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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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
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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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APPLE INC., a California corporation,
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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
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Defendants.
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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
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I, GRANT KIM, declare as follows:
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1.
I am an attorney at the law firm of Morrison & Foerster LLP, counsel of record in
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this action for Plaintiff Apple Inc. I also appeared as counsel in Apple’s appeal of this Court’s
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preliminary injunction ruling to the Federal Circuit. I submit this declaration to authenticate
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certain documents filed in support of Apple’s Opposition to Samsung’s Motion for
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Reconsideration of the Court’s May 21, 2012 Order. I have personal knowledge of the matters
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set forth below. If called as a witness I could and would testify competently as follows.
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2.
Attached as Exhibit A is a true and correct copy of portions of the Brief of
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Appellees that Samsung filed in the Federal Circuit appeal that are relevant to Samsung’s motion
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for reconsideration (omitting confidential portions that are not relevant to Samsung’s motion). As
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indicated by these excerpts, Samsung argued that this Court’s finding that the Galaxy Tab 10.1
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likely infringes Apple’s D’889 patent was erroneous, and that the Federal Circuit should affirm
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the denial of a preliminary injunction as to the D’889 patent on the ground that there is no likely
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infringement. (Ex. A at 61-63.) In the alternative, Samsung argued that the Federal Circuit
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should remand for further consideration of both infringement and validity to allow Samsung to
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present new evidence (including “more clear photos” of an unreleased tablet model), which
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allegedly shows that Apple’s design patents are not valid or infringed. (Id. at 73-74.) The
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Federal Circuit did not accept either argument.
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3.
Attached as Exhibit B is a true and correct copy of relevant excerpts of photos of
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the unreleased tablet model that Samsung submitted to the Federal Circuit as part of the appellate
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record (A8626-43), which Samsung relied on in its appellate brief (Ex. A at 63). Samsung
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submitted these same photos to this Court on October 18, 2011, as Exhibit R to the Tung
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Declaration In Support of Samsung’s Notice of Lodging of Materials In Opposition to Apple’s
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Motion for Preliminary Injunction. These photos are not confidential because they were
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submitted to the Patent Office. In contrast, Samsung redacted the photo that appears at page 74 of
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Samsung’s appellate brief from the public version of its brief, because this photo was not
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submitted to the Patent Office.
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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
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4.
Attached as Exhibit C is a true and correct copy of relevant excerpts of the Reply
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Brief of Appellant that Apple filed in the Federal Circuit appeal. As indicated by these excerpts,
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Apple noted that the photos of the unreleased tablet model were not relevant to the scope of the
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D’889 patent because the Examiner excluded the photos by cancelling the statement in the patent
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application that referred to these photos.
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5.
Attached as Exhibit D is a true and correct copy of relevant excerpts of the D’889
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prosecution history, which are included in the Federal Circuit appellate record. As indicated by
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these excerpts, Apple’s application for the D’889 patent referred to “an appendix showing various
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photographs of an electronic device in accordance with one embodiment.” (A9245.) The
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Examiner responded by cancelling this statement as improper. (A9280-81.) Accordingly, this
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statement does not appear in the D’889 patent, as finally issued.
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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.
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/s/ Grant L. Kim
Grant L. Kim
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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
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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs, am the ECF User whose ID and password are being used to file this
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Declaration. In compliance with General Order 45, X.B., I hereby attest that Grant L. Kim has
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concurred in this filing.
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Dated: June 4, 2012
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/s/ Michael A. Jacobs
Michael A. Jacobs
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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
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