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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1 2 3 4 5 6 7 8 9 10 11 12 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 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, 18 19 20 21 22 23 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. 24 25 26 27 28 APPLE’S RESPONSE TO SAMSUNG’S MOTION FOR RECONSIDERATION REGARDING OPENING STATEMENT SLIDE 29 Case No. 11-CV-01846-LHK (PSG) sf-3176559 1 Samsung misleadingly characterizes its disclosure of the “home button” application 2 (DX628) as a rebuttal to an opinion Apple offered during expert discovery. Samsung has been on 3 notice of Apple’s theories regarding the distinctiveness of its trade dress since its Amended 4 Complaint, filed on June 16, 2011. (Dkt. No. 75 ¶¶ 36, 47.) Samsung could have and should 5 have disclosed the home button application in response to Apple’s Interrogatory No. 5, served on 6 August 3, 2011, which asked Samsung to identify all documents in support of its contention that 7 Apple’s trade dress lacked distinctiveness. Moreover, Samsung could have and should have 8 produced the home button application after receiving Apple’s response to Samsung’s 9 Interrogatory No 69, timely served on March 10, 2012. Samsung’s explanation for its late 10 disclosure—that it only knew the home button application was relevant after seeing Russell 11 Winer’s expert report—fails. Dr. Winer’s report, dated March 22, 2012, did not disclose any new 12 theories to which the home button application is relevant. Instead, Dr. Winer discussed facts such 13 as the unique appearance of iPhone, iPad, and iPod touch, extensive advertising, and unsolicited 14 third-party publicity. Apple has consistently stated its theories of distinctiveness in its pleadings, 15 written discovery, and expert reports. Moreover, Samsung could have and should have, if this 16 had been truly new then, disclosed this theory in its responsive report. By slipping the home 17 button application into the deposition exhibits of Dr. Winer, Samsung attempted an end run 18 around the rules of discovery and this Court’s schedule. DX628 should be excluded from 19 evidence. 20 Dated: July 30, 2012 MORRISON & FOERSTER LLP 21 22 By: 23 /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC. 24 25 26 27 28 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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