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

Filing 1588

Declaration of RICHARD S.J. HUNG in Support of 1587 Objection filed byApple Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 1587 ) (Jacobs, Michael) (Filed on 8/6/2012)

EXHIBIT C

SUBJECT TO PROTECTIVE ORDER; CONTAINS HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY’S EYES ONLY INFORMATION
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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[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]

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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 corporation; SAMSUNG ELECTRONICS
AMERICA, INC., a New York corporation; and
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC, a Delaware limited liability
company,

Case No.

11-cv-01846-LHK (PSG)

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.

Defendants.

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APPLE’S CORRECTED AMENDED OBJECTIONS AND RESPONSES TO SAMSUNG’S INTERROGATORY NOS. 4, 6, 7,
16, 17, 18 — CASE NO. 11-CV-01846 LHK (PSG)
sf-3115679

SUBJECT TO PROTECTIVE ORDER; CONTAINS HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY’S EYES ONLY INFORMATION
1

In accordance with Federal Rule of Civil Procedure 33(d), Apple refers to the following

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documents because the burden of deriving or ascertaining the answer to this Interrogatory from

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the produced business records is substantially the same for Apple as for Samsung: APLNDC-

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X0000007220, APLNDC00013715, and APLNDC00013690.

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INTERROGATORY NO. 7:

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Separately for each of the APPLE PATENTS-IN-SUIT, APPLE TRADE DRESS and

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APPLE TRADEMARKS state all facts supporting any contention by APPLE that Samsung has

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willfully infringed, diluted, or falsely designated the origin of its products for each patent, trade

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dress, and trademark, including when and how APPLE asserts Samsung had actual notice of the

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APPLE PATENTS-IN-SUIT, APPLE TRADE DRESS, and APPLE TRADEMARKS.

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OBJECTIONS AND RESPONSE TO INTERROGATORY NO. 7:

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Apple objects to this Interrogatory as overbroad, unduly burdensome, and not reasonably

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calculated to lead to the discovery of admissible evidence. Apple objects to this Interrogatory as

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premature to the extent that it: (a) conflicts with the schedule entered by the Court, (b) conflicts

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with the obligations imposed by the Federal Rules of Civil Procedure, the Civil Local Rules

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and/or the Patent Local Rules of this Court, and/or any other applicable rule; (c) seeks

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information that is the subject of expert testimony; (d) seeks information and/or responses that are

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dependent on the Court’s construction of the asserted claims of the patents-in-suit; or (e) seeks

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information and/or responses that are dependent on depositions and documents that have not been

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taken or produced. Apple further objects to this Interrogatory to the extent it seeks information

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that: (i) requires the disclosure of information, documents, and things protected from disclosure

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by the attorney-client privilege, work product doctrine, common interest doctrine, joint defense

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privilege, or any other applicable privilege, doctrine, or immunity; (ii) would require Apple to

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draw a legal conclusion to respond; (iii) is outside of Apple’s possession, custody, or control; or

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(iv) can be obtained as easily by Samsung, is already in Samsung’s possession, or is publicly

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available.

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Subject to and incorporating its General Objections and its specific objections, Apple
responds as follows:
APPLE’S CORRECTED AMENDED OBJECTIONS AND RESPONSES TO SAMSUNG’S INTERROGATORY NOS. 4, 6, 7,
16, 17, 18 — CASE NO. 11-CV-01846 LHK (PSG)
sf-3115679

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SUBJECT TO PROTECTIVE ORDER; CONTAINS HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY’S EYES ONLY INFORMATION
1

Samsung manufactured, distributed, imported into the United States, used in the United

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States, offered for sale in the United States, and sold in the United States products that infringed

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the Apple patents, trade dress, and trademarks at issue in this lawsuit despite an objectively high

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likelihood that its actions constituted infringement of valid patents, trade dress, and trademarks.

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Moreover, this objectively high likelihood of infringement was known to Samsung, or so obvious

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that it should have been known to Samsung. Samsung’s objectively reckless infringement of the

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Apple patents, trade dress, and trademarks at issue in this lawsuit began before Apple commenced

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this action and continues to this day. There is no objectively reasonable non-infringement

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argument with respect to the accused products; nor is there any objectively reasonable argument

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that the Apple patents, trade dress, and trademarks at issue in this lawsuit are invalid.

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For instance, starting in July 2010, Apple representatives provided notice to Samsung that

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it infringed Apple’s patents and designs. On or about August 4, 2010, Apple representatives met

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with Samsung in Korea and showed a presentation titled “Samsung’s Use of Apple Patents in

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Smartphones.” This presentation emphasized Samsung’s copying of the iPhone and identified

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two of the patents-in-suit (the ‘002 and ‘381 patents), giving Samsung actual notice of at least

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these patents, and many more.

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On or about August 26, 2010, Apple sent Samsung an electronic archive file containing

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claim charts further illustrating Samsung’s infringement of Apple patents. A presentation

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document that accompanied these claim charts identified the ‘002 and ‘381 patents as two patents

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that Samsung products infringed, and it substantiated these allegations with text from the patents

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and photographs of Samsung devices illustrating infringing functionality. Apple later presented

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these slides to Samsung at a meeting in Cupertino, California on or about September 9, 2010.

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Moreover, even after Samsung indisputably had actual notice of its infringement of all of

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the Apple patents-in-suit as a result of the filing of this lawsuit, it continued the development,

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manufacture, importation, distribution and sale of electronic devices as to which there was no

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objectively reasonable theory of non-infringement. Samsung continues its willful infringing

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activities to the present.

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APPLE’S CORRECTED AMENDED OBJECTIONS AND RESPONSES TO SAMSUNG’S INTERROGATORY NOS. 4, 6, 7,
16, 17, 18 — CASE NO. 11-CV-01846 LHK (PSG)
sf-3115679

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SUBJECT TO PROTECTIVE ORDER; CONTAINS HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY’S EYES ONLY INFORMATION
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During the August 4, 2010 presentation mentioned above, Apple also informed Samsung
that Samsung’s smart phones were infringing Apple’s designs.
Moreover, with respect to the design patents-in-suit, and specifically with respect to

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D’889, Samsung was aware of this patent at least as early as April 14, 2008 when it was cited

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during the prosecution of U.S. Design Patents Nos. D578,983 and D583,342, which are assigned

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to Samsung. The D’889 was also cited during the prosecution of U.S. Design Patents

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Nos. D632,688 and D635,976. Specifically with respect to the D’790 patent, Samsung was aware

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of this patent at least as early as February 3, 2011 when it was cited during the prosecution of

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U.S. Design Patent No. D634,734, which is assigned to Samsung. Specifically with respect to the

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D’305 patent, Samsung was aware of this patent at least as early as November 27, 2009 when it

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was cited during the prosecution of U.S. Design Patent No. D618,700, which is assigned to

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Samsung. Moreover, there is substantial evidence of Samsung’s copying of Apple’s iPhone and

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iPad products, as shown by the numerous design similarities between Apple’s and Samsung’s

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phone and tablet products.

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Furthermore, with respect to the trade dress and trademarks asserted in the lawsuit, Apple

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announced the original iPhone on January 9, 2007 and released the product on June 29, 2007;

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Apple announced the iPhone 3G on June 9, 2008 and released the product on July 11, 2008;

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Apple announced the iPhone 3GS on June 8, 2009 and released the product on June 19, 2009; and

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Apple announced the iPhone 4 on June 7, 2010 and released the product on June 24, 2010.

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Samsung was put on notice of Apple’s distinctive Original iPhone Trade Dress, iPhone 3G Trade

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Dress, iPhone 4 Trade Dress, and iPhone Trade Dress upon the announcements of these

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respective products. Samsung was put on notice of the trade dress shown in the Trade Dress

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Registrations upon the announcement of the original iPhone. Samsung was put on notice of the

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trade dress shown in U.S. Application Serial No. 85/299,118 upon the announcement of the

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iPhone 4. Apple announced the iPad on January 27, 2010 and released the product on April 3,

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2010, and Apple announced the iPad 2 on March 2, 2011 and released the product on March 11,

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2011. Samsung was put on notice of Apple’s distinctive iPad Trade Dress and the trade dress

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shown in U.S. Application Serial Nos. 77/921,838, 77/921,829, and 77/921,869 upon the
APPLE’S CORRECTED AMENDED OBJECTIONS AND RESPONSES TO SAMSUNG’S INTERROGATORY NOS. 4, 6, 7,
16, 17, 18 — CASE NO. 11-CV-01846 LHK (PSG)
sf-3115679

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SUBJECT TO PROTECTIVE ORDER; CONTAINS HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY’S EYES ONLY INFORMATION
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announcement of the iPad, and it was put on notice of Apple’s distinctive iPad 2 Trade Dress

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upon the announcement of the iPad 2. Samsung was put on notice of the marks shown in U.S.

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Registration Nos. 3,886,196; 3,889,642; 3,886,200; 3,889,685; and 3,886,169 upon the

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announcement of the original iPhone. Samsung was put on notice of the mark shown in U.S.

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Registration No. 3,886,197 at least as early as June 19, 2009. Samsung was put on notice of the

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Purple iTunes Store Trademark at least as early as June 2008. Samsung was put on notice of the

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iTunes Eighth Note and CD Design Trademark at least as early as January 9, 2001.

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In accordance with Federal Rule of Civil Procedure 33(d), Apple refers to the following

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documents because the burden of deriving or ascertaining the answer to this Interrogatory from

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the produced business records is substantially the same for Apple as for Samsung:

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SAMNDCA00036232, SAMNDCA00176053, SAMNDCA00191811, SAMNDCA00196646,

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SAMNDCA00201351, SAMNDCA00201771, SAMNDCA00202212, SAMNDCA00202336,

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SAMNDCA00203016, SAMNDCA00203092, SAMNDCA00203268, SAMNDCA00203727,

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SAMNDCA00203811, SAMNDCA00203880, SAMNDCA00214274, SAMNDCA00217372,

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SAMNDCA00221705, SAMNDCA00228887, SAMNDCA00228934, SAMNDCA00228981,

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SAMNDCA00229011, SAMNDCA00229396, SAMNDCA00229399, SAMNDCA00229410,

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SAMNDCA00229440, SAMNDCA00229449, SAMNDCA00232190, SAMNDCA00237929,

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SAMNDCA00237976, SAMNDCA00238251, SAMNDCA00238432, SAMNDCA00249029,

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SAMNDCA00251506, SAMNDCA00507826, SAMNDCA00508318, SAMNDCA00512454,

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SAMNDCA00514511, SAMNDCA00514571, SAMNDCA00515899, SAMNDCA00525347,

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SAMNDCA00530675, SAMNDCA00533129, SAMNDCA00533366, SAMNDCA10042955,

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SAMNDCA10154003, SAMNDCA10190890, SAMNDCA10244357, SAMNDCA10244604,

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SAMNDCA10247373, SAMNDCA10247537, SAMNDCA10247549, SAMNDCA10275576,

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SAMNDCA10403697, SAMNDCA10524415, SAMNDCA10806650, SAMNDCA10806707,

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SAMNDCA10807316, SAMNDCA10807388, SAMNDCA10808682, SAMNDCA10809390,

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SAMNDCA10809734, SAMNDCA10824971, all documents referenced in Apple’s briefing on

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its motion for sanctions, all documents that Samsung has produced, and continues to produce,

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APPLE’S CORRECTED AMENDED OBJECTIONS AND RESPONSES TO SAMSUNG’S INTERROGATORY NOS. 4, 6, 7,
16, 17, 18 — CASE NO. 11-CV-01846 LHK (PSG)
sf-3115679

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