Samsung Must Show Cell Phones to Apple

     SAN JOSE (CN) - Samsung Electronics was told Wednesday to fork over five of its not-yet-released mobile phones to Apple. Sitting in Federal Court in San Jose, Judge Lucy Koh ruled that Apple deserves the quick production of cell phone samples three months earlier than usual in the litigation process, though she drew the line at requiring testimony from Samsung executives.
     "Apple has demonstrated good cause for some, limited expedited discovery," said Koh. "While Apple has not yet filed a motion for preliminary injunction, courts have found that expedited discovery may be justified to allow a plaintiff to determine whether to seek an early injunction," said Koh.
      Among other evidence presented by Apple, the judge cited a TV news report that quotes a Samsung executive saying, "We will have to improve the parts [of the Galaxy Tab 10.1] that are inadequate. Apple made [the iPad 2] very thin."
      Apple sued Samsung last month alleging patent and trademark infringement and promtply filed a motion to expedite discovery which would require early production of documents and witnesses. In its complaint, Apple claims Samsung designed products confusingly similar to Apple's iPad, iPod Touch and iPhone, and that the products use icons similar to those used by Apple.
     The judge was careful not to endorse Apple's claims of infringement.
     "Although the Court expresses no opinion on the merits of Apple's claims, the Court notes that Apple has produced images of Samsung products and other evidence that provide a reasonable basis for Apple's belief that Samsung's new products are designed to mimic Apple's products."
     The judge notes as a basis for her ruling that the design of Samsung's cell phones is directly relevant to the infringement claims by Apple.
     "In particular, 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," the order reads.
     The judge gave Samsung 30 days to hand over product samples, packaging, and package inserts to the Galaxy S2, Galaxy Tab 8.9, Galaxy Tab 10.1, Infuse 4G, and 4G LTE or "Droid Charge."
      "The Court is also sensitive to Samsung's argument that production of samples of unreleased products to its competitor would be prejudicial," said Koh. "The Court notes, however, that this argument is undermined to some extent by evidence that Samsung has already released images and samples of its forthcoming products to the media and members of the public."
     The judge added, "Indeed, at the motion hearing, Apple represented that Samsung gave away 5,000 samples of its Galaxy Tab 10.1 to members of the public on May 10, 2011, a claim that Samsung did not dispute," the order reads.
      While Koh's order gave much of what Apple asked for in a motion filed earlier this month, she rejected Apple's request to depose Samsung executives on each product.
     "To require Samsung to prepare for a deposition on such broad topics, and on such a tight timeline, would be unduly burdensome," said Koh's order.
      She also limited the results of discovery to "Outside Counsel Eyes Only," meaning neither Apple nor its in-house counsel will get a peek at the phones or related marketing materials.
     Harold McElhinny, Michael Jacobs, Jason Bartlett and Grant Kim with of Morrison & Foerster represent Apple Inc. and Charles Verhoeven, Victoria Maroulis, Crik Olson and Kevin P.B. Johnson with Quinn Emanuel represent Samsung Electronics Co.