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

Filing 1060

*** Declaration of Trevor Darrell in Support of Samsung's Reply and Exhibit D and E to Darrell Declaration FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. *** Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Proposed Order Granting Motion to File Documents Under Seal, #2 Samsung's Reply in Support of Motion to Strike Expert Testimony Based on Undislcosed Facts and Theories, #3 Declaration of Christopher E. Price in Support of Samsung's Reply, #4 Exhibit 1 to Price Declaration, #5 Exhibit 2 to Price Declaration, #6 Exhibit 3 to Price Declaration, #7 Exhibit 4 to Price Declaration, #8 Exhibit 5 to Price Declaration, #9 Exhibit 6 to Price Declaration, #10 Exhibit 7 to Price Declaration, #11 Exhibit 8 to Price Declaration, #12 Exhibit 9 to Price Declaration, #13 Exhibit 10 to Price Declaration, #14 Exhibit 11 to Price Declaration, #15 Exhibit 12 to Price Declaration, #16 Exhibit 13 to Price Declaration, #17 Exhibit 14 to Price Declaration, #18 Exhibit 15 to Price Declaration, #19 Exhibit 16 to Price Declaration, #20 Exhibit 17 to Price Declaration, #21 Exhibit 18 to Price Declaration, #22 Exhibit 19 to Price Declaration, #23 Exhibit 20 to Price Declaration, #24 Exhibit 21 to Price Declaration, #25 Exhibit 22 to Price Declaration, #26 Exhibit 23 to Price Declaration, #27 Exhibit 24 to Price Declaration, #28 Exhibit 25 to Price Declaration, #29 Exhibit 26 to Price Declaration, #30 Exhibit 27 to Price Declaration, #31 Exhibit 28 to Price Declaration, #32 Exhibit 29 to Price Declaration, #33 Exhibit 30 to Price Declaration, #34 Exhibit 31 to Price Declaration, #35 Declaration of Michael J. Wagner in Support of Samsung's Reply, #36 Exhibit A to Wagner Declaration, #37 Exhibit B to Wagner Declaration, #38 Exhibit C to Wagner Declaration, #39 Declaration of Trevor Darrell in Support of Samsung's Reply, #40 Exhibit A to Darrell Declaration, #41 Exhibit B to Darrell Declaration, #42 Exhibit C to Darrell Declaration, #43 Exhibit D to Darrell Declaration, #44 Exhibit E to Darrell Declaration)(Maroulis, Victoria) (Filed on 6/7/2012) Modified on 6/8/2012 (fff, COURT STAFF).

EXHIBIT 24

Apple Made A Deal With The Devil (No, Worse: A Patent Troll) | TechCrunch

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Apple Made A Deal With The Devil (No,
Worse: A Patent Troll)
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Friday, December 9th, 2011

Over the last two years, Apple has been engaged in vicious legal battles over smartphone patents, many of which are
aimed at squelching (or squeezing money out of) manufacturers of devices running Android. And now, for some reason,
it has given valuable patents to a patent troll — which is using them to sue many of the top technology companies in the
world.
Meet Digitude Innovations, a firm based in Virginia that recently filed (http://www.itcblog.com/wpcontent/uploads/2011/12/digitudeinnovations.pdf) suit with the International Trade Commission alleging patent
infringement by technology companies including RIM, HTC, LG, Motorola, Samsung, Sony, Amazon, and Nokia (note
that Apple is not on this list). The ITC is a favorite for companies litigating over mobile phone patent disputes, as it can
block the import of products long before a case has actually concluded.
Digitude was founded in 2010 and raised $50 million from Altitude Capital Partners, with aims to
(http://www.prweb.com//releases/2011/03/prweb5171554.htm) “acquire, aggregate, and license key technology areas
within the consumer electronics and related technology fields in a patent consortium” — in other words, it buys up
patents and then sues other companies until they settle and agree to pay licensing fees, because it’s generally less
expensive than actually going to court.
From a Forbes article (http://www.forbes.com/sites/nathanvardi/2011/06/13/big-tech-companies-might-learn-tofear-digitude/) this past June:
Digitude is a new kind of patent investment vehicle because it seeks to team up with strategic
players that can invest in Digitude not with money, but by contributing patents. The contributing
entity would then get a license for all of Digitude’s patents, [Digitude Chairman Robert] Kramer
says.

http://techcrunch.com/2011/12/09/apple-made-a-deal-with-the-devil-no-worse-a-patent-troll/

6/7/2012

Apple Made A Deal With The Devil (No, Worse: A Patent Troll) | TechCrunch

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In April, Digitude announced (http://www.prweb.com/releases/2011/04/prweb5278144.htm) the “completion of its
first such strategic partnership with one of the world’s leading consumer electronics companies” — which it didn’t
name. The company later announced (http://www.prweb.com/releases/2011/6/prweb8572959.htm) that additional
(unnamed) parties have jumped on board as well, who will receive a portion of Digitude’s proceeds based on the value
of the IP each party contributed.
Apple appears to be one of these participants, and may be the unnamed leading consumer electronics company that
Digitude boasted about this past spring. Of the four patents that Digitude included in its claim this week, two were
owned by Apple earlier this year, before they were transferred to Digitude.
The patents in question:
USPTO #6208879 (http://assignments.uspto.gov/assignments/q?db=pat&pat=6208879) —
Mobile Information Terminal Equipment and Portable Electronic Apparatus
USPTO #6456841 (http://assignments.uspto.gov/assignments/q?db=pat&pat=6456841) —
Mobile Communication Apparatus Notifying User Of Reproduction Waiting Information Effectively
In both cases, Apple transferred ownership of the patent to a company called Cliff Island LLC, which in turn transferred
it to Digitude Innovations. In fact, Apple has transferred a dozen (http://assignments.uspto.gov/assignments/q?
db=pat&qt=asne&reel=&frame=&pat=&pub=&asnr=&asnri=&asne=CLIFF+ISLAND+LLC&asnei=&asns=)
patents to Cliff Island LLC this year (though only two of these were named in this ITC suit).
You probably haven’t heard of Cliff Island LLC, because it appears to
exist in name only. There is a next to no information about the
company available online — though the patent filing does include an
address: 485 Madison Avenue, Suite 2300 in New York City.
I was unable to find a phone number for the company, so I attempted
to pay a visit to their office, only to find that it doesn’t appear to exist.
But there are other tenants on the twenty-third floor of 485 Madison.
One of which is Altitude Capital, the same IP-focused private equity
firm that happened to lead Digitude’s $50 million funding round.
Put another way, Apple appears to have transferred its patents to the
patent troll Digitude, though it first routed them through a shell
company that shares the same office as Digitude’s lead investor and
Chairman. Further evidence of the relationship between Apple and
Digitude can be found on the ITC’s own website, where a list of files
relevant to the lawsuit can be found. Many of these files are marked
confidential, but it appears someone mistakenly left the file names
intact. One of which is “Digitude-Apple License Agreement” (see screenshot below).
So what is going on? There are a pair of scenarios that seem plausible — though both of them are strange.
The first is that Apple is using Digitude as a hired gun of sorts in its patent offensive, giving the company valuable
patents to wield against its opponents (while avoiding the waves of press that are spurred by each new lawsuit). But
Apple hasn’t exactly been quiet about suing its rivals over smartphone patents, so it’s not clear what they’d gain from
this.

http://techcrunch.com/2011/12/09/apple-made-a-deal-with-the-devil-no-worse-a-patent-troll/

6/7/2012

Apple Made A Deal With The Devil (No, Worse: A Patent Troll) | TechCrunch

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The alternative is that Apple has given some of its patents to Digitude because the patent troll came after it first. The
dozen patents Apple has handed over may have been part of a settlement with the firm, along with the license agreement
(which would presumably give Apple the rights to its patents, and additional Digitude patents). This seems more likely.
But even if Digitude shot first, so to speak, it’s still hard to see Apple in a positive light here. This is Apple we’re talking
about. The idea that the company didn’t have any options other than handing over valuable patents to a patent troll —
knowing full well that it would then use those patents to sue other tech companies — seems ludicrous.
I spoke with Julie Samuels, Staff Attorney at the Electronic Frontier Foundation who focuses on patents, who points out
that in some cases certain companies will sell their patents to other parties when they’re under financial stress. But
Apple clearly doesn’t fall into that bucket.
If Apple were deliberately aiding Digitude, Samuels says “it would be horrifying — the patent troll problem is
completely out of control. Apple has every legal right to sue over its patents, but it should be the one to do it”.
And if Apple was indeed threatened first by Digitude, and only handed over its patents as part of a settlement, she says
she “cannot imagine any reasonable scenario where Apple didn’t have any other options”.
Both Apple and Digitude declined to comment.

http://techcrunch.com/2011/12/09/apple-made-a-deal-with-the-devil-no-worse-a-patent-troll/

6/7/2012

Apple Made A Deal With The Devil (No, Worse: A Patent Troll) | TechCrunch

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Also, oddly, Digitude Innovations had a website as recently as December 4, but it apparently took it down in the last few
days.

Image by steakpinball (http://www.flickr.com/photos/60588258@N00/3293465641/) on Flickr

http://techcrunch.com/2011/12/09/apple-made-a-deal-with-the-devil-no-worse-a-patent-troll/

6/7/2012