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

Filing 1517

OBJECTIONS to Samsungs Objections to Apples Proposed Examination Exhibits and Materials for Third Day of Trial by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration Hutnyan, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Maroulis, Victoria) (Filed on 7/31/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
th
7 555 Twin Dolphin Drive 5 Floor
Redwood Shores, California 94065
8 Telephone: [phone]
Facsimile: [phone]
9
Michael T. Zeller (Cal. Bar No. 196417)
10 [e-mail]
865 S. Figueroa St., 10th Floor
11 Los Angeles, California 90017
Telephone: [phone]
12 Facsimile: [phone]
13 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
14 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
15
16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

18 APPLE INC., a California corporation,
Plaintiff,

19
20

CASE NO. 11-cv-01846-LHK

vs.

21 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
22 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
23 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
24
Defendants.
25

SAMSUNG’S OBJECTIONS TO APPLE’S
PROPOSED EXAMINATION EXHIBITS
AND MATERIALS FOR THIRD DAY OF
TRIAL

26
27
28
02198.51855/4883735.1

Case No. 11-cv-01846-LHK
SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4883735.1

Apple Continues To Improperly Invoke Judge Grewal’s Striking Order In Its Objections
As officers of the Court, Apple’s attorneys have a professional obligation accurately to represent
the past orders of the Court. In the case of Judge Grewal’s ruling striking portions of
Samsung’s experts’ reports, that is not happening. Instead, Apple is supporting numerous
evidentiary objections by general references to that Order, which ultimately have proven to be
wholly unsupported, and in some cases have lead this Court to issue rulings that later have been
reconsidered. (See, e.g., Dkt 1510 at 1-2 (overturning rulings on slides 22 and 51). As one
example of this behavior, out of the 13 objections made last night to the cross examination
exhibits for Peter Bressler, half involved nebulous references to Judge Grewal’s order, yet none
of them pointed to a single page from the order, Apple’s motion to strike, or Apple’s proposed
order pointing to where the supposedly stricken reference or theory was actually mentioned. In
fact, in every instance, the theory or reference under attack was not a part of the relief Apple
sought in its motion to strike, typically because it had been disclosed all the way back during the
preliminary injunction phase. Apple has been able to overstate the import of Judge Grewal’s
Order because the ruling simply states that certain motions are granted or denied, and the scope
of the specific ruling cannot be determined without a careful review of the parties’ briefs and
Apple’s proposed order. Given the pace of trial, there is little time to conduct this review each
time Apple invokes the order, and Apple’s counsel realizes they can take advantage of the
situation. Going forward, counsel for Apple should be required to provide the exact locations
in the moving papers before Judge Grewal and proposed orders where Apple called out the
specific prior art reference or theory it seeks to exclude from evidence. Otherwise Apple will
continue to invite the Court into error.
Samsung’s Objections To Denison Cross
PX 44, PX 54, PX 58,
Samsung wishes to preserve the objections to the use of these items
PX 62, Deposition
with this witness that were asserted in DKT# 1468 but understands
testimony of Wookyun
that the Court has over-ruled those objections and will not reargue
Kho
them here.
PX 54, PX 58, PX 60
These exhibits are untimely because Apple did not identify them in
response to Samsung's contention interrogatory no. 7 calling for all
evidence supporting Apple's allegations of willfulness. Apple Inc.'s
Corrected Amended Objections and Responses to Samsung
Electronics Co. Ltd.’s Interrogatory Nos. 4, 6, 7, 16, 17, 18 to Apple
Inc. at 6:5-10; 9:11-26 (Borden Decl Exh __). Samsung requests
that before PX 60 is shown to the jury, the following instruction be
given: “You may see documents in this case that have information
covered up with the word 'redacted' over it. This is information
relating to future and/or unreleased products. You shouldn’t draw any
conclusions or make any positive or negative inferences about the
existence of redactions in a party’s documents.”
ITC 796 Witness
These exhibits do not appear on Apple’s Exhibit List and are thus
Statement of Denison
untimely. In addition, these documents contain confidential
and ITC 796 Rebuttal
business information pursuant to the protective order in the 337-TAWitness Statement of
796 ITC Investigation and were not produced for use in this case.
Denison
January 25, 2012 Depo. These exhibits not appear on Apple’s Exhibit List and are thus
of Denison and
untimely.
September 21, 2011
30(b)(6) Deposition of
Denison
Ex. 225 to September
This exhibit does not appear on Apple’s Exhibit List and is thus
21, 2011 30(b)(6) Depo. untimely. It was also untimely because it was not included in
of Denison
Apple's disclosures of Denison Trial Cross Exhibits at 2:00 pm as
required by the Court's Order. (Borden Decl. Ex. __) It was added
at 7:54 pm. (Borden Decl. Ex. __) The exhibit also contains
Case No. 11-cv-01846-LHK
-1SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4883735.1

hearsay not within any exception.
ITC 794 Hearing
This exhibit does not appear on Apple’s Exhibit List and is thus
Transcript (Denison,
untimely. It was also untimely because it was not included in
public version)
Apple's disclosures of Denison Trial Cross Exhibits at 2:00 pm as
required by the Court's Order. (Borden Decl. Ex. __) It was added
at 7:54 pm. (Borden Decl. Ex. __)
ITC 796 Hearing
This exhibit does not appear on Apple’s Exhibit List and is thus
Transcript (Denison)
untimely. In addition, this document contains confidential business
information pursuant to the protective order in the 337-TA-796 ITC
Investigation and was not produced for use in this case.
Apple’s Aug. 12, 2011
This exhibit does not appear on Apple’s Exhibit List and is thus
30(b) Deposition Notice untimely.
Responses to Objections to Kare Cross Examination Exhibits
4/27/2012 Kare
Deposition

It is well established that a deposition may be used by any party for
the purpose of impeaching the testimony of the deponent as a
witness. Fed. R. Civ. P. 32(a)(1). This is true regardless of
whether the testimony is otherwise admissible. Lewis v. Unites Air
Lines Transport Corp., 27 F. Supp. 946 (D. Conn. 1939). Ms.
Kare’s deposition in this case is relevant and may be used for
impeachment on cross examination.
Depositions of Freddy
The sworn deposition testimony of the named D’305 inventors is
Anzures and Imran
highly relevant to Ms. Kare’s opinions regarding infringement and
Chaudhri
invalidity and admissible to impeach her testimony on cross
examination. The depositions of these inventors need not be
designated for purposes of impeachment.
Kare Expert Report and Ms. Kare’s expert reports in this case are prior statements that are
Exhibits 1-33; Kare
appropriate to impeach any inconsistent statements during her
Rebuttal Expert Report
testimony on cross examination. Expert reports need not be listed
and Exhibits 1-7
on the exhibit list in order to be used for impeachment.
Responses to Objections to Bressler Cross Examination Exhibits
DX511
This exhibit is the certified copy of a prior art patent obtained from
the USPTO and includes a certified translation. Samsung relied on
this reference during the preliminary injunction phase (Dkt No. 181
at 7 (under seal)), and Mr. Bressler opines on it in his expert reports.
(See, e.g., Bressler opening report pp.49-50; rebuttal report pp.2125). Apple gives no guidance as to what could be misleading or
confusing about this official government document.
DX628
Samsung maintains that DX628 is relevant and admissible for the
reasons stated in its Proffer of Evidence (Dkt No. 1477) and Motion
for Reconsideration (Dkt No. Dkt No. 1463 at 5).
DX727, DX728
Whether these are primary or secondary references is an invalidity
issue for the jury to decide. See Int’l Seaway v. Walgreens, 589
F.3d 1233, 1240-42 (Fed. Cir. 2010). Further, regardless of whether
these patents are considered to be obviousness references, prior art is
also relevant to the infringement analysis, which Apple’s objection
ignores. See Egyptian Goddess v. Swisa Inc., 543 F.3d 665, 681-83
(Fed. Cir. 2008) (en banc). Additionally, these exhibits are prior art
patents timely disclosed during the preliminary injunction phase (Dkt
No. 172 at 24).
Mr. Bressler also analyzed and opined on these
references. (See, e.g., opening report pp.20, 50-52, 102-104, 151;
rebuttal report pp.33-36, 45-47, 62-65, 76-80, 90-94).
DX740
The Court already denied Apple’s MIL #1 related to this exact
exhibit. (Dkt 1267 at 3). Apple’s attempt to invoke Magistrate
Case No. 11-cv-01846-LHK
-2SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL

1
2
3
4
5

DX741

6
7
8
9
10
11
12

DX743

13
14
15
16
17
18
19
20

JX1040
JX1074

21
22
23
24
25
26
27
28
02198.51855/4883735.1

JX1093

Judge Grewal’s order to make an endrun around the Court’s ruling is
improper. That order nowhere references these photos. These
photos are from the official file history of the D’889 patent and are
admissible under at least Rules 1003, 1004, and 1005.
Apple’s
1002 objection is especially disingenuous given that an Apple
attorney submitted a sworn declaration to this Court stating that these
exact images were retrieved directly from the PTO. (Dkt No. 351 at
3 & Ex. 8 (under seal).
The Court denied Apple’s MIL #1 as to the physical 035 model.
(Dkt 1267 at 3). Judge Grewal’s order did not strike this reference
for any purpose except two limited invalidity theories. As an
embodiment of the D’889 patent, it is relevant for the infringement
analysis. See Lee v. Dayton-Hudson, 838 F.2d 1186, 1189 (Fed.
Cir. 1998). The Court ordered Apple to provide an authenticating
stipulation regarding this model (Dkt. 398 at 3 (“Apple shall stipulate
that the specific model identified by Apple industrial designer
Christopher Stringer during his November 4th deposition is the same
model or mockup appearing in the photographs of the ‘889 patent
prosecution history.”)) The stipulation is also admissible under Rules
1003 and 1004 as the original is in Apple’s possession and was
submitted by Apple’s counsel in electronic form to Samsung.
Apple’s MIL #2 only involved later-issued patents, not pending
patent applications for products at issue in the case. (Dkt 1184-3 at
2). Apple cannot attempt to re-write or expand its motion now.
Whether the Godici report was struck is irrelevant because it was
submitted before Apple had ever produced this document by order of
Judge Grewal. (Dkt No. 867.) Also, regardless of what invalidity
contentions were struck, this patent application is highly relevant to
Apple’s claim that the iPad 2 is an embodiment of the D’889 patent,
and is therefore relevant to the infringement analysis of whether the
iPad 2 can be used to compare to the Galaxy Tab 10.1. Apple’s
admissions to the PTO that the iPad 2 is actually a new, unique, and
patentably distinct design over the D’889 are therefore relevant to the
infringement and damages analyses, as Apple is alleging lost iPad 2
profits through this patent.
Apple seeks to exclude the D’889 patent as alleged prior art to
D’677. Samsung is not offering the patent for that purpose.
This exhibit is a prior art device that was disclosed at the preliminary
injunction stage. A 402 objection is improper because prior art is
clearly relevant to multiple issues such as design patent invalidity and
infringement. Egyptian Goddess, 543 F.3d at 681-83; Int’l Seaway,
589 F.3d 1233, 1240-42 (Fed. Cir. 2010). Moreover, Mr. Bressler
has already analyzed and opined on this device and is therefore open
to cross examination about it (see e.g., Bressler opening report pp.4347; rebuttal report pp.121-22). Apple provides no basis for why this
device should be kept out under rule 403. Any prior rulings in this
action related to this device are non-binding on the trier of fact, S. Or.
Barter Fair v. Jackson County, 372 F.3d 1128, 1136 (9th Cir. 2004)
(“decisions on preliminary injunctions are just that—preliminary.”);
Jack Guttman, Inc. v. Kopykake Enterprises, Inc., 302 F.3d 1352,
1361 (Fed. Cir. 2002) (“[A]ll findings of fact and conclusions of law
at the preliminary injunction stage are subject to change upon the
ultimate trial on the merits.”).
This Court already ruled that the LG Prada is “admissible as a prior
Case No. 11-cv-01846-LHK
-3-

SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

4/23/12 Depo. of
Bressler (ITC-796),
4/24/12 Depo. of
Bressler (ND Cal),
5/31/12 ITC Hearing Tr.
– Bressler, 6/1/12 ITC
Hearing Tr. – Bressler
3/22/12 Bressler
Opening Expert Report
and Exhs., 4/16/12
Bressler Rebuttal Expert
Report and Exhs.
5/2/12 ITC-796 Direct
Witness Statement of
Stringer, 8/3/2011 –
Deposition of Stringer
(ND Cal), 11/4/11–
Deposition of Stringer
(ND Cal), 2/15/12 –
Deposition of Stringer
(ITC), Hoellwarth Oct.
25, 2011 Deposition
(ND Cal)

17
18

Demonstratives

19
20

Slides 1, 7, 8, 9, & 10

21
22
23
24
25
26
27
28

02198.51855/4883735.1

Slide 7

art reference under 35 U.S.C. § 102,” so Apple’s 402 and 403
objections are meritless. (Dkt 1267 at 3.) Mr. Bressler
considered this reference as well (Rebuttal Report at p. 65.) The
reference is timely as it was a part of Samsung’s preliminary
injunction opposition and Mr. Sherman’s PI declaration. (Dkt 172 at
19-20; Dkt 181a at 3-4 (under seal)). And whether it was stricken
from Mr. Lucente’s report as to user interface patents is irrelevant to
its use as prior art to the D’677 and D’087 patents.
This is Mr. Bressler’s own prior sworn testimony and is admissible
under Rule 801(d)(1)(A). Apple objects under 403 as well but gives
no indication of how it’s own proffered expert’s testimony would be
prejudicial to it. Apple’s 804(b) objection is inapplicable as that
provision relates to witnesses who are unavailable to testify.
Apple offers no support for why Samsung must provide “specificity”
about Mr. Bressler’s reports in order to use them for impeachment.
This is an improper attempt to compel Samsung to reveal its line of
questioning before the witness even testifies.
These sworn statements and testimony of Apple witnesses are
admissible as admissions by a party opponent under Rules
801(d)(2)(A), (C), & (D), Mr. Stringer was put forward as Apple’s
corporate representative on design issues in both the ND Cal and ITC
actions. Mr. Hoellwarth was deposed about matters within the
scope of his employment relationship as the head of Apple’s design
patent docket and as the prosecuting attorney who prepared and filed
the D’889, D’677, and D’087 patents. All the statements are also
sworn. Apple’s 802 hearsay objection is therefore unfounded
because Samsung will use the testimony not for the truth of the
matter asserted but to impeach Mr. Bressler’s testimony. Apple also
cites generally “this court’s motions in limine order” without
indicating any specific, relevant topic.
Apple delayed until 1:28a.m. before providing particularized
objections on a slide-by-slide basis and has thus waived any
objections on that basis. However, o the extent the Court sustains any
objections to these demonstratives, Samsung reserves the right to
cure any perceived error so the slide is not precluded entirely.
Apple cites no authority for why Samsung must – in a demonstrative
-- present the phones only in the way specified by Apple. Indeed,
Federal Circuit law requires a comparison of all the “features visible
at any time in the ‘normal use’ lifetime of the accused product.”
Contessa v. Conagra, 282 F.3d 1370, 1378 (Fed. Cir. 2002). Apple
cannot hide the views it does not favor. In any event, the jurors will
have the actual devices to make the comparisons. Also, the display
portion of the phone is a functional feature that cannot be included in
the infringement analysis, so having the screen on makes no
difference to the remaining non-functional features.
Samsung did disclose during the preliminary injunction phase the
non-infringement theory that Samsung devices have speaker slots
with different shapes, locations, and appearances compared to D’677,
D’087, and the iPhone products. (Dkt 172 at 35-36; Dkt 181 at 13).
The theory was not stricken in Judge Grewal’s order as Apple
explicitly said it was not seeking to strike anything from the PI phase.
Case No. 11-cv-01846-LHK
-4-

SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4883735.1

Also, the jurors will have the actual devices, so any portions of the
phones obscured on the slide will be visible on the actual products
they will use for their analysis.
Slide 8
The Court already ruled that the LG Prada is admissible as prior art.
(Dkt 1267 at 3.) The Court also denied Apple’s MIL #4 regarding
presentation of views of designs. Scaling issues in this instance are
irrelevant because the phones are being compared to the patent, not to
an iPhone.
Slides 9-10
This non-infringement theory was not a part of Judge Grewal’s order
and was disclosed during the PI phase at Dkt 172 pages 30, 34, 37-38
and Dkt 181 page 13. The theory Apple contends is incorrect under
the law is the one this Court applied in its Dec. 2, 2011 Order. (Dkt
449 at 25.) Writing on the surface of the phones is highly relevant
to infringement.
Slide 12-13
As noted above, the Federal Circuit’s ruling at the preliminary
injunction stage is not binding on the ultimate trial on the merits.
Second, the slide is important for more than invalidity. Prior art is
relevant to non-infringement, even if the references aren’t primary
obviousness references.
Slide 18
These are not accused phones. Apple gives no reason why Samsung
cannot present as a demonstrative views of non-accused purported
alternatives proffered by its own expert with markings to highlight
certain phone features.
Responses to Objections to Schiller Cross Examination Exhibits
SDX001-3
Apple raises its first objections to SDX001-3 as misleading without
articulating a reason. SDX001-3 are not misleading because they
show images of electronic devices that are relevant to this
action. Samsung’s opening presentation contained SDX001-3 at
slides 169-171, and despite ample opportunity to do so, Apple did not
object to them. Apple’s objection to SDX-001-3 as misleading is
without merit and should be overruled.
Schiller Deposition
Apple’s objections to Samsung’s use of Mr. Schiller’s deposition
testimony taken in this action for impeachment purposes during cross
examination are baseless and should be overruled. Pursuant to FRE
801(d)(1)(A), a declarant witness’s prior statement can be used at
trial for impeachment purposes. The Federal Rules of Evidence
permit Samsung’s use of Mr. Schiller’s prior deposition testimony –
which was given in this action under penalty of perjury – for
impeachment purposes at trial. Furthermore, under Federal Rule of
Civil Procedure 32, Samsung’s use of Mr. Schiller’s deposition
against Apple is entirely appropriate. FRCP 32(a) and (b) provides
“At a hearing or trial, all or part of a deposition may be used against a
party on these conditions: 1) the party was present or represented at
the taking of the deposition had reasonable notice of it; 2) it is used to
the extent it would be admissible under the Federal Rules of
Evidence if the deponent were present and testifying; and 3) the use
is allowed by Rule 32(a)(2) through (8).” In this case under 32(a)(2)
it is being used to contradict or impeach Mr. Schiller’s testimony in
this trial.
Depositions of Stanley
Samsung presently withdraws its use of the depositions of Stanley
Ng, Greg Joswiak and
Ng, Greg Joswiak, and Fletcher Rothkopf but reserves the right to use
Fletcher Rothkopf
their deposition testimony at a later date.
Case No. 11-cv-01846-LHK
-5SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL

1 DATED: July 31, 2012
2
3
4
5
6
7

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

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

02198.51855/4883735.1

Case No. 11-cv-01846-LHK
-6SAMSUNG’S OBJECTIONS TO APPLE’S PROPOSED EXAMINATION EXHIBITS AND MATERIALS
FOR THIRD DAY OF TRIAL