Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1082
EXHIBITS to the Declaration of Thomas Watson In Support of Samsung's Motion For Leave To Seek Reconsideration of the Court's May 21, 2012 Order filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Exhibit 4, #2 Exhibit 5, #3 Exhibit 6, #4 Exhibit 7, #5 Exhibit 8, #6 Exhibit 9, #7 Exhibit 11, #8 Exhibit 15)(Maroulis, Victoria) (Filed on 6/11/2012)
EXHIBIT 5
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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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)
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Plaintiff,
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vs.
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SAMSUNG ELECTRONICS CO., LTD,
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a Korean business entity;
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SAMSUNG ELECTRONICS AMERICA,
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INC., a New York corporation;
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SAMSUNG TELECOMMUNICATIONS
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AMERICA, LLC, a Delaware
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limited liability company
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Defendants.
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________________________________)
No: 11-CV-01846-LHK
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DEPOSITION OF QUIN HOELLWARTH
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Redwood Shores, California
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Tuesday, October 25, 2011
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Reported By:
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LINDA VACCAREZZA, RPR, CLR, CRP, CSR. NO. 10201
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JOB NO. 42859
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whether a design is new and original as compared
2
to the prior art prior to the time that a design
3
application is made?
4
MR. OLSON:
Objection.
Asked and
5
answered, but you can answer this "yes,"
6
"no," "I don't know," I don't remember,"
7
or to the extent that the only
8
information is privileged, you should so
9
state.
10
THE WITNESS:
I don't know.
11
Q.
Has it ever had such guidelines,
12
to your knowledge?
13
A.
I don't know.
14
Q.
Show you what's previously marked
15
as Exhibit 8, which is a copy of United States
16
design patent 504889.
17
you've had a chance to review the 889 design
18
patent.
19
20
21
22
23
24
25
Please let me know when
MR. OLSON:
Do you have a darker
copy?
MR. ZELLER:
We can get one.
Why
don't we go off the record for a moment.
THE VIDEOGRAPHER:
The time is
12:11 p.m. and we are off the record.
(Recess taken from 12:11 p.m. to
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12:13 p.m.)
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THE VIDEOGRAPHER:
12:13 p.m.
The time is
We are on the record.
BY MR. ZELLER:
Q.
You've an opportunity to review
the 889 design patent?
7
A.
I have.
8
Q.
Do you recognize this as an issued
9
patent that you worked on the application for?
10
A.
Yes.
11
Q.
And you did this back when you
12
were with Beyer Weaver & Thomas?
13
A.
Yes.
14
Q.
Was your involvement complete
15
prior to the time that you went and began working
16
as an Apple employee or did your work on this
17
design patent application continue on?
18
MR. OLSON:
19
mean the prosecution?
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MR. ZELLER:
21
THE WITNESS:
Did he work on, you
22
in 2007.
23
Q.
24
25
Yes.
I started at Apple
This issued in 2005.
So the answer is that it was
completed before you left?
A.
Yes.
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Q.
Before you left Beyer Weaver &
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A.
Yes.
4
Q.
And generally speaking, what did
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Thomas?
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you do in connection with the application that
6
resulted in the 889 design patent?
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8
9
A.
What do you mean, generally do?
Can you be more specific?
Q.
Well, please tell me what the
10
nature of your tasks and responsibilities were in
11
connection with the 889 design patent in the
12
prosecution?
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14
15
A.
and filed it.
Q.
I prepared the patent application
Is that what you mean?
When you say that you prepared the
16
application, were you responsible for the
17
generation of the figures that are shown here in
18
the 889 design patent?
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A.
Yes.
20
Q.
I take it you didn't draw them
21
yourself?
22
A.
Are you asking me if I did or --
23
Q.
Right.
24
A.
I did.
25
Q.
You drew these?
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A.
I did.
2
Q.
Did you draw all nine of the
3
figures?
4
A.
I believe so.
5
Q.
Generally speaking, in connection
6
with those design patent applications that you
7
worked on when you were with Beyer Weaver &
8
Thomas, did you actually draw the figures?
9
A.
I did.
10
Q.
Since you've been working as an
11
employee for Apple, with respect to those design
12
patent applications that you've worked on, do you
13
typically actually draw the figures?
14
A.
No.
15
Q.
So that practice changed at some
17
A.
Yes, when I started at Apple.
18
Q.
Since the time period you began
16
point?
19
working for Apple, who has prepared the figures
20
for the design patent applications?
21
talking about actually physically drew them.
22
A.
And I'm
In some circumstances, the outside
23
counsel.
Actually, an outside counsel prepares
24
the final drawings.
25
answer.
It's probably a better
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Q.
My question is, is more pedestrian
2
and mundane.
3
instances where you were involved with design
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patent applications after starting with Apple,
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who was the person who actually physically does
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the drawing?
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8
9
A.
I'm trying to find out in those
Well, in what time frame, because
it's an organic process.
Q.
Well, I've been focusing on the
10
time period since you began working for Apple.
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But if the person who actually does the drawings
12
changed over time, please tell me that.
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14
15
A.
Well, let's just say it varies or
it depends.
Q.
In general, are the figures of the
16
Apple design patent applications prepared by
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Apple employees?
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19
A.
The drawings for the patent
applications?
20
Q.
Right.
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A.
No.
22
Q.
Typically, in those instances
23
where you've been involved with the applications,
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are they done by outside vendors?
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A.
Since being at Apple?
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as compared to the prior art?
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MR. OLSON:
I'll instruct him not
3
to answer on the basis of privilege and
4
attorney work product.
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6
(Testimony marked as requested.)
Q.
Did Apple or its counsel do
7
anything to determine that the design that's
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shown here in the 889 design patent was new and
9
original as compared to the prior art?
10
MR. OLSON:
So if I may make a
11
suggestion as to how you may reframe that
12
in which I would allow the question.
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MR. ZELLER:
14
MR. OLSON:
Okay.
Is he obviously was
15
personally involved in the participation
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of the filing of this application in
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2004.
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question whether he recalls doing
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anything at that time.
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MR. ZELLER:
So I would permit you to ask the
Yeah.
That was the
21
context in which I was asking is back in
22
the prosecution of this application.
23
let me be more definitive, then, on the
24
time period of what I'm talking about.
25
Q.
So
Prior to the time that this design
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patent issued on May 10, 2005, did Apple or its
2
counsel do anything to determine that the design
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shown in the 889 design patent was new and
4
original as compared to the prior art?
5
MR. OLSON:
6
"Apple or its counsel."
7
allow him to answer as to what he did.
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9
10
Objection.
THE WITNESS:
Q.
Vague on
Obviously, I'll
I don't recall.
Do you have any knowledge or
information in that regard?
11
A.
Not that I can remember.
12
Q.
You'll see that there are a number
13
of named inventors listed in the first column on
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the first page of the 889 design patent.
15
see that?
Do you
16
A.
Yes.
17
Q.
Was anything done prior to the
18
time that this patent issued to determine that
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these individuals were, in fact, the appropriate
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inventors?
21
A.
I don't recall.
22
Q.
Do you have any knowledge or
23
information in that regard?
24
A.
Not that I can remember.
25
Q.
Now, you mentioned that you
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prepared the figures that are shown in the 889
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design patent?
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A.
Yeah.
4
Q.
Did you base those drawings on
5
some information that you received from Apple?
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A.
Yes.
7
Q.
And one of the sources of
8
information that you used to prepare the figures
9
were photographs?
10
A.
Yes.
11
Q.
I'm going to show you what was
12
previously marked as Exhibit 841, which is a
13
multi-page document bearing Bates numbers APLPROS
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00000 18778 through 18798.
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know when you've had an opportunity to review
16
Exhibit 841.
And please let me
17
A.
(Document review.)
18
Q.
Do you recognize what's been
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marked as Exhibit 841?
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A.
I do.
21
Q.
What are these?
22
A.
These are copies of a product,
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24
25
copies of a picture of some product.
Q.
And what is the product that is
represented in these copies, these materials?
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A.
It's an electronic device of some
Q.
Is this electronic device that's
sort.
4
shown here in Exhibit 841 the same electronic
5
device that was used as the basis for the
6
drawings in the 889 design patent?
7
A.
Just to clarify where these -- I
8
know that you presented this as evidence, but
9
where are they from?
10
Q.
Well, I'm going to get to that in
11
a minute.
But I'm just trying to first figure
12
out something is, do these photographs and other
13
images in Exhibit 841 have some relationship to
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the drawing and drawings that are depicted here
15
in the 889 design patent
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MR. OLSON:
And Mr. Zeller, I
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think what we're saying is if he knew the source
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of them, it would help him to answer that
19
question.
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I may be -THE WITNESS:
Yeah, I mean, as far
21
as I don't know -- I mean, until I know
22
where this is from, I don't -- I can't
23
answer your question, right.
24
Q.
25
I mean...
Well, I mean, I'm just an outside
lawyer; I don't know facts.
I'm trying to find
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out the facts from you.
What I can say is is
2
that, that these -- and I'm talking about exactly
3
in this form is how it was produced by an Apple
4
prosecuting firm, the Stern firm, as I understand
5
it.
That's my best understanding.
6
A.
This is from the file wrapper.
7
Q.
I believe that there are photos
8
that are in the file wrapper that I'm going to
9
ask you about next that I believe correspond to
10
these.
But again, I'm just an outside lawyer.
11
I'm trying to see how these things are related.
12
And that's my -- that's the point of my
13
questioning.
14
make representations to you about any of this
15
because that's part of what I'm trying to find
16
out.
So it's a little hard for me to
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MR. OLSON:
Did we provide source
18
information for these?
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MR. ZELLER:
I don't think so.
My
20
last understanding -- we have asked for
21
the native files of these, these images.
22
23
24
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MR. OLSON:
And I'm happy to
address that as well, but go ahead.
MR. ZELLER:
And any original
photographs so that we would have clear
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images of it and the like.
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know, the information we have is pretty
3
limited.
4
produced by Stern, which I believe took
5
over the prosecution, but -- and that's
6
probably why it's in possession of them.
7
But it doesn't -- we don't know what the
8
ultimate source of this was.
9
But, you
It was, as I understand it,
It was presumably transferred
10
from Beyer Weaver & Thomas at some point
11
would be my assumption, but again, that's
12
part of what I'm trying to find out.
13
maybe if we step back for a minute and
14
try some kind of foundational things and
15
see if this helps --
16
A.
Okay.
17
Q.
-- jog your memory on any of
18
this.
19
So
And let's first focus on the '889 design
patent for a moment.
20
A.
Yes.
21
Q.
At some point, did you actually
22
have a three-dimensional model that you were
23
shown or had access to that helped you form the
24
basis of the drawings that you made on the '889
25
design patent?
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A.
Yes.
2
Q.
And if you could direct your
3
attention to the page of Exhibit 841 that bears
4
Bates number APLPROS 0000018789.
5
A.
18789?
6
Q.
Yes.
7
And you'll see this is a
photograph of an individual.
Is this you?
8
A.
Yes.
9
Q.
And this photograph shows you
10
holding a three-dimensional tablet mock-up?
11
A.
Yes.
12
Q.
And does this depict the three-
13
dimensional mock-up that you had available to you
14
as a resource to create the '889 design patent
15
figures?
16
A.
Yes.
17
Q.
And in the course of that, was
18
there one model that you had to do that?
19
MR. OLSON:
20
MR. ZELLER:
21
24
25
As opposed to more
than one.
22
23
As opposed to?
THE WITNESS:
Q.
I don't recall.
Directing your attention to the
last page of Exhibit 841.
A.
(Witness complies.)
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Q.
You'll see that this is a
2
cornucopia of you?
3
A.
Yes.
4
Q.
Do you know who created these?
5
A.
I mean, I don't know but I think
6
it was me.
7
Q.
And then directing your attention
8
to the other photographs that are part of Exhibit
9
841 which show various perspectives of the mock-
10
up, did you take these photos?
11
A.
It's likely.
12
Q.
Do you recall where you did this?
13
In other words, were you at the Beyer law firm's
14
offices?
15
remember?
Did you go to Apple to do this?
Do you
16
A.
Yes, I remember.
17
Q.
And where was it?
18
A.
Apple.
19
Q.
And I take it that's the occasion
20
in which you were provided the mock-up that's
21
depicted in these photographs and other images
22
that we have marked as Exhibit 841?
23
A.
I believe so.
24
Q.
Do you know where the photographs
25
are?
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the inventors?
2
MR. OLSON:
You can testify as to
3
any steps you may have taken, meetings
4
you may have had, et cetera, without
5
disclosing the content of such
6
communication, to the extent that you
7
have a recollection.
8
9
10
THE WITNESS:
Apple.
Q.
I can't speak to
For myself, I don't recall.
Was anything done to determine
11
whether any of the named inventors on the '889
12
design patent application, in fact, made a
13
contribution to the claimed invention?
14
MR. OLSON:
You can identify any
15
steps you took or meetings you had or things that
16
you did with respect to that question.
17
THE WITNESS:
18
MR. OLSON:
Just generally?
Without -- I think the
19
question is specific to the '889 patent.
20
But you can give steps you took or
21
actions you took or things you can
22
remember yourself doing without
23
disclosing the content of any
24
communication that you may have received
25
from someone.
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THE WITNESS:
2
Q.
I don't recall.
Generally speaking, you're aware
3
that a design patent can only have a single
4
claim, right?
5
A.
Yes.
6
Q.
And what's your understanding of
7
what defines a claim in a design patent, just
8
generally speaking?
9
MR. OLSON:
10
THE WITNESS:
I'll let that answer.
11
Q.
The drawings.
You're generally aware that you
12
can't get more than one design patent for what is
13
substantially or essentially the same design,
14
right?
15
MR. OLSON:
16
THE WITNESS:
17
Q.
Objection.
Vague.
Generally, yes.
And generally speaking, you
18
understand that when Apple seeks and obtains a
19
design patent, that Apple is necessarily
20
representing or stating to the patent office that
21
the overall appearance of the patent design is
22
not substantially the same as another patented
23
design, right?
24
25
MR. OLSON:
Wait a second.
Calls
for a legal opinion and instruct him not
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to answer on the ground of attorney-
2
client privilege and work product.
3
(Testimony marked as requested.)
4
5
THE WITNESS:
break?
Can we take a
Is it possible?
6
MR. ZELLER:
7
THE VIDEOGRAPHER:
8
9
5:06 p.m.
12
13
The time is
We are off the record.
(Recess taken from 5:06 p.m. to 5:19 p.m.)
10
11
Okay.
THE VIDEOGRAPHER:
5:19 p.m.
The time is
We are on the record.
BY MR. ZELLER:
Q.
14
Does Apple -MR. OLSON:
Do you mind, while we
15
are doing stuff, can we just clean up the
16
figures?
17
18
MR. ZELLER:
Q.
Sure.
Does Apple have any processes or
19
procedures in place to ensure that it is not
20
double patenting?
21
A.
22
At this time?
Is that what your
question, is at this time?
23
Q.
Yes.
I'm talking about currently.
24
A.
I don't know.
25
Q.
Has it ever?
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