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)

Estrich Declaration
Exhibit 5

1297

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.

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C-11-01846 LHK
SAN JOSE, CALIFORNIA
AUGUST 7, 2012
VOLUME 5
PAGES 1297-1637

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

1298

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
12
13

FOR THE DEFENDANT:

94304

QUINN, EMANUEL, URQUHART,
OLIVER & HEDGES
BY: CHARLES K. VERHOEVEN
ANNE ABRAMOWITZ
50 CALIFORNIA STREET, 22ND FLOOR
SAN FRANCISCO, CALIFORNIA 94111

14
BY:
15
16

VICTORIA F. MAROULIS
KEVIN P.B. JOHNSON
555 TWIN DOLPHIN DRIVE
SUITE 560
REDWOOD SHORES, CALIFORNIA

94065

17
BY:
18
19
20
21
22
23
24
25

MICHAEL T. ZELLER
WILLIAM C. PRICE
865 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90017

1299

1
INDEX OF WITNESSES
2
PLAINTIFF'S
3
4
5

PETER BRESSLER
REDIRECT EXAM BY MS. KREVANS (RES.)P. 1336
RECROSS-EXAM BY MR. VERHOEVEN
P. 1349
FURTHER REDIRECT BY MS. KREVANS
P. 1354

6
7
8
9
10

SUSAN KARE
DIRECT EXAM BY MS. KREVANS
CROSS-EXAM BY MR. VERHOEVEN
REDIRECT EXAM BY MS. KREVANS
RECROSS-EXAM BY MR. VERHOEVEN
FURTHER REDIRECT BY MS. KREVANS
FURTHER RECROSS BY MR. VERHOEVEN

P.
P.
P.
P.
P.
P.

1356
1414
1478
1489
1492
1493

RUSSELL WINER
DIRECT EXAM BY MR. JACOBS
CROSS-EXAM BY MR. VERHOEVEN
REDIRECT EXAM BY MR. JACOBS
RECROSS-EXAM BY MR. VERHOEVEN
FURTHER REDIRECT BY MR. JACOBS

P.
P.
P.
P.
P.

1496
1529
1565
1572
1576

HAL PORET
DIRECT EXAM BY MR. JACOBS
CROSS-EXAM BY MR. PRICE

P. 1577
P. 1591

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1421

1

Q

OKAY.

2

WHERE WERE WE?
WE WERE TALKING ABOUT YOU PROVIDED THE

3

TESTIMONY ABOUT HOW A CONSUMER MIGHT MAKE A MISTAKE

4

OR BE CONFUSED ABOUT THESE APPLICATION SCREENS

5

THINKING THAT, ONE, THAT IT'S A SAMSUNG APPLICATION

6

SCREEN AND MIGHT BE AN APPLE PHONE, RIGHT, OR AN

7

APPLE APPLICATION SCREEN.

8

A

9

LIKE THE DESIGN OF THE D'305 PATENT.

DO YOU REMEMBER THAT?

THAT A SAMSUNG APPLICATION SCREEN WOULD LOOK

10

Q

DIDN'T YOU -- DIDN'T I HEAR YOU SAY THAT YOU

11

THOUGHT THAT A CONSUMER WOULD BE CONFUSED AS TO THE

12

SOURCE?

13

A

WHEN WE TALKED ABOUT TRADE DRESS.

14

Q

RIGHT?

15

A

WHEN WE TALKED ABOUT -- EXCUSE ME.

16

YOU WERE ASKING ME ABOUT THE D'305.

17

Q

18

BEING -- WHETHER OR NOT CONSUMERS MIGHT BE CONFUSED

19

BY THE SAMSUNG APPLICATION SCREENS.

OKAY.

20

I THOUGHT

BUT YOU DID TALK ABOUT CONSUMERS

DO YOU REMEMBER THAT?

21

A

YES.

22

Q

OKAY.

23

THEY MIGHT BE?

24

A

YES.

25

Q

OKAY.

AND YOU THOUGHT THAT THERE'S -- THAT

SO LET'S LOOK AT WHAT A CONSUMER WOULD

1422

1

SEE WHEN THEY TURN ON THE PHONE BETWEEN THE TIME

2

THEY HAVE A PHONE LIKE THIS IN THEIR HANDS THAT'S

3

TURNED OFF AND THE TIME THAT THEY ACTUALLY GET TO

4

THE APPLICATION SCREEN.

5
6

I'LL TRY TO DO THIS, YOUR HONOR, ON THE
ELMO.

7

DO WE HAVE A MICROPHONE?

8

THE CLERK:

9

MR. VERHOEVEN:

10

A MICROPHONE?

WAS A LITTLE HAND MIKE.

YEAH.

I THOUGHT THERE

THERE WE GO.

11

DOES THIS WORK?

12

I'M GOING TO PUT THIS CLOSE TO THE PHONE

13

SO THAT -- OKAY.

14

Q

15

THE PHONE.

16

A

THE START-UP SCREEN WITH THE --

17

Q

WHAT DOES IT SAY?

18

A

IT SAYS, "SAMSUNG."

19

Q

STILL SAYS SAMSUNG.

20

SO NOW I'M THE CONSUMER, AND I'M TURNING ON
WHAT DOES THE CONSUMER SEE?

WHAT'S DROID?

IS THAT SHORT FOR ANDROID?

21

A

I DON'T KNOW I KNOW IT'S THIS, THE DROID PHONE

22

HAS THE CHIN.

23

Q

AND NOW WHAT IS THE CONSUMER LOOKING AT NOW?

24

A

THE UNLOCK SCREEN.

25

Q

SO THE CONSUMER HAS TO DO SOMETHING HERE;

1423

1

RIGHT?

2

A

YES.

3

Q

WHAT DO THEY HAVE TO DO?

4

A

MOVE THE PUZZLE PIECE TO THE RIGHT TO UNLOCK

5

IT.

6

Q

OKAY.

7

A

THE HOME SCREEN OF THE SAMSUNG PHONE.

8

Q

OKAY.

9

DO -- THIS IS -- THIS SCREEN HERE IS NOT ACCUSED;

NOW, WHAT IS THE CONSUMER LOOKING AT?

AND SO WHAT DOES A CONSUMER NEED TO

10

RIGHT?

11

A

NO.

12

Q

YOU WEREN'T EVEN ASKED TO LOOK AT THIS SCREEN;

13

RIGHT?

14

A

15

THIS SCREEN.

16

Q

17

RIGHT?

18

A

YES.

19

Q

OKAY.

20

TO DO -- WHAT DOES THE CONSUMER HAVE TO DO TO GET

21

TO THE APPLICATION SCREEN?

22

A

23

THE GRID OF SQUARES.

24

Q

25

THAT A CONSUMER GETS TO THE APPLICATION SCREEN.

I WOULD SAY -- I WAS NOT ASKED TO CONSIDER

OKAY.

SO IT'S JUST THE APPLICATION SCREEN;

AND REMIND US, WHAT DOES THE USER HAVE

TOUCH THE BLUE BUTTON ON THE LOWER RIGHT WITH

OKAY.

SO IT'S ONLY AFTER ALL OF THOSE STEPS

1424

1

FAIR?

2

A

YES.

3

Q

NOW, DR. KARE, WOULDN'T YOU AGREE THAT BY THE

4

TIME A CONSUMER GOES THROUGH ALL THOSE STEPS TO GET

5

TO THE APPLICATION SCREEN, THAT CONSUMER KNOWS THAT

6

THIS IS A SAMSUNG PHONE?

7

A

8

SCREEN COMPARED TO THE APPLE HOME SCREEN.

9

Q

I UNDERSTAND THAT.

10

A

BECAUSE --

11

Q

BUT I HAVE A DIFFERENT QUESTION FOR YOU.

12

I WAS ONLY ASKED TO CONSIDER THIS APPLICATION

WOULDN'T YOU AGREE THAT BY THE TIME THAT

13

A CONSUMER TURNS ON THE PHONE AND GOES THROUGH

14

THOSE STEPS WE LOOKED AT, WHERE THEY SEE THE

15

SAMSUNG NAME PROMINENTLY FOR SEVERAL SECONDS, WHERE

16

THEY SEE THE GRAPHIC FOR DROID, WHERE THEY HAVE TO

17

GO PAST THE HOME SCREEN TO THE APPLICATION SCREEN,

18

BY THE TIME THEY GET TO THAT APPLICATION SCREEN,

19

WOULDN'T YOU AGREE THAT A CONSUMER KNOWS THAT

20

THEY'RE USING A SAMSUNG PHONE?

21

A

22

THAT KIND OF USER EXPERIENCE.

I'M NOT AN EXPERT IN CONSUMER BEHAVIOR AND

23

I'M REALLY FOCUSSED ON GRAPHIC U/I.

24

DON'T KNOW THAT I'M QUALIFIED TO ANSWER THAT.

25

Q

SO I

WELL, QUALIFIED OR NOT, WOULD YOU AGREE WITH

1425

1

ME?

A CONSUMER, BY THIS POINT, GOING THROUGH THE

2

START-UP AND ALL OF THAT, SEEING ALL THAT

3

ADVERTISING, THEY KNOW THEY HAVE A SAMSUNG PHONE,

4

DON'T THEY?

5

A

6

I DON'T KNOW.

7

Q

YOU'RE NOT QUALIFIED?

8

A

I HAVEN'T STUDIED START-UP EXPERIENCE FROM

9

PHONE TO PHONE.

I JUST CAN'T SPEAK TO THAT BECAUSE I DON'T --

I -- I COMPLETELY -- I KNOW THAT

10

THIS IS THE APPLICATION SCREEN, NOT THE HOME

11

SCREEN.

12

Q

13

PHONE, SEES THE SAMSUNG NAME PROMINENTLY DISPLAYED,

14

SEES THE DROID ADVERTISEMENT AND ANIMATION,

15

WOULDN'T YOU AGREE THAT NO CONSUMER WOULD BE

16

CONFUSED AS TO WHICH PHONE THEY HAVE BY THAT TIME?

17

A

18

I DON'T KNOW ABOUT CONSUMER BEHAVIOR STARTING -- I

19

DON'T KNOW ABOUT THE QUESTION YOU'RE ASKING ME.

20

THAT'S OUTSIDE MY FOCUS.

21

Q

IT'S OUTSIDE YOUR EXPERTISE?

22

A

YES, AS A GRAPHIC U/I DESIGNER.

23

Q

NOW, THERE WAS ONE SLIDE -- I'LL TURN THIS OFF

24

NOW, YOUR HONOR, IF THAT'S OKAY.

25

BY THE TIME THAT THE CONSUMER TURNS ON THE

I CAN'T AGREE BECAUSE I HAVEN'T -- I DON'T --

THE COURT:

GO AHEAD, PLEASE.

1426

1

BY MR. VERHOEVEN:

2

Q

3

RESPECT TO YOUR TESTIMONY MORE THAN OTHERS WHEN YOU

4

WERE TESTIFYING ABOUT YOUR OPINIONS WITH RESPECT TO

5

THE DESIGN '305 PATENT, AND THAT WAS PDX 14.7.

THERE'S ONE SLIDE THAT YOU FOCUSSED ON WITH

6

CAN WE PUT THAT ON THE SCREEN.

THIS IS A

7

SLIDE THAT COUNSEL FOR APPLE SHOWED YOU.

8

REMEMBER THAT?

9

A

YES.

10

Q

AND DO YOU REMEMBER YOU SPENT MOST OF YOUR

11

TIME EXPLAINING THIS SLIDE, AND FOR THE OTHER

12

SLIDES SHE SHOWED YOU, YOU SAID SAME REASONS?

13

A

YES.

14

Q

SO LET'S FOCUS ON THIS SLIDE.

DO YOU

15

NOW, IF WE LOOK AT THE DESIGN '305 PATENT

16

COMPARED TO THE FASCINATE, DO YOU SEE IN THE DESIGN

17

'305 PATENT THE FIRST BOX IN THE UPPER LEFT SAYS

18

SMS?

19

A

YES.

20

Q

WHERE IS THAT ICON IN THE FASCINATE?

21

A

I BELIEVE THAT THE ANALOGOUS ICON IS IN THE

22

BOTTOM ROW ON THE RIGHT, THREE FROM THE LEFT.

23

Q

24
25

I HAVE A LASER POINTER, YOUR HONOR.
DO YOU MIND IF I HAND THIS TO THE WITNESS

SO SHE CAN INDICATE ON THE BIG SCREEN?

1427

1

A

GO AHEAD, PLEASE.

2

Q

DO YOU KNOW HOW TO USE THESE?

3

A

I'M NOT A LASER POINTER EXPERT, EITHER.

4

Q

JUST PUT THIS BUTTON.

5

ANYBODY'S EYES.

6

A

OKAY.

7

Q

SO THE SMS IS ON THE TOP LEFT, RIGHT, IN THE

8

D'305?

9

A

YES.

10

Q

AND WHERE IS IT IN THE FASCINATE?

11

A

(INDICATING).

12

Q

RIGHT DOWN HERE?

13

A

I BELIEVE THAT THOSE ARE ANALOGOUS.

14

Q

OKAY.

15

A

YES.

16

Q

IN THE '305, THERE'S A DOCK OR -- WHAT WOULD

17

YOU CALL THIS BOTTOM ROW ON THE '305?

18

A

19

BECAUSE IT'S JUST A DESIGN, ORNAMENTAL DESIGN.

20

I JUST HAVE BEEN CALLING IT AN AREA AT THE BOTTOM,

21

A SEPARATED AREA AT THE BOTTOM, BECAUSE IT

22

DOESN'T -- THE '305 DOESN'T TALK ABOUT

23

FUNCTIONALITY.

24

Q

25

IN THE BOTTOM ROW THAT'S SET OFF SEPARATELY; RIGHT?

DON'T POINT IT IN

SO IT'S IN A DIFFERENT PLACE; RIGHT?

YOU KNOW, IT DOESN'T REALLY SAY IN THE '305

OKAY.

SO

WELL, IN THE D'305, THE SMS ICON IS NOT

1428

1

A

RIGHT.

2

Q

BUT IN THE FASCINATE, IT IS IN THE BOTTOM ROW.

3

IS THAT BOTTOM ROW SET OFF SEPARATELY?

4

A

YES.

5

Q

SO YOU WOULD AGREE THAT'S A DIFFERENCE?

6

A

YES.

7

Q

NOW, YOU TALKED ABOUT ROUNDED RECTANGLES FOR

8

THE IPHONES.

9

A

YES.

10

Q

AND DO YOU REMEMBER YOU TESTIFIED WITH RESPECT

11

TO ALTERNATIVE DESIGNS THAT, GEE, SAMSUNG COULD

12

HAVE USED SOMETHING BESIDES ROUNDED RECTANGLES,

13

RIGHT?

14

A

YES.

15

Q

WELL, THIS ICON SHEER NOT JUST A ROUNDED

16

RECTANGLE.

17

SPEECH BOX THAT YOU SEE IN CARTOONS; RIGHT?

18

A

RIGHT.

19

Q

DO YOU AGREE WITH THAT?

20

A

YES.

21

HAS, HAS ROUNDED RECTANGULAR ELEMENTS, BUT IT'S NOT

22

A SQUARE.

23

Q

IT'S A DIFFERENT SHAPE?

24

A

IT'S NOT A SQUARE.

25

EDGES ON TOP AND BOTTOM, BUT IT'S NOT -- AND

DO YOU REMEMBER THAT?

THEY COULD HAVE PICKED A DIFFERENT SHAPE?

IT'S GOT A LITTLE -- IT'S ALMOST LIKE A

I WOULD SAY IT IS A SPEECH BALLOON THAT

RIGHT?

IT HAS -- IT HAS STRAIGHT

1531

1

A

THE LEAD PERSON AT CORNERSTONE.

HIS NAME IS

2

SHANKAR, S-H-A-N-K-A-R, IYER, I-Y-E-R.

3

Q

4

SERVED AS AN EXPERT WITNESS ON AT LEAST 14 OTHER

5

LITIGATION MATTERS; RIGHT?

6

A

THAT MIGHT BE CORRECT.

7

Q

AND YOU'RE BEING PAID FOR YOUR TIME IN THIS

8

CASE; RIGHT?

9

A

CORRECT.

10

Q

TELL THE JURY HOW MUCH YOU'RE BEING PAID?

11

A

SIX HUNDRED AND TWENTY-FIVE DOLLARS AN HOUR.

12

Q

AND HOW MUCH MONEY HAS APPLE PAID YOU SO FAR?

13

A

APPROXIMATELY $50,000.

14

Q

AND HOW MUCH TOTAL HAS IT PAID CORNERSTONE?

15

A

I HAVE NO IDEA.

16

Q

NOW, IN REACHING YOUR OPINIONS IN YOUR EXPERT

17

REPORT, YOU DID NOT DO ANY SYSTEMATIC CONSUMER

18

RESEARCH, DID YOU, SIR?

19

A

20

WAS ALREADY DONE FOR THE CASE.

21

Q

22

SYSTEMATIC CONSUMER RESEARCH; FAIR?

23

A

THAT'S CORRECT.

24

Q

YOU DIDN'T DO ANY FORMAL INTERVIEWS WITH

25

CONSUMERS ABOUT THEIR PURCHASING EXPERIENCES;

SINCE 2000 -- SINCE THE YEAR 2000, YOU'VE

I HAVEN'T COUNTED.

I DID NOT CONDUCT ANY NEW STUDIES BEYOND WHAT

YOU, YOURSELF, DID NOT PERSONALLY CONDUCT ANY

1532

1

RIGHT?

2

A

THAT'S CORRECT.

3

Q

AND YOU HAVE NO EVIDENCE THAT CONSUMERS IN THE

4

REAL WORLD HAVE ACTUALLY BOUGHT APPLE DEVICES

5

THINKING THEY ARE SAMSUNG DEVICES; RIGHT?

6

MR. JACOBS:

YOUR HONOR, OPENING THE

7

DOOR.

8

THIS MORNING, MR. VERHOEVEN HAS JUST ASKED THIS

9

WITNESS WHETHER HE HAS ANY ACTUAL EVIDENCE OF

10

MR. LEE'S TESTIMONY THAT YOUR HONOR EXCLUDED

CONSUMER CONFUSION AND THIS WITNESS DOES.

11

MR. VERHOEVEN:

LET ME, LET ME ASK YOU --

12

Q

13

DEPOSITION WAS TAKEN ON APRIL 27TH?

14

A

15

THAT DATE, BUT I'LL ASSUME YOU'RE CORRECT.

16

Q

17

NO EVIDENCE THAT CONSUMERS OUT THERE IN THE REAL

18

WORLD HAVE ACTUALLY BOUGHT APPLE DEVICES THINKING

19

THEY WERE SAMSUNG DEVICES?

20

A

21

DID NOT DO ANY RESEARCH MYSELF THAT PROVED THAT.

22

Q

23

AT YOUR DEPOSITION -- DO YOU REMEMBER YOUR

I REMEMBER BEING DEPOSED.

I DON'T REMEMBER

AND DO YOU REMEMBER TESTIFYING THAT YOU HAVE

I THINK THAT MY REPLY WAS IN THE CONTEXT OF I

WELL, LET'S LOOK AT WHAT YOU SAID.
CAN WE PLAY DR. WINER'S DEPOSITION

24

TESTIMONY FROM APRIL 27TH, 2012, PAGE 35, LINES 7

25

THROUGH 15.

1533

1
2

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN
OPEN COURT OFF THE RECORD.)

3

MR. VERHOEVEN:

ALL RIGHT.

4

IT AND GET THE VOLUME WORKING.

5

LET'S PAUSE

HONOR.

6

I APOLOGIZE, YOUR

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN

7

OPEN COURT OFF THE RECORD.)

8

BY MR. VERHOEVEN:

9

Q

10

THAT WAS YOUR TESTIMONY YOU GAVE UNDER OATH IN

APRIL, SIR?

11

MR. JACOBS:

YOUR HONOR, UNDER THE RULE

12

OF COMPLETENESS, I BELIEVE WE SHOULD READ A COUPLE

13

MORE PASSAGES DOWN, AND MR. VERHOEVEN HAS OPENED

14

THE DOOR.

15
16
17

THE COURT:

I THINK HE'S OPENED THE DOOR,

BUT YOU'RE NOT GOING TO DO IT DURING HIS CROSS.
THE WITNESS:

I BELIEVE I RESPONDED TO

18

THAT IN THE CONTEXT OF WHETHER I HAD DONE ANY

19

RESEARCH MYSELF.

20

I CERTAINLY HAD READ DOCUMENTS, AND I

21

ALLUDED TO THEM IN MY DEPOSITION, AND MY REPORT,

22

THAT THERE WERE INTERNAL SAMSUNG DOCUMENTS

23

INDICATING REAL CASES OF CONFUSION IN THE

24

MARKETPLACE.

25

BY MR. VERHOEVEN:

1534

1

Q

DO YOU STAND BY THE TESTIMONY WE JUST SAW,

2

SIR?

3

A

SURE I DO.

4

Q

OKAY.

5

THANK YOU.
YOU HAVE NO IDEA WHETHER CONSUMERS HAVE

6

ACTUALLY BOUGHT APPLE DEVICES THINKING THEY WERE

7

SAMSUNG DEVICES, HAVE YOU?

8
9

MR. JACOBS:

YOUR HONOR, I'M SORRY.

THE

WITNESS HAS BEEN INSTRUCTED NOT TO -- TO FOLLOW AN

10

EARLIER ORDER OF THE COURT AND MR. VERHOEVEN IS

11

OPENING THE DOOR.

12

THAT HE CAN ANSWER THAT QUESTION TRUTHFULLY.

13

THE WITNESS SHOULD BE INFORMED

MR. VERHOEVEN:

I'LL MOVE ON, YOUR HONOR.

14

Q

15

SHOW THAT SAMSUNG'S ACTIONS HAVE DILUTED APPLE'S

16

BRAND; RIGHT?

17

A

CORRECT.

18

Q

AND YOU HAVE NO HARD DATA TO SHOW THAT

19

SAMSUNG'S ACTIONS HAVE DILUTED APPLE'S BRAND;

20

RIGHT?

21

A

I WAS NOT ASKED TO DO THAT.

22

Q

YOU HAVE NEVER QUANTIFIED THE AMOUNT OF ANY

23

ALLEGED HARM FROM DILUTION OR LOSS OF ANY KIND TO

24

APPLE AS A RESULT OF SAMSUNG'S ACTIONS; RIGHT?

25

A

DR. WINER, YOU HAVE NO EMPIRICAL EVIDENCE TO

CORRECT.

1535

1

Q

YOU HAVE NO EMPIRICAL EVIDENCE THAT SHOWS THAT

2

APPLE HAS ACTUALLY LOST ANY MARKET SHARE AS A

3

RESULT OF SAMSUNG'S SALES OF ITS DEVICES; RIGHT?

4

A

NO.

5

Q

THAT ANSWER IS YOU DON'T HAVE ANY EMPIRICAL

6

EVIDENCE; CORRECT?

7

A

CORRECT.

8

Q

AND YOU DON'T HAVE ANY EVIDENCE THAT

9

QUANTIFIES THE AMOUNT OF ANY LOST MARKET SHARE;

10

CORRECT?

11

A

THAT'S CORRECT.

12

Q

YOU HAVE NO EVIDENCE QUANTIFYING THE NUMBER OF

13

PURCHASERS WHO BOUGHT A SAMSUNG DEVICE IN LIEU OF

14

BUYING AN APPLE DEVICE; RIGHT?

15

A

I KNOW OF AT LEAST ONE.

16

Q

YOU CAN'T QUANTIFY THE NUMBER OF PURCHASERS

17

WHO BOUGHT A SAMSUNG DEVICE IN LIEU OF BUYING AN

18

APPLE DEVICE; RIGHT?

19

A

20

COUNSELOR.

21

Q

22

THAT AT YOUR DEPOSITION, SIR.

23

CITE.

24
25

AS FAR AS I KNOW, ONE IS A QUANTIFICATION,

OKAY.

LET'S SEE WHAT YOU SAID IN RESPONSE TO
PAGE NOTE NOTE LINE

(WHEREUPON, A VIDEOTAPE WAS PLAYED IN
OPEN COURT OFF THE RECORD.)

1536

1

BY MR. VERHOEVEN:

2

Q

3

ANSWER AT YOUR DEPOSITION; RIGHT, SIR?

4

A

APPARENTLY SO.

5

Q

DO YOU STAND BY THAT TESTIMONY?

6

A

YES.

7

Q

WILL HE ME SWITCH SUBJECTS NOW.

YOU WERE ASKED THAT QUESTION AND YOU GAVE THAT

8
9

IN YOUR MARCH 22ND, 2012 EXPERT REPORT AT
PAGE 160, YOU REFER TO WHAT YOU CALL A SLEEKCRAFT

10

FACTOR, NUMBER 6, DEGREE OF CARE WITH RESPECT TO

11

THE IPAD.
CAN WE PUT UP PARAGRAPH 160 FROM

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DR. WINER'S EXPERT REPORT FROM MARCH 22, PLEASE.
CAN YOU PUSH THAT DOWN SO I CAN SEE WHERE

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IT WAS PULLED OUT FROM, MR. FISHER?
OKAY.

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GO BACK.

SO CAN WE -- THAT'S WHAT I'M

LOOKING FOR, 160.
DO YOU SEE IT SAYS SLEEK, SLEEK -- YOU

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HAVE IT IN YOUR BINDER AS WELL, SIR?

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A

YES, I DO HAVE IT.

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Q

SLEEK -- SLEEKCRAFT FACTOR SAYS, "TYPES OF

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GOODS AND," THIS IS WHAT I'M GOING TO FOCUS ON

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HERE, THE REST OF THIS, "AND THE DEGREE OF CARE

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LIKELY TO BE EXERCISED BY THE PURCHASER."

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DO YOU SEE THAT?

1537

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A

I DO.

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Q

AND SO THE DEGREE OF CARE, YOU'D AGREE WITH

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ME, THAT THE HIGHER THE DEGREE OF CARE EXERCISED BY

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THE CONSUMER, THE LESS CHANCE THERE IS GOING TO BE

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THAT THERE'S CONFUSION OR DILUTION; RIGHT?

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A

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TRUE.

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Q

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GROCERY STORE THAT PEOPLE MIGHT PICK UP, THE DEGREE

FOR ANY INDIVIDUAL CONSUMER, THAT WOULD BE

SO IF IT'S LIKE A 50 CENTS DOODAD IN THE

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OF CARE WOULD BE REALLY LOW, RIGHT?

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A

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IT WOULD BE, OVERALL, LOWER THAN FOR A $600 ITEM OR

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$300 ITEM.

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Q

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BE SOMETHING THAT WOULD BE VERY EXPENSIVE FOR A LOT

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OF PEOPLE, YOU'LL HAVE TO PAY FOR IT OVER A NUMBER

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OF YEARS, SO THEY'LL BE REALLY CAREFUL WHEN THEY

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BUY THAT, RIGHT?

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A

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WOULD SAY THAT THERE ARE ALWAYS SEGMENTS OF

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CONSUMERS WHO TAKE MORE OR LESS CARE IN MAKING

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PURCHASES OF PRODUCTS.

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YOU WOULD BE SURPRISED, BUT I WOULD AGREE THAT

OR TO GET REALLY CONTRASTING, A NEW CAR WOULD

I JUST DON'T WANT TO USE GENERALITIES.

I

SOME MARKETING, WE DON'T WORK WITH THE

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NOTION OF THERE BEING A MARKET.

WE WORK WITH THE

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IDEA THAT THERE ARE SEGMENTS AND DIFFERENT KINDS OF

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CERTIFICATE OF REPORTERS

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WE, THE UNDERSIGNED OFFICIAL COURT
REPORTERS OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF OUR SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTERS OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF OUR ABILITY.

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/S/
_____________________________
LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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/S/
______________________________
IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074

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DATED:

AUGUST 7, 2012