The highest-stake litigation in America right now may very well be the smartphone patent wars. Just about all of the high-tech giants involved in the design and production of the devices are suing one another for patent infringement. So whoever emerges victorious from the litigation will have, at the very least, a nice, fat, ongoing stream of licensing revenue—and maybe a chance to control the market for products that have become almost as indispensible as air.
Samsung, the most recent Android phone maker to be sued by Apple, made a bold move Friday. In retaliation for Apple’s demand to see unreleased Samsung products (presumably in anticipation of a request for an injunction) Samsung asked San Jose federal district court judge Lucy Koh to order Apple to disclose its next-generation iPhone and iPad to the court and to Samsung.
“Because any motion for a preliminary injunction that Apple brings will be aimed at Samsung’s future products, it is simply common sense that Samsung and the court should be able to evaluate those products in view of the actual Apple products that are likely to be in the marketplace at the same time,” wrote Samsung’s lawyers at Quinn Emanuel Urquhart & Sullivan. “The evidence that would best enable Samsung and the court to do that are samples of Apple’s future products themselves.”
It’s an aggressive demand, complementing Samsung’s previously-filed countersuit against Apple. It will be interesting to see what Judge Koh makes of it; as soon as she issues a ruling, OTC will let you know.
In the meantime, it’s always fun to keep track of who’s representing whom in the smartphone wars. Or, in this particular case, who’s not representing whom.
Two of Samsung’s most-used IP firms are Weil, Gotshal & Manges and Kirkland & Ellis. Weil represented the Korean electronics company in its long-running litigation with the chipmaker Rambus and in Kodak’s U.S. International Trade Commission case over a key Kodak digital imaging patent. (Samsung ended up settling both suits, reaching a $900 million deal with Rambus in January 2010 and a confidential cross-licensing pact with Kodak in January 2011.) Kirkland, meanwhile, scored a huge win for Samsung in February at the ITC, beating back Spansion’s claim that Samsung infringed its IP for flash memory chips.
In the Apple smartphone case, however, Samsung’s not relying on either Weil or Kirkland. Why? That’s easy: conflicts. Both Weil and Kirkland represent Apple on other fronts in the smartphone wars. Kirkland is handling Apple’s infringement suit against the Android maker HTC , as well as the company’s ITC case against Nokia. Weil is defending Apple in Kodak’s ITC proceeding against Apple and Research in Motion, in which the full commission is reviewing an administrative law judge’s initial determination of non-infringement. Weil is also representing Apple in its infringement suit against Motorola. Clearly, Weil and Kirkland are not going to be filing suits against Apple anytime soon.
Samsung’s decision to turn instead to Quinn Emanuel makes a lot of sense. Quinn has occasionally represented Samsung in previous IP cases, most notably winning a summary judgment of non-infringement for three phone makers sued by the University of Texas. More importantly, though, Quinn Emanuel is closely associated with Android designer Google, and is already tangling with Apple in Motorola’s smartphone dogfight.
OTC reached out to Samsung and Quinn but didn’t hear back. Michael Jacobs of Morrison & Foerster, who represents Apple in the Samsung suit, referred us to Apple; the press office didn’t respond to an e-mail request for comment. In Samsung’s countersuit, Apple is represented by WilmerHale.
(Reporting by Alison Frankel)