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

Filing 1396

Administrative Motion to File Under Seal Third Party Confidential Information filed by Research In Motion Corporation, Research In Motion Ltd.. (Attachments: # 1 Attachment A, # 2 Declaration of Michael J. Crowley, # 3 Exhibit A to Crowley Decl, # 4 Exhibit B to Crowley Decl, # 5 Declaration of Jonathan Lange, # 6 Exhibit A to Lange Decl, # 7 Proposed Order)(Lange, Jonathan) (Filed on 7/26/2012)

EXHIBIT A

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Volume 10

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Page 1870 - 2046

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE JAMES WARE, CHIEF JUDGE

For Defendant:

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APPEARANCES (cont.):

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Mformation Technologies, Inc., )
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Plaintiff, )
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v.
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Research In Motion, Ltd.,
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et al.,
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Defendants. )
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--------------------------------)

BY:

WilmerHale
305 South Grand Avenue
Suite 2100
Los Angeles, California 90071
MARK G. MATUSCHAK
ANDREW B. GROSSMAN

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No. C 08-4990 (JW)

BY:

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Kirkland & Ellis, LLP
300 North LaSalle
Chicago, Illinois 60654
LINDA S. DeBRUIN
AARON D. CHARFOOS
TIFFANY PATRICE CUNNINGHAM
FERLILLA VICTORIA ROBERSON
MARIA A. MARAS
MICHAEL DALEY KARSON

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San Francisco, California
Tuesday, July 3, 2012

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Also Present:

Ray Dikun, RIM Vice-President

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TRANSCRIPT OF PROCEEDINGS
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APPEARANCES:

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Foley & Lardner, LLP
3579 Valley Centre Drive
Suite 300
San Diego, California 92130
AMAR L. THAKUR
LISA MARIE NOLLER
SHAWN E. MCDONALD
ALLEN A. ARNTSEN
RUBEN RODRIGUES

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BY:

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Also Present:

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Rakesh Kushwaha, MTO, CEO

For Plaintiff:

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Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

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Tuesday, July 3, 2012

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(9:00 a.m.)

you last week Exhibit 853, which was the cost to

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recreate the '917 patent.

That particular document was

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(In open court; jury not present)

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in fact created in the overall context of the Mesirow

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DEPUTY CLERK:

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valuation for the patent itself; and, therefore,

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THE COURT:

Good morning.

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plaintiffs argue that it should be excluded under the

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Very well.

We're on the record out of the

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Court's motion in limine.

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Remain seated and come to order.

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presence of the jury.

That document, however, was created by

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I received some requests having to do with

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Dr. Kushwaha himself.

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matters that are coming up, but they don't deal with the

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Mesirow, it was an independent analysis of the cost to

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current witness, correct?

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MR. MATUSCHAK:

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MR. CHARFOOS:

That's correct, your Honor.

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And although it was provided to

recreate the patent.
THE COURT:

I'm sorry, what is a cost to recreate

We do have one issue that relates

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to the current witness, and I believe Mr. Matuschak has

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another issue more generally relating to the trial.

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time and effort put in to develop the '917 patent.

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Which came to roughly a million dollars.

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THE COURT:

So how long -- who is the current

MR. CHARFOOS:

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THE COURT:

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MR. CHARFOOS:

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Julie Davis, RIM's damages expert.

I see.

And how long will that be?

The testimony?

Or the argument

about what we need to argue about?
THE COURT:

MR. CHARFOOS:

It was his estimated amount of

Now, Georgia-Pacific Factor No. 8 goes to the

Is there an argument with respect to

that witness?

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MR. CHARFOOS:

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THE COURT:

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MR. CHARFOOS:

There is.

All right, what's that motion?
Your Honor, we had submitted to

Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

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overall profitability of the product.

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in particular, in addition to its relevance to the

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analysis that Ms. Davis conducted, that Mr. Basu may

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have left the jury with a misimpression that, if you

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recall, Mformation had lost money in all the years

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witness, remind me.

a patent?

leading up to 2010, and Mr. Basu said that one of the

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reasons they lost money was because they were

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reinvesting in the company.

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And I'm concerned

And he specifically says at page 409, starting at
Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

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line 22:

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here.

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property, and once the revenue starts coming in, your

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involved writing the software for Mformation's product.

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losses turn into profit."

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And it's got nothing to do with the damage

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"You invest those years with your intellectual

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I don't want the jury to be left with the

Essentially what it shows is the person here

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determination.

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impression that Mformation has spent $111 million

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on it because it's counter to Federal Circuit law and

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investing in the '917 patent when it's only been a

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this Court's in limine decision, and it would only

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million.

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confuse the jury.

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Ms. Davis be allowed to discuss 853, and that it be

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THE COURT:

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introduced into evidence.

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MR. CHARFOOS:

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MR. ARNTSEN:

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relevant to, number one, the profitability of the

And, therefore, your Honor, we would ask that

And your Honor, we think that this

You're offering it on damages?
Yes, your Honor.

Because it's

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is part of the Court's ruling.

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product, as well as the relative value of that product.

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valuations, the Court said that damages for patent

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How much time and effort was put into creating it.

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infringement are determined on the basis of a

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hypothetical negotiation at the time infringement began,

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citing the Unilaw case.

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third-party valuations at issue are not relevant and

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thus are in.

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With the third-party

It's inappropriate for an expert to rely

The Court finds that

What product?

The patent is not a

MR. CHARFOOS:

But -- I'm sorry, I misspoke.

It's the cost to recreate the '917 patent itself.
THE COURT:

Well, how is that -- how is that

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relevant to damages?

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attempted to assess the value of the '917 patent at the

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patented idea very quickly and other people can take a

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time infringement began, none assumed the patent was

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long time.

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both valid and infringed.

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issue.

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reports is likely to confuse the jury by introducing a

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basis for evaluating damages that differs entirely from

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commercial invention is one of the Georgia-Pacific

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that the jury is being asked to apply.

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Factors, and so to the extent that this document shows

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the profitability of the commercial invention, then that

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In particular, none of the reports at issue

THE COURT:
product.

Thus, admission of these

And that's exactly the case with this document
Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

Because someone can come up with a

I've never thought about that as a damage

MR. CHARFOOS:

Again, the profitability of the

Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

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And you know,

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would go to Georgia-Pacific Factor No. 8.

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some of the RIM's license agreements with Ms. Davis.

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other courts, including the Federal Circuit, have

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These are very, very sensitive license agreements.

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allowed those kinds of inquiries into the profitability.

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Number one, we would request that those

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And again, Mr. Basu suggested that they're

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agreements, to the extent that they're introduced into
evidence, be brought in under seal.

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investing all of this money into their intellectual

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property, and I think it's important for the jury to

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understand that it did not cost $111 million to create

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would close the courtroom for the discussion of RIM's

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the '917 patent.

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license agreements.

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Dr. Kushwaha's own analysis.

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if I misrepresent -- has taken those license agreements

It was $1 million, according to

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The other thing --

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THE COURT:

Okay.

And number two, your Honor, we would ask that you

Mr. Arntsen -- and he can step in

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That the testimony you're

and grouped them together in a single section of his

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cross-examination, and we'll notify the Court before he

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trying to rebut was that it cost that to develop

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begins that, which will allow that time that the

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the '917 patent.

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courtroom's closed to be limited and as short as

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are not the basis.

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possible.

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this for damages.

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And you can argue that those numbers
The objection is sustained to using

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Now, it seems to me that there might be other

THE COURT:

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MR. ARNTSEN:
THE COURT:

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purposes, but that is not one of the permissible

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purposes.

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Anything else with respect to this witness?

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By the way, I have the same kind of concern with

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Any objection?
I have no objection.

Very well.

MR. CHARFOOS:

respect to the rebuttal, but I guess I can wait on that.

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THE COURT:

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That's why I was asking about the timing.

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MR. MATUSCHAK:

MR. CHARFOOS:

There is one other thing with

We will alert the Court to that,

yes, your Honor.

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So you have to alert the

Court to that.

All right.

Summon the jury.

Your Honor, we have -- we had one

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other issue.

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respect to this witness, Mformation's counsel, and we've

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to you, but there was a -- a report to us last night

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talked about this ahead of time, is intending to use

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that there was a contact between a member of the jury

Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]

And that is, I don't know if it's common

Connie Kuhl, Certified Realtime Reporter
Official Reporter - USDC [phone]