Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1798
ORDER Regarding Objections. Signed by Judge Lucy H. Koh on 8/16/2012. (lhklc2, COURT STAFF) (Filed on 8/16/2012)
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UNITED STATES DISTRICT COURT
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United States District Court
For the Northern District of California
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., A
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Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New York )
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corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, )
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a Delaware limited liability company,
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Defendants.
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APPLE, INC., a California corporation,
Case No.: 11-CV-01846-LHK
ORDER RE: OBJECTIONS TO BRYAN
AGNETTA, SEUNG-HO AHN, RAVIN
BALAKRISHNAN, PETER BRESSLER,
RICHARD DONALDSON, WON PYO
HONG, SUSAN KARE, HYONG KIM,
EDWARD KNIGHTLY, JUN WON LEE,
TERRY MUSIKA, JANUSZ ORDOVER,
KARL ROSENBROCK, PETER ROSSI,
KARAN SINGH, CHRISTOPHER
STRINGER, BORIS TEKSLER,
MICHAEL WALKER, TIM WILLIAMS,
WOODWARD YANG, AND JUNGMIN
YEO
(re: dkt. #1781, 1782)
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After reviewing the parties’ briefing, considering the record in this case, and balancing the
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considerations set forth in Federal Rule of Evidence 403 (“FRE 403”), the Court rules on the
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parties’ objections as follows:
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1.
BRYAN AGNETTA
Apple has withdrawn its rebuttal deposition designations of Bryan Agnetta.
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ORDER ON OBJECTIONS
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United States District Court
For the Northern District of California
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2.
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PX81
Overruled. Mr. Ahn lays sufficient foundation for the admission of the
Samsung/Intel license.
Ahn Depo. at
Overruled. Samsung has argued that the testimony regarding Mr. Ahn’s
98:10; 100:24- involvement in ensuring FRAND licensing terms is irrelevant because Mr. Ahn
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did not become head of the IP Center until July or August of 2010, well after the
patents in suit were disclosed to ETSI in May 2006 and August 2007. However,
the testimony designated in the transcript is regarding whether Samsung
currently licenses on FRAND terms. Therefore, it is not material to Mr. Ahn’s
testimony that he was not the head of the IP Center when the patents-in-suit were
first disclosed to ETSI.
B. Apple’s Objections
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SEUNG-HO AHN
None.
3.
RAVIN BALAKRISHNAN
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PX63
Sustained. This exhibit is source code that was not mentioned in Dr.
Balakrishnan’s expert report or in the materials considered in preparing his
report. Although Dr. Balakrishnan testified that he reviewed “The Deposition
Transcript and Exhibits of Bas Ording” and “Apple Source Code,” neither of
these is sufficiently particular to put Samsung on notice of the particular source
code that Apple now seeks to introduce through Dr. Balakrishnan. See ECF No.
1690 at 7 (precluding Dr. Yang from testifying regarding the particular source
code that he believed to be an “applet”).
PX210
Overruled. Samsung objects that PX210, a collection of pictures of
DiamondTouch, are inadmissible under Rule 403. PX210 has already been
admitted into evidence without objection by Samsung. Thus, Apple will be able
to ask Dr. Balakrishnan about PX210.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX2652
Sustained. DX2652 is a decision by the PTO granting an ex parte request for a
re-examination of the ‘381 patent. The initiation of an ex parte reexamination is
of minimal probative value which is outweighed by the wasting of time and
confusion of the jury that will result. See Hoechst Celanese Corp. v. BP
Chemicals Ltd., 78 F.3d 1575, 1584 (Fed. Cir. 1996) (“We take notice that the
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ORDER ON OBJECTIONS
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DX2653
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4.
grant by the examiner of a request for reexamination is not probative of
unpatentability. The grant of a request for reexamination . . . does not establish a
likelihood of patent invalidity.)
Overruled. DX2653 is a paper that Dr. Balakrishnan co-authored on the
DiamondTouch system. Samsung seeks to use it as evidence of a prior
inconsistent statement to impeach Dr. Balakrishnan. Such evidence is admissible
under Fed. R. Evid. 613. Because this exhibit is used purely to show a prior
inconsistent statement and is not being offered for its truth, namely as prior art,
Samsung was not required to disclose it in its invalidity contentions.
PETER BRESSLER
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PDX26.89;
Overruled. The slide is not hearsay because it is not evidence, but rather a
PDX26.93
demonstrative that will be used in aid of Mr. Bressler’s live testimony. Samsung
itself has displayed images from Mr. Bressler’s report during its earlier crossexamination. See Hung Decl. Ex. 1 at 1106:20-111:7. The images are
adequately identified as excerpts from Mr. Bressler’s rebuttal expert report and
are not misleading or confusing to the jury.
PDX26.99
Overruled. The subject of this demonstrative was not stricken by Judge Grewal’s
Order (ECF No. 1144) and is proper rebuttal. The design patent displayed in this
demonstrative is from Mr. Sherman’s former company Modu Ltd., about which
Mr. Sherman testified, and is offered as rebuttal to Mr. Sherman’s testimony
regarding functionality. Moreover, the excerpt is from Mr. Bressler’s rebuttal
expert report, on which Samsung cross-examined Mr. Bressler.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
ITC Hr’g Tr.
Sustained. Samsung concedes that Mr. Bressler’s ITC testimony concerned
different patents than the patents-in-suit, arguing only that the patents are closely
related. The Court has previously ruled that ITC hearing testimony regarding
patents not asserted in this litigation is not relevant to any issue in this case, and
is therefore barred under FRE 402 and 403. See ECF No. 1749 at 1-2; ECF No.
1690 at 3; ECF No. 1657 at 2; ECF No. 1596 at 6. Likewise, the risk of
confusing the jury and wasting time justifies exclusion of this exhibit under FRE
403.
Satzger Dep.
Sustained. Apple argues that Samsung is improperly attempting to introduce Mr.
Tr.
Satzger’s testimony during the cross-examination of Mr. Bressler and thus
bypassing direct examination of Mr. Satzger himself, despite the fact that Mr.
Satzger is on Samsung’s will call list of 20 witnesses and is not unavailable.
Samsung offers no response. The Court has previously ruled that a party may not
attempt to impeach a witness with another deponent’s testimony. See ECF No.
1720 at 2; cf. FRCP 32(a)(2). This is particularly true where the deponent is
available to testify live. Accordingly, Apple’s objection is sustained.
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ORDER ON OBJECTIONS
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5.
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RICHARD DONALDSON
A. Samsung’s Objections
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None.
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B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX593
Sustained. Samsung has withdrawn its designation of DX593.
Musika
Sustained. Samsung has withdrawn its disclosure of the Musika Opening Report
Opening Rep.
for use with Mr. Donaldson.
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6.
WON PYO HONG
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Apple has withdrawn its designation of Won Pyo Hong as a rebuttal witness.
United States District Court
For the Northern District of California
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7.
SUSAN KARE
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A. Samsung’s Objection
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PDX14A.47Sustained. The presentation of individual icons in isolation is misleading to the
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jury. Icons should be presented in their full context as claimed in Apple’s design
patent.
8.
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HONG KIM
A. Samsung’s Objections
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None.
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B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX613
Sustained. Samsung has withdrawn its designation of DX613.
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9.
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EDWARD KNIGHTLY
A. Samsung’s Objections
None.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX613
Sustained. Samsung has withdrawn its designation of DX613.
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A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Lee Depo. at
Overruled. Mr. Lee has personal knowledge of Samsung’s licensing practices
114:13-20; 22- and was Samsung’s designated corporate witness on licensing. The testimony
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designated is within his personal knowledge and on the very topic for which he
was Samsung’s designated corporate witness. Such testimony is highly probative
and admissible under FRE 403.
Lee Depo. at
Overruled. The testimony designated is not unduly prejudicial or misleading.
112:11-20,22
Moreover, this testimony is on the very topic for which Mr. Lee was designated
as Samsung’s corporate witness.
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United States District Court
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JUN WON LEE
B. Apple’s Objections
None.
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TERRY MUSIKA
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PDX39.3
Overruled. The red X’s demonstrate Musika’s opinion and are not unduly
prejudicial.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX759
Sustained. This privilege log lists five (not eight) instances in which privileged
information was clawed back from reasonable royalty spreadsheets. Samsung
argues that, “Mr. Musika’s report contends that Apple has made a full and
complete production of patent licensing information.” Samsung argues that the
privilege log rebuts Mr. Musika’s assertion. However, Mr. Musika was not
directly involved in these privilege issues. Mr. Musika cannot testify as to what
was clawed back and why. Furthermore, introduction of this privilege log will
raise issues of attorney-client privilege, risking jury confusion and wasting time.
DX2576
Sustained. As the Court previously ruled, the UniRam transcript is excluded
under FRE 403.
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12.
JANUSZ ORDOVER
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A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
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EXHIBIT NO.
PDX44.6
Overruled. PDX44.6 is a demonstrative showing alternative technologies to
Samsung’s ‘941 patent. Samsung objects that Dr. Ordover is not qualified to say
whether the Agarwal prior art reference is an alternative technology. However,
Dr. Ordover’s opinion relies on the opinion of Dr. Knightly, a technical expert,
who opines that the Agarwal prior art reference discloses the relevant claim of
the ‘941 patent. Accordingly, Dr. Ordover can reasonably rely on Dr. Knightly’s
opinion that Agarwal would have been an alternative to the ‘941 patent.
PDX44.7
Sustained-in-part and overruled-in-part. PDX44.7 is analogous to PDX44.6, in
that it displays alternative technologies to the ‘516 patent. Again, Dr. Ordover
based his opinions on the opinions of another expert, Dr. Kim. As explained
above, this is permissible within the Federal Rules of Evidence. However,
PDX44.7 suggests that leaving the ‘516 technology out of the standard would be
a viable option. But Dr. Kim did not opine that not including the ‘516 patent in
the UMTS standard was a viable alternative, and therefore Dr. Ordover, who
lacks technical expertise, cannot independently opine as such. Accordingly, if
Apple wishes to introduce this exhibit, it must remove “Leave out of UMTS” as
an alternative.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX565
Sustained. This exhibit is inadmissible hearsay. Samsung’s claim that it does
not seek to introduce this exhibit for the truth of the matter asserted is
unpersuasive.
13.
KARL ROSENBROCK
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Rosenbrock
Sustained. Apple seeks to introduce deposition testimony of Samsung’s ETSI
Depo
expert Rosenbrock, in which Rosenbrock affirms the opinion of Apple’s ETSI
Designations
expert Walker. Apple has not persuasively established that use of this deposition
complies with the requirements of Rule 32.
14.
PETER ROSSI
Apple has withdrawn its designation of Peter Rossi as a rebuttal witness.
15.
KARAN SINGH
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
DX546
Overruled. Samsung originally introduced DX546, an article by Dr. Bederson
that mentions “semantic zooming,” but now seeks to prevent Dr. Singh from
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PDX29.7-11,
15, 17, 19
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discussing it because he did not disclose it in his expert report. Samsung’s own
expert, Dr. Gray, was able to refer to Dr. Bederson’s testimony and use of the
term “semantic zooming” during his testimony, despite having not disclosed
DX546 in his expert report. Accordingly, Dr. Singh will be allowed to reference
this exhibit during his rebuttal testimony.
Overruled. Samsung objects to these slides prepared for Dr. Singh’s testimony
because they express an opinion that the Han and MultiTouch systems are not
“integrated with the data processing system” as is required by claim 8 of the ‘915
patent. However, Samsung contends that, in his expert report, Dr. Singh only
expressed an opinion that they are not “integrated with the device” as is required
by claim 1 of the ‘915 patent. Samsung argues that because “device” and “data
processing system” are different, Dr. Singh’s opinion regarding the “data
processing system” is a new argument, not previously disclosed. The Court
disagrees. Dr. Singh makes clear in his expert report that his analysis applies to
both claims 1 and 8 of the ‘915 patent. Accordingly, Samsung had ample notice
of Dr. Singh’s theories. Samsung is free to raise its concerns about the meaning
of “device” and “data processing system” during cross-examination.
B. Apple’s Objections
EXHIBIT
COURT’S RULING ON OBJECTION
NUMBER
DX2649
Sustained. Samsung seeks to use DX2649 to impeach Dr. Singh’s opinion that
the “touch-sensitive display” of DiamondTouch is not “integrated” with the “data
processing system.” Dr. Singh is not an inventor of the DX2649, which is a
patent. Moreover, Samsung did not produce this patent in discovery, list this
patent in its invalidity contentions or identify this document in any expert reports.
Samsung’s untimely identification of this document at the end of the trial is
prejudicial.
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CHRISTOPHER STRINGER
Apple has withdrawn its designation of Christopher Stringer as a rebuttal witness.
17.
BORIS TEKSLER
Apple has withdrawn its designation of Boris Teksler as a rebuttal witness.
18.
MICHAEL WALKER
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
PDX45.6
Overruled. Samsung argues that its disclosure to ETSI related to standard
version 6.9.0, while the demonstrative slide addresses an earlier version of the
standard, 6.4.0. The slide is not misleading because it contains accurate
information and explains Apple’s basis for addressing its arguments to version
6.4.0 rather than to version 6.9.0.
Testimony on
Sustained. Walker did not disclose Rosenbrock’s deposition testimony in any
Rosenbrock
expert report or deposition. Accordingly, Walker may not now testify regarding
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Deposition
Rosenbrock’s deposition testimony. The fact that Rosenbrock gave the
deposition testimony in question after Walker wrote his report is immaterial.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
SDX3916.03
Sustained. This slide quotes Apple’s admission that it disclosed a standardessential patent (which is not at issue in this case) to ETSI six years after the
relevant standard was frozen and six years after the patent issued. The Court
excluded this slide from Samsung’s opening statement on FRE 403 grounds, and
the same reasoning applies.
DX599
Sustained. The article is inadmissible hearsay. Samsung does not provide a
hearsay exception.
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TIM WILLIAMS
No objections were filed.
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WOODWARD YANG
No objections were filed.
21.
JUNGMIN YEO
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Apple has withdrawn its rebuttal depositions designation of Jungmin Yeo.
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IT IS SO ORDERED.
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Dated: August 16, 2012
_________________________________
LUCY H. KOH
United States District Judge
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