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

Filing 1371

Unredacted Exhibit B to Ordover Declaration in Support of Apple's Opposition to Samsung's Motion for Summary Judgment re 1256 Order on Administrative Motion to File Under Seal, (Dkt. No. 1018) by Apple Inc.. (Jacobs, Michael) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

Exhibit B
(Filed Under Seal)

Attorneys' Eyes Only - Pursuant to Protective Order

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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APPLE, INC.,

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Plaintiff
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)No. 11-CV-01846-LHK
vs.
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SAMSUNG ELECTRONICS, LTD.
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et al.,
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Defendants
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***
ATTORNEYS' EYES ONLY
PURSUANT TO THE PROTECTIVE ORDER
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VIDEOTAPED DEPOSITION OF JANUSZ A. ORDOVER
New York, New York
Friday, April 27, 2012

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Reported by:
THOMAS A. FERNICOLA, RPR
JOB NO. 49019
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are other aspects to it.

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they can go in and ask for an injunction and

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there is perhaps a probability they will obtain

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it, is something that is of a competitive

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concern, at least to me.

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And the fact that

Certainly not necessarily to Dr.

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Teece.

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wrong with asking for an injunction unless

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there are some competitive concerns that doing

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He doesn't think that there is anything

so triggers.
Q.

Could you please turn to paragraph 24

of your report at page 12.

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A.

Okay.

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Q.

I'm sorry, it's actually the first

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bullet point on page 13.

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A.

"Samsung Conduct"?

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Q.

Correct.

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A.

Let me read that.

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(Document Review.)

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Yes.

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Q.

In your opinion, is the harm to

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downstream competition that Samsung might cause

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contingent upon it prevailing on its claims?

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A.

It says if Samsung were to prevail,

that would harm downstream competition.
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Q.

So in the absence of Samsung

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prevailing on its claims, there would not be

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harm to downstream competition?

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A.

Yes.

It's like, you know, attempted

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murder doesn't -- it's still bad news, but it's

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not the same thing as killing somebody.

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Q.

Well, sorry.

I appreciate the

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editorializing, but just answer the questions

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clearly.

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If Samsung doesn't prevail in its

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claims, then there is no harm to downstream

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competition; correct?

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A.

That is true within that limited

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issue that I'm addressing here.

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particular, if Samsung does not prevail, it

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will be competing against Apple.

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competing against Samsung.

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benefiting.

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And, in

Apple will be

Consumers will be

And sooner or later across all these

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many jurisdictions, a resolution of the dispute

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the dispute is going to come to some

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resolution -- the dispute is going to come to

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some resolution regarding the FRAND rate and

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all the other aspects of this litigation, yes.

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Q.

If Samsung does prevail, is it the
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case that it's the court's action in enjoining

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Apple that causes the antitrust entry?

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A.

It would be hard to blame the court

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for causing an antitrust injury.

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makes a ruling in response to Samsung's request

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or demand for injunctive relief.

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The court

I am opposed to the whole concept of

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Samsung asking for injunctive relief, given its

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repeated FRAND commitments on these seven

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patents, the blanket commitment and then the

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individual FRAND commitments relating to each

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one of those seven patents made late but,

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nevertheless, they were made.

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Q.

Are you aware of any actual -- strike

that.

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Is it your opinion that Apple has

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sustained any actual injury to date -- strike

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that again.

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Is it your opinion that Apple has
sustained antitrust injury to date?

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MS. MILLER:
A.

Objection.

I think that "antitrust injury" is a

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term of art.

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harm due to the needs to defend itself across a

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broad range of jurisdictions, that is no doubt

It certainly sustained certain

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significant cost.

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So that's a harm to Apple.

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yet to harm competition because Apple, at this

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point, can pay the bills.

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necessarily cut back on its R&D.

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lucky that that's the -- that they are the

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target as opposed to some other company which

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may have a lesser ability to survive the

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multi-jurisdictional litigation that Samsung

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has rolled out in this particular situation.

It has

It does not have to
So we are

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So someone else may actually have --

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be forced to exit, and such exit may, in fact,

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harm competition and, therefore, be an

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antitrust injury.

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Q.

But -- so the only injury you're

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aware of Apple sustaining to this point is

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incurring litigation costs; correct?

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A.

No.

I believe that they are also

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incurring additional costs, such as the time of

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the management that's being diverted perhaps

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from other matters that they should be paying

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attention to.

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It's a highly -- it's a quickly moving

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marketplace and, clearly, there's been a lot of

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time and energy spent at Apple trying to

It's a competitive environment.

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I just have a couple of questions for
Dr. Ordover.

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(A Discussion was Held off the
Record.)

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EXAMINATION BY MS. MILLER:
Q.

Dr. Ordover, I'd like you to assume

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for purposes of this question that Apple is

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correct in its claim that Samsung

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misrepresented its willingness to offer FRAND

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licenses.

Okay?

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A.

Okay.

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Q.

Assuming this to be true, did this

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conduct have any anti-competitive effect in any

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of the upstream technology markets that you

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define in your report?

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MR. WALL:
A.

Objection to the form.

To the extent that that conduct

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caused ETSI working groups to standardize on

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Samsung technologies as opposed to on some

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other alternative technologies, that would, in

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my view, constitute harm in the upstream

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technology market.

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There was an exclusion flowing from
the alleged misconduct, assuming that Apple is
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correct.

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MS. MILLER:

I have no further

questions.

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FURTHER EXAMINATION BY MR. WALL:

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BY MR. WALL:

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Q.

To follow up on that question, are

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you aware of whether any of Samsung's conduct

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actually caused ETSI working groups to

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standardize Samsung's technology as opposed to

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another technology?

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MS. MILLER:
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Objection.

Well, it's my understanding from

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reading the technical expert's reports that

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there were alternatives available at the time

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the standard was being formulated; and,

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therefore, insofar as Samsung engaged in

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conduct that -- no.

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Had, as per Apple, Samsung engaged in

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the clear, clear disclosure of the fact that

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it's not going to -- to support its -- or not

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stick to its FRAND obligations and, in fact,

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act contrary to the FRAND objectives that it

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plausibly follows, that these other

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technologies at least would have been
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considered and possibly chosen.
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Do you have any empirical evidence to

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suggest that in the event that Samsung's FRAND

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declarations -- strike that.

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MR. WALL:

I have no further

questions.

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MS. MILLER:

I have one more.

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FURTHER EXAMINATION BY MS. MILLER:
Q.

Dr. Ordover, do you know of any rules

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within the ETSI IPR policy that would govern an

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instance where a party did not provide a FRAND

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license or where a party said clearly that it

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was not going to give a FRAND license?

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A.

Well, to the best of my recollection,

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the ETSI rules would prohibit that firm's

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technology to be included in the standard.

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And, therefore, some other technologies would

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have to be included or that particular feature

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would have been dropped.

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MS. MILLER:

I have no further

questions.

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MR. WALL:

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THE VIDEOGRAPHER:

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video record for today.

No further questions.

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That concludes the
The time is now
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