Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1476
RESPONSE to 1463 MOTION for Reconsideration Regarding Opening Statement Slide 29 by Apple Inc.. (Jacobs, Michael) (Filed on 7/30/2012) Modified text on 7/31/2012 (dhm, COURT STAFF).
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HAROLD J. MCELHINNY (CA SBN 66781)
hmcelhinny@mofo.com
MICHAEL A. JACOBS (CA SBN 111664)
mjacobs@mofo.com
RACHEL KREVANS (CA SBN 116421)
rkrevans@mofo.com
JENNIFER LEE TAYLOR (CA SBN 161368)
jtaylor@mofo.com
ALISON M. TUCHER (CA SBN 171363)
atucher@mofo.com
RICHARD S.J. HUNG (CA SBN 197425)
rhung@mofo.com
JASON R. BARTLETT (CA SBN 214530)
jasonbartlett@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
WILLIAM F. LEE
william.lee@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
MARK D. SELWYN (SBN 244180)
mark.selwyn@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 858-6000
Facsimile: (650) 858-6100
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 RESPONSE TO SAMSUNG’S
MOTION FOR RECONSIDERATION
REGARDING OPENING STATEMENT
SLIDE 29
Defendants.
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APPLE’S RESPONSE TO SAMSUNG’S MOTION FOR RECONSIDERATION REGARDING OPENING STATEMENT SLIDE 29
Case No. 11-CV-01846-LHK (PSG)
sf-3176559
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Samsung misleadingly characterizes its disclosure of the “home button” application
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(DX628) as a rebuttal to an opinion Apple offered during expert discovery. Samsung has been on
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notice of Apple’s theories regarding the distinctiveness of its trade dress since its Amended
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Complaint, filed on June 16, 2011. (Dkt. No. 75 ¶¶ 36, 47.) Samsung could have and should
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have disclosed the home button application in response to Apple’s Interrogatory No. 5, served on
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August 3, 2011, which asked Samsung to identify all documents in support of its contention that
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Apple’s trade dress lacked distinctiveness. Moreover, Samsung could have and should have
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produced the home button application after receiving Apple’s response to Samsung’s
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Interrogatory No 69, timely served on March 10, 2012. Samsung’s explanation for its late
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disclosure—that it only knew the home button application was relevant after seeing Russell
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Winer’s expert report—fails. Dr. Winer’s report, dated March 22, 2012, did not disclose any new
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theories to which the home button application is relevant. Instead, Dr. Winer discussed facts such
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as the unique appearance of iPhone, iPad, and iPod touch, extensive advertising, and unsolicited
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third-party publicity. Apple has consistently stated its theories of distinctiveness in its pleadings,
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written discovery, and expert reports. Moreover, Samsung could have and should have, if this
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had been truly new then, disclosed this theory in its responsive report. By slipping the home
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button application into the deposition exhibits of Dr. Winer, Samsung attempted an end run
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around the rules of discovery and this Court’s schedule. DX628 should be excluded from
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evidence.
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Dated: July 30, 2012
MORRISON & FOERSTER LLP
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By:
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/s/ Michael A. Jacobs
Michael A. Jacobs
Attorneys for Plaintiff
APPLE INC.
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APPLE’S RESPONSE TO SAMSUNG’S MOTION FOR RECONSIDERATION REGARDING OPENING STATEMENT SLIDE 29
Case No. 11-CV-01846-LHK (PSG)
sf-3176559
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