Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1033

*** FILED IN ERROR. REFER TO DOCUMENT #1035 . *** Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 Public Opposition to Motion for Leave to Seek Reconsideration of May 21, 2012 Order, #3 Proposed Order, #4 Declaration of Grant L. Kim in Support of Opposition, #5 Exhibit A to Public Kim Declaration, #6 Exhibit B to Public Kim Declaration, #7 Exhibit C to Public Kim Declaration, #8 Exhibit D to Public Kim Declaration)(Jacobs, Michael) (Filed on 6/4/2012) Modified on 6/5/2012 (fff, COURT STAFF).

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1 2 3 4 5 6 7 8 9 HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 10 11 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC. 12 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 APPLE INC., a California corporation, 18 19 20 21 22 Plaintiff, v. SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; and SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, Case No. 11-cv-01846-LHK (PSG) DECLARATION OF GRANT L. KIM IN SUPPORT OF APPLE INC.’S OPPOSITION TO SAMSUNG’S MOTION FOR LEAVE TO SEEK RECONSIDERATION OF THE COURT’S MAY 21, 2012 ORDER 23 Defendants. 24 25 26 27 28 KIM DECL. ISO APPLE’S OPP. TO SAMSUNG’S MOT. FOR RECONSIDERATION OF MAY 21, 2012 ORDER CASE NO. 11-CV-01846-LHK (PSG) sf-3154147 1 I, GRANT KIM, declare as follows: 2 1. I am an attorney at the law firm of Morrison & Foerster LLP, counsel of record in 3 this action for Plaintiff Apple Inc. I also appeared as counsel in Apple’s appeal of this Court’s 4 preliminary injunction ruling to the Federal Circuit. I submit this declaration to authenticate 5 certain documents filed in support of Apple’s Opposition to Samsung’s Motion for 6 Reconsideration of the Court’s May 21, 2012 Order. I have personal knowledge of the matters 7 set forth below. If called as a witness I could and would testify competently as follows. 8 2. Attached as Exhibit A is a true and correct copy of portions of the Brief of 9 Appellees that Samsung filed in the Federal Circuit appeal that are relevant to Samsung’s motion 10 for reconsideration (omitting confidential portions that are not relevant to Samsung’s motion). As 11 indicated by these excerpts, Samsung argued that this Court’s finding that the Galaxy Tab 10.1 12 likely infringes Apple’s D’889 patent was erroneous, and that the Federal Circuit should affirm 13 the denial of a preliminary injunction as to the D’889 patent on the ground that there is no likely 14 infringement. (Ex. A at 61-63.) In the alternative, Samsung argued that the Federal Circuit 15 should remand for further consideration of both infringement and validity to allow Samsung to 16 present new evidence (including “more clear photos” of an unreleased tablet model), which 17 allegedly shows that Apple’s design patents are not valid or infringed. (Id. at 73-74.) The 18 Federal Circuit did not accept either argument. 19 3. Attached as Exhibit B is a true and correct copy of relevant excerpts of photos of 20 the unreleased tablet model that Samsung submitted to the Federal Circuit as part of the appellate 21 record (A8626-43), which Samsung relied on in its appellate brief (Ex. A at 63). Samsung 22 submitted these same photos to this Court on October 18, 2011, as Exhibit R to the Tung 23 Declaration In Support of Samsung’s Notice of Lodging of Materials In Opposition to Apple’s 24 Motion for Preliminary Injunction. These photos are not confidential because they were 25 submitted to the Patent Office. In contrast, Samsung redacted the photo that appears at page 74 of 26 Samsung’s appellate brief from the public version of its brief, because this photo was not 27 submitted to the Patent Office. 28 KIM DECL. ISO APPLE’S OPP. TO SAMSUNG’S MOT. FOR RECONSIDERATION OF MAY 21, 2012 ORDER CASE NO. 11-CV-01846-LHK (PSG) sf-3154147 1 1 4. Attached as Exhibit C is a true and correct copy of relevant excerpts of the Reply 2 Brief of Appellant that Apple filed in the Federal Circuit appeal. As indicated by these excerpts, 3 Apple noted that the photos of the unreleased tablet model were not relevant to the scope of the 4 D’889 patent because the Examiner excluded the photos by cancelling the statement in the patent 5 application that referred to these photos. 6 5. Attached as Exhibit D is a true and correct copy of relevant excerpts of the D’889 7 prosecution history, which are included in the Federal Circuit appellate record. As indicated by 8 these excerpts, Apple’s application for the D’889 patent referred to “an appendix showing various 9 photographs of an electronic device in accordance with one embodiment.” (A9245.) The 10 Examiner responded by cancelling this statement as improper. (A9280-81.) Accordingly, this 11 statement does not appear in the D’889 patent, as finally issued. 12 13 I declare under the penalty of perjury that the foregoing is true and correct and that this Declaration was executed this 4th day of June 2012, at San Francisco, California. 14 15 16 /s/ Grant L. Kim Grant L. Kim 17 18 19 20 21 22 23 24 25 26 27 28 KIM DECL. ISO APPLE’S OPP. TO SAMSUNG’S MOT. FOR RECONSIDERATION OF MAY 21, 2012 ORDER CASE NO. 11-CV-01846-LHK (PSG) sf-3154147 2 1 2 ATTESTATION OF E-FILED SIGNATURE I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this 3 Declaration. In compliance with General Order 45, X.B., I hereby attest that Grant L. Kim has 4 concurred in this filing. 5 Dated: June 4, 2012 6 /s/ Michael A. Jacobs Michael A. Jacobs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KIM DECL. ISO APPLE’S OPP. TO SAMSUNG’S MOT. FOR RECONSIDERATION OF MAY 21, 2012 ORDER CASE NO. 11-CV-01846-LHK (PSG) sf-3154147 3

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