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

Filing 1540

OBJECTIONS to Apples Responses To Samsungs Objections To Forstall, Bressler, Kare, Denison And Schiller Direct Examination Materials Apples Objections To Samsungs Proposed Direct Examination Materials For Jdenison And Supplemental Objections To Samsungs Proposed Cross Examination Materials For Schiller by Apple Inc.. (Attachments: # 1 Declaration Of Richard Hung In Support Of Apples Objections And Responses Re Samsungs Responses, # 2 Exhibit A, # 3 Exhibit B)(Jacobs, Michael) (Filed on 8/2/2012)

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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,

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Defendants.
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Case No. 11-cv-01846-LHK
APPLE’S RESPONSES TO SAMSUNG’S
OBJECTIONS TO FORSTALL,
BRESSLER, KARE, DENISON AND
SCHILLER DIRECT EXAMINATION
MATERIALS
APPLE’S OBJECTIONS TO
SAMSUNG’S PROPOSED DIRECT
EXAMINATION MATERIALS FOR
JDENISON AND SUPPLEMENTAL
OBJECTIONS TO SAMSUNG’S
PROPOSED CROSS EXAMINATION
MATERIALS FOR SCHILLER
Trial:
Time:
Place:
Judge:

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APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 DISCLOSURES
CASE NO. 11-CV-01846-LHK
sf-3178037

August 3, 2012
9:00 a.m.
Courtroom 8, 4th Floor
Hon. Lucy H. Koh

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On Tuesday, the Court ruled on Samsung’s objections to Apple’s proposed exhibits for

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Justin Denison, Peter Bressler, and Susan Kare. (Dkt. Nos. 1520 & 1522). On Wednesday,

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Apple disclosed its direct exhibits for Scott Forstall and supplemented its prior disclosures for Mr.

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Denison, Mr. Bressler, and Dr. Kare. This was limited to: (1) two new exhibits for Mr. Denison;

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(2) five new demonstrative exhibits for Dr. Kare; (3) a revised exhibit, two related

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demonstratives, and three new demonstratives for Mr. Bressler; and (4) minor, cosmetic changes

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to Dr. Kare’s previously disclosed demonstratives.

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At 12:26 a.m. this morning, Samsung noticed six pages of objections to Apple exhibits –
despite the Court’s five-page limitation on briefing. Samsung expressly included “new”

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objections to exhibits that the Court has already ruled upon or that Samsung had not raised with

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Apple’s prior identification of the same exhibits. (Hung Decl. Ex. A.) On request, Samsung

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refused to identify which of its new objections it actually intended to brief. (Id.) The Court

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should reject Samsung’s request that the Court reconsider its prior rulings overruling Samsung’s

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objections. It also should ignore Samsung’s new, untimely objections as waived. Thus, the only

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objections that the Court need resolve are those to the Apple exhibits or demonstratives first

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disclosed on Wednesday (i.e., for Forstall and the supplements to Denison, Bressler, and Kare).

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Apple also objects to certain of Samsung’s materials for Phil Schiller1 and Justin Denison.

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I.

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Exhibit/
Demons.

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PX7, PX35,
PX41, PX44,
PX55, P178,
PX179
PX58
PX160

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Apple’s Responses to Samsung’s Objections to Scott Forstall, Peter Bressler
and Susan Kare Direct Examination Materials
Apple’s Responses to Samsung’s Objections to Kare, Bressler, Denison and
Forstall Direct Examination Exhibits and Materials
Kare Direct Examination Exhibits and Materials
The Court considered and overruled Samsung’s prior objections to these
exhibits. (Dkt. No. 1520.) Samsung’s new objections are untimely and waived.

Apple did not disclose PX58 as a Kare exhibit.
The Court overruled Samsung’s objections to an identical exhibit (PX22.3 – see
Dkt. No. 1520). Samsung’s new objection that the exhibit misleads because

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Samsung misidentified its cross-examination exhibits for Phil Schiller as plaintiff’s
(“PX”) rather than defendant’s (“DX”) exhibits, and Apple learned of this only recently. Apple
therefore supplements its prior objections to address the correctly identified DX exhibits.
APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 DISCLOSURES
CASE NO. 11-CV-01846-LHK
sf-3178037

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Exhibit/
Demons.
PDX14.4,
14.8-14.10

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PDX14.24-27,
29-33

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PDX14.34-36

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PDX14.37

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PX3REVISED

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PX4, PX5,
PX6, PX7,
PDX61-66,
PX8, 10, 32,
59, 133, 135,
141-142, 152,
173-175, 197198
JX1007,
JX1030-1035,
JX1078
PDX15-17,
PDX46-60,
PDX67

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PX34, PX38
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Apple’s Responses to Samsung’s Objections to Kare, Bressler, Denison and
Forstall Direct Examination Exhibits and Materials
“the user interface does not even exist” ignores that this shows a concept.
The slide will demonstrate Kare’s testimony about the overall visual
appearance of the D’305 patent and the accused products. Those overall
appearances comprise particular design elements such as icons.
This slide will demonstrate Kare’s testimony about particular elements of the
trade dress, and thus does not mislead simply because it concerns only the
graphical user interface aspect. Moreover, PDX14.24 does not show a partial
view, and PDX14.33 does not show asserted trade dress.
The Court overruled Samsung’s objections to PX44, from which these images
are drawn. (Dkt. No. 1520) PX44 cannot be outside the scope of Dr. Kare’s
report, which disclosed and explained her reliance on the document.
The Court overruled Samsung’s objections to PX55 (Dkt. No. 1520), from
which these images are drawn. The graphic shows a page from PDX55 next to
an iPhone home screen and a Samsung applications screen.
Bressler Direct Examination Exhibits and Materials
The Court overruled Samsung’s objections to this exhibit. (Dkt. No. 1512.)
The only change on PX3 was to delete the F700 from this FRE1006 summary.
This was because Samsung had inaccurately claimed, both in the Quinn
declaration and related Samsung press release, that Apple had accused the F700
of being “an iPhone copy” in its opening statement (Dkt. No. 1533 at ¶ 2).
Apple made no such allegation (7/31/12 Tr. at 321:2-4), and it expressly is not
accusing the F700 of infringing the asserted design patents or trade dress (Dkt.
No. 1178). Apple’s deletion of the F700 from this timeline was to avoid any
confusion. This deletion is no reason for revisiting the Court’s prior decision
to overrule Samsung’s objections, and Samsung’s new objections are untimely.
The court already overruled Samsung’s objections to these exhibits and
demonstratives. (Dkt. No. 1512.) Samsung’s new objections are untimely and
waived.
Samsung raised no objections to these exhibits when Apple disclosed them on
July 29, 2012, and the Court has already ruled on Mr. Bressler’s exhibits. (Dkt.
No. 1507.) Samsung’s new objections are untimely and waived.

Samsung raised no objections to these exhibits when Apple disclosed them on
July 29, 2012, and the Court has already ruled on Mr. Bressler’s exhibits. (Dkt.
No. 1507.) Samsung’s new objections are untimely and waived.
Samsung raised no objections to these exhibits when Apple disclosed them on
July 29, 2012, and the Court has already ruled on Mr. Bressler’s exhibits. (Dkt.
No. 1507.) Samsung’s new objections are untimely and waived.
Denison Direct Examination Exhibits and Materials
Apple will establish the foundation for PX34 & 38 and may use them for
impeachment purposes with Mr. Denison, Samsung’s 30(b)(6) witness on
“Samsung’s imitation, copying, or emulation” of Apple’s products. Rule 613 is
inapplicable, as it relates to prior witness statements. These exhibits, which
show Samsung’s intentional copying by comparing and then adopting Apple’s

APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 DISCLOSURES
CASE NO. 11-CV-01846-LHK
sf-3178037

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Exhibit/
Demons.

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PX44, PX62

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9/21 Dep. Err.
Dep. of
Wookyun Kho

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JX1042

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JX1044-1045,
PDX17-18,
PDX23-24

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PX12

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PX19

PDX20,
PDX21,
PDX22

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PX142,
PDX16

Apple’s Responses to Samsung’s Objections to Kare, Bressler, Denison and
Forstall Direct Examination Exhibits and Materials
product features and design, are highly relevant. Their highly probative value
outweighs any risk of prejudice to Samsung. PX34 & PX38 are party
admissions and admissible, as they were made by Samsung employees within
the scope of their employment. Apple’s response to Rog. 7 was timely and
discloses that Apple will rely on Samsung’s internal documents showing that
Samsung analyzed and compared its products to Apple’s. (See Dkt. No. 1537.)
The Court overruled Samsung’s objections to these exhibits. (Dkt. No. 1520.)
Samsung’s additional objections are untimely and waived.
Apple plans on using this document for impeachment purposes only.
Samsung’s new objection is untimely; Samsung did not allege that Mr. Kho
was unavailable when Apple disclosed his transcript on July 29, 2012 (but did
for M. Shin and Mr. Li, on whom the Court ruled). Apple’s only edit was to
delete testimony.
Forstall Direct Examination Exhibits and Materials
D’305 patent concerns the appearance of the iPhone home screen, which is part
of its user interface. Mr. Forstall is the head of the iOS operating system at
Apple and the inventors are in Mr. Forstall’s group. He was personally
involved in selecting the icons and layout of the home screen. He can sponsor
and lay foundation for this patent. His testimony will be within the scope of his
witness disclosure.
’915 and ’381 patents relate to iOS operating system. The inventors are in
Mr. Forstall’s group, and he is personally familiar with the use and
implementation of such inventions in Apple products and can lay foundation.
His testimony will be within the scope of his witness disclosure. The
demonstratives show information on the face of patent and videos from Apple’s
opening statement of iPhone that demonstrate patented features.
The Court already overruled Samsung’s 1006 and hearsay objections. (Dkt.
No. 1520.) The additional objections are untimely. The ad features the
asserted touch user interface IP, and Mr. Forstall is personally familiar with the
ad.
This is a proper 1006 compilation. It was compiled from voluminous CAD
images that are separately admissible and made available to Samsung for
inspection during discovery. Mr. Forstall personally considered these images.
The demonstratives highlight claim language from the patents. Mr. Forstall
will testify factually regarding his group’s inventions and their implementation
in Apple products. Mr. Forstall is a named ‘163 inventor (in PDX22).
Phil Schiller Direct Examination Materials
The Court has already ruled on the admissibility of news articles featuring the
IP rights at issue. (Dkt. No. 1520.) As the Court noted in its ruling, this exhibit
is being offered to show fame. Given the standard for fame, Apple’s
introduction of this exhibit would not be cumulative. Mr. Schiller has personal
knowledge of this article. PDX 16 is a demonstrative of PX142.

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APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 DISCLOSURES
CASE NO. 11-CV-01846-LHK
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II.

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Exhibit/
Demons.

Apple’s Objections to Samsung’s Proposed Direct Exam. Materials for Justin
Denison and Supp. Objections to Direct Exam. Materials for Phil Schiller
Apple’s Objections

Samsung’s Denison Direct Examination Exhibits and Materials
JX1093
JX1093 is not prior art and thus irrelevant. In ruling on Apple’s MIL #2, the
Court held that it “may be” prior art. This was before the testimony of
Christopher Stringer, who explained that the design of the iPhone’s front face
and bezel was completed April 20, 2006. In its MIL opposition, Samsung
alleged that the Prada was disclosed in “late 2006” at best. JX1093 therefore
cannot be prior art to the D’677 and D’087 patents. As for the D’305 patent,
Judge Grewal’s order struck the related opinions of Samsung’s expert, Sam
Lucente, on invalidity as untimely disclosed. (Dkt. No. 1144 at 4.) Samsung
also be unable to authenticate JX1093 with Mr. Denison. If the Court does
admit JX1093, it should be accompanied by a limiting instruction that it is not
prior art.
DX629
This Court has sustained Apple’s objection to DX629 as not probative. (Dkt.
1511.) Apple renews its objection.
Samsung’s
Apple objects to the extent that Samsung seeks to move these exhibits, which
Opening Slides were not on its exhibit list, into evidence. Mr. Denison lacks personal
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knowledge of Apple’s internal competitive documents and cannot lay the
foundation for these slides. This Court has ruled that fame and consumer use
are measured as of initial use of the mark by the junior user. (Dkt. No. 1158 at
9.) For Apple’s iPhone trade dress, that date is the release of the Galaxy S
phones in the U.S. on 7/9/10. For Apple’s iPad trade dress, that date is the
release of the Galaxy Tab 10.1 on 6/11/11. These slides, which depict products
released after these dates, cannot be relevant to fame or distinctiveness. (Dkt.
No. 1441.)
SS Objs. to
Apple objects to the extent that Samsung seeks to move these exhibits, which
30(b)(6) PI
were not on its exhibit list, into evidence.
Depo. Notice
Ltr. from Chan Apple objects to the extent that Samsung seeks to move these exhibits, which
to Bartlett
were not on its exhibit list, into evidence.
SDX3586,
SDX3586 uses images from DX709 and DX712, and SDX3587 uses images
SDX3587
from DX710, but DX709, DX710, or DX712 were not disclosed for use with
Mr. Denison. These underlying exhibits are internal Apple documents, for
which Mr. Denison lacks personal knowledge and cannot lay a foundation.
SDX3584
SDX3584 confusingly refers to “Galaxy I” and “Galaxy II” phones, when the
proper names of these phones are “Galaxy” and “Galaxy S II” respectively.
SDX3508-09 To the extent that Denison will offer these slides to show non-infringement, Mr.
Denison is unqualified to offer such opinions. The opinions of Samsung’s noninfringement expert, Rob Anders, were struck. (Dkt. No. 1144 at 3.)
SDX3588
SDX3588 improperly uses excerpts from DX531. Samsung never disclosed
DX531 for use with Mr. Denison, and the underlying exhibit is irrelevant,
hearsay, and incomplete (from a multi-page proposal from Samsung). The
inclusion of the Bates label mistakenly suggests that Apple prepared this.
APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 DISCLOSURES
CASE NO. 11-CV-01846-LHK
sf-3178037

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Exhibit/
Demons.

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SDX3589

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DX572

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DX592

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DX605

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DX617

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DX 649
DXs709, 711,
712, 714, 715,
716, 717

Apple’s Objections
Apple objects to the extent Samsung attempts to use DX531 for an improper
Rule 408 purpose as it discusses settlement. Mr. Denison does not have
personal knowledge of DX531 or SDX3588 because DX531 is an SEC
document. Samsung will also not be able to show that Mr. Denison has
personal knowledge of underlying USPTO information.
Samsung identified SDX3589, but still has not provided this slide to Apple.
Apple therefore objects on that basis.
Schiller Cross Examination Exhibits and Materials
Judge Grewal struck Samsung’s expert’s analysis of invalidity based on this
reference as untimely disclosed. (Dkt. No. 1144 at 4.) Because Samsung may
not present invalidity arguments based on this reference, it is irrelevant.
The Court has ruled that Samsung’s expert’s theory of apportionment for
Apple’s design patents and trade dress based on value rankings of various
smartphone features in consumer surveys is contrary to law and unreliable.
(Dkt. No. 1157 at 8-10.) The evidence is irrelevant and hearsay.
Samsung will not be able to establish the foundation for this exhibit through
Mr. Schiller, as it was prepared by a third party. This exhibit also falls within
the scope of the Court’s exclusion of Samsung’s expert’s apportionment theory
(see DX572 above) and is hearsay .
Samsung will not be able to establish the foundation for this exhibit through
Mr. Schiller, as it was prepared by a third party. This exhibit also falls within
the scope of the Court’s exclusion of Samsung’s expert’s apportionment theory
(see DX572 above) and is hearsay.
This exhibit falls within the scope of the Court’s exclusion of Samsung’s
expert’s apportionment theory (see DX572 above) and is also hearsay.
The Court already sustained Apple’s objection to this exhibit. (Dkt. No. 1519)
Judge Grewal also struck Samsung’s invalidity theories relating to Sony’s
alleged influence on the iPhone design. This document cannot be admitted to
impeach Mr. Schiller without being used for a precluded purpose.

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Dated: August 2, 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 RESPONSES AND OBJECTIONS TO DAY 3 DISCLOSURES
CASE NO. 11-CV-01846-LHK
sf-3178037

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