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

Filing 2126

Declaration of Susan Estrich in Support of 2013 MOTION for Judgment as a Matter of Law, New Trial and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59, 2054 Brief, 2053 Opposition/Response to Motion, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Exhibit 1 to the Estrich Declaration, # 2 Exhibit 2 to the Estrich Declaration, # 3 Exhibit 3 to the Estrich Declaration, # 4 Exhibit 4 to the Estrich Declaration, # 5 Exhibit 5 to the Estrich Declaration, # 6 Exhibit 6 to the Estrich Declaration, # 7 Exhibit 7 to the Estrich Declaration, # 8 Exhibit 8 to the Estrich Declaration, # 9 Exhibit 9 to the Estrich Declaration, # 10 Exhibit 10 to the Estrich Declaration, # 11 Exhibit 11 to the Estrich Declaration, # 12 Exhibit 12 to the Estrich Declaration, # 13 Exhibit 13 to the Estrich Declaration, # 14 Exhibit 14 to the Estrich Declaration, # 15 Exhibit 15 to the Estrich Declaration, # 16 Exhibit 16 to the Estrich Declaration, # 17 Exhibit 17 to the Estrich Declaration, # 18 Exhibit 18 to the Estrich Declaration, # 19 Exhibit 19 to the Estrich Declaration, # 20 Exhibit 20 to the Estrich Declaration, # 21 Exhibit 21 to the Estrich Declaration, # 22 Exhibit 22 to the Estrich Declaration, # 23 Exhibit 23 to the Estrich Declaration, # 24 Exhibit 24 to the Estrich Declaration, # 25 Exhibit 25 to the Estrich Declaration, # 26 Exhibit 26 to the Estrich Declaration, # 27 Exhibit 27 to the Estrich Declaration, # 28 Exhibit 28 to the Estrich Declaration, # 29 Exhibit 29 to the Estrich Declaration, # 30 Exhibit 30 to the Estrich Declaration, # 31 Exhibit 31 to the Estrich Declaration)(Related document(s) 2013 , 2054 , 2053 ) (Maroulis, Victoria) (Filed on 11/9/2012)

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Estrich Declaration Exhibit 11 3712 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 6 APPLE INC., A CALIFORNIA CORPORATION, 7 8 9 10 11 12 13 PLAINTIFF, VS. 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, 14 DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C-11-01846 LHK SAN JOSE, CALIFORNIA AUGUST 20, 2012 VOLUME 12 PAGES 3712-3940 15 16 17 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE LUCY H. KOH UNITED STATES DISTRICT JUDGE 18 19 20 APPEARANCES ON NEXT PAGE 21 22 23 24 25 OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595 IRENE RODRIGUEZ, CSR, CRR CERTIFICATE NUMBER 8074 3713 1 A P P E A R A N C E S: 2 FOR PLAINTIFF APPLE: 3 4 MORRISON & FOERSTER BY: HAROLD J. MCELHINNY MICHAEL A. JACOBS RACHEL KREVANS 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 5 6 7 8 FOR COUNTERCLAIMANT WILMER, CUTLER, PICKERING, APPLE: HALE AND DORR BY: WILLIAM F. LEE 60 STATE STREET BOSTON, MASSACHUSETTS 02109 9 BY: MARK D. SELWYN 950 PAGE MILL ROAD PALO ALTO, CALIFORNIA 10 11 13 QUINN, EMANUEL, URQUHART, OLIVER & HEDGES BY: CHARLES K. VERHOEVEN 50 CALIFORNIA STREET, 22ND FLOOR SAN FRANCISCO, CALIFORNIA 94111 14 BY: 12 FOR THE DEFENDANT: 94304 16 VICTORIA F. MAROULIS KEVIN P.B. JOHNSON 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CALIFORNIA 17 BY: 15 18 19 20 21 22 23 24 25 94065 MICHAEL T. ZELLER WILLIAM C. PRICE SUSAN ESTRICH 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 3766 1 ADDITION," THAT SEEMS OKAY. 2 WITH REGARD TO TRADE DRESS DILUTION, 3 WHICH WAS NUMBER 55, I'M GOING TO DENY SAMSUNG'S 4 FIRST ARGUMENT. 5 CLAIM IS MISSING IS ACTUALLY MISSING. 6 PRECEDING SENTENCE, AND I DON'T THINK THERE'S 7 ANYTHING MISLEADING ABOUT THE JURY INSTRUCTION 8 ITSELF. 9 I DON'T BELIEVE THE LANGUAGE THE IT'S IN THE NOW, YOU DO ASK THAT AT THE END OF THE 10 INSTRUCTION, THE COURT JUST ADD A SENTENCE SAYING 11 "THESE FACTORS SHOULD BE WEIGHED BY YOU GIVEN THE 12 FACTS AND CIRCUMSTANCES OF THE CASE," I THINK 13 THAT'S REASONABLE. 14 THAT WOULD BE OKAY WITH ME. WITH REGARD TO TRADE DRESS NOTICE AND 15 DAMAGES, I WOULD GRANT THAT. 16 COMPLETE INSTRUCTION WITH PART OF THE NINTH CIRCUIT 17 MODEL INSTRUCTION CLARIFYING WHAT STATUTORY NOTICE 18 IS, I'M WONDERING IF APPLE MIGHT BE WILLING TO 19 STIPULATE TO THAT SINCE IT'S MODEL JURY INSTRUCTION 20 LANGUAGE AND IT DOESN'T SEEM PARTICULARLY 21 CONTROVERSIAL. 22 YOU WANT THE CLEAN -- SO HEARING THAT, HOW MUCH TIME DO YOU 23 WANT TO SPEND ON THE HIGH PRIORITY OBJECTIONS AND 24 HOW MUCH TIME DO YOU WANT TO JUST MAKE YOUR RECORD? 25 MR. ZELLER: JUST ONE MOMENT, YOUR HONOR? 3767 1 THE COURT: 2 (DISCUSSION OFF THE RECORD BETWEEN 3 DEFENSE COUNSEL.) 4 5 MR. JOHNSON: 8 9 YOUR HONOR, I THINK WE'RE GOING TO TALK ABOUT THREE OR FOUR POTENTIALLY. 6 7 OKAY. THE COURT: OKAY. ALL RIGHT. CAN YOU TELL ME -MS. MAROULIS: YOUR HONOR, WITH RESPECT TO EXHAUSTION, WITHOUT GIVING UP OUR OBJECTIONS, 10 CAN WE PLEASE INCLUDE, IN THE COURT'S CURRENT 11 INSTRUCTION, THE STATEMENT "WHERE THE SPECIAL 12 ACTIVITIES INCLUDE, FOR EXAMPLE, WHERE A PRODUCT IS 13 DELIVERED." 14 IN OTHER WORDS, WE'RE OBJECTING TO THE 15 INSTRUCTION, BUT IF THE COURT IS INTENDING TO KEEP 16 WHAT IT HAS, IF WE CAN INCLUDE DELIVERY AS ONE OF 17 THE ESSENTIAL ACTIVITIES. 18 19 20 THE COURT: OKAY. LET ME HEAR FROM -- IS THERE ANY OBJECTION FROM APPLE ON THAT ONE? MR. SELWYN: YOUR HONOR, THERE IS AN 21 OBJECTION TO THAT. 22 THAT SPECIFIC EXAMPLE OF AN ACTIVITY IN THIS LIST. 23 THERE'S NO REASON TO SINGLE OUT IF YOU WERE TO GO DOWN THAT PATH, THERE 24 ARE OTHER THINGS THAT WE WOULD WANT TO IDENTIFY AS 25 EXAMPLES THAT THE JURY CAN CONSIDER. 3768 1 THE COURT: WELL, THERE ALREADY -- THIS 2 WAS LARGELY FROM YOUR -- FROM APPLE'S INSTRUCTION 3 OF NEGOTIATING A CONTRACT AND PERFORMING 4 OBLIGATIONS UNDER THE CONTRACT, AND I THINK 5 PERFORMING UNDER THE OBLIGATIONS OF THE CONTRACT 6 WOULD INCLUDE DELIVERY. 7 MR. SELWYN: 8 MS. MAROULIS: 9 THE COURT: 10 11 12 13 WE AGREE. THAT'S FINE, YOUR HONOR. SO PERFORMING OBLIGATIONS UNDER THE CONTRACT? MS. MAROULIS: INCLUDING WHERE DELIVERY TAKES PLACE. MR. SELWYN: THAT'S WHERE WE HAVE THE 14 DISAGREEMENT. 15 EXAMPLE AMONG MANY THAT CAN BE INCLUDED UNDER THE 16 RUBRIC OF PERFORMING UNDER THE CONTRACT. 17 THERE'S NO POINT IN SINGLING OUT ONE THE COURT: ALL RIGHT. AND I BELIEVE 18 THAT THERE IS SOME CASE LAW IN SUPPORT OF THIS 19 EXACT LANGUAGE, RIGHT? 20 MR. SELWYN: THERE IS. 21 MS. MAROULIS: 22 THE COURT: 23 NEXT, GO AHEAD, PLEASE. 24 YOU CAN CERTAINLY ARGUE THAT. 25 DOES FALL WITHIN PERFORMING THE OBLIGATIONS UNDER YES, YOUR HONOR. ALL RIGHT. SO THAT'S DENIED. I MEAN, IT 3769 1 THE CONTRACT. 2 OKAY. 3 MR. ZELLER: 4 WHAT ELSE? HONOR. 5 THE COURT: 6 MR. ZELLER: 7 JUST A FEW POINTS, YOUR OKAY. FIRST WITH RESPECT TO THE INSTRUCTION ON FUNCTIONALITY FOR A DESIGN PATENT. 8 THE COURT: 39? 9 MR. ZELLER: YES. 10 THE COURT: OKAY. 11 MR. ZELLER: BUT IT'S ACTUALLY A 12 VARIATION ON SOMETHING THAT WE HAD RAISED. 13 THE COURT WILL RECALL THAT UNDER 14 RICHARDSON, AS WELL AS SOME OTHER FEDERAL CIRCUIT 15 AUTHORITY, THE INFRINGEMENT COMPARISON THAT HAS TO 16 BE DONE BY THE JURY NEEDS TO FACTOR OUT ELEMENTS 17 THAT THEY FIND TO BE FUNCTIONAL, AND SO PROCEEDING 18 FROM THE PREMISE THAT THEY'RE NOT GOING TO BE 19 INSTRUCTED AS TO WHAT IS FUNCTIONAL AND WHAT ISN'T, 20 BUT OF COURSE THAT WILL BE LEFT UP TO THEM TO 21 DETERMINE, WE BELIEVE THEY NEED TO BE INSTRUCTED 22 THAT ANYTHING THAT THEY FIND TO BE FUNCTIONAL UNDER 23 THE COURT'S DEFINITION SHOULD NOT BE CONSIDERED FOR 24 PURPOSES OF THE INFRINGEMENT COMPARISON. 25 AND WE DON'T THINK -- AND WE LOOKED FOR 3770 1 EQUIVALENT LANGUAGE ALONG THOSE LINES AND COULD NOT 2 FIND ANY IN THE INSTRUCTIONS, YOUR HONOR. 3 THE COURT: SO WHAT -- I'M SORRY. TELL 4 ME EXACTLY WHAT WOULD YOU LIKE ADDED TO INSTRUCTION 5 NUMBER 39? 6 MR. ZELLER: THAT FOR ANY ELEMENTS OR 7 FEATURES THAT THE JURY DETERMINES ARE FUNCTIONAL, 8 THAT THE JURY SHOULD FACTOR OUT SIMILARITIES 9 BETWEEN THE ACCUSED PRODUCTS AND THE ASSERTED 10 DESIGN PATENTS FOR PURPOSES OF DETERMINING WHETHER 11 OR NOT THE SIMILARITIES ARE DECEPTIVE. 12 THE COURT: 13 MR. ZELLER: 14 OKAY. IN OTHER WORDS, THE APPLICATION OF THE INFRINGEMENT STANDARD. THE COURT: 15 SORRY, BUT CAN YOU GIVE ME 16 THAT AGAIN? FOR ANY ELEMENTS OR FEATURES THE JURY 17 DETERMINES ARE FUNCTIONAL, THE JURY SHOULD FACTOR 18 OUT ANY SIMILARITIES -- CAN YOU GO AHEAD? MR. ZELLER: 19 BASED ON -- OR ANY 20 SIMILARITIES BETWEEN THE ACCUSED DEVICE AND THE 21 DESIGN PATENT BASED UPON THOSE ELEMENTS OR 22 FEATURES. 23 24 25 THE COURT: PATENT BASED UPON THOSE ELEMENTS OR FEATURES. OKAY. LET ME HEAR FROM APPLE. WHAT'S 3771 1 YOUR VIEW ON THAT PARTICULAR LANGUAGE? 2 3 MR. JACOBS: WE'RE IN THE WRONG INSTRUCTION, YOUR HONOR. 4 5 WELL, I THINK, FIRST OF ALL, I BELIEVE THAT 39 IS ON INVALIDITY, LACK OF ORNAMENTALITY. 6 THE COURT: WELL, THE LACK OF 7 ORNAMENTALITY, IT DOES INCLUDE A LOT OF 8 FUNCTIONAL -- UNFORTUNATELY, THAT IS WHERE WE PUT A 9 LOT OF FUNCTIONAL DISCUSSION. 10 MR. JACOBS: SO I THINK THAT THE OTHER -- 11 THE FUNDAMENTAL PROBLEM WITH IT IS THAT THE 12 PRINCIPLE THAT SAMSUNG WOULD LIKE TO RELY ON COMES 13 OUT OF A LINE OF CASES THAT JUST DOES NOT APPLY TO 14 OUR SITUATION HERE. IT'S VERY CLEAR UNDER EGYPTIAN GODDESS 15 16 THAT YOU LOOK AT THE DESIGN AS A WHOLE AND YOU HAVE 17 AN ORDINARY OBSERVER TEST LOOKING AT THE DESIGN AS 18 A WHOLE AND YOU DON'T TRY TO ELIMINATE -- 19 THE COURT: 20 YOU'RE GOING. 21 UNDER SUBMISSION. ALL RIGHT. MR. JACOBS: 23 THE COURT: 25 I UNDERSTAND WHERE LET ME JUST TAKE THAT OKAY? 22 24 OKAY. THANK YOU, YOUR HONOR. ALL RIGHT. GO AHEAD. WHAT ELSE? MR. ZELLER: A SECOND ISSUE, YOUR HONOR, 3772 1 IS WE WOULD ASK FOR CLARIFICATION OF THE 2 OBVIOUSNESS INSTRUCTION. 3 4 THE COURT: ALL RIGHT. ONE MORE QUESTION ON 39. 5 MR. ZELLER: 6 THE COURT: 7 TECHNOLOGIES FACTORS IN THERE? 8 MR. ZELLER: 9 THE COURT: 10 MR. ZELLER: 12 THE COURT: 13 MR. ZELLER: DID YOU STILL WANT THE PGH OR NOT? YES. OBVIOUSLY YOU'D RATHER HAVE YES, YOUR HONOR. BUT LET ME HEAR -THE ANSWER TO THE QUESTIONS ARE YES TO BOTH. 15 THE COURT: 16 MR. ZELLER: 17 SURE. YOUR SUGGESTED LANGUAGE. 11 14 LET ME ASK YOU OKAY. WITH RESPECT TO INSTRUCTION NUMBER 38 ON OBVIOUSNESS -- 18 THE COURT: 19 MR. ZELLER: OKAY. -- WE WOULD ASK THAT IT BE 20 CLARIFIED THAT OBVIOUSNESS CAN BE DETERMINED OR 21 FOUND BASED NOT JUST SIMPLY ON A COMBINATION OF 22 REFERENCES, BUT ON A SINGLE REFERENCE. 23 24 25 AND A COUPLE OF POINTS I WOULD ELABORATE ON, YOUR HONOR. THE COURT: HOW IS THAT DIFFERENT THAN 3849 1 APPLICATION, WOULD REALLY MAKE IT DIFFICULT FOR THE 2 JURY. 3 4 THE COURT: RIGHT. I'M NOT GOING TO DO THAT. 5 OKAY. WHAT ELSE? 6 MS. MAROULIS: STILL ON '381, THERE IS A 7 PRODUCT CALLED GEM. IN THEIR INFRINGEMENT 8 CONTENTIONS, APPLE DID NOT ACCUSE GEM, AND I'M 9 GOING TO HAND TO THE COURT AND COUNSEL APPLE'S 10 INFRINGEMENT CONTENTIONS, EXHIBIT 20, WHERE YOU CAN 11 SEE -- 12 MAY I APPROACH, YOUR HONOR? 13 THE COURT: 14 MS. MAROULIS: 15 MR. JACOBS: -- GEM WAS LISTED AS N/A WITH RESPECT TO '381. 16 YES, PLEASE. YOUR HONOR RULED ON PHONES 17 SOME MONTHS AGO NOW AND SAMSUNG DID NOT MOVE ON THE 18 GEM. 19 EXPLAINING WHY THE GEM DID NOT INFRINGE. 20 SAMSUNG'S EXPERT WROTE A REPORT ON THE GEM SAMSUNG THEN HAD A FURTHER DISCUSSION 21 WITH THE COURT ABOUT THE PHONES ISSUE AND DID NOT 22 RAISE THE GEM. 23 SO NOW WE ARE AT THE END OF TRIAL, THERE 24 WAS NO MOTION ON THE GEM, WE PUT ON OUR PROOF ON 25 THE GEM, IT'S TOO LATE NOW TO SAY IT WASN'T IN THE 3850 1 2 INFRINGEMENT CONTENTIONS. I WOULD NOTE THAT ONE OF THE PHONES WAS 3 RULED OUT BECAUSE WE FLIPPED THE ORDER OF THE TERMS 4 AND WE DIDN'T COME BACK TO THE COURT ON THAT AND 5 ASK FOR RECONSIDERATION. 6 THE COURT: 7 MR. JACOBS: IT WAS -- WHICH PHONE WAS THAT? SHOWCASE. I THINK WE SAID 8 THE SHOWCASE, THE GALAXY S SHOWCASE, AND IT'S THE 9 SHOWCASE GALAXY S. 10 11 THE COURT SAID WE HADN'T PUT IN OUR INFRINGEMENT CONTENTIONS. WE MOVED ON. NOW FOR SAMSUNG TO COME IN AT THE LAST 12 MINUTE AND SAY, "WE FORGOT TO MOVE ON THIS, BUT 13 IT'S OUT OF THE CASE," THAT'S QUITE UNFAIR. 14 MS. MAROULIS: WE ACTUALLY MOVED FOR JMOL 15 AND I THINK WE PREVIOUSLY OBJECTED TO THAT, SO THIS 16 IS DEFINITELY NOT THE FIRST TIME THAT COUNSEL IS 17 HEARING ABOUT IT. 18 THE COURT: WELL, I GUESS WHAT'S 19 CONFUSING TO ME IS IF THESE ARE THE INFRINGEMENT 20 CONTENTIONS, GEM IS ON HERE. 21 22 23 24 25 MS. MAROULIS: YOUR HONOR. NOT WITH RESPECT TO '381, IT SAYS N/A. THE COURT: OH, I SEE WHAT YOU'RE SAYING. I THINK IT'S UNTIMELY FOR THIS REQUEST. OKAY. GO AHEAD. WHAT'S NEXT? 3851 1 MS. MAROULIS: YOUR HONOR, CAN WE SKIP A 2 LITTLE BIT, THERE'S A PRETTY SIMPLE ISSUE, BEFORE 3 WE GET TO DAMAGES, WHICH IS WAIVER, WHICH IS THE 4 VERY LAST PORTION OF THE VERDICT FORM. 5 WAIVER IS AN EQUITABLE ISSUE, AND YOUR 6 HONOR DID NOT ISSUE JURY INSTRUCTIONS ON WAIVER 7 BECAUSE IT IS AN EQUITABLE ISSUE AND SHOULD NOT GO 8 BEFORE THE JURY. 9 IT BE REMOVED FROM THE VERDICT FORM. 10 SO WE RESPECTFULLY REQUEST THAT THE COURT: LET ME ASK, AND I APOLOGIZE 11 IF THIS WAS A MISTAKE, BUT THE PRELIMINARY 12 INSTRUCTIONS, WE TALKED ABOUT THE SUMMARY OF 13 CONTENTIONS AND ACTUALLY INCLUDED ANTITRUST, PATENT 14 EXHAUSTION, WAIVER, AND BREACH OF CONTRACT. 15 SO IT WAS IN THAT PRELIMINARY -- 16 MS. MAROULIS: WE'VE ALWAYS MAINTAINED, 17 SAMSUNG HAS ALWAYS MAINTAINED THAT ESTOPPEL AND 18 WAIVER SHOULD NOT BE BEFORE THE JURY, BUT BECAUSE 19 WE WERE NEGOTIATING JURY INSTRUCTIONS. 20 COMPETING LANGUAGE SO THAT IF THE COURT DECIDED IT 21 DOES GO, THERE'S SOMETHING FOR THE JURY TO LOOK AT. 22 WE PROPOSED BUT THE COURT IS NOT SENDING THIS ISSUE 23 TO THE JURY, SO IT WOULD NOT BE USEFUL TO HAVE THIS 24 IN THE JURY VERDICT FORM. 25 MR. SELWYN: YOUR HONOR, IT WAS IN THE 3852 1 PRELIMINARY JURY INSTRUCTIONS, YOU'RE QUITE RIGHT. 2 IN THE BROADCOM CASE, WHICH IS BASED ON 3 SIMILAR STANDARD SETTING AS THIS ONE, THE COURT 4 ALSO SOUGHT AN ADVISORY VERDICT ON THE WAIVER 5 ISSUE. 6 WE BELIEVE, CONSISTENT WITH THE 7 PRELIMINARY INSTRUCTIONS, IT SHOULD GO TO THE JURY. 8 9 10 THE COURT: YOU KNOW, I ACTUALLY DON'T WANT ANY ADVISORY VERDICTS. AND I RECOGNIZE I DID INCLUDE IT IN THE 11 PRELIMINARY. I DON'T HAVE A WAIVER INSTRUCTION IN 12 THIS FINAL SET. 13 I THINK I'M GOING TO TAKE IT OUT. 14 MS. MAROULIS: 15 THE COURT: 16 MS. MAROULIS: OKAY? THANK YOU, YOUR HONOR. ALL RIGHT. WHAT ELSE? RETURNING BACK TO THE 17 BEGINNING OF THE FORM, AGAIN, BECAUSE WE'RE LODGING 18 OUR OBJECTIONS, WE PROPOSE TO INCLUDE VERSION, 19 ANDROID VERSION ON DIFFERENT PHONES THAT ACTUALLY 20 ARE IN THE CASE. 21 WE RESPECTFULLY REQUEST THAT IT BE INCLUDED. WE SEE THAT IT'S NOT IN THERE AND 22 THE COURT: 23 WHAT'S NEXT? 24 MS. MAROULIS: 25 OKAY. THAT'S DENIED. WE'RE MOVING ON TO THE DAMAGES SECTION, AND WITH RESPECT TO DAMAGES, AS 3853 1 YOUR HONOR NOTED, IT'S A COMPLICATED ISSUE, AND ONE 2 THING THAT WE NEED TO ADD TO THE EXISTING DAMAGES 3 CHART -- AND I WAS TRYING TO SCRATCH IT OUT BUT 4 DIDN'T HAVE A CHANCE TO FULLY FIGURE OUT HOW TO DO 5 IT -- BUT THERE ARE THREE DIFFERENT THEORIES ON 6 WHICH APPLE IS SEEKING DAMAGES, AND SAMSUNG 7 INDICATED IN ITS PRETRIAL SUBMISSIONS AND ITS JMOLS 8 THAT THERE ARE INFIRMITIES WITH EACH OF THEM. 9 FOR IT TO BE PROPERLY REVIEWED, TO THE 10 EXTENT THERE'S A REVIEW OF THESE, WE NEED TO 11 IDENTIFY WHICH DAMAGES THEORIES APPLE IS SEEKING 12 DAMAGES ON AND WHAT THE JURORS WOULD AWARD, IF 13 ANYTHING. 14 SO ONE WAY TO DO IT WOULD BE TO ADD 15 COLUMNS TO THE EXISTING CHART, WHICH IS REASONABLE 16 ROYALTY PROFITS AND LOST PROFITS; OR POTENTIAL 17 ALTERNATIVE, WHAT WE SUGGEST IN OUR VERDICT FORM IS 18 TO ASK AN INTERROGATORY, WHICH IS "OF THE NUMBER 19 THAT YOU GAVE, WHAT IS THE BREAKDOWN BETWEEN THE 20 THREE DIFFERENT THEORIES?" TO HAVE THAT IN THE 21 RECORD AND TO UNDERSTAND WHAT THE JURY DID. 22 THE SECOND ISSUE WITH THIS IS THAT IT 23 DOESN'T TIE PRODUCTS TO THE PATENT. THERE ARE SOME 24 PRODUCTS ON WHICH APPLE IS SEEKING MULTIPLE 25 THEORIES AND MULTIPLE PATENTS AND ACCUSING THEM OF 3854 1 2 DIFFERENT I.P. SO IDEALLY WE'D LIKE TO HAVE A CHART OR 3 SOME FORM THAT ADDRESSES ALL OF THESE ISSUES SO THE 4 RECORD IS CLEAR. 5 AND WE IDENTIFIED ISSUES THAT WE HAVE 6 WITH IT, BUT HAVE NOT YET PROPOSED A SOLUTION. 7 THIS IS ONE PLACE WHERE POTENTIALLY IF WE CAN HAVE 8 A FEW HOURS TO BRAINSTORM AND SUGGEST SOMETHING TO 9 THE COURT, IT MIGHT BE USEFUL. 10 THE COURT: I DON'T WANT A MATRIX THAT'S 11 SO COMPLICATED. 12 TRADE DRESSES BROKEN DOWN BY THIS MANY NUMBER OF 13 PRODUCTS I THINK WOULD BE OVERCOMPLICATED. 14 TO HAVE SEVEN PATENTS AND FOUR MS. MAROULIS: WE DO NEED TO INDICATE 15 BOTH WHICH ENTITY THE DAMAGES ARE BEING SOUGHT FROM 16 AND WHICH THEORY OF DAMAGES IS BEING RELIED ON, 17 BECAUSE THEY ALL HAVE DIFFERENT LEGAL FRAMEWORK, 18 AND TO THE EXTENT THAT THE JURY GETS IT WRONG OR 19 DOES NOT APPLY THE CORRECT THEORY OR WHERE WE 20 BELIEVE THE THEORY HAS NOT BEEN SUFFICIENTLY 21 PROVEN, WE NEED THAT RECORD. 22 THE COURT: WELL, WOULDN'T THAT BE 23 REFLECTED IN THE EARLIER PAGES? BECAUSE THE 24 EARLIER PAGES ARE REQUIRING REQUIREMENTS BY 25 PRODUCT, BY PATENT, BY DEFENDANT. 3855 1 SO I'M HOPING THAT THE FIRST 17 PAGES, 2 FROM THE FIRST 17 PAGES AND THE FINAL NUMBER, IF 3 THE JURY PICKS A NUMBER, THAT YOU CAN SORT OF WORK 4 BACKWARDS AND FIGURE OUT WHICH I.P. WAS ACTUALLY 5 FOUND VALID AND INFRINGED, WHICH PRODUCT, WHICH 6 ENTITY. 7 MR. JACOBS: THIS IS A MATTER OF FINDING 8 A HAPPY MEDIUM, YOUR HONOR, AND OVER DETAIL GIVES 9 RISE TO CLAIMS OF ERROR, TOO, BECAUSE IF THE JURY 10 DOES THINGS AT A VERY GRANULAR LEVEL THAT PRESENT 11 INCONSISTENCIES, THEN IT JUMPS OUT. 12 AND WE THINK THIS IS TOO SPECIFIC. WE 13 OBJECT TO THIS LEVEL OF SPECIFICITY IN QUESTION 25, 14 FOR EXAMPLE. 15 16 17 BUT TO GO ANY DEEPER WOULD REALLY PRESENT VERY SERIOUS PROBLEMS. MS. MAROULIS: YOUR HONOR, TO ILLUSTRATE 18 AN ISSUE THAT WE MIGHT HAVE IF WE DON'T IDENTIFY 19 THE THEORIES, FOR EXAMPLE, PROFITS ARE NOT 20 APPROPRIATE FOR UTILITY PATENTS. 21 INCLUDE PROFITS IN THE UTILITY PATENT 22 DETERMINATION, THAT IS NOT PROPER. 23 THE COURT: 24 MR. JACOBS: 25 IF THE JURY IS TO UM-HUM. THE JURY WILL GIVE US AMOUNTS, AND THAT'S ALL THAT WE SHOULD ASK THEM TO 3856 1 2 3 DO. THE COURT: AS YOU MIGHT IMAGINE, THIS WAS THE PAGE THAT TOOK THE MOST TIME TO FIGURE OUT. 4 MS. MAROULIS: YES. 5 THE COURT: 6 BUT OVERALL, I THINK THAT THIS MAY BE THE AND IT IS COMPLICATED. 7 BEST WAY TO DO IT, ASSUMING THAT THE JURY IS GOING 8 TO FOLLOW THE JURY INSTRUCTIONS AND NOT DO ANYTHING 9 INAPPROPRIATE IN AWARDING IMPROPER DAMAGES FOR ANY 10 PARTICULAR CLAIM AND NOT GIVING DOUBLE RECOVERY. 11 MR. JACOBS: 12 MS. MAROULIS: YOUR HONOR -WOULD YOUR HONOR CONSIDER 13 INCLUDING FORMER QUESTION 23 FROM THE SAMSUNG FORM, 14 WHICH IS -- SAY, "IF YOU FIND ANY DAMAGES, CAN YOU 15 SEPARATE IT BY ENTITY?" 16 MR. JACOBS: IT'S A YES OR NO QUESTION. AND THE PROBLEM THERE IS 17 THAT MR. WAGNER, FROM THE ACCOUNTING PERSPECTIVE, 18 TESTIFIED THERE REALLY WAS NO BASIS TO DO THAT. 19 MS. MAROULIS: YOUR HONOR, WE'RE NOT 20 GOING TO ARGUE ABOUT THE TESTIMONY HERE. 21 MR. WAGNER PROVIDED A ROADMAP FOR THE JURY. 22 BUT THE POINT IS THAT IF YOU CAN'T FIND 23 DAMAGES ATTRIBUTABLE JUST TO ONE SINGLE ENTITY, IF 24 YOU ASSUME THREE DIFFERENT DEFENDANTS, THAT 25 DEFENDANTS HAVE AN OPPORTUNITY TO KNOW WHAT DAMAGES 3857 1 ARE AWARDED AGAINST THEM. 2 MR. JACOBS: NO PREJUDICE HERE, YOUR 3 HONOR. 4 BALANCE SHEETS, CONSOLIDATED FINANCIALS, CONTROLLED 5 BY SAMSUNG ELECTRONICS FOR BOTH ENTITIES, VERY 6 CLOSE CONTROL. 7 IT'S A CONSOLIDATED ENTITY, CONSOLIDATED THAT WAS TESTIFIED TO. THE COURT: WELL, I'M ALSO HOPING THAT 8 PAGES 1 THROUGH 17 WILL ALSO HELP IN INFORMING AS 9 WELL, BECAUSE IT COULD BE THAT THE JURY FINDS ONE 10 OR MORE OF THESE ENTITIES NOT LIABLE AT ALL BASED 11 ON THE EVIDENCE, WHICH WAS REALLY GEARED MORE 12 TOWARDS SEC ANYWAY. 13 LET ME ASK YOU, WITH REGARD TO HOW I 14 SHOULD HANDLE THE TRADE DRESS CLAIMS AGAINST THE 15 TABLETS, I GUESS I SHOULD THEN JUST DIVIDE UP -MS. MAROULIS: 16 17 YES, YOUR HONOR, THAT WAS ONE OF THE ISSUES THAT WE NOTED IN QUESTION 19. 18 THERE WAS A TAB TRADE DRESS THAT REALLY 19 PROBABLY SHOULDN'T BE THERE BECAUSE YOU'RE ALREADY 20 ASKING QUESTION 18 OF THE TAB TRADE DRESS. 21 22 23 MR. JACOBS: AND THEN WHAT YOUR HONOR THE COURT: ALTHOUGH 18 IS DILUTION AND COULD -- 24 21 AND 22 ARE INFRINGEMENT. 25 OUT DIFFERENTLY. THAT'S WHY IT'S BROKEN 3858 1 MS. MAROULIS: 2 MR. JACOBS: 3 THE COURT: BUT I DO THINK IF WE DO AN 18 STYLE BREAKOUT -- 4 19 IS FOR DILUTION. NO, 19 IS INDUCEMENT. SO THE 5 WAY IT'S WORKED OUT IS ON PAGE 10, 12 AND 13 ARE 6 GOING TO, IS THIS PROTECTABLE? 7 THIS FAMOUS? AND THEN 14 SAYS IS 8 AND THEN 15 SAYS, "IF YOU FIND IT 9 PROTECTABLE AND FAMOUS, THEN HAS THERE BEEN 10 DILUTION OF THE REGISTERED PHONE DRESS?" 11 12 AND THEN THE NEXT QUESTION IS, "HAS THERE BEEN DILUTION OF THE UNREGISTERED IPHONE 3 DRESS?" 13 AND THEN THE NEXT QUESTION IS, "HAS THERE 14 BEEN DILUTION OF THE UNREGISTERED COMBINATION PHONE 15 DRESS?" 16 AND THEN IT GOES TO THE PATENT. AND THEN AFTER THAT, WE GO TO INDUCEMENT 17 AND WILLFULNESS AND THEN TRADE DRESS AND 18 INFRINGEMENT. SO THAT'S HOW IT'S ORGANIZED. 19 MR. JACOBS: 20 THE COURT: 21 SPLIT UP THESE TABS. 22 MR. JACOBS: UNDERSTOOD. I'LL FIGURE OUT SOME WAY TO I THINK IF YOU SPLIT OUT THE 23 TABS, YOU CAN MAKE THE REST OF THE CHART TWO 24 COLUMNS AND HAVE TWO COLUMNS FOR THE TABS, OR THREE 25 COLUMNS WITH A SHADED BOX FOR THE TABS. 3859 1 2 A COUPLE OF THINGS ON OUR END, YOUR HONOR. 3 MS. MAROULIS: I'M NOT DONE. 4 WITH RESPECT TO TRADE DRESS, THERE WERE A 5 COUPLE OF PREDICATE QUESTIONS WE INCLUDED IN THE 6 VERDICT FORM AS TO DAMAGES. 7 APPROPRIATE. 8 9 10 11 WE BELIEVE THEY'RE FOR EXAMPLE, YOU HAVE TO SHOW ACTUAL HARM FOR THE SPECIFIC TRADE DRESS DAMAGES, AND THAT WAS FORMER QUESTION 17 ON OUR FORM. AND SIMILARITY, YOU NEED TO SHOW ACTUAL 12 CONFUSION WITH INTENT TO DECEIVE. 13 PREDICATE FOR DILUTION DAMAGES. 14 AGAIN, THIS IS A SO WE RESPECTFULLY REQUEST THAT THEY BE 15 PUT BACK IF POSSIBLE, RECOGNIZING THAT THE FORM 16 IS -- HAS TO HAVE SOME LIMITATIONS, BUT BECAUSE 17 THOSE ARE PREDICATE FOR DAMAGES, WE THINK IT'S 18 NECESSARY FOR TRADE DRESS. 19 THE COURT: I'M GOING TO ASSUME A JURY IS 20 GOING TO FOLLOW JURY INSTRUCTIONS AND MAKE THE 21 REQUIRED FINDINGS BEFORE THEY MAKE ANY LIABILITY 22 DETERMINATION IN AWARDING DAMAGES. 23 MS. MAROULIS: OKAY? AND FINALLY, YOUR HONOR, 24 WITH RESPECT TO TRADE DRESS INDUCEMENT, SAMSUNG 25 BELIEVES THAT THERE'S NO SUCH THEORY UNDER NINTH 1 2 3 CERTIFICATE OF REPORTER 4 5 6 7 8 9 I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED STATES DISTRICT COURT FOR 10 THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH 11 FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 12 CERTIFY: 13 THAT THE FOREGOING TRANSCRIPT, 14 CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND 15 CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS 16 SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS 17 HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED 18 TRANSCRIPTION TO THE BEST OF MY ABILITY. 19 20 21 22 /S/ _____________________________ LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595 23 24 25 DATED: AUGUST 20, 2012

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