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

Filing 1571

OBJECTIONS to APPLE'S OBJECTIONS TO PROPOSED CROSS EXAMINATION EXHIBITS AND MATERIALS FOR PHIL SCHILLER, PETER BRESSLER, SUSAN KARE AND SCOTT FORSTALL AND APPLES RESPONSES TO SAMSUNG'S OBJECTIONS TO JUSTIN DENISON DIRECT EXHIBITS by Apple Inc.. (Jacobs, Michael) (Filed on 8/3/2012)

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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,
Defendants.

Case No. 11-cv-01846-LHK
APPLE’S OBJECTIONS TO PROPOSED
CROSS EXAMINATION EXHIBITS
AND MATERIALS FOR PHIL
SCHILLER, PETER BRESSLER, SUSAN
KARE AND SCOTT FORSTALL
APPLE’S RESPONSES TO SAMSUNG’S
OBJECTIONS TO JUSTIN DENISON
DIRECT EXHIBITS
Trial:
Time:
Place:
Judge:

August 3, 2012
9:00 a.m.
Courtroom 1, 5th Floor
Hon. Lucy H. Koh

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APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 CROSS EXAMINATION DISCLOSURES
Case No. 11-CV-01846-LHK
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Apple reasserts its previously filed objections to the cross-examination exhibits and

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materials (Dkt. No. 1518) and objects to Samsung’s newly disclosed cross-examination materials

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for Phil Schiller, Susan Kare, and Peter Bressler. Apple objects to Samsung’s cross-examination

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materials for Scott Forstall and responds to Samsung’s objections to the cross-examination

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materials for Justin Denison.

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Exhibit/
Demons.

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SDX001-3

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Schiller Test.
DX526,
SDX3704

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[F700]

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DX767
[iPhone Buyer
Survey]
JX1093;
SDX702-703
[LG Prada]
SDX33563562

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APL79400041
87872

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Kare Depo. Tr.

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Apple’s Objections
Phil Schiller Cross Exhibits and Materials
Apple objects that these demonstratives are misleading. First, the white
background obscures details of the depicted phones such as the ear piece.
Second, the label “Samsung Galaxy S” is inaccurate because no Samsung
device is known solely as the “Galaxy S.”
Mr. Schiller’s prior out-of-court testimony is inadmissible hearsay
The Court has ruled several times that the F700 is inadmissible. (Dkt. No. 1510
at 2.) Apple objects to these exhibits as untimely disclosed because Samsung
never disclosed the independent development theory underlying its attempt to
introduce the F700. (Id.) To the extent this exhibit goes to copying or willful
infringement, Samsung failed to disclose those theories. (Dkt. No. 1144 at 4.)
The F700 is irrelevant to the design of the accused products – Samsung
designers testified that the unaccused F700 is unrelated to accused Samsung
phones. (Mar. 2, 2012 M.H. Lee dep. at 71:20-72:10; Feb. 29, 2012 H.S. Park
Dep. at 50:25-51:3.)
Apple objects that this exhibit is irrelevant and hearsay. The Court has ruled
that Samsung’s expert’s apportionment theory for Apple’s design patents and
trade dress is contrary to law and unreliable. (Dkt. No. 1157 at 8-10.)
In accordance with the Court’s ruling (Dkt. No. 1563 at 7) Apple proposes the
following limiting instruction, “You have heard evidence regarding the LG
Prada phone. I am instructing you that you may not consider the LG Prada as
prior art with respect to Apple’s graphical user interface design patent, the
D’305 patent.”
Apple objects to SDX3356–3562 as misleading because they (1) contain
pictures of accused devices altered to remove the screen, which may distract the
jury from the asserted design; (2) contain graphics that obscure portions of the
accused devices, distracting from the overall impression of the accused designs;
(3) are not to scale or are misleadingly scaled; and (4) show only partial views
of the asserted designs and trade dress.
Apple objects that Samsung cannot lay a foundation for this exhibit because
Mr. Schiller lacks personal knowledge of it.
Susan Kare Cross Exhibits and Materials
Apple objects that Dr. Kare’s prior testimony is hearsay. Samsung did not
designate the portions of Dr. Kare’s deposition testimony for admission. Apple
reserves its right to object to specific portions of Dr. Kare’s deposition
testimony.

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F. Anzures &
I. Chaudhri
Depo.

Apple objects to Mr. Anzures’s deposition testimony as hearsay, and Mr.
Anzures resides in this District.1 Samsung’s disclosure of Messrs. Anzures’s
and Chaudhri’s depositions as possible examination exhibits failed to designate
portions of their testimony for admission. Apple reserves its right to object to
excerpts from Messrs. Anzures’s and Chaudhri’s depositions.
SDX3705,
Apple objects to these demonstratives as irrelevant, prejudicial, and misleading
3707, 3709 and in that they compare the D’305 patent and Samsung phone home screens and
3711
body styles, neither of which are accused of infringement.
SDX3706
Apple objects that the Court has already struck Samsung’s non-infringement
argument regarding the “missing row” as not timely disclosed. (Dkt. 1144 at
4.) Apple objects to this demonstrative as misleading in that it is contrary to the
Court’s design patent claim construction order and attempts improperly to limit
the scope of the D’305 patent to a design that only has a “missing row” of
icons. Samsung’s presentation of Anzures deposition testimony attempts to
focus attention on an isolated design element (the “missing row”) and away
from the overall impression of the D’305 patent and is thus contrary to law.
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en
banc) (warning against undue emphasis on particular features of design).
SDX3708,
Apple objects to these demonstratives as misleading and confusing because
3710, 3712
they compare the D’305 patent and a photograph of a Samsung phone that
includes the body style that is not accused of infringing the D’305 patent.
SDX3713
Apple objects to this demonstrative as presenting non-infringement arguments
that Judge Grewal struck (Dkt. 1144 at 4) or that Samsung never disclosed in
invalidity contention interrogatory responses. The Court struck the “missing
row versus full grid,” “different aspect ratios,” and “different icons” arguments
from Mr. Lucente’s rebuttal expert report. (Id.) Samsung failed to disclose any
of the six presented theories in its interrogatory responses, including the
“random versus alphabetically arranged icons,” “no page indicators versus page
indicators,” or “home page versus application screen” arguments. The “random
arrangement” and “no page indicators” theories never appeared in Mr.
Lucente’s expert reports.
Peter Bressler Cross Exhibits and Materials
DX511
Apple objects to this exhibit as misleading and confusing because Samsung
lacks evidence and expert testimony to establish that it is a primary or
[JP’638]
secondary reference. The Federal Circuit explained that it was improper to
ignore the “arched, convex front of the ’638 reference,” as depicted in its side
profile, in making this comparison. Apple Inc. v. Samsung Elecs. Co., 678 F.3d
1314, 1326 (Fed. Cir. 2012).
DX578
Apple objects to this exhibit as irrelevant to Mr. Bressler’s testimony; he did
not opine on it in his report and was not asked about it in his deposition.
DX578 is irrelevant to Mr. Bressler’s design patent infringement opinions.
DX628
The Court has already struck this exhibit from Samsung’s opening as untimely
disclosed. (Dkt. No. 1519 at 2.) Samsung’s theory based on this trademark
[Home button application was not timely disclosed in discovery and this document was not
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The parties have agreed that Mr. Chaudhri’s testimony may be by deposition.

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APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 CROSS EXAMINATION DISCLOSURES
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application]

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DX727,
DX728
DX740;
DX741

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[035 photos &
model]

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DX743

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[App.
29/382,846]

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JX1040
[D’889]
JX1074
[Compaq
TC1000]

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JX1093;
SDX3750-51;
SDX3768-71
SDX37793782

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SDX3783

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SDX3800-03

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SDX3804-08;
SDX3809-10

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timely disclosed. These theories were not disclosed in Samsung’s interrogatory
responses or expert reports.
[KR’547, JPD’383] Samsung has offered no evidence or expert testimony to
establish that any of these exhibits is a primary or secondary reference.
Judge Grewal struck Samsung’s theories based on this prototype because they
were not timely disclosed. (Dkt. No. 1144 at 4-5.) It would be improper for the
jury to consider this evidence as limiting the scope of the D’889 design. (Dkt.
No. 1170 at 6.) Should the Court nevertheless admit this exhibit, limiting
instructions are required that the 035 prototype cannot be considered prior art to
the D’677 patent. Apple objects to DX740 under Rule 1002.
The Court’s ruling on Apple’s motion in limine #2 excluded Apple non-prior
art patents such as this one as they are not relevant to the scope of the asserted
design patents (Dkt No. 1267 at 3.) Samsung should not be able to make an
end-run around the Court’s order by relying on an Apple patent application
instead. This Court struck the expert report of Nicolas Godici, the only place
Samsung disclosed this evidence. (Dkt. No. 1157 at 5-6; Dkt. No. 1144 at 4.)
Judge Grewal struck Mr. Sherman’s attempt to rely on the D’889 patent as
alleged prior art to the D’677 patent as untimely. (Dkt. No. 1144 at 4-5.) A
limiting instruction is thus required that the D’889 patent cannot be considered
prior art to the D’677 patent.
JX1074 should be excluded as irrelevant because it is not a proper secondary
reference. Samsung will not be able to authenticate JX1074. Samsung also
failed to produce JX1074 during discovery. If the Court does admit JX1074
into evidence, it should be accompanied by a limiting instruction regarding
using it as an alternative design.
Apple incorporates its objections to JX 1093 above.
Apple objects on the ground that the Court affirmed Judge Grewal’s order
striking the 1994 Fidler Tablet and the Compaq TC 1000 and excluded them for
non-infringement purposes. (Dkt. No. 1545 at 10-11.)
Apple objects to this demonstrative as misleading because the scale of the
D’889 patent is enlarged to make it appear substantially thicker than the
accused Galaxy Tab 10.1.
The F700 has been excluded. Apple incorporates its objections to DX524 and
SDX704.
SDX3804-3808 purportedly show Samsung’s non-infringement theories for the
Droid Charge and Continuum, but Mr. Bressler did not provide an infringement
opinion for these phones. SDX3804-3808 and SDX3809-3810 are misleading
as they do not show the full views of the phones.

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SDX3756-57;
SDX3760-61;
SDX3764;
SDX3765-67;
SDX3769;
SDX3771-75;
SDX3811

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Bressler ITC796 Testimony
& Depos.
Bressler Expert
Reports &
Exhibits
C. Stringer
ITC-796 Direct
Witness Stmt.
& Prior Depos.
Q. Hoellwarth
Depo. Tr.
E. Olson Decl.
(Dkt. No. 351)
“The LG
KE850:
touchable
chocolate”
Am. Compl.
DX526
JX1007;
JX1015;
JX1016;
JX1019;
JX1020;
JX1025;
JX1026;
JX1027;
SDX3682;
SDX3689;
SDX3691-701
Depos: Ording,
Platzer, Herz,
Anzures
SDX3812;

This slide purportedly shows Samsung’s non-infringement theories for the Epic
4G Touch, Vibrant, Fascinate, Galaxy S II T-Mobile, Galaxy S II Skyrocket,
Mesmerize, and Showcase. These theories were struck as not timely disclosed.
(Dkt. Nos. 1545; 1144 at 3; 939 at 15-18; 939-4 at ¶¶ 22-26; 939-12 at 10-12.)
The Court confirmed the inadmissibility of this evidence. (Dkt. No. 1545 at 1011.) To the extent Samsung argues that its timely disclosed non-infringement
theories for one accused product should apply to another accused product (and
thus saves its untimely stricken theories), such argument undermines
Samsung’s position against trying the design patent and trade dress claims
using “representative products.” It had argued that there are key differences in
appearance among each of its accused devices. (D.I. 1291 at 9-10.)
Mr. Bressler’s former testimony is inadmissible hearsay because he is available
to testify at trial.
Apple objects to Samsung’s identification of these documents as lacking
specificity because Samsung has not indicated the specific portions they will
use from these documents.
Apple objects that this evidence is hearsay and Mr. Stringer is available to
testify at trial.
Apple objects that this evidence is hearsay; Mr. Hoellwarth works in this
District.
Apple objects that this declaration and exhibit are not on Samsung’s exhibit list.
This article is not on Samsung’s exhibit list, identified in Samsung invalidity
contention interrogatory response, or cited in expert reports. The print-out
confirms that the Prada is not prior art and thus irrelevant. It is also
inadmissible hearsay. Apple repeats its objections regarding JX1093 and the
LG Prada with this exhibit.
Apple objects as this was not on the parties’ exhibit list.
The F700 has been excluded. (See above objection to DX526, SDX704.)
Scott Forstall Cross Exhibits and Materials
These accused Samsung products and photos are irrelevant to Mr. Forstall’s
testimony and outside the scope of his direct exam. He will offer factual
testimony regarding the development of Apple’s products and iOS, as well his
group’s work on the iPhone’s user interface. He is not being offered for expert
testimony on Samsung’s infringement of Apple’s utility patents. Such
questioning is more prejudicial than probative, as it seeks non-expert opinions
on infringement. No foundation for testimony on Samsung’s Accused
Products. SDX3689 & SDX3692 were not produced during discovery.
SDX3693 is duplicative.
The depositions of Bas Ording, Andrew Platzer, Scott Herz, and Freddy
Anzures are hearsay as they reside in this District. To the extent that Samsung
seeks these for impeachment, it has argued that Fed. R. Civ. P. prevents this.
The F700 has been excluded. (See above objection to DX526, SDX704.)

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DX526

Samsung products are irrelevant to Mr. Forstall’s testimony and outside the
scope of his direct exam. Calls for expert testimony. Such questioning is more
[F700]
prejudicial than probative, as it seeks non-expert opinions on infringement. No
foundation for testimony on Samsung’s products. Based on Samsung’s other
demonstratives, it appears that Samsung seeks to question Mr. Forstall
regarding its icons. The F700 is misleading because no icons are visible.
DX2514-18;
Email is irrelevant, as information on non-accused Samsung phones/features or
DX2520-25
other companies’ products is not at issue. Emails are more prejudicial than
probative as Samsung will try to use them to suggest copying by Apple, which
is not an issue in this case. With the exception of DX-2514, each of the emails,
especially those including news articles or forwarded messages, is hearsay
under FRE 802/805.
DX-2520 and DX-2523 are particularly prejudicial because they contain
redacted portions, which Samsung will insinuate are an attempt to cover up
relevant information.
DX2519
Document is irrelevant, there is no allegation that Apple copied Samsung. It is
also more prejudicial than probative as Samsung will try to use this to suggest
copying by Apple, which is not an issue in this case.
SDX3690
Samsung failed to provide a copy of this demonstrative.
Apple’s Responses to Samsung’s Objections to Justin Denison Cross Examination Materials
PX172-177
PX172-177 will be used to impeach Mr. Denison’s testimony, if any, relating to
alleged non-infringement or non-dilution of Apple’s asserted design patents and
trade dress. Apple does not intend on entering these exhibits into evidence
through Mr. Denison.
PX42, 43, 47, Apple does not intend to elicit an opinion from Mr. Denison regarding these
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exhibits. PX42, 43, 47, and 179 are admissible as a party admission, and Apple
intends on using them to impeach Mr. Denison. Apple will be able to lay a
foundation for these exhibits.
Apple’s Responses to Samsung’s Objections to Bressler Demonstratives
PDX2, 3, 8, 9, Samsung's objections to PDX2, 3, 8, 9, 10, 69 are without basis. Apple has
10, 69
asserted the D’087 patent against Samsung's accused phones and has illustrated
Samsung's infringement using a number of different D'087 embodiments. But
as design patents have only a single unitary claim, 37 C.F.R. 1.153, Apple's
assertion necessarily encompasses all six embodiments of the D'087 patent.
Moreover, Apple's expert declarations in support of its motion for preliminary
injunction specifically illustrated the sixth embodiment against Samsung's
accused products. In order to alleviate burden on the Court, however, Apple
has changed its demonstrative to illustrate the second embodiment of the D'087
patent, which was featured in Apple's response to Samsung's interrogatory
No. 72 regarding infringement and in Mr. Bressler's expert reports. Samsung's
objection is therefore mooted.
Apple’s Responses to Samsung’s Objections to Schiller Exhibits
PX143-146
Apple withdrew PX143-146, which were complete copies of highly sensitive
marketing studies, and replaced them with excerpted versions that pertain to the
issues in dispute. Apple provided proposed excerpted copies to Samsung three
days ago. Samsung has not identified any other portions of these exhibits that it
contends are relevant.
APPLE’S RESPONSES AND OBJECTIONS TO DAY 3 CROSS EXAMINATION DISCLOSURES
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Dated: August 3, 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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