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

Filing 1440

OBJECTIONS to Apple's Opening Slides by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of Diane C. Hutnyan, # 2 Exhibit 1)(Maroulis, Victoria) (Filed on 7/29/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
 [e-mail]
50 California Street, 22nd Floor
 San Francisco, California 94111
Telephone: [phone]
 Facsimile: [phone]
 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
 Telephone: [phone]
Facsimile: [phone]

Michael T. Zeller (Cal. Bar No. 196417)
 [e-mail]
865 S. Figueroa St., 10th Floor
 Los Angeles, California 90017
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC



UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,



Plaintiff,
vs.

CASE NO. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S
OPENING SLIDES

 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.




02198.51855/4880152.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

1

1.

Samsung objects to the images of Steve Jobs appearing in Slide Nos. 6, 7, 12,

2 16, and 29 of Apple’s Opening Presentation as violating MIL no. 1.
3

Samsung objects to the images of Steve Jobs appearing in Slide Nos. 6, 7, 12, 16, and 29 of

4 Apple’s Opening Presentation. These gratuitous images have no evidentiary value and have been
5 asserted in order to turn the trial into the popularity contest that the Court prohibited in its ruling
6 on Samsung’s Motion in Limine No. 1. Dkt. 1267 at 4:1-3 (“Evidence related to Steve Jobs will
7 generally be excluded unless it is specifically relevant to the IP rights at issue in the case, although
8 the Court will make that determination on a case-by-case basis.”). The use of Mr. Jobs’ image in
9 these slides is not relevant to the specific intellectual property rights at issue in this case.

If

10 Apple is allowed to use these slides, Samsung requests that the Court allow it to use the quotes
11 from Mr. Jobs – which do have nonprejudicial evidentiary value – and yet were excluded by the
12 Court’s ruling on Apple’s Motion in Limine No. 7.
13

2.

Samsung objects to the newspaper articles and blogs throughout Apple’s

14 presentation on the grounds of hearsay, authenticity, lack of foundation and unreliability.
15

Slides 13, 14, 16, 27, 28, 30 and 32 in Apple's presentation contain blatant hearsay in the

16 form of media statements concerning the supposed greatness of Apple and Apple's products and
17 concerning alleged similarities between the accused products and the iPhone. The admission of
18 these out-of-court statements, which Apple is offering for the truth of their contents, is barred by
19 Federal Rule of Evidence 802. Apple's primary argument regarding press statements praising
20 Apple has been that they are admissible for the non-hearsay purpose of showing that Apple's trade
21 dress is famous and distinctive. (See, e.g., Dkt. No. 1208-3 at 1.)

But the statements Apple has

22 included in its opening slides – such as that the iPhone is "magical" and "revolutionary" (Slide 30)
23 – don't even describe the trade dress Apple claims in this lawsuit, much less depict it. To prove
24 fame, Apple must show that the appearance of the elements of the iPhone it claims as its trade
25 dress is "widely recognized by the general consuming public of the United States as a designation
26 of source of the goods or services of the mark's owner."

15 U.S.C. § 1125(c)(2)(A). Most of

27 the statements Apple would use are not even related to the appearance of the iPhone, and the
28 remaining statements, such as "the iPhone is pretty" (Slide 14), are totally irrelevant to whether
02198.51855/4880152.1
Case No. 11-cv-01846-LHK
-1-

SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

1 Apple's claimed trade dress is associated with Apple by the consuming public.

The real reason

2 Apple is using these statements in its opening is to make this trial into a popularity contest in its
3 home town.
4

The remaining media statements in Apple's opening slides comment on the purported

5 similarity between certain accused products and the iPhone.

For example, Apple has included

6 statements by Wired Magazine claiming that Samsung's Vibrant "rips off iPhone 3G design."
7 (Slide 28.)

In addition to being highly prejudicial, these statements are also undoubtedly being

8 offered for the truth of their contents, and they are therefore inadmissible hearsay.

It is the jury

9 that must decide about the degree of similarity between the accused products and Apple's design
10 patents and trade dresses, but Apple's opening slides seek to supplant the judgment of the jury with
11 the opinions of a few, outspoken critics of Samsung. This should not be allowed.
12

Samsung additionally objects to slides 13, 14, 16, 27, 28, 30 and 32 because Apple has no

13 witness who is competent to testify about the exhibits in them. Samsung additionally objects to
14 these slides as misleading and as more prejudicial than probative under Federal Rule of Evidence
15 403.
16

3.

Samsung objects to slides 18, 19, and 67 because they include improper

17 translations and reserves rights as to other translated exhibits based on its prior objections.
18

With respect to Slides 18-19, Samsung objects to use of the misleading translation “HW

19 portion:

Easily copied.”

Samsung’s check interpreter previously raised the translation issue of

20 this phrase during the 3/7/12 deposition of Donghoon Chang and the main interpreter
21 acknowledged the issue, stating “that’s a fair observation.” (Chang Dep. Tr. 63:20-64:9). More
22 importantly, in connection with the preceding sentence, the subject of this phrase is clearly “other
23 competitors,” not Samsung. Thus, using this phrase alone without referencing the preceding
24 sentence is grossly misleading.

Furthermore, Samsung objects to the use of a bright red, bolded,

25 large font to emphasize the quote (“easily copied”) on Slide 19 on the grounds that it is
26 argumentative.
27

Samsung objects to slide 58 in Apple’s opening presentation as it contains an improper and

28 misleading translation of Apple’s Exhibit 46.66. Apple’s translation adds quotation marks
02198.51855/4880152.1
Case No. 11-cv-01846-LHK
-2-

SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

1 around the word “bouncing” when none exists in the actual original Korean document.

Also on

2 slide 58, Apple incorrectly translates that Samsung’s product is “dull” when the original Korean
3 document uses a word more correctly translated “plain.” Apple’s translation is misleading and
4 injects sentiments not found in the original Korean document.
5

Samsung also objects to use of the translation on Slide 67, as it is inaccurate and

6 misleading.
7

5.

Samsung objects to slides 26 and 49 as misleading because the Galaxy S i9000

8 was not sold in the United States.
9

Samsung objects to Apple’s use of the Galaxy S i9000 in slides 26 and 49 because

10 Samsung never sold this product in the United States, making it irrelevant to this case. 35 U.S.C.
11 271 provides that a patent is infringed when someone “makes, uses, offers to sell, or sells any
12 patented invention, within the United States, or imports into the United States any patented
13 invention during the term of the patent therefor.” (emphasis added) See also Ortho Pharm. Corp.
14 v. Genetics Inst., Inc., 52 F.3d 1026, 1033 (Fed. Cir. 1995) (“[A] U.S. patent grants rights to
15 exclude others from making, using and selling the patented invention only in the United States”)
16 (emphasis in original).

Apple has never cited any evidence that Samsung has ever made, used,

17 sold, offered to sell the Galaxy S i9000 within the United States, or imported it into the United
18 States.

Apple’s inclusion of the Galaxy S i9000 in slides 26 and 49, therefore, causes a high

19 likelihood of confusing and misleading the jury, and wasting the Court’s time.
20

6.

FRE 403.

Samsung objects to PX 44, slide 33, 34, 35, 36, 37 and 67 as violating the

21 Court’s ruling on MIL #1 because it is not tied to intellectual property at issue in this case.
22

Samsung objects to PX 44 titled “Relative Evaluation Report on S1, iPhone” and slides 33,

23 34, 35, 36, 37, and 67 which contain portions of this report. This report is irrelevant because it
24 does not concern intellectual property at issue in this case. The Court has already ruled that this
25 type of evidence should be excluded by Samsung’s motion in limine number 1, excluding
26 evidence not tied to the IP rights claimed by Apple.

PX 44 and the slides displaying this exhibit

27 fall squarely within this exclusion.
28
02198.51855/4880152.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

-3-

1

7.

Samsung objects to use of Denison testimony on slides 41 and 42 as lacking

2 foundation, beyond the scope of the designation, and misleading.

The testimony relates

3 only to the products and features at issue in the preliminary injunction phase, and it is
4 improper to rely on testimony that lacks foundation and to suggest that the testimony given
5 applied to other patents or products not at issue then.
6

Samsung objects to slides 41 and 42 from Apple’s opening presentation because they are

7 misleading, argumentative, based on testimony that lacked foundation and was beyond the scope
8 of the designation and the topics as Apple articulated them.

Slides 41 and 42 contain video of Mr.

9 Denison’s testimony from the preliminary injunction phase of this matter.

At this deposition, Mr.

10 Denison was designated to speak for Samsung Electronics Co., Ltd only as to Samsung’s copying
11 of “the features in the Products at Issue [defined by Apple as the four products at issue in the PI]
12 that Apple has accused of infringement in its preliminary injunction motion and relating only to”
13 the iPhone or iPad. (Samsung’s Objections to Apple’s Notice of Rule 30(B)(6) Deposition of
14 Samsung Electronics Co., Ltd Relating to Apple’s Motion for a Preliminary Injunction at 20:115 21:14. (emphasis added))

Apple proceeded with the deposition despite these limits and never

16 obtained testimony from a 30(B)(6) witness on “copying” in general.
17

In slides 41 and 42, Apple quotes Mr. Denison’s response to a question that was beyond

18 the scope of his designation and that he lacked foundation to answer. The response given
19 describes what he did to ascertain whether copying had occurred regarding the scope of his
20 designation—i.e., the three patents and the four accused products that were at issue in the
21 preliminary injunction phase. What he did was talk to each of the industrial designers of the
22 three accused products and the designers of the accused software feature.

Apple misleadingly

23 suggests that this was the only thing any Samsung entity ever did to ascertain whether any copying
24 occurred, irrespective of whether it was regarding the four PI features, the features at issue in this
25 trial, or something not asserted in this trial at all, such as minutia about font style in the settings
26 menu and the GUI of actual applications (not just the home screen icons).

Slides 41 and 42

27 should be excluded because the testimony shown lacks foundation, was beyond the scope, and
28 overall are misleading and argumentative.
02198.51855/4880152.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

-4-

1

8.

Samsung objects to images on 55 -62 as misleading insofar as they show the

2 same picture of Olympic torch implying similarity.
3

Samsung objects to Apple opening slides 55, 56, and 59-62 because the use of the torch

4 image Apple uses for both its iPhone and the Samsung Vibrant phone is highly misleading and
5 prejudicial. The viewer immediately assumes the iPhone and Samsung Vibrant are the same
6 because the picture is the same.

Apple’s torch image is also unnecessarily confusing.

Because

7 slides 55, 56, and 59-62 purport to demonstrate infringement of the ‘381 bounce utility patent,
8 there is absolutely no reason why the same picture must be used, which will only mislead the jury.
9 Apple slides 55, 56, and 59-62 should be stricken.
10

9.

FRE 403.

Samsung objects to slides 26, 59-62, 69-72, and 75-78 on the basis that they

11 contain manipulated images of the phones at issue.
12

Samsung objects to slides 26, 59-62, 69-72, and 75-78 in Apple’s opening presentation as

13 they contain manipulated images of the accused Samsung products that are intended to make the
14 Samsung phones or tablets look like they are identical in height or width to the iPhone.

In

15 particular, slides 59-62 portray the Samsung Vibrant as the same size as the iPhone when the
16 Vibrant is actually bigger. Slides 69-72 and 75-78 portray the Samsung Galaxy S2 as the same
17 size as the iPhone when the Galaxy is much bigger than the iPhone.1

In the mobile and tablet

18 computer industries, where a tenth of an inch makes a difference for user experience, Apple
19 should not be allowed to alter images of the Samsung products to eliminate these important
20 differences and then argue the products are similar.
21

Samsung requests that instead of images of Samsung products that have been artificially

22 manipulated to appear to be similar to Apple products, Apple be required to use the actual
23 products themselves or images that accurately reflect the different sizes of the products.
24
1

The Court previously denied Samsung’s Motion in Limine No. 7 without prejudice
indicating that the Court would rule on an Exhibit by Exhibit basis. Hearing Tr., 7/18/12 at
26 127:16-22. At that time, the Court told the parties to use the actual products at trial. The Court
stated: “Now, I’m hoping that if you’re actually going to introduce actual products that this
27 shouldn’t really be an issue, right? Just do the actual – the real deal.” Hearing Tr., 7/18/12 at
127:23-128:1.
28
02198.51855/4880152.1
Case No. 11-cv-01846-LHK
-525

SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

1

10.

Samsung objects to slide 85 on the basis that it misstates the law by adding

2 Samsung’s profits to Apple’s profits to a reasonable royalty award.

Slide 85 is misleading

3 because Apple not legally entitled to Samsung’s profits + lost profits + reasonable royalty.
4

Samsung objects to Apple’s slide 85 because it misstates the law. By inserting plus (“+”)

5 signs between three distinct forms of damages, slide 85 suggests to the jury that it should
6 determine any Apple damages by adding Samsung’s profits to Apple’s profits to a reasonable
7 royalty award. Such a triple recovery is a highly prejudicial misstatement of law that will
8 confuse the jury.

A plaintiff cannot recover different forms of relief for the same sales of

9 allegedly infringing product. See Nintendo of America, Inc. v. Dragon Pacific Int’l, 40 F.3d
10 1007, 1010 (9th Cir. 1994) (“Recovery of both plaintiff’s lost profits and disgorgement of
11 defendant’s profits is generally considered a double recovery under the Lanham Act.”); Catalina
12 Lighting, Inc. v. USA, Inc., 295 F.3d 1277, 1291-92 (Fed. Cir. 2002) (reversing damages award of
13 reasonable royalty and infringer’s profits as improper double recovery).

Indeed, Apple has

14 submitted jury instructions barring double recovery, stating in relevant part, “once you have
15 awarded Apple a remedy with respect to a Samsung sale, you should not award Apple another
16 remedy with respect to the sale of the same unit.”

Dkt. No. 1232, at 150 (Proposed Final Jury

17 Instruction No. 41), at 222 (Final Proposed Final Jury Instruction No. 41).

The Court’s jury

18 instructions prohibiting double counting – whether in Apple’s or Samsung’s form – will come too
19 late to remedy the prejudice and confusion slide 85 will cause.
20

Additionally, Apple’s slide 85 erroneously suggests that Apple may recover both lost

21 profits and infringer’s profits (“Samsung’s Profits” + “Apple’s Lost Profits”).

In fact, as

22 Samsung stated in its Objections to Apple’s Instruction on design patent damages, Apple must
23 choose either lost profits and/or a reasonable royalty pursuant to 35 U.S.C. § 284, or infringer’s
24 profits pursuant to 35 U.S.C. § 289.
25 No. 54).

See Dkt. No. 1232, at 209 (Proposed Final Jury Instruction

Slide 85 misleadingly implies that Apple may obtain both remedies. No court has

26 ever allowed what Apple proposes here—to split its recovery between actual damages as lost
27 profits under Section 284 and infringer’s profits under Section 289. At the very least, to avoid
28
02198.51855/4880152.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

-6-

1 unnecessary confusion and prejudice, the Court should preclude Apple from representing to the
2 jury that its disputed version of this important instruction is controlling until this issue is settled.
3

11.

Samsung objects to the testimony of Dr. Ahn on slides 92 and 98 on the basis

4 that they are taken out of context and misleading.
5

Samsung objects to Apple’s slides 92 and 98 on the basis that the testimony is taken out of

6 context and misleading.

Both of these slides quote the testimony of Dr. Seung-Ho Ahn. After

7 serving as the leader of the IP team for Samsung’s LCD division and the team leader for IP
8 strategy at the Samsung Advanced Institute of Technology, in mid-2010, Dr. Ahn became head of
9 Samsung’s IP center. (Hutnyan Dec., Ex. 1, Ahn Dep. Tr.. at 19-22.) The IP center handles
10 patent-related work for all divisions of Samsung Electronic Company, only one of which is the
11 mobile business division. (Id. at 22.)
12

Slides 92 and 98 include excerpts from Dr. Ahn’s testimony that misleadingly suggest that

13 Dr. Ahn failed to ensure that Samsung complied with its FRAND obligations and lacked an
14 understanding of Samsung’s role in the development of the cellular communications system.
15 Apple is capitalizing on the fact that jurors are neither familiar with the “IP Center” or Dr. Ahn’s
16 role as its head and hopes that they will therefore assume that this was Dr. Ahn’s responsibility.
17 In fact, Dr. Ahn is not responsible for licensing standard-essential patents within the mobile
18 business division, nor does he know the history of that division’s technological contributions, as
19 he only assumed his current title in 2010.

(Id. at 24, 85-86, 117.) Apple should not be allowed

20 to exploit the jury’s lack of knowledge as to Dr. Ahn’s role to mislead them into believing
21 otherwise.
22

12.

Samsung objects to slides 99-102 on grounds that suggest that Samsung is

23 accusing third party applications when it is accusing functions of Apple’s applications which
24 are included with the device and cannot be deleted.
25

Apple’s Slides 99-102 draw attention to the “Yelp,” “Smule” and other third party

26 applications in Apple’s App Store.

Apple offers these slides to support its non-infringement

27 position regarding Samsung’s camera and music patents (i.e., ‘460, ‘893, and ‘711 patents).
28 These slides, however, misleadingly suggest that Samsung has accused Apple of infringing its
02198.51855/4880152.1
Case No. 11-cv-01846-LHK
-7-

SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

1 patents through Apple’s sale of third party applications.

Samsung has never contended, however,

2 that any third party applications sold by Apple infringe these patents.

Instead, Samsung contends

3 that particular camera, music, and e-mail functions on Apple’s devices infringe the ‘460, ‘893, and
4 ‘711 patents. These functions are accessible, in part, through applications that are included with
5 the accused devices upon purchase.

Unlike third-party applications, these applications are

6 exclusively designed by Apple and cannot be deleted from Apple’s iPhone, iPad, or iPod Touch
7 devices. Apple’s insinuation that Samsung has accused third -party applications of infringement,
8 therefore, risks confusing infringement issues properly before the jury and should be struck.
9

14.

Samsung also objects to all slides that contain exhibits Samsung previously

10 objected to in its submission to the Court.
11

Samsung reserves its objections to PX34, 36, 40, 175, 135, 133, 174, 139, 172, 44, 57, 46

12 as stated in its objections to Apple's exhibit list.
13
14 DATED: July 29, 2012
15
16
17
18
19
20

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By /s/ Victoria F. Maroulis
Charles K. Verhoeven
Victoria F. Maroulis
Kevin P.B. Johnson
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

21
22
23
24
25
26
27
28
02198.51855/4880152.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S OPENING SLIDES

-8-