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

Filing 1441

OBJECTIONS to APPLE'S OBJECTIONS TO SAMSUNG'S OPENING STATEMENT DEMONSTRATIVE EXHIBITS by Apple Inc.. (Jacobs, Michael) (Filed on 7/29/2012)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
RACHEL KREVANS (CA SBN 116421)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,

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Plaintiff,
v.
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,

Case No. 11-cv-01846-LHK
APPLE’S OBJECTIONS TO
SAMSUNG’S OPENING STATEMENT
DEMONSTRATIVE EXHIBITS

Trial:
Time:
Place:
JUDGE:

July 30, 2012
9:00 a.m.
Courtroom 8, 4th Floor
HON. LUCY H. KOH

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Defendants.
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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
CASE NO. 11-CV-01846-LHK
sf-3176368

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Samsung’s opening demonstratives are overly argumentative. With titles such as

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“Consumers Are Not Confused” and “Apple’s FRAND and Exhaustion Defenses are Meritless”

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(Dkt. Nos. 29 and 136), Samsung’s slides are loaded with argument. Several contain material that

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directly contradict rulings by:

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(1)

this Court (see, e.g., Dkt. Nos. 38-40 (alleging a lack of confusion as a
defense to dilution, despite this Court’s clear ruling that “absence of
confusion is not probative of lack of dilution” (Dkt. No. 1157 at 6)));

(2)

Judge Grewal (see, e.g., Dkt. No. 9 (offering images from the application
for U.S. Patent No. 6,919,678, in order to evade Judge Grewal’s order
striking reliance on the patent itself (Dkt. No. 1144)); and

(3)

the Federal Circuit (see, e.g., Dkt. No. 50 (depicting only the front view
of the 638 reference, despite the Federal Circuit’s admonition that the
“side view [be] taken into account” (678 F.3d 1324, 1326 (Fed. Cir.
2012))).

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Other slides mislead, misrepresent, offer late-disclosed or stricken theories or evidence, or rely on

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inadmissible hearsay. Apple’s specific objections to Samsung’s slides appear below.

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Slide Number

Apple’s Objections

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No exhibits or expert testimony have been disclosed to support the assertions in
this slide.

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No exhibits or expert testimony have been disclosed to support the assertions in
this slide.

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By showing only the front view of the alleged prior art designs, this slide is
misleading and prejudicial. For example, the slide compares only the front view
of JP D1241638 against the D’087 patent. On appeal from this Court’s
preliminary injunction ruling, the Federal Circuit explained that it was improper
to ignore the “arched, convex front of the ’638 reference,” as depicted in its side
profile, in making this comparison. Apple Inc. v. Samsung Elecs. Co., 678 F.3d
1314, 1326 (Fed. Cir. 2012). The depictions on this slide thus are improper.

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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
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Slide Number
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The slide’s depiction of U.S. Patent Pub. No. 2004/0041504 (“the ’504
publication”) is a transparent attempt to evade Judge Grewal order striking
Samsung’s theories concerning U.S. Patent No. 6,919,678. (Dkt. No. 1144 at
11). In his order, Judge Grewal struck the opinions of Samsung’s expert, Itay
Sherman, concerning the ’678 patent because they had not been timely
disclosed. Samsung now attempts to make an end run around this ruling by
relying on the patent application that resulted in the stricken patent. The ’504
application was neither timely disclosed during discovery nor cited in Mr.
Sherman’s report.

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This slide misleadingly mixes unreleased Samsung phones with commercially
released products. In doing so, it creates the misimpression that Samsung was
releasing phones with allegedly iPhone-like designs as early as 2006, before the
iPhone was released. Several of the depicted devices, including the Flipper,
Vessel, Card3, Warp, and Framer, were not produced to Apple for inspection
during discovery.

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Judge Grewal has already stricken Samsung’s theories that it independently
developed smartphones with designs similar to the iPhone before that product
was released. In particular, Judge Grewal excluded the opinions of Samsung’s
invalidity expert, Mr. Sherman, concerning the F700 design, its related design
patents, and related development documents. (Dkt. No. 1144 at 5 ¶ 12; see also
Dkt. No. 939 Ex. 27 at 39-40.)

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Apple’s Objections

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Unable to rely on the F700 and related materials, Samsung again tries to evade
Judge Grewal’s order by referring to the F700 by its internal names, such as
“Bowl” and “Q Bowl.” (Bartlett Decl. Ex. 1 at 15:1-16:2.) This is improper.
As with Samsung’s prior attempt to rely on the F700, Samsung’s references to
the “Vessel,” “Q-Bowl,” “Bowl,” “Slide,” and “iReen” in these slides all suffer
from the same defects: They were omitted from Samsung’s invalidity
interrogatory responses, they were omitted from Samsung’s non-infringement
interrogatory responses, and they were omitted from Samsung’s noninfringement expert reports.

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Even putting aside Judge Grewal’s prior ruling, and the argumentative nature of
the headings, the slides still mislead. Slide 21, for example, intentionally washes
out the metallic “jog dial” on the side of the phone to bring the depicted design
closer to Apple’s design patents and trade dress.

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Judge Grewal has already excluded Samsung’s theories concerning the “Sony
design,” and Apple has already moved to enforce that order. (Dkt. No. 1420.)
The contents of these slides therefore are improper. The heading, “Sony-Like”
Designs Inspired the iPhone,” also is argumentative.

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The title, “Apple Admits Benchmarking is Not Proof of Copying,” is
argumentative.

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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
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Slide Number
25-26

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Apple’s Objections
The title, “Apple Regularly Performs Teardowns of Samsung’s Phones,” is
argument. Samsung cannot show that Apple regularly performs teardowns of
Samsung phones.

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The title, “Consumers Are Not Confused,” is argumentative. The exhibit itself,
DX 628, was produced after the close of fact discovery, and hence cannot be
admitted. Samsung never disclosed a non-infringement theory relating to this
exhibit in its contention interrogatory responses or its expert reports, and thus
cannot assert such a theory at trial.

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The statements by Mr. Kerr also are inadmissible hearsay. First, they were not
made within the scope of his employment under Rule 801(d)(2)(D) of the
Federal Rules of Evidence. Second, as a resident of this District, he is available
to testify under Rule 804.

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The statements are hearsay for the same reasons provided for slide 30.

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38-40

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The quoted testimony is irrelevant. They are being offered to rebut Apple’s
claim for dilution of its iPhone trade dress. As the Court has already held,
however, the “absence of confusion is not probative of lack of dilution.” (Dkt.
No. 1157 at 6.)
The statements also are hearsay for the same reasons provided for slide 30.

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These slides depict products depicted after both of these dates. Those devices
thus cannot be relevant to the fame and distinctiveness of Apple’s trade dress.

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This Court has ruled that “the initial use of the mark by the junior user
demarcates the time at which both fame and consumer use must be established.”
(Dkt. No. 1158 at 9.) For Apple’s iPhone trade dress, that date is the release of
the Galaxy S phones in the United States on July 9, 2010. For Apple’s iPad
trade dress, that date is the release of the Galaxy Tab 10.1 on June 11, 2011.

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These slides improperly quote legal authority.

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This slide, which omits the side view of the ’638 reference, is objectionable for
the same reasons as slide 8. See also Apple, 678 F.3d at 1326.

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These slides depict entirely new non-infringement theories. These theories were
disclosed in neither Samsung’s non-infringement contention interrogatory
responses nor its expert reports.

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The statements are hearsay for the same reasons provided for slide 30.

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The slide misleadingly and confusingly suggests that Figure 1 of the D’305
patent depicts both a color and black and white image. (Figure 1 is a single
color image.)

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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
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Slide Number

Apple’s Objections

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The statements are hearsay for the same reasons provided for slide 30.

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The slide misleadingly suggests that the D’889 has been construed to require a
portrait orientation. But the Court’s recent Order regarding Design Patent
Construction said no such thing. Samsung has never disclosed a noninfringement defense based on this theory during discovery.

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The statements are hearsay for the same reasons provided for slide 30.

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This video was never disclosed or produced in discovery. Samsung did not
identify “FractalZoom” in its Invalidity Contentions. Its expert report referred
only to a different Youtube video of “Mandelbrot Fractal” posted in September
2009. Samsung’s slide cites DX 655, which refers to “Tablecloth” source code
and other demos, but not to “FractalZoom.” The DT system provided for
inspection gave no indication of a FractalZoom demo.

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Samsung argues that code to operate FractalZoom theoretically could have been
found on inspection—buried in 158 GB hard drive in a path 9 directory levels
deep at: MERL-drive\diamondtouch\people\forlines\Mandelbrot\src\com\
merl\forlines\fractal. But Judge Grewal struck this contention. (Dkt. No. 1144.)

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The statements and subtitles in video (e.g., Jefferson Han’s remarks about the
state of third parties’ research into multitouch) are inadmissible hearsay.

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The slide misstates the application filing date for the Microsoft (Flynt) patent as
September 2005, instead of June 16, 2006.

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Samsung has admitted that there are 2 versions of Tablecloth. (Dkt. No. 933 ¶
10) Samsung’s invalidity expert relied only on the later July 17, 2006 version.
(Van Dam Report Ex. 8.) The slides refer to and depict an alleged 2005 version,
however.

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Slide 108 also includes hearsay from DX 696.

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125, 134

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The slide violates the Court’s July 19, 2012 Case Management Order (Dkt.
1267), which stated that “[d]epositions conducted after the close of discovery
without the authorization of Judge Grewal or stipulation of the parties [are] not
admissible.” Markus Paltian, an Intel engineer, was deposed on March 20,
2012. Apple stated it would attend “if the [Intel] deposition were permitted” but
Apple did not agree that this deposition could occur after fact discovery closed.
The text, “Apple’s FRAND and Exhaustion Defenses are Meritless,” is
argumentative.

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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
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Slide Number

Apple’s Objections

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At the July 18, 2012 hearing, the Court advised Apple not to refer to the
declared-essential patents that the Court has dismissed or that Samsung has
dropped from the case to show a pattern of untimely disclosure to ETSI. In view
of this guidance, Samsung should not be permitted to suggest that the alleged
untimely disclosure of unasserted Apple patents confirms Samsung’s position
particularly where the Apple patent has never been asserted in this or any case.

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In its contentions under Patent Local Rule 3-1(g), Samsung did not assert that its
products practice the ’460 and ’893 patents and thus is barred from making that
contention now. These slides misleadingly suggest that Samsung practices those
patents.

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The statement misleadingly and argumentatively states that “[t]he Patent Office
rejected invalidity arguments now made by Apple.” In fact, this is untrue; Apple
also is relying on art not before the Patent Office to show that the ’711 patent is
invalid.

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The re-created chart is incomplete and therefore misleading. E.g., it is missing
the “Symbian” column.

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The claim that Apple’s patents are “very small features among the hundreds of
important features” is argumentative, and there is no evidentiary support for the
listed sampling of nine “important factors.”

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Characterizing patents as “essential” or “non-essential” outside the context of
standard setting is misleading. In the context of standard-setting, “essential”
refers to whether a patent is required to practice a standard. In this slide (and
several slides that follow, as noted below), Samsung seeks to use the term
“essential” to suggest such patens are—as a general matter, outside of standardsetting—more important than other patents. “Essentiality” in standard setting
has nothing to do with general importance of patens, and Samsung should not be
permitted to confuse the jury by suggesting otherwise.

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The heading “Samsung Seeks A Reasonable Royalty while Apple Seeks More
Than Samsung’s Total Profits” is argumentative. Also, “Total Profits” is
misleading because it confuses a legal term of art with the late term, and because
it wrongly suggests that it refers to Samsung’s total corporate profits.

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See objection to Slide 165 regarding why the references to “essential” and “nonessential” patents are misleading.

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The heading “Apple Is Overreaching” is argumentative.

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The statement that “Apple has NO essential patents” is a factually untrue
characterization of Apple’s portfolio—Apple has many essential patents; they
are simply not part of this case.

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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
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Slide Number

Apple’s Objections

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The statements are hearsay for the same reasons provided for slide 30.

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The content of this slide is irrelevant, as the D’678 patent has not been asserted
in this litigation. Additionally, the quotation lacks citation and is hearsay.

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Dated: July 29, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Michael A. Jacobs________
Michael A. Jacobs
Attorneys for Plaintiff
APPLE INC.

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APPLE’S OBJECTIONS TO SAMSUNG’S OPENING STATEMENT DEMONSTRATIVE EXHIBITS
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