasoning of this order, the court notes that Apple should think twice before opposing similar amendments reflecting other newly-released products — e.g. the iPad 4 and iPad mini — that Samsung may propose in the near future.
I'll translate that legalese for you. He's saying, Be reasonable. He expects Samsung to be adding more products soon.

Judge Grewall will be participating in the Santa Clara Law's conference on what to do about software patents, which will be live streamed, today. Details here.

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