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

Filing 1601

Statement re 1596 Order Samsung's Submission in Response to the Court's August 6, 2012 Order by Samsung Electronics Co. Ltd.. (Attachments: # 1 Exhibit A - Poret and Jacoby Excerpts, # 2 Exhibit B - DX 2556 Statement, # 3 Exhibit 1 to DX2556 Statement)(Maroulis, Victoria) (Filed on 8/7/2012)

EXHIBIT A

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IN THE 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
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corporation,

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Plaintiff,

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-vs-

No. 11-CV-01846-LHK

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SAMSUNG ELECTRONICS CO., LTD.,
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a Korean business entity; et al.,

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Defendants.
/

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VIDEOTAPED DEPOSITION OF HAL PORET

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CONFIDENTIAL

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SAN FRANCISCO, CALIFORNIA

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THURSDAY, APRIL 19, 2012

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Reported by: LOUISE MARIE SOUSOURES, CSR NO. 3575

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Certified LiveNote Reporter
JOb 48723

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THURSDAY, APRIL 19, 2012
8:56 A.M.

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Deposition of HAL PORET,

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held at the offices of Quinn Emanuel, 50 California

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Street, San Francisco, California, before Louise Marie

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Sousoures, a Certified Shorthand Reporter and a

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Certified LiveNote Reporter

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A P P E A R A N C E S

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FOR THE PLAINTIFF:

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MORRISON & FOERSTER LLP

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425 MARKET STREET

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SAN FRANCISCO, CA

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BY:

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BROOKS M. BEARD,

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TARYN RAWSON,

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ATTORNEYS AT LAW

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FOR THE DEFENDANT:

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QUINN EMANUEL URQUHART & SULLIVAN, LLP

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865 SOUTH FIGUEROA STREET, 10TH FLOOR

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LOS ANGELES, CA

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BY:

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90017

DAIVD W. QUINTO,
ATTORNEY AT LAW

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THE VIDEOGRAPHER:

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PETE SAIS

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IT IS HEREBY STIPULATED AND AGREED

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by and between the attorneys for the

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respective parties herein, that filing and

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sealing be and the same are hereby waived.

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IT IS FURTHER STIPULATED AND AGREED

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that all objections, except as to the form

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of the question, shall be reserved to the

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time of the trial.

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IT IS FURTHER STIPULATED AND AGREED

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that the within deposition may be sworn to

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and signed before any officer authorized

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to administer an oath, with the same

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force and effect as if signed and sworn

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to before the Court.

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- oOo -

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P R O C E E D I N G S

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-oOo-

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08:29
THE VIDEOGRAPHER:

Good morning.

This is the

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start of disk labeled number 1 for the videotaped

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deposition of Hal Poret in the matter of Apple,

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Incorporated versus Samsung Electronics Company,

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Limited et al. in the United States District Court,

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Northern District of California, San Jose Division,

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civil action 11-CV-01846-LHK.

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This deposition is being held at 50

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California Street in San Francisco, California on

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April 19th, 2012 at approximately 8:56 a.m.

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My name is Pete Sais from TSG Reporting Inc.
and I'm the legal video specialist.
The court reporter is Louise Sousoures in
association with TSG Reporting.

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08:57
08:57

Will counsel introduce yourself and the court
reporter can swear in the witness.
MR. QUINTO:

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David Quinto, Quinn Emanuel for

defendants.

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MR. BEARD:

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Foerster for Apple.

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MS. RAWSON:

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Brooks Beard with Morrison &

Foerster for Apple.

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08:57

Taryn Rawson for Morrison &

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Q.

What all would you need to think about --

12:38

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let's focus on the first one which is the LG 2X --

12:38

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G2x.

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What would you need to think about in

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deciding whether this is too similar to be used as a

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control?

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A.

A lot.

I'd have to sit down with the

12:38

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complaint and look at the trade dress elements again.

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I'd want to get a good picture of this that I can

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actually get a fair sense of it that doesn't have all

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these other images blocking you from seeing it

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cleanly.

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I'd have to think about, you know, how it

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would appear with the icons blurred and it's just not

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the kind of thing I make a snap judgment about.

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Q.

As you sit here, are there any that you think

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strike you immediately as something that -- as being

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sufficiently dissimilar it could be used as a control?

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MR. BEARD:

Objection, incomplete

hypothetical.

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12:39
12:39

THE WITNESS:

There's nothing here that I

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have a quick judgment on one way or the other.

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BY MR. QUINTO:

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Q.

Something I forgot to ask you earlier, apart

12:39

from preparing for today's deposition and apart from

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preparing the rebuttal report in response to Mazis's

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survey regarding whether Apple icons required a

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secondary meaning, have you done any work in relation

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to this case since last August?

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The only other thing that I've done is after

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reading Dr. Jacoby's report I went back into my data

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and looked at a number of things just to confirm for

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myself these points he's raising are -- actually have

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no impact on the survey results, but that's really the

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only additional work that I've done.

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A.

Q.

So it's your opinion that not one of his

criticisms has any bearing on the survey results?
A.

Well, it's my -- what I'm saying is that of

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12:40
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the criticisms where you can actually go into the data

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and confirm yes or no this criticism has any merit,

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they don't.

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There are other ones that I, you know,

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disagree with, but they're not really ones that it's a

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matter of looking at data or not.

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Q.

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heart?

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A.

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Were there any criticisms that you took to

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I need to go through it and remember what

they were specifically.

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The only thing he says that I basically --

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that comes to mind that I agree with is that it is

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difficult for people to remember exactly when they

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formed a mental impression of something, such as when

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they came to associate the look of a smartphone with

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Apple.

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However, while I agree with that as a general

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proposition, I disagree with his whole take on it

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because first of all, everything -- he's

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misunderstanding the whole purpose and the way that

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question was used and just using it for purposes that

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don't make any sense and I think he's also missing the

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point that it doesn't matter whether somebody can

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accurately remember whether it was 2006 or 2007 or

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what month it was in that time period, it's -- the

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broad point is whether there was a meaningful trend of

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people associating something with Apple before a

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certain period of time and people did not need to have

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a precise memory of when they formed their impression

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for the survey to measure that.

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Q.

You said that you think that Dr. Jacoby's

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missing the point, which is that it doesn't matter

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whether somebody can accurately remember whether it

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was 2006 or 2007 or what month it was and what time

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period.

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And yet your report attempts to pin it down
in relation to a particular month, does it not?

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meaning.

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13:30
So including people who owned mobile phones

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but don't fall within the narrower category of

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secondary meaning universe being the recent purchasers

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or the likely future purchasers gave us a broader base

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of relevant consumers to see what the recognition

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level of the trade dress was there.

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Q.

Is it your testimony that the cellular

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telephone survey you performed could be used both to

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measure secondary meaning and in a dilution analysis?

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A.

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What I mean is this -- by including somewhat

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No, that's not what I was saying.

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of a broader audience at least there are some results

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just as you were asking me before what would the

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results have been among people who bought a phone more

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than 12 months ago, we have those results.

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So if somebody is interested in getting a

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sense of is the iPhone trade dress recognized amongst

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a broader audience there's data on that.

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Anywhere in your report do you break out your

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findings with respect to secondary meaning among just

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the group of respondents who were likely to purchase a

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cellular telephone in the coming 12 months?

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Q.

A.

I don't think so.

I mean it's in the data

that's produced along with the report, but it's not

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laid out like that in the body of the report.

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Q.

Why not?

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A.

Because I don't see the relevance of breaking

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that out as a separate group to look at when that's

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just one piece of the relevant universe.

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Q.

among prospective purchasers is not relevant?

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MR. BEARD:

THE WITNESS:

Q.

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No, that's not what I said.

A.

I'm sorry, would you explain it again,

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I just said the universe as I see it is --

consists of recent and likely future purchasers.

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please?

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13:33

BY MR. QUINTO:

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Objection, misstates and

mischaracterizes prior testimony.

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So in your view, looking at secondary meaning

So I don't see the reason for breaking out

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the results based on only part of that being just the

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future purchasers, but anybody who wants to do that,

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it's in the data.

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Q.

Do you intend to analyze your data further

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between now and trial, your data for either the cell

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phone or the tablet computer surveys?

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A.

I don't know.

Only if there's some reason

to.

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Q.

As you sit here today, you have no such

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intention?

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A.

13:34

The only intention that I might have is, as I

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said, I went back and looked at certain aspects in

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response to the Jacoby report to check for myself is

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there any merit to any of this.

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As I said, I've looked at the data and found

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there's not and I don't know if at some point I will

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be -- I'll be asked to sort of put that data forward

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to show how those points that he is raising have no

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impact on the reliability of the results, but that's

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not the only thing that comes to mind that I could end

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up doing with the data.

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Q.

How many hours did you devote to considering

Dr. Jacoby's report and re-examining your data?
A.

I'd have to check.

I don't know, maybe six

to eight hours, maybe ten hours.

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Q.

Was that this week?

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A.

Yes.

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Q.

And as you sit here, there's no further work

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that you intend to do as a result of looking at

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Dr. Jacoby's report?

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A.

The only other thing is, as I mentioned, I

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may be able to go and confirm through some

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nonconfidential route that the respondents from the

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Toluna and e-Rewards panels were not overlapping at

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anything more than a negligible level and, again, I

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don't know how things will transpire, but if I'm asked

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to do a more formal response to the Jacoby report or

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if there are motions related to the surveys, I need to

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do a more formal analysis of data on certain points to

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address some of these criticisms that really have no

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merit, then I would do that, but I don't know if that

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will be necessary.

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Q.

In the cellular telephone survey, what

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percentage of respondents were likely to purchase a

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cellular telephone within the next 12 months?

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A.

I'd have to check the data.

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Q.

Can you tell from looking at the report?

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A.

I don't think so.

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No, I can't tell that specifically.

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With respect to the tablet -- strike that.

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With respect to the tablet computer report,

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Q.

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were all the respondents likely purchasers of tablet

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computers in the next 12 months?

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A.

All of them?

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Q.

Right.

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A.

No, some of them would have been recent

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purchasers.

13:38

Q.

13:38

Do you know what percentage were likely

purchasers in the next 12 months?

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So if anybody is interested in seeing who

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composes any of these categories they can see that for

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themselves in the data.

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I did go out of my way to list respondent

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numbers in the body of the report to be helpful in the

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instances where I thought that was most significant,

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but it would be a pretty tedious, long, absurd report

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if I was calling out respondent ID numbers for

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everything that was discussed throughout the report.

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Q.

Looking at paragraph 77 on page 50, the first

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sentence refers to a particular group of 16

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respondents.

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If I wanted to look them up in the data,
would they be identified?

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A.

Yes.

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Q.

Turning to paragraph 91, are the control

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percentages subtracted from the data here?

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A.

No.

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Q.

Why is that?

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A.

Because it would make no sense to do that.

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Q.

Why do you say that?

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A.

Because these numbers are not stating

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secondary meaning percentages.

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I can tell -- I can tell what you're thinking

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because Dr. Jacoby was confused about this, but these

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numbers are not stating that this was the secondary

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meaning percentage at a certain time.

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So the control has no applicability to what
these numbers mean and it would make no sense.
Q.

14:36

So explain to Dr. Jacoby and to me what

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you're doing here and why it would make no sense.
A.

14:36

So Dr. Jacoby seems to think I'm stating here

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that the secondary meaning level is 84.4 percent and

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he is then saying no, that shouldn't be right.

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That

isn't what I'm saying here.

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14:36

I'm literally reporting there were 270 people

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who associated the trade dress with Apple and gave a

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time period when they thought that happened and 84.4

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percent of those people said it was before July 2010.

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So that -- all this means is if one were to

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look at the secondary meaning level of the survey,

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which shows secondary meaning, let's say well, isn't

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it possible that that really just happened later in

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2010 or after the Samsung products already came out,

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this tends to suggest no, that is a very far-fetched

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scenario because the large majority of people said

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that they associated this with Apple before that.

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Q.

If you were to consider only the responses of

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people planning to buy within the next 12 months, and

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subtract out the control percentages, would the

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secondary meaning percentages here be in the 30s?

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MR. BEARD:

mischaracterizes prior testimony and the report.

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THE WITNESS:

14:38
14:38
14:38

So the whole question is based on an

14:38

incorrect understanding.

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So the first answer has to be,

14:38

again, these are not secondary meaning percentages.

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Objection, misstates,

14:38

14:38

None of these numbers are secondary meaning
percentages.

So the whole idea of subtracting

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anything out or comparing it to the control to arrive

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at a secondary meaning level makes no sense.

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BY MR. QUINTO:

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Q.

So using these numbers you cannot -- you

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cannot get to secondary meaning; is that what you're

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saying?

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A.

Yes, these numbers are not -- they are not

usable to tell you -- well, let's back up.

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14:39

So we came out with an iPhone secondary

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meaning level something like 64 percent as of the time

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of the survey and the question is well, what was it as

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of July 2010.

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These numbers here on page 57 do not in any

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way allow you to say here's what the exact percentage

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would have been in July 2010, it's just telling you a

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fairly broad common sense point that is there any

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reason to question that this 64 percent secondary

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meaning level is a new phenomenon or is it likely at

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least a substantial portion of that already existed

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and these numbers are telling you there's no evidence

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that this high level of secondary meaning is just a

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very recent phenomenon.

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The evidence shows the opposite, it's likely
an older phenomenon.
Q.

Okay.

14:40

So you cannot get from the chart in

paragraph 91 to secondary meaning; is that right?
A.

14:39

You cannot get -- you cannot use that chart

14:40
14:40
14:40

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to say what the secondary meaning level was in July of

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2010 nor can you do anything that Dr. Jacoby did with

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these numbers in his report.

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It's just a broad brush common sense look at
the pattern.
Q.

14:40
14:40

Let me ask you to look at paragraph 95 of

your report.

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A.

Okay.

14:41

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Q.

Where you state the 55.0 percent result is on

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its own sufficient to establish that the overall

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appearance of the iPad has acquired secondary meaning.

14:41

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Has the 55 percent there been adjusted to
reflect the control group percentage?
A.

Not yet, which is why I put that footnote

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there noting that that is going to happen once you get

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to the control and I show what the net figure is

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there, but at this point, I'm just discussing the test

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group results and I'm in no way suggesting you don't

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need to use the control group.

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7

Q.

Your footnote indicates that the true figure

is 38 percent.

14:42
14:42

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Dr. Jacoby came up with 36.4 percent.

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Do you understand why there's a discrepancy?

14:42

I don't know where you're getting that 36.4

14:42

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11

A.
percent.

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13

Q.

Well, when he attempted to adjust this for

the control group data his result was 36.4 percent.

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What exactly does he say?

Did you review his figures when you went
through his report?

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A.

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14:42
14:42
14:43
14:43

I reviewed everything in his report, but I

14:43

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can't remember where he got -- there were lots of

14:43

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numbers in his report that, you know, were based on

14:43

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misunderstandings, the wrong data, incorrect analyses.

14:43

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21

So I can't remember where every random number
in his report came from.

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Q.

Okay.

14:43
14:43

Let me ask you to look at paragraph

117.

14:43
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A.

Okay.

14:44

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Q.

Does the chart here reflect any adjustment

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for the control percentages?
A.

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levels at all.
Q.

14:45
14:45

These are not showing secondary meaning

14:45
14:45

I was afraid you were going to tell me that.

14:45

Have you ever had an expert report rejected

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8

This is the same discussion we just had for

the iPhone chart.

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14:44

14:45

in whole or in part by a court on Daubert grounds?

14:46

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A.

No.

14:46

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Q.

Have you ever had an expert report held

14:46

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inadmissible for any reason in whole or in part by a

14:46

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court?

14:46

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A.

The only thing that might qualify for that,

14:46

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I'm not sure, is I had a case where I did one survey

14:46

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at the beginning of a case in a reverse confusion case

14:46

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where I couldn't really do it the way I would want to

14:46

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because in a reverse confusion situation when the mark

14:47

18

has just started being used it hasn't been out there

14:47

19

long enough to test whether reverse confusion has

14:47

20

happened.

14:47

21

So I then did a second survey later in the

14:47

22

case after the mark had been out for a couple of years

14:47

23

and the judge accepted my survey and, in fact, gave

14:47

24

summary judgment to the defendant who my survey had

14:47

25

been for which showed a lack of confusion, but the

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Confidential

Page 245
1

I, LOUISE MARIE SOUSOURES, duly

2

authorized to administer oaths pursuant to Section

3

2093(b) of the California Code of Civil Procedure, do

4

hereby certify: That the witness in the foregoing

5

deposition was by me duly sworn to testify the truth

6

in the within-entitled cause; that said deposition was

7

taken at the time and place therein cited; that the

8

testimony of the said witness was reported by me and

9

was hereafter transcribed under my direction into

10

typewriting; that the foregoing is a complete and

11

accurate record of said testimony; and that the

12

witness was given an opportunity to read and correct

13

said deposition and to subscribe the same.

14

Should the signature of the witness not be affixed

15

to the deposition, the witness shall not have availed

16

himself or herself of the opportunity to sign or the

17

signature has been waived.

18

I further certify that I am not of counsel, nor

19

attorney for any of the parties in the foregoing

20

deposition and caption named, nor in any way

21

interested in the outcome of the cause named in said

22

caption.

23

DATE:4-19-12

24

LOUISE MARIE SOUSOURES, CSR. #3575

25

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Confidential

Page 246
1
2

INDEX OF EXAMINATIONS

3
4

PAGE
BY MR. QUINTO

6

5
6
7
8
9

INDEX OF EXHIBITS

10
11

NUMBER

DESCRIPTION

12

Exhibit 1

Five-page printout from Internet

105

13

Exhibit 2

Expert report of Hal Poret in

129

PAGE

14

the matter of Apple, Inc.

15

versus Samsung Electronics

16

Company Limited et al.

17

Exhibit 3

Document entitled "Mobile phone

18

secondary meaning survey"

19

146

dated May 2011

20

Exhibit 4

Expert rebuttal report of Hal

21

Poret in the matter of Apple

22

Inc. versus Samsung Electronics

23

Company Limited et al.

24
25

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Confidential

Page 247
1

ERRATA SHEET FOR THE TRANSCRIPT OF:

2

Case Name: Apple vs Samsung

3

Dep. Date: THURSDAY, APRIL 19, 2012

4

Deponent: HAL PORET

5

CORRECTIONS:

6

Pg. Ln. Now Reads

7

___ ___ ______________ ______________ ______

8

___ ___ ______________ ______________ ______

9

___ ___ ______________ ______________ ______

10

___ ___ ______________ ______________ ______

11

___ ___ ______________ ______________ ______

12

___ ___ ______________ ______________ ______

13

___ ___ ______________ ______________ ______

14

___ ___ ______________ ______________ ______

15

___ ___ ______________ ______________ ______

16

___ ___ ______________ ______________ ______

17

___ ___ ______________ ______________ ______

18

____________________

19

Signature of Deponent

20

SUBSCRIBED AND SWORN BEFORE ME

Should Read

Reason

THIS____DAY OF____________, 2011.
21

_______________________________
22

(Notary Public) MY COMMISSION EXPIRES:_______

23

HAL PORET

17:23

24

17:23
17:24

25

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