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

Filing 1312

Declaration of Mark Tung in Support of 1269 ORDER by Judge Lucy H. Kohi> 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 3, # 2 Exhibit 4, # 3 Exhibit 5, # 4 Exhibit 6, # 5 Exhibit 7, # 6 Exhibit 8, # 7 Exhibit 9, # 8 Exhibit 11, # 9 Exhibit 12, # 10 Exhibit 13, # 11 Exhibit 14, # 12 Exhibit 15)(Related document(s) 1296 ) (Maroulis, Victoria) (Filed on 7/24/2012) Modified on 7/25/2012 (fff, COURT STAFF).

EXHIBIT 3
FILED UNDER SEAL

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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APPLE INC., a California
corporation,

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Plaintiff,
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vs.

CASE NO.

11-cv-01846-LHK

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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.
____________________________/

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H I G H L Y
C O N F I D E N T I A L
A T T O R N E Y S' E Y E S O N L Y

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VIDEOTAPED DEPOSITION OF MICHAEL J. WAGNER
VOLUME II
PALO ALTO, CALIFORNIA
SATURDAY, MAY 12, 2012

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BY:

ANDREA M. IGNACIO HOWARD, CSR, RPR, CCRR, CLR

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CSR LICENSE NO. 9830
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JOB NO. 49053
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SATURDAY, MAY 12, 2012
8:59 a.m.

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VIDEOTAPED DEPOSITION OF MICHAEL J. WAGNER

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taken at MORRISON & FOERSTER LLP

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755 Page Mill Road, Palo Alto, California,

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Pursuant to Notice, before me,

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ANDREA M. IGNACIO HOWARD, CLR, CCRR, RPR,

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CSR License No. 9830.

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A P P E A R A N C E S:

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FOR APPLE INC.:

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MORRISON & FOERSTER

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By:

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ERIK J. OLSON, Esq.
PETER H. DAY, Esq.

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755 Page Mill Road

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Palo Alto, California 94304

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FOR SAMSUNG ELECTRONICS CO. LTD:

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QUINN EMANUEL URQUHART & SULLIVAN

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By:

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50 California Street

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San Francisco, California 94111

CARL G. ANDERSON, Esq.

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ALSO PRESENT:

Alan Dias, Videographer
Terry Musika, Apple, Inc.
---oOo---

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Palo Alto, CALIFORNIA

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SATURDAY, MAY 12, 2012

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8:59 A.M.

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(Documents marked Wagner Exhibits 1 - 5

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for identification.)

08:59
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08:59

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THE VIDEOGRAPHER:

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This is the beginning of Disc No. 1 of the

Good morning.

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08:59

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videotaped deposition of Michael Wagner.

In the

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matter of Apple Inc. versus Samsung Electronics.

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This is a matter pending before the United

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States District Court for the Northern District of

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California.

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Case No. 11-CV-01846.

We are located today at 755 Page Mill Road in
the city of Palo Alto, California.

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09:00

Today is May 12, 2012, and the time is
8:59 a.m.

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My name is Alan Dias from TSG Reporting.

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Counsel, will you please identify yourselves

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for the record.

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MR. OLSON:

Yeah.

Erik Olson of Morrison &

Foerster on behalf of Apple.

With me is Peter Day

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from my office.

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of Invotex Group, who is an expert in the case.

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MR. ANDERSON:

Carl Anderson of Quinn Emanuel

for Michael Wagner and Samsung.

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And also present here is Terry Musika

THE VIDEOGRAPHER:

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09:00
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Will the court reporter

please swear in the witness.

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MICHAEL WAGNER,
having been sworn as a witness

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testified as follows:

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by the Certified Shorthand Reporter,

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09:00

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THE VIDEOGRAPHER:

You may proceed.

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09:01
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EXAMINATION BY MR. OLSON

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MR. OLSON:

Q.

Mr. Wagner, you understand

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you're here to testify regarding certain opinions you

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have regarding the damages that would be paid to Apple

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for violations of its intellectual property by

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Samsung; correct?

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A

Correct.

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Q

And you've testified more than 300 times

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before; correct?

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I have.

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Q

All right.

09:01
So I'm not going to bother with

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by my client as to these times.

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questions.

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information.

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average cost of engineering time at Samsung.

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These are engineering

I have to rely on others to give me this
I also had to get information as to

Again, I'm not able to independently state

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those are accurate.

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not garbage in

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Q

Okay.

But if those are accurate, it's

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So let me see if I -- I was too quick

there.

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Let me -- you are relying entirely on

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estimates that have come from Samsung for purposes of

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this calculation?

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That is correct.

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Q

And your -- your dollar calculation also

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includes amounts on the cost per hour, for example,

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for engineers that come entirely from Samsung?

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Yes.

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Q

And as to the time estimates, those are

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coming entirely from Samsung?

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A

Samsung engineers.

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Q

And as to whether or not the design -- the

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change, the redesign, would be equally acceptable to

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consumers, are you relying on Samsung as well?

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A

Yes.

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Q

And as to whether or not Samsung would lose

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any sales at all, are you relying on Samsung?

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In part, yes.

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Q

What other -- what other source do you have

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as to that?
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Well, to the extent that they have actually

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designed around some of these patents.

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thing I have in my memory that -- I think there are

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some others -- is the '381 patent, where, assuming it

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is a valid design-around, that a blue glow or an

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orange glow is a sufficient indicator to a user that

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they've reached the end of a series of images or

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something else, is a suitable design-around because

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they've implemented it, and that's in their latest

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generations of phones.

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Q

And the only

Are you familiar with an order that came down

from this Court on May 4th?
A

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Possibly, but you'd have to -- I don't have

those dates memorized.
Q

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Are you aware that there was an order from

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the Court regarding the limitations on what Samsung

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will be able to prove at trial due to its failure to

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produce source code in connection with the case?

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A

You've refreshed my recollection.

I am aware

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of that.

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Q

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Do you understand that order to provide that

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Samsung will not be able to provide evidence at trial

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regarding certain design-arounds?

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MR. ANDERSON:

Objection; misrepresents the

Court's order and calls for a legal conclusion.

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THE WITNESS:

Yeah, I don't know the

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implication of the order.

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assume what you said is correct, then -- and if I'm

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not permitted to discuss that, then that is not a

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design-around.

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MR. OLSON:

Q.

But if you're asking me to

Well, let me -- let me read

you from the -- to the -- from the order:

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"Samsung shall be precluded from offering any

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evidence of its design-around efforts for the '381,

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'891 and '163 patents and shall not argue that the

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design-arounds are in any way distinct from those

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versions of the code produced in accordance with the

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Court's order."

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Had you read that before?

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A

Yes.

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Q

I ask you to assume with me that, based on

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that order, Samsung would not be allowed to produce

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evidence regarding any actual implementation of blue

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glow at trial; do you understand the assumption I'm

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asking you to make?

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A

I do.

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Q

Would that change your opinions in any way?

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Yes.

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Q

How?

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Well, one, it would -- I would not be able to

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tell the jury that Samsung not only has thought or

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conceptualized a design-around, they've actually

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implemented it in their latest generations of phones.

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Q

And how would that affect the amount that you

believe should be awarded in damages?
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I don't know if it has any impact on the

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amount unless, based on the Judge's ruling, I can't

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put these numbers in, either.

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don't know -- I will have nothing to say as an

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affirmative opinion on the reasonable royalty for --

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for the '381 patent.

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Q

Okay.

If that's true, then I

Would the same be true about the

'163 patent?

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A

Yes.

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Q

Let me go back to the work that you did to

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calculate the amounts that are on 530.

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Are those found -- the calculations that lead

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to that, are those found in the Series 13 schedules of

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your Tab 2?

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A

You know, I don't have my schedule numbers

memorized, but I believe it's in that range, yes.

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Q

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I'm just looking to understand from you

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So I think I've put it in front of you.

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whether there's anything other than Series 13 that I

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should be looking at for purposes of calculation of

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those amounts in exhibit -- in paragraph 530?

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No.

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Q

So can you look at -- well, let's just start

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at 13.

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So Schedule 13 itself provides just a summary
of the schedules that are underneath; correct?

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A

Yes.

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Q

And with the exception of who was -- who you

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talked to and the data on the amount of time, are the

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manner in which those were calculated in 13.1 through

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13.7 all the same --

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Yes.

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Q

-- the methodologies?

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Yes, the methodology is the same.

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Q

And that methodology is to take an hourly

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rate, which you obtained from someone at Samsung;

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correct?

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Correct.

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Q

And multiply it times a number of hours,

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which you obtained from someone at Samsung?
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Yes.

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