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

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 1
1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
5
6
7
8
9
10
11
12

APPLE INC., a California
corporation,

)
)
)
Plaintiff,
)
)
vs.
)
)
SAMSUNG ELECTRONICS CO., LTD,
)
a Korean business entity;
)
SAMSUNG ELECTRONICS AMERICA,
)
INC., a New York corporation;
)
SAMSUNG TELECOMMUNICATIONS
)
AMERICA, LLC, a Delaware
)
limited liability company
)
)
Defendants.
)
________________________________)

No: 11-CV-01846-LHK

13
14

**HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY**

15
16

DEPOSITION OF QUIN HOELLWARTH

17

Redwood Shores, California

18

Tuesday, October 25, 2011

19
20
21
22
23

Reported By:

24

LINDA VACCAREZZA, RPR, CLR, CRP, CSR. NO. 10201

25

JOB NO. 42859
TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 101
1

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 102
1

12:13 p.m.)

2
3
4
5
6

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?

20

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.

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 103
1

Q.

Before you left Beyer Weaver &

3

A.

Yes.

4

Q.

And generally speaking, what did

2

Thomas?

5

you do in connection with the application that

6

resulted in the 889 design patent?

7
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?

13
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?

19

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?

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 104
1

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 105
1

Q.

My question is, is more pedestrian

2

and mundane.

3

instances where you were involved with design

4

patent applications after starting with Apple,

5

who was the person who actually physically does

6

the drawing?

7
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.

11

But if the person who actually does the drawings

12

changed over time, please tell me that.

13
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

17

Apple employees?

18
19

A.

The drawings for the patent

applications?

20

Q.

Right.

21

A.

No.

22

Q.

Typically, in those instances

23

where you've been involved with the applications,

24

are they done by outside vendors?

25

A.

Since being at Apple?

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 116
1

as compared to the prior art?

2

MR. OLSON:

I'll instruct him not

3

to answer on the basis of privilege and

4

attorney work product.

5
6

(Testimony marked as requested.)
Q.

Did Apple or its counsel do

7

anything to determine that the design that's

8

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.

13

MR. ZELLER:

14

MR. OLSON:

Okay.
Is he obviously was

15

personally involved in the participation

16

of the filing of this application in

17

2004.

18

question whether he recalls doing

19

anything at that time.

20

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 117
1

patent issued on May 10, 2005, did Apple or its

2

counsel do anything to determine that the design

3

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.

8
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

14

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

19

these individuals were, in fact, the appropriate

20

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 118
1

prepared the figures that are shown in the 889

2

design patent?

3

A.

Yeah.

4

Q.

Did you base those drawings on

5

some information that you received from Apple?

6

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

14

00000 18778 through 18798.

15

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

19

marked as Exhibit 841?

20

A.

I do.

21

Q.

What are these?

22

A.

These are copies of a product,

23
24
25

copies of a picture of some product.
Q.

And what is the product that is

represented in these copies, these materials?

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 119
1
2
3

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

14

the drawing and drawings that are depicted here

15

in the 889 design patent

16

MR. OLSON:

And Mr. Zeller, I

17

think what we're saying is if he knew the source

18

of them, it would help him to answer that

19

question.

20

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 120
1

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

17

MR. OLSON:

Did we provide source

18

information for these?

19

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
25

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 121
1

images of it and the like.

2

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?

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 122
1

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.)

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 123
1

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?

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 236
1

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.

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 237
1

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

TSG Reporting 877-702-9580

HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
Page 238
1

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?

TSG Reporting 877-702-9580