Apple Computer, Inc. v. Podfitness, Inc.

Filing 121

Declaration of Andrew M. Abrams in Support of 119 Memorandum in Opposition to Partial Motion for Summary Judgment filed byApple Computer, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Errata 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Errata 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52)(Related document(s) 119 ) (Abrams, Andrew) (Filed on 4/28/2008)

Apple Computer, Inc. v. Podfitness, Inc.

Doc. 121

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David J. Miclean (#115098/[e-mail]) FISH & RICHARDSON P.C. 500 Arguello Street, Suite 500 Redwood City, California 94063 Telephone: [phone] Facsimile: [phone] Lisa M. Martens (#195824/[e-mail]) Andrew M. Abrams (#229698/[e-mail]) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, California 92130 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and Counterclaim Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) APPLE INC., Plaintiff, v. PODFITNESS, INC., and DOES 1-100, inclusive, Defendants. PODFITNESS, INC., Counterclaim Plaintiff v. APPLE INC., Counterclaim Defendant Case No. C 06-5805 SBA DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.'S OPPOSITION TO DEFENDANT PODFITNESS, INC.'S PARTIAL MOTION FOR SUMMARY JUDGMENT Date: June 3, 2008 Time: 1:00 pm Courtroom: 3, 3rd Floor Judge: Hon. Saundra B. Armstrong

I, Andrew M. Abrams, declare as follows: 1. I am an associate of Fish & Richardson P.C., counsel of record in this action for 1
DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.'S OPPOSITION TO DEFENDANT PODFITNESS, INC.'S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA

Dockets.Justia.com

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Apple Inc. ("Apple"). I am a member of the Bar of the State of California and am admitted to this Court. I have personal knowledge of the matters stated in this declaration and would testify truthfully to them if called upon to do so. 2. A true and correct copy of excerpts from the transcript dated February 4, 2008 of

Jeff Hays deposition is attached hereto as Exhibit 1. 3. A true and correct copy of a document produced by Defendant Podfitness, Inc.

("Defendant") in discovery bearing document number PF000489 is attached hereto as Exhibit 2. 4. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000518 is attached hereto as Exhibit 3. 5. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000517 is attached hereto as Exhibit 4. 6. Defendant did not mention its "podcast" theory a single time during all of the

correspondence between the parties from Defendant' s launch in April 2006 and the filing of the complaint in September 2006. On information and belief, the first mention of this theory was in connection with the mediation in April 2007. 7. A true and correct copy of an excerpt from The Cult of iPod (2005) by Leander

Kahney is attached hereto as Exhibit 5. 8. The Podfitness service launched in April 2006 after Apple objected to

Defendant' s infringement of Apple' s marks. 9. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000705 is attached hereto as Exhibit 6. 10. A true and correct reproduction of the text of a "letter" from Jeff Hays to Steve

Jobs posted online at www.podfitness.com/steve is attached hereto as Exhibit 7. 11. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF002121, 2137, 442, and 446 are attached hereto as Exhibit 8. 12. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF002974 is attached hereto as Exhibit 9. 2
DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT PODFITNESS, INC.' S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA

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13.

A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000432 is attached hereto as Exhibit 10. 14. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001042 is attached hereto as Exhibit 11. 15. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000474 is attached hereto as Exhibit 12. 16. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF002409 is attached hereto as Exhibit 13. 17. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000485 is attached hereto as Exhibit 14. 18. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001014 is attached hereto as Exhibit 15. 19. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF000043-44 are attached hereto as Exhibit 16. 20. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF009899, 11986, 22617, 22651 are attached hereto as Exhibit 17. 21. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF000648-49 are attached hereto as Exhibit 18 22. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001317 is attached hereto as Exhibit 19. 23. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001087 is attached hereto as Exhibit 20. 24. True and correct copies of printouts from the podfitness.com website are attached

hereto as Exhibit 21. 25. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF002201, 2228, 2243 are attached hereto as Exhibit 22. 26. A true and correct copy of a document produced by Defendant in discovery 3
DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT PODFITNESS, INC.' S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA

bearing document number PF005183 is attached hereto as Exhibit 23.

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27.

A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000807 is attached hereto as Exhibit 24. 28. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001369 is attached hereto as Exhibit 25. 31. Defendant has admitted that it obtained access to Apple' s iTunes data by agreeing

to the terms and conditions of the " iTunes COM for Windows SDK License Agreement." A true and correct copy of the iTunes COM for Windows SDK License Agreement is attached hereto as Exhibit 26. 32. Defendant adopted a logo for its products and services, which has promoted on its

website and which is identical to Apple' s Shuffle Logo, the subject of U.S. Trademark Registration No. 3,067,950. A true and correct copy of a printout from the podfitness.com website showing use of the logo is attached hereto as Exhibit 27. 33. Defendant also has used aspects of Apple' s MADE FOR IPOD logo, the subject

of U.S. Trademark Registration No. 3,341,286, to promote and sell its goods and services. 34. A true and correct copy of an excerpt from a Fortune magazine article dated

June 27, 2005 is attached hereto as Exhibit 28. 35. A true and correct copy of an excerpt from The Perfect Thing: How the iPod

Shuffles Commerce, Culture and Coolness by Steven Levy is attached hereto as Exhibit 29. 36. A true and correct copy of a printout from the podfitness.com website dated

September 26, 2006 is attached hereto as Exhibit 30. 37. A true and correct copy of a printout from the podfitness.com website dated

January 4, 2008 is attached hereto as Exhibit 31. 38. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001122 is attached hereto as Exhibit 32. 39. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF000979-988 are attached hereto as Exhibit 33. 40. A true and correct copy of a document produced by Defendant in discovery 4
DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT PODFITNESS, INC.' S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA

bearing document number PF010056 is attached hereto as Exhibit 34.

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41.

A true and correct copy of a printout from the website gadgetreview.com

(http://www.gadgetreview.com/2006/03/podfitnesscom-personal-trainer-service.html) from March 2006 is attached hereto as Exhibit 35. 42. A true and correct copy of a document produced by Defendant in discovery

bearing document number Exhibit PF001996 is attached hereto as Exhibit 36. 43. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF009471 is attached hereto as Exhibit 37. 44. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF009266, 9390, 9899, 10185, 10635, 10652, 22651 are attached hereto as Exhibit 38. 45. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF001867, PF001919, and PF002014-2016 are attached hereto as Exhibit 39. 46. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF005167 is attached hereto as Exhibit 40. 47. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF000943 is attached hereto as Exhibit 41. 48. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001854 is attached hereto as Exhibit 42. 49. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF002034 is attached hereto as Exhibit 43. 50. True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF024647-24648 are attached hereto as Exhibit 44. 51. A true and correct copy of a printout from the thisnext.com website

(http://www.thisnext.com/item/EADCEDCE/Podfitness-Custom-Audio) is attached hereto as Exhibit 45.

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DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT PODFITNESS, INC.' S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA

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52.

True and correct copies of documents produced by Defendant in discovery

bearing document numbers PF001947; PF001976; PF001990; PF002058; PF002081 are attached hereto as Exhibit 46. 53. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001978 is attached hereto as Exhibit 47. 54. True and correct copies of printouts from Internet publications and blogs referring

to Apple' s iPod player as a " Pod" are attached hereto as Exhibit 48. 55. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF001503 is attached hereto as Exhibit 49. 56. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF002271 is attached hereto as Exhibit 50. 57. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF002328 is attached hereto as Exhibit 51. 58. A true and correct copy of a document produced by Defendant in discovery

bearing document number PF002048 is attached hereto as Exhibit 52. 59. Of an eight-page response to office action in 2002, Apple devoted only a single

line to differences in appearance; otherwise, the entire brief consisted of arguments distinguishing the respective goods and consumers. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 28th day of April, 2008, at San Diego, California. /s/ Andrew M. Abrams Andrew M. Abrams

10828239.2.doc

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DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT PODFITNESS, INC.' S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA

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PROOF OF SERVICE I am employed in the County of San Diego, my business address is Fish & Richardson P.C., 12390 El Camino Real, San Diego, CA 92130. I am over the age of 18 and not a party to the foregoing action. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for personal delivery, for mailing with United States Postal Service, for facsimile, and for overnight delivery by Federal Express, Express Mail, or other overnight service. On April 28, 2008, I caused a copy of the following document(s): DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.'S OPPOSITION TO DEFENDANT PODFITNESS, INC.'S PARTIAL MOTION FOR SUMMARY JUDGMENT James E. Magleby Jason A. McNeill Magleby & Greenwood, P.C. 170 South Main Street, Suite 350 Salt Lake City, UT 84101 [phone] (facsimile) X Attorneys for Defendant PODFITNESS, INC.

FEDERAL EXPRESS:

Such correspondence was deposited on the same day in the ordinary course of business with a facility regularly maintained by Federal Express
Attorneys for Defendant PODFITNESS, INC.

James M. Wagstaffe Kerr & Wagstaffe LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105-1528 [phone] (facsimile) X PERSONAL:

Such envelope was delivered by hand to the offices of the addressee.

I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury that the above is true and correct. Executed on April 28, 2008, at San Diego, California.

/s/Nicole C. Pino Nicole C. Pino

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DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT PODFITNESS, INC.' S PARTIAL MOTION FOR SUMMARY JUDGMENT Case No. C 06-5805 SBA