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

Filing 1444

RESPONSE to SAMSUNG'S OBJECTIONS TO APPLES OPENING STATEMENT DEMONSTRATIVE EXHIBITS & CHRIS STRINGER EXHIBITS by Apple Inc.. (Jacobs, Michael) (Filed on 7/29/2012) Modified text on 7/30/2012 (dhm, COURT STAFF).

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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,

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Defendants.

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

Trial:
Time:
Place:
JUDGE:

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

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APPLE’S RESPONSE TO SAMSUNG’S OBJECTIONS TO APPLE’S OPENING DEMONSTRATIVES
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Apple’s opening demonstratives accurately represent the evidence that Apple will

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introduce at trial. Apple responds to the specific objections to its demonstratives that Samsung

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raised during the parties’ July 28, 2012 meet and confer as follows:

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Images of Steve Jobs appearing in Slide Nos. 6, 7, 12, 16, and 29. The images in slides

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6, 7 and 12 are from a joint exhibit – 1091 (the MacWorld 2007 video), which Samsung itself

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relies on in its opening demonstratives (at Samsung slide no. 148). Samsung cannot complain

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about Apple’s use of the same video. The images from JX 1091 do not violate the Court’s ruling

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on Samsung’s MIL No. 1, as it is “specifically relevant to the IP rights at issue in the case.” (Dkt.

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No. 1267 at ¶ 12.) The slides depict the public introduction of the iPhone on January 7, 2007,

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which launched the fame that the iPhone trade dress has acquired. Because they demonstrate

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Apple’s notice of the 200+ patents covering the iPhone -- including the asserted patents, they thus

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are relevant to willfulness.

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Slide 16 is an exhibition by the Patent and Trademark Office highlighting patents listing

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Steve Jobs as a co-inventor. Among the highlighted patents at the PTO exhibit are at least two

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patents at issue in this litigation – the D’677 and D’889. The Patent Office exhibit demonstrates

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praise by others to rebut non-obviousness. For these reasons, and because the distinctive shape

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and look of the iPhone and its asserted trade dress also were on public display in the shape of the

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display cases themselves, the exhibit also is specifically relevant to the IP rights at issue and thus

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consistent with the Court’s ruling on MIL No. 1. Finally, Slide 29 is a screenshot from the

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announcement of the iPad in July 2010. It is relevant to the introduction of the iPad and its

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acquisition of fame and secondary meaning. It therefore is consistent with the Court’s ruling on

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Samsung’s MIL No. 1 for the same reasons.

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Objections to newspaper articles and blogs. In every instance, the newspaper articles

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and blogs quoted in Apple’s opening statement are not hearsay, are subject to a hearsay

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exception, or properly relied upon by Apple’s experts in forming their opinions. Experts may rely

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on all evidence, including potentially inadmissible hearsay evidence, when forming their

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opinions. Fed. R. Evid. 703. The articles are from reliable major national news sources and

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prominent online blogs, reporting on Apple and Samsung products.
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The newspaper articles and blogs may be offered to show Samsung’s conduct, knowledge,

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or beliefs under Rule 801(c)(2) of the Federal Rules of Civil Procedure. For example, they

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confirm Samsung’s willful infringement of Apple’s rights by showing that Samsung knew or

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should have known that its products were viewed as copies of Apple’s products in the

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marketplace. Evidence of copying also is may be used to prove non-obviousness.

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Purportedly improper translations on slides 18, 19, and 67. Samsung's translation

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objections are not well taken. Samsung never provided its objections to Apple, as the Court

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instructed, for PX 34. Samsung also has never discussed the exhibit during the parties’ meet and

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confer sessions regarding trial exhibit translations.

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As for PX 44 (at slide 67), Samsung disputes whether 확대/축소 means

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“expansion/reduction” or the more colloquial (and accurate) “zoom-in/zoom out.” Samsung

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prefers the former for one simple reason: Apple’s patents use the word “zoom.” Samsung

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ignores that its own manuals translate the term exactly as Apple does. Compare

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http://www.samsung.com/sec/support/model/SHW-M110SHKSC-downloads (Galaxy S Korean

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language manual) at 43 with http://downloadcenter.samsung.com/content/UM/201102/

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20110224040812289/ ATT_SGH-i897_Captivate_English_User_Manual.pdf (Captivate English

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manual at 129). Virtually all Samsung manuals use the term “zoom in/out” for this Korean

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phrase. See, e.g., http://support.t-mobile.com/docs/DOC-1742 (Vibrant manual) at 33.

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Objections to slides 18 and 19 as purportedly misleading and argumentative. Slides

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18 and 19 are accurate excerpts from a Samsung presentation presented under the heading

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“Samsung’s Response to the iPhone.” They are not argumentative and contain only verbatim

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excerpts from PX 34. For example, “HW portion: Easily copied” is a direct and unedited bullet

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from the presentation. The same is true for “iPhone Effect Analysis,” “Easy and intuitive UI that

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covers all user classes, including male, female, old and young,” and “Beautiful design.” Only one

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quote is truncated, but that was done to omit extraneous text (“Excluding those for use in

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completely low-priced smartphone markets and business targets (business use e-mail solution

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installed))” deleted, but “we will have to compete with the iPhone in whatever way” retained).

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The original document consists of short statements that Apple faithfully reproduces.
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Reference to the Galaxy S i9000 on slides 26 and 49. This Court has already denied

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Samsung’s motion to exclude evidence of the Galaxy S i9000. (Dkt. No. 1267 at 2 (“Samsung’s

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motion to exclude evidence related to the Galaxy S (i9000) . . . is denied.”).) Samsung is free to

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argue at trial that the i9000 does not infringe Apple’s intellectual property rights, but it is in the

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case and a proper subject of Apple’s opening statement.

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References to PX 44 on slides 33, 34, 35, 36, 37 and 67. The Court may recall PX 44

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from the July 18, 2012 hearing. The Court agreed that this 132-page presentation, which has 126

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side-by-side images suggesting ways in which the Galaxy S should be altered to match the iPhone

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(and confirming the extent of Samsung’s copying), should not be sealed. Specific pages (e.g.,

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page 58, which discusses double-tapping to zoom in and out) relate specifically to the intellectual

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property in this case. See also page 126 (discussing “strong impression that iPhone's icon concept

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was copied”). Generally, the presentation is strong evidence that Samsung's infringement of the

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'381, '915, and '163 patents was no accident. PX 44 and the slides that depict pages from this

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presentation do not violate the Court’s ruling on Samsung’s MIL #1, as they do not relate to the

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“Apple Brand” or constitute evidence confirming that “Samsung shared confidential business

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information” of Apple's with its smartphone division. (Dkt. No. 1267 at 3.)

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Justin Denison’s testimony on slides 41 and 42. Mr. Denison was Samsung’s corporate

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designee on the topic of Samsung’s “imitation, copying, or emulation of any Apple product”

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during the preliminary injunction phase. Thus, the quoted testimony was well within the

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appropriate scope. Mr. Denison testified that he spent a full “10 to 12 hours” conferring with 17

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individuals—including 13 hardware and software designers—to prepare for his testimony. These

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included the lead designer on the Galaxy S product and no fewer than five programmers for the

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“bounce” function common to the accused products. Mr. Denison also testified that he spent

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another “two to three full days in discussions with the Quinn Emanuel attorneys.” (Bartlett Decl.

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Ex. 1 at 33:13-34:15.) Mr. Denison ultimately testified, under oath, that “in all cases I

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specifically asked [these individuals] if they had considered or studied or drawn direct

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comparisons or what have you versus the relevant Apple products, whether it be tablet or smart

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phone in each case, and in each case the designers said that they had not.” (Id. at 135:10-17.) In
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view of Mr. Denison's extensive preparation, Samsung’s claim that he “lacked foundation” is

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simply false. Samsung’s remaining objection, that the excerpted testimony is misleading, is

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equally meritless. The testimony was a direct response to a specific question and properly within

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the scope of his designation and investigation.

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Images of the Olympic torch on slides 55-62. Having the same photo on both phones

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ensures that the focus remains on the functionality and not on the content of the photo. By

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contrast, having different photos would be distracting to and might mislead the jury. Because

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Samsung deliberately copied the ’381 patent’s rubberbanding feature, any similarity in these

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videos -- far from being implied -- is intentional on Samsung’s part.

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Purportedly manipulated images of the phones at issue on slides 26, 59-62, 69-72, and

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75-78. The Court previously denied Samsung’s motion in limine No. 7, which sought to exclude

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altered, resized photographs. (Dkt. No. 1267.) Samsung’s continued objections to photographs

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are unnecessary because the jury will not have to rely on photographs. It will have the physical

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products to consider and compare during trial and deliberations. (See July 18, 2012 Hearing Tr.

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at 127:23-128:1 (“I’m hoping that if you’re actually going to introduce actual products that this

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shouldn’t really be an issue, right? Just do the actual – the real deal.”).) Finally, while Apple’s

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photographs accurately depict the products in this case, size does not matter for the purposes of

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Apple’s design patent infringement claims. The relative size of the accused Samsung products as

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compared to Apple products does not affect the analysis of design patent infringement. See Sun

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Hill Indus. v. Easter Unlimited, 48 F.3d 1193, 1196-97 (Fed. Cir. 1995).

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Purported misstatement of law on slide 85. 35 U.S.C. §§ 284, 289 and 15 U.S.C. §

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1117(a) permit recovery of each of these elements of damages. As Apple’s expert Terry Musika

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will testify, Apple seeks a recovery of lost profits for some sales, Samsung’s profits for others

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(that violate design claims), and a reasonable royalty for a small number of sales that infringe

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only the utility patents. Apple does not seek all three remedies with respect to the same sale. The

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slide therefore accurately reflects the evidence that the jury will hear and the damages law for

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patents and trade dress.

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The testimony of Dr. Ahn on slides 92 and 98. Samsung objects to the testimony of Dr.
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Seung-Ho Ahn (slides 92 and 98) as out of context and misleading. As an initial matter, this

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testimony is taken from designations to which Samsung did not object. In any event, there is

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nothing misleading about the testimony, as both the questions and the answers make explicitly

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clear that the witness is solely speaking as to his own personal knowledge and actions. Moreover,

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Dr. Ahn is a high-ranking executive at Samsung—at his deposition, he testified that he is the head

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of the Samsung IP [Intellectual Property] Center, and that the IP Center has responsibility for a

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range of IP-related matter, including licensing. He testified:

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Q: Mr.Ahn, are you the highest ranking licensing executive at Samsung?

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A:. Yes.

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(Bartlett Decl. Ex. 2 at 23:25-26:2.)

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The cited testimony is a fair representation of Dr. Ahn’s testimony, and, to the extent

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Samsung contends otherwise, it may counter-designate other testimony or call Dr. Ahn live at

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trial.

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Slides 99-102. Contrary to Samsung’s objection, there is nothing in slides 99-102 to

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suggest that Samsung is accusing third party applications of infringement. Rather, these slides

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simply show exemplary apps in Apple’s App Store. As the slides that immediately follow make

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clear (slides 103-107), Apple is using this series of slides to illustrate the distinction between

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“apps” and the claimed “modes” of the ’460 and ’893 patents.

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Video on slide 106. Samsung identifies no basis for its objection to slide 106. In any

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event, this animation is a demonstrative that fairly represents the operation of the accused Apple

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products.

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*****

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Samsung’s non-objection to Christopher Stringer exhibits and demonstratives.

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When providing its opening slides, Apple also disclosed 27 exhibits and 6 demonstratives for its

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first witness, Chris Stringer. After the parties met and conferred, Samsung sent an e-mail

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confirming its objections -- but raised none as to Mr. Stringer's exhibits. Any such objections are

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therefore waived under the Court’s schedule.

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Regardless, and contrary to Samsung’s prior objections, PX1-4, 162 and 164 are not
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“improper compilations” because of Samsung's alleged lack of access to the underlying

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information. Samsung cannot dispute that it had multiple opportunities to (and did) inspect all of

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the devices and CAD files in these compilations. While Samsung also has suggested that PX3-4

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are somehow “misleading” and “prejudicial,” Samsung identified no basis for its position during

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the parties’ meet and confer. Finally, PX157, an industry award, is not hearsay because it is a

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matter of public record reflecting recognition for Apple’s designs. It also cannot violate the

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Court's ruling on MIL 1 because it is neither related to the “Apple's Brand” nor evidence

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confirming Samsung's leakage of information to its smartphone division.

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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 RESPONSE TO SAMSUNG’S OBJECTIONS TO APPLE’S OPENING DEMONSTRATIVES
CASE NO. 11-CV-01846-LHK
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