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IPhone 5 Snarled Into Apple-Samsung Fracas

SAN JOSE, Calif. (CN) - Samsung can add the new iPhone 5 to the list of products it claims Apple copied in its ongoing infringement battle royale, a federal judge ruled.

A federal jury found in August that Samsung had copied the iPhone and iPad for various Galaxy products, awarding Apple more than $1 billion in damages. The second phase of the trial, involving cross-claims that Apple's iPhone, iPad and iPod Touch infringe on eight Samsung patents, starts March 31, 2014.

Samsung asked U.S. District Judge Lucy Koh to allow the addition of the iPhone 5 to its list of infringing products since it was released in September - after Koh's June 15 deadline. She agreed and noted that Apple has not opposed the motion - a rarity in the long and contentious battle between the two companies.

"Here, Samsung could not have known the specifications of the iPhone 5 before it was released in September 2012," Koh wrote. "After the release of the iPhone 5, Samsung investigated the device to determine whether the iPhone 5 practiced its patented technologies. A week later, Samsung gave Apple notice that it intended to amend its June 15 Contentions to include the iPhone 5 and provided Apple with a copy of the proposed amendments. Samsung filed the motion three days later. In doing so, Samsung acted with reasonable diligence as soon as it discovered 'nonpublic information... which was not discovered, despite diligent efforts, before the service of the Infringement Contentions.'"

Koh also allowed Apple to supplement the list of contentions with newly released Samsung devices, including the Galaxy Note 10.1. Apple can also amend contentions regarding the Samsung S III to reflect "minor aesthetic differences" between the U.S. version of the phone and the U.K. model, which forms the basis for the current contentions.

Apple was less successful, however, in its bid to put the Jelly Bean operating system on the infringing list. Koh noted that such inclusion could "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," Koh wrote. "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 specificed: the Galaxy Nexus."

Koh nevertheless gave Apple permission to correct errors in the existing claims charts and add claims charts that were mistakenly omitted during uploading.

"Mistakes or omissions are not by themselves good cause," Koh wrote. "However, considering Apple notified Samsung soon after the original contentions were exchanged, it appears that Apple acted diligently as soon as it discovered the mistake. Samsung acknowledges it received the first set of omitted charts in a timely manner, and so does not oppose the addition of this set of omitted charts. As Samsung was not prejudiced, the court will allow the addition of these claims charts."

The 12-page decision warns Apple to be careful what it wishes for.

"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," Koh concluded.

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