Apple Inc. (AAPL:US), taking its patent fight to Google Inc. (GOOG:US) through its infringement litigation against Samsung Electronics Co. (005930), is asking a judge to force Google to turn over documents related to its Android operating system.
Apple told U.S. Magistrate Judge Paul S. Grewal in San Jose, California, that Google is improperly withholding information about what terms it’s using to find the documents Apple has requested in pretrial information sharing.
Apple, as part of its second patent-infringement lawsuit against Samsung in the same court, argues that Android is used in all of Samsung’s allegedly infringing products and “provides much of the accused functionality” in Apple’s claims, according to a court filing.
“It’s a question of transparency,” Mark Lyon, a lawyer for Apple, told Grewal yesterday, referring to the documents. “We have concerns that they’re not doing a full search.”
The dispute over evidence gathering comes in the case filed last year by Cupertino, California-based Apple covering technology in newer smartphones made by both companies, including its iPhone 5 and Samsung’s Galaxy S III.
Matthew Warren, a lawyer for Google who also represents Samsung, told Grewal that Apple made a “strategic decision” in filing its case “to keep Google off the complaint.” As a third-party to the case, Warren said, Google doesn’t have the same legal rights that Apple and Samsung have, in particular with respect to “reciprocal discovery.”
Turning over the search terms Apple wants may lead to “future discovery that we don’t think they’re entitled to” and give Apple “ideas about how to proceed that they wouldn’t have had.”
The second patent suit follows a previous case in which a jury awarded Apple $1.05 billion, finding Suwon, South Korea-based Samsung infringed six of the iPhone maker’s mobile-device patents. U.S. District Judge Lucy Koh, correcting what she said was the jury’s error, lowered the damages total to $639.4 million and ordered a new trial in November for some of the products at issue in that case.
The earlier case is Apple Inc. v. Samsung Electronics Co. Ltd., 11-cv-1846, and the second case is Apple Inc. v. Samsung Electronics Co., 12-cv-630, U.S. District Court, Northern District of California (San Jose).
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