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 6

1638

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 10, 2012
VOLUME 6
PAGES 1638-1988

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

1639

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
865 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90017
BY: EDWARD J. DEFRANCO
51 MADISON AVENUE, 22ND FLOOR
NEW YORK, NEW YORK 10010

1640

1

INDEX OF WITNESSES

2

PLAINTIFF'S

3

HAL PORET
CROSS-EXAM BY MR. PRICE (RES.)
REDIRECT EXAM BY MR. JACOBS

P. 1665
P. 1687

KENT VAN LIERE
DIRECT EXAM BY MR. JACOBS
CROSS-EXAM BY MR. PRICE

P. 1690
P. 1702

RAVIN BALAKRISHNAN
DIRECT EXAM BY MR. JACOBS
CROSS-EXAM BY MR. JOHNSON
REDIRECT EXAM BY MR. JACOBS
RECROSS-EXAM BY MR. JOHNSON

P.
P.
P.
P.

KARAN SINGH
DIRECT EXAM BY MR. JACOBS
CROSS-EXAM BY MR. DEFRANCO
REDIRECT EXAM BY MR. JACOBS

P. 1815
P. 1848
P. 1909

JOHN HAUSER
DIRECT EXAM BY MR. JACOBS
CROSS-EXAM BY MR. PRICE
REDIRECT EXAM BY MR. JACOBS
RECROSS-EXAM BY MR. PRICE

P.
P.
P.
P.

BORIS TEKSLER
DIRECT EXAM BY MR. MUELLER
CROSS-EXAM BY MS. MAROULIS

P. 1951
P. 1964

4
5
6
7
8
9
10
11

1723
1769
1806
1813

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

1914
1917
1945
1948

1713

1

HAVE USED?

YOU COULD HAVE USED A MOTOROLA.

YOU

2

COULD HAVE USED AN LG TABLET.

3

SOMETHING THAT LOOKED A LOT CLOSER TO THE IPAD THAN

4

THAT?

5

A

NO, I DON'T AGREE WITH THAT.

6

Q

OKAY.

7

MARKET AND WHAT THEY LOOK LIKE?

8

A

YES.

9

Q

OKAY.

YOU COULD HAVE USED

SO HAVE YOU SEEN OTHER TABLETS IN THE

AND YOU DON'T AGREE THAT THE MOTOROLA

10

AND LG, WHICH WE'VE SEEN ALREADY HERE IN COURT AND

11

PASSED AROUND, YOU DON'T THINK THEY LOOK MORE LIKE

12

THE IPAD THAN THIS?

13

A

14

THE IPAD IN THE SENSE THAT THEY HAVE MORE ELEMENTS

15

OF THE ALLEGEDLY INFRINGING TRADE DRESS.

YES, I THINK, IN FACT, THEY DO LOOK MORE LIKE

SO IN CHOOSING THE CONTROL, THE IDEA IS

16
17

TO GET A PRODUCT THAT'S IN THE SAME MARKET THAT HAS

18

THE SAME BASIC FUNCTIONALITY, BUT DOES NOT INCLUDE

19

THE ALLEGEDLY INFRINGING TRADE DRESS.

20

Q

21

IS CONTENDING THAT MOTOROLA AND LG, THAT THOSE

22

TABLETS INFRINGE APPLE'S TRADE DRESS AND THAT'S WHY

23

YOU DIDN'T USE THEM?

24
25

WELL, ACTUALLY -- SO ARE YOU SAYING THAT APPLE

MR. JACOBS:

YOUR HONOR, THIS IS ASKING

FOR A LEGAL CONCLUSION FROM THIS WITNESS AND LACKS

1714

1

FOUNDATION.

2

THE COURT:

3

BY MR. PRICE:

4

Q

5

DIDN'T USE THEM.

SUSTAINED.

6

I'M ASKING YOUR UNDERSTANDING AS TO WHY YOU
OKAY?

IS IT YOUR UNDERSTANDING, WHICH WOULD BE

7

THE BASIS OF YOU NOT USING THE MOTOROLA AND THE LG,

8

IS IT YOUR UNDERSTANDING THAT YOU COULDN'T USE THEM

9

BECAUSE APPLE IS SAYING THAT THOSE INFRINGE ITS

10

TRADE DRESS?

11
12

MR. JACOBS:

YOUR HONOR, YOU JUST

SUSTAINED AN OBJECTION TO THIS SAME QUESTION.

13

THE COURT:

14

BY MR. PRICE:

15

Q

16

WAS 30.5, 24.5.

17

YOUR STUDY.

SUSTAINED.

18

IF WE CAN LOOK BACK AT THAT 30.5, I THINK IT
NO, I'M SORRY.

31.3.

THIS IS

I BELIEVE IT'S 31.3.

SO IS THIS THE STUDY -- THIS IS YOUR

19

RESULTS SHOWING THAT VIDEO, SHOWING THE NOOK, AND

20

YOU GOT 6 PERCENT IS POST-CONFUSION WITH THE

21

BRANDED, 19, AND YOU AVERAGED THOSE TO GET 12.

22

NOW, IF YOU REALLY WANTED TO COME UP WITH

23

AN AVERAGE THAT MEANT ANYTHING AS FAR AS THE REAL

24

WORLD, YOU'D HAVE TO WEIGHT THOSE NUMBERS; RIGHT?

25

A

WELL, I THINK I UNDERSTAND YOUR QUESTION, AND

1715

1

THE -- FIRST OF ALL, THE 12 WAS NOT -- IT ISN'T --

2

I DIDN'T AVERAGE THE TWO.

3

ACROSS THE TWO CONDITIONS AND THEY COME TO 12

4

PERCENT.

5

Q

I JUST SUMMED EVERYTHING

SO LET ME STOP YOU THERE.

6

SO THIS IS NOT AN OPINION YOU HAVE AS TO

7

NET CONFUSION RATE IN THE MARKET; RIGHT?

8

A

9

OFFERED IN MY REPORT IS THAT IT'S SOMEWHERE BETWEEN

10

6 PERCENT AND 19 PERCENT WERE ACTUALLY CONFUSED BY

11

MY TEST.

12

Q

13

QUOTE, "UNBRANDED" TABLETS WERE IN THE MARKET

14

COMPARED TO THE BRANDED ONES; RIGHT?

15

A

WELL, TWO COMMENTS.

16

Q

CAN YOU ANSWER YES OR NO?

17

CLOCK.

18

A

I'M SORRY.

19

Q

DO YOU KNOW HOW MANY --

20

A

ASK ME THE QUESTION AGAIN.

21

Q

DO YOU KNOW IN THE MARKETPLACE HOW MANY

22

UNBRANDED VERSUS BRANDED THERE WERE?

23

A

24

BRANDED THERE WERE.

25

Q

NO.

I BELIEVE THE CONFUSION -- THE OPINION I

AND THE 19 HERE, YOU DON'T KNOW HOW MANY,

ONE -BECAUSE I'M ON THE

I UNDERSTAND.

NO, I DON'T KNOW HOW MANY UNBRANDED VERSUS

NOW LET'S TALK ABOUT YOUR PHONE ASSOCIATION

1716

1

SURVEY.

2

AND, AGAIN, THIS IS NOT A SURVEY THAT

3

SHOWS CONSUMER CONFUSION AT ALL; CORRECT?

4

A

LET ME JUST MENTALLY SHIFT GEARS.

5

SO YOU'RE TALKING ABOUT NOW MY PHONE

6

ASSOCIATION STUDY?

7

Q

YES.

8

A

YES, THAT STUDY WAS NOT DESIGNED TO MEASURE

9

LIKELIHOOD OF CONFUSION.

THAT STUDY WAS DESIGNED

10

TO MEASURE ASSOCIATION.

11

Q

12

LOOK AT 3900.153, THIS IS THE QUESTION YOU ASKED.

13

3900.153.

14

SAMSUNG PHONES AND SAID, "DOES THE LOOK AND DESIGN

15

OF THIS PHONE BRING TO MIND OR CREATE ANY

16

ASSOCIATION FOR YOU WITH ANY OTHER PHONES?"

OKAY.

17

SO IF WE CAN LOOK AT YOUR STUDY AND

YOU SHOWED THE PICTURE OF ONE OF THE

DO YOU SEE THAT?

18

A

YES.

19

Q

IN THE DEMONSTRATIVE YOU SHOWED THE JURY,

20

WHICH WAS THE QUESTION YOU ASKED, YOU DIDN'T

21

UNDERLINE "OTHER," BUT "OTHER" WAS UNDERLINED IN

22

THE ACTUAL SURVEY?

23

A

YES.

24

Q

THE PEOPLE WHO READ THIS KNEW THEY WERE

25

SUPPOSED TO THINK OF SOME OTHER PHONE FOR

1717

1

ASSOCIATION; RIGHT?

2

A

3

YES, NO, OR DON'T KNOW, DOES IT BRING TO MIND ANY

4

ASSOCIATION?

5

THERE IS AN ASSOCIATION.

6

Q

7

FOR EXAMPLE, SHOWED YOU A PICTURE OF A COKE AND

8

SAID, "DOES THIS BRING TO MIND OR CREATE ANY

9

ASSOCIATION WITH ANY OTHER SOFT DRINK," YOU'D THINK

IT SUGGESTS THAT -- WE'RE ASKING THEM, FIRST,

AT THIS STAGE WE'RE NOT TELLING THEM

NOW, I WANT TO ASK YOU, IF SOMEONE ASKED YOU,

10

A LOT OF PEOPLE MIGHT SAY PEPSI; RIGHT?

BECAUSE

11

THEY'RE THE TWO BIGGEST PLAYERS IN THE MARKET?

12

A

13

AN OPINION ON HOW THAT MIGHT TURN OUT.

14

Q

15

PICTURE OF A BURGER KING, YOU KNOW, RESTAURANT AND

16

SAID, "DOES THE LOOK AND DESIGN OF THIS RESTAURANT

17

BRING TO MIND OR CREATE ANY ASSOCIATION WITH YOU OF

18

ANY OTHER RESTAURANT," THEY'RE QUITE LIKELY TO SAY

19

MCDONALD'S; RIGHT?

20

A

21

KNOW THAT TO BE THE CASE.

22

Q

YOU DON'T KNOW THAT FROM COMMON SENSE?

23

A

I DON'T KNOW THAT FROM COMMON SENSE AS YOU'VE

24

DESCRIBED IT.

25

Q

I HAVEN'T DONE THAT STUDY, SO I WOULDN'T HAVE

WELL, IF SOMEONE ASKED YOU, YOU KNOW, SHOWED A

AGAIN, I HAVEN'T DONE THAT SURVEY.

I DON'T

WELL, IF YOU DID FIND THAT, HYPOTHETICALLY,

1718

1

HYPOTHETICALLY YOU DID A SURVEY, "DOES THIS BURGER

2

KING RESTAURANT BRING TO MIND ANY OTHER FAST FOOD

3

RESTAURANT" AND THEY SAID MCDONALD'S, YOU CERTAINLY

4

COULDN'T CONCLUDE FROM THAT THAT THE ASSOCIATION

5

WAS BECAUSE THE DESIGNS ARE SIMILAR; RIGHT?

6

A

7

STUDY THAT I HAVEN'T CONDUCTED, SO --

8

Q

9

SAMSUNG AND APPLE ARE THE TWO LARGEST COMPETITORS

AGAIN, YOU'RE ASKING ME ABOUT A HYPOTHETICAL

WELL, IN THIS CASE, YOU UNDERSTAND THAT

10

IN THIS MARKET; RIGHT?

11

A

12

THIS MARKET.

13

Q

14

THAT IF SOMEONE SHOWED YOU A SAMSUNG PHONE AND SAID

15

"WHAT OTHER PHONE DOES THIS REMIND YOU OF," PEOPLE

16

ARE LIKELY TO SAY APPLE, AND VICE-VERSA, BECAUSE

17

THEY'RE THE TWO BIGGIES, JUST LIKE BURGER KING AND

18

MCDONALD'S AND COKE AND PEPSI?

19

A

I UNDERSTAND THEY'RE TWO LARGE COMPETITORS IN

AND YOU UNDERSTAND FROM KNOWING THE MARKET

PERHAPS.

20

BUT TO THE EXTENT THAT THAT'S TRUE,

21

THAT'S ALSO HAPPENING IN THE CONTROL.

SO IF THIS

22

WAS CREATING A DEMAND CHARACTERISTIC AS YOU

23

SUGGEST, THEN IT WOULD BE NETTED OUT IN THE CONTROL

24

CONDITION.

25

Q

SO NOW LET'S TALK ABOUT THE CONTROL.

THE

1719

1

CONTROL -- I THINK IF WE CAN SHOW 3900.129.

2

IN SELECTING A CONTROL, YOU COULD HAVE

3

SELECTED FROM A NUMBER OF PHONES; RIGHT?

4

A

YES.

5

Q

AND YOU INSTEAD -- WELL, OF THE PHONES, YOU

6

SELECTED A BLACKBERRY?

7

A

YES, A BLACKBERRY STORM.

8

Q

AND IF WE COULD LOOK AT EXHIBIT 24, I GUESS

9

PAGE 4.

AND AGAIN, A BLACKBERRY, YOU SAID THIS

10

CONTROL, THE BLACKBERRY CONTROL FOR THE FACT THAT

11

SAMSUNG AND APPLE JUST MIGHT BE NAMES ON THE TIPS

12

OF YOUR TONGUE.

13

IF SOMEONE SHOWED YOU A PICTURE OF A CAN

14

OF MOXIE, DO YOU THINK PEOPLE WOULD ASSOCIATE THAT

15

WITH COKE OR PEPSI?

16

A

A CAN OF WHAT?

17

Q

MOXIE.

18

A

I DON'T KNOW MOXIE.

19

Q

OKAY.

20

AND BY THE WAY, IN THE REAL PICTURE, YOU CAN SEE

21

BLACKBERRY ACROSS THE TOP HERE; RIGHT?

22

A

23

THE ACTUAL PRODUCTS THAT ARE IN THE MARKETPLACE AS

24

THEY WOULD LOOK.

25

Q

YES.

YOU DON'T KNOW MOXIE?

WELL, JUST AS WITH THE BLACKBERRY --

IN ALL OF THE PHONES, THE PICTURES ARE

AND BLACKBERRY AND RIM ARE, ARE PRETTY MUCH --

1720

1

AT THE TIME YOU TOOK THIS SURVEY, THEY'RE NOT ON

2

THE TONGUES OF MANY PEOPLE THINKING ABOUT

3

SMARTPHONES?

4

ALMOST DROPPING OUT OF THE MARKET; RIGHT?

5

A

6

PERIOD OF TIME OF THE SURVEY.

7

Q

YOU DON'T HAVE IT ONE WAY OR THE OTHER?

8

A

THAT'S CORRECT.

9

Q

AND IS IT JUST A COINCIDENCE THAT BOTH YOU AND

THEY ARE HAVING SERIOUS TROUBLE AND

I DON'T HAVE THAT UNDERSTANDING DURING THE

10

DR. PORET USED A NOOK AND THE BLACKBERRY STORM FOR

11

YOUR CONTROLS?

12

ABOUT THIS?

13

A

14

BEFORE I CAME TO TRIAL AND HEARD ABOUT IT OTHER

15

THAN I KNEW HE HAD DONE SURVEYS.

16

Q

17

BLACKBERRY AND THE NOOK TO USE AS THE CONTROLS?

18

A

19

MY STAFF FROM OUR REVIEW OF THE PRODUCTS THAT WERE

20

AVAILABLE.

21

Q

22

TABLET TO USE AS A CONTROL; RIGHT?

23

A

YES.

24

Q

YOU'RE SAYING THAT?

25

A

YES.

NO.

DID YOU GUYS GET TOGETHER AND TALK

I HAVE NO KNOWLEDGE OF MR. PORET'S WORK

DID YOU -- WERE YOU GIVEN THESE PHONES AND THE

NO.

I SELECTED THESE PHONES AND TABLETS WITH

SO YOU INTENTIONALLY SELECTED THE NOOK AS THE

1721

1

Q

AND YOU INTENTIONALLY SELECTED THE BLACKBERRY

2

TO USE AS THE CONTROL; RIGHT?

3

A

THE BLACKBERRY STORM.

4

Q

AND YOU INTENTIONALLY DECIDED, IN THOSE

5

VIDEOS, NOT TO SHOW THE COMPLETE PRODUCT, THE

6

SAMSUNG TABLET?

7

A

8

UNDERSTANDING FROM THE COMPLAINT, THAT -- AND

9

DISCUSSION WITH COUNSEL, THAT THE FRONT AND THE

THAT WAS YOUR DECISION?

WELL, IT WAS MY DECISION BASED ON MY

10

SIDE VIEWS WAS WHAT MATTERED IN THE TABLET SETTING.

11

Q

12

TESTED JUST TWO OF THE PHONES?

13

A

14

OF PHONES IS.

15

Q

16

THAT MS. KARE SAID HAD A CHIN, THE DROID CHARGE?

17

A

AND WITH RESPECT TO THE SAMSUNG PHONES, YOU

YES, I TESTED TWO OF THE, WHATEVER THE NUMBER

SO, FOR EXAMPLE, YOU DIDN'T TEST THE PHONE

NO, I DIDN'T TEST THAT SPECIFIC DEVICE.

18

MR. PRICE:

THANK YOU, YOUR HONOR.

19

THE COURT:

ALL RIGHT.

THE TIME IS

MR. PRICE:

I'M SORRY.

I MEANT TO MOVE

20
21
22
23
24
25

10:19.

IN THE NOKIA -- I MEAN THE NOOK.
MR. JACOBS:

YOUR HONOR, AGAIN, THAT IS

LISTED ON THE LIST OF DEMONSTRATIVES.
THE COURT:

IS THAT 2526?

1963

1

THE COURT:

ALL RIGHT.

OVERRULED.

2

BY MR. MUELLER:

3

Q

4

2 IN YOUR BINDER, AND THIS IS PDX 32.

5

ALSO PUT THAT ON THE SCREEN.

MR. TEKSLER, IF YOU COULD, PLEASE TURN TO TAB

6

IF WE COULD

MR. TEKSLER, THIS SHOWS SEVEN PATENT

7

COVERS.

8

A

I AM.

9

Q

WHAT ARE THEY?

10

A

THESE ARE THE PATENTS --

11
12

ARE YOU FAMILIAR WITH THESE PATENTS?

MS. MAROULIS:
OPINION TESTIMONY.

OBJECTION, CALLS FOR

LACKS FOUNDATION.

13

THE COURT:

14

MR. MUELLER:

WHAT ARE YOU ASKING?
I MERELY WANTED TO GET

15

ACROSS THAT THESE ARE THE ASSERTED PATENTS IN THIS

16

CASE.

17
18

THE COURT:

IS THERE ANY QUESTION ABOUT

THAT SO FAR?
MR. MUELLER:

19

I CAN REPHRASE IF YOU -- IF

20

I MIGHT, YOUR HONOR.

21

Q

ARE THESE THE SEVEN ASSERTED PATENTS?

22

A

YES, THEY ARE.

23

Q

WHERE DO THESE FALL, THESE SEVEN PATENTS,

24

WITHIN THE CATEGORIES YOU DESCRIBED EARLIER IN THE

25

APPLE PORTFOLIO?

1964

1

A

CERTAINLY.

2

AND ALL FOUR DESIGN PATENTS FALL INTO APPLE'S

3

UNIQUE USER EXPERIENCE.

4

SO THERE'S FOUR DESIGN PATENTS,

AND THEN THE THREE UTILITY PATENTS THAT

5

ARE LISTED HERE GENERALLY RELATE TO USER INTERFACE

6

AND FEATURES THAT WE WOULD ALSO PUT IN THAT SAME

7

CATEGORY OF APPLE'S UNIQUE USER INTERFACE, OR USER

8

EXPERIENCE.

9

MR. MUELLER:

THANK YOU, SIR.

10

NO FURTHER QUESTIONS.

11

THE COURT:

12

ALL RIGHT.

THE TIME IS NOW

4:22.

13

CROSS-EXAMINATION

14

BY MS. MAROULIS:

15

Q

GOOD AFTERNOON, MR. TEKSLER.

16

A

GOOD AFTERNOON.

17

Q

MY NAME IS VICTORIA MAROULIS.

18

SAMSUNG.

19

AFTERNOON, I'LL BE VERY BRIEF.

20

HOW ARE YOU?

I'M COUNSEL FOR

AND SEEING HOW IT'S LATE FRIDAY

YOU TESTIFIED THAT YOU PREPARED A

21

POWERPOINT FOR A MEETING BETWEEN APPLE AND SAMSUNG

22

IN AUGUST 2010.

23

A

I BELIEVE THAT WAS KEY NOTE, BUT YES.

24

Q

AND YOU DIDN'T PERSONALLY ATTEND THE MEETING

25

IN QUESTION; RIGHT?

IS THAT CORRECT?

1965

1

A

NO, I DID NOT.

2

Q

YOU CANNOT TELL US FROM YOUR PERSONAL

3

KNOWLEDGE ANYTHING ABOUT THAT MEETING AND WHAT WAS

4

PRESENTED; CORRECT?

5

A

6

SAMSUNG THE PRESENTATION AND, IN SUBSEQUENT

7

MEETINGS WITH SAMSUNG, WE REFERRED BACK TO THAT

8

PRESENTATION AND TO THE DIALOGUE THAT HAPPENED THAT

9

DAY.

I KNOW THAT THAT WAS PRESENTED.

WE LATER SENT

SO THAT'S --

10

Q

BUT FROM PERSONAL KNOWLEDGE, YOU DO NOT KNOW

11

WHAT OCCURRED AT THAT MEETING AND WHAT WAS SHOWN

12

AND WHAT WAS NOT SHOWN; CORRECT?

13

A

OKAY, CERTAINLY.

14

Q

AND THE POWERPOINT PRESENTATION THAT YOU

15

PREPARED IS EXHIBIT 52 IN EVIDENCE; CORRECT?

16

YOU CAN LOOK IN YOUR CROSS-EXAMINATION BINDER AT

17

TAB 52, DO YOU SEE THAT?

18

A

I DO.

19

Q

IF YOU LOOK AT PAGES 12 THROUGH 14, DO YOU SEE

20

A VARIETY OF PATENTS LISTED THERE?

21

A

YES, I DO.

22

Q

OKAY.

23

ASKED YOU ABOUT THE SEVEN PATENTS ASSERTED IN THIS

24

CASE; CORRECT?

25

A

IF

AND DO YOU REMEMBER, ON DIRECT, JOE

YES, THAT'S CORRECT.

1966

1

Q

FOUR OF THEM WERE DESIGN PATENTS?

2

A

YES, THAT'S CORRECT.

3

Q

ONE OF THOSE DESIGN PATENT PATENTS WAS D'677;

4

RIGHT?

5

A

I BELIEVE THAT'S CORRECT, YES.

6

Q

THAT PATENT IS NOWHERE IN THIS PRESENTATION;

7

IS THAT CORRECT?

8

A

IT'S NOT ENUMERATED.

9

Q

IT'S NOT MENTIONED AT ALL AS A PATENT, THE

10

D'677; RIGHT?

11

A

12

IT'S NOT ENUMERATED IN THE PRESENTATION.

13

SO I THINK WHAT I WOULD SAY IS I AGREE THAT

WHEN WE WERE PREPARING THE, THE POINTS

14

THAT WE WANTED TO GET ACROSS -- AND I BELIEVE THAT

15

WAS BACK IN SLIDE 17 OF THIS PRESENTATION -- WE DID

16

SAY THAT THERE WAS A REMARKABLE SIMILARITY BETWEEN

17

THE PRODUCTS AND, IN DOING SO, WE DID TALK ABOUT

18

DESIGN PATENTS.

19

Q

20

WORD "DESIGN PATENT" AT ALL; CORRECT?

21

A

I AGREE.

22

Q

AND DESIGN PATENT '087 THAT YOU REVIEWED WITH

23

COUNSEL IS ALSO NOT MENTIONED IN THIS PRESENTATION;

24

IS THAT RIGHT?

25

A

SIR, THIS PRESENTATION DOES NOT MENTION THE

I AGREE.

1967

1

Q

AND DESIGN PATENT '889 IS SIMILARLY NOT

2

MENTIONED IN THIS PRESENTATION; CORRECT?

3

A

I AGREE.

4

Q

AND SO IS D'305, THAT IS ALSO NOT MENTIONED IN

5

THE PRESENTATION; RIGHT?

6

A

I AGREE.

7

Q

YOU ALSO LOOKED AT SEVERAL UTILITY PATENTS

8

WITH COUNSEL; IS THAT RIGHT?

9

A

I DID.

10

Q

ONE OF THEM WAS '163 PATENT; CORRECT?

11

A

I BELIEVE THAT'S CORRECT, YES.

12

Q

THAT PATENT IS NOT ENUMERATED ANYWHERE IN THIS

13

PRESENTATION WE JUST LOOK AT; RIGHT?

14

A

THAT'S CORRECT.

15

Q

AND THE '915 PATENT THAT YOU ALSO LOOKED AT IN

16

YOUR DIRECT TESTIMONY IS ALSO NOWHERE MENTIONED;

17

CORRECT?

18

A

THAT'S CORRECT.

19

Q

THIS PRESENTATION THAT YOU PREPARED FOR

20

SAMSUNG DOES NOT HAVE ANY MENTION OF TRADE DRESS;

21

RIGHT?

22

A

23

CATEGORY OF BULLET POINTS THAT WE TALKED ABOUT.

24

Q

25

KNOW WHAT A REGISTERED TRADE DRESS IS; CORRECT?

AGAIN, I THINK I WOULD PUT IT INTO THE SAME

SIR, YOU'RE A LICENSING PROFESSIONAL.

YOU

1968

1

A

I AM, YES.

2

Q

SO NOWHERE IN THIS PRESENTATION IS THERE

3

MENTION OF A REGISTERED TRADE DRESS FOR AN IPHONE;

4

CORRECT?

5

A

I AGREE THAT THERE IS NOT.

6

Q

AND THERE'S NO MENTION OF UNREGISTERED TRADE

7

DRESS FOR IPHONE AS WELL; CORRECT?

8

A

I AGREE THAT IT'S NOT WRITTEN ON THE SLIDES.

9

Q

AND THERE'S NO UNREGISTERED TRADE DRESS FOR

10

IPAD; CORRECT?

11

A

I AGREE.

12

Q

EXHIBIT 52 DOESN'T SAY ANYWHERE THAT APPLE

13

WOULD NOT LICENSE ITS DESIGN PATENTS TO SAMSUNG; IS

14

THAT RIGHT?

15

A

I AGREE.

16

Q

AND THE PRESENTATION DOES NOT IDENTIFY ANY

17

UTILITY PATENTS THAT APPLE WOULD NOT LICENSE TO

18

SAMSUNG; IS THAT RIGHT?

19

A

I AGREE.

20

Q

PLEASE TAKE A LOOK AT EXHIBIT DX 586 IN YOUR

21

BINDER.

22

SAMSUNG IN OCTOBER 2010; CORRECT?

23

A

YES, THAT'S CORRECT.

24

Q

YOU PREPARED IT YOURSELF?

25

A

I DID.

THIS IS A PRESENTATION THAT YOU MADE TO

1969

1

Q

AS PART OF DOING BUSINESS AS A LICENSING

2

OFFICER AT APPLE; CORRECT?

3

A

YES, THAT'S CORRECT.

4
5

MS. MAROULIS:

YOUR HONOR, I MOVE EXHIBIT

586 INTO EVIDENCE.

6

MR. MUELLER:

NO FURTHER OBJECTIONS, YOUR

7

HONOR, SUBJECT TO THE LIMITING INSTRUCTION THAT

8

YOUR HONOR MENTIONED.

9
10

THE COURT:

RIGHT.

AND THERE IS A --

THIS IS ADMITTED.

11

(WHEREUPON, DEFENDANT'S EXHIBIT NUMBER

12

586, HAVING BEEN PREVIOUSLY MARKED FOR

13

IDENTIFICATION, WAS ADMITTED INTO

14

EVIDENCE.)

15

THE COURT:

YOU MAY CONSIDER THIS -- YOU

16

MAY NOT CONSIDER THIS EVIDENCE TO PROVE OR DISPROVE

17

THE VALIDITY OR INVALIDITY OF THE CLAIM OR THE

18

AMOUNT OF THE DISPUTED CLAIM.
HOWEVER, YOU MAY CONSIDER THIS EVIDENCE

19
20

FOR SOME OTHER PURPOSE, FOR EXAMPLE, WHETHER OR NOT

21

SAMSUNG LACKED NOTICE OF APPLE'S INFRINGEMENT

22

CLAIMS.

23

OKAY.

24

BY MS. MAROULIS:

25

Q

GO AHEAD, PLEASE.

MR. TEKSLER, NOWHERE IN EXHIBIT 586 DOES APPLE

1970

1

IDENTIFY ANY PATENTS; CORRECT?

2

A

THAT'S CORRECT.

3

Q

AND NOWHERE IN THIS WRITTEN PRESENTATION DOES

4

IT SAY THAT APPLE WOULD NOT LICENSE ITS DESIGN

5

PATENTS TO SAMSUNG; CORRECT?

6

A

7

THAT WE TALKED ABOUT THAT AND THAT THERE WAS A

8

SPECIFIC BULLET, I BELIEVE, ON ONE OF THE PAGES

9

THAT ADDRESSED THAT.

I'M NOT SURE THAT I AGREE WITH THAT.

I KNOW

10

Q

11

ITSELF.

12

NOWHERE IN THIS DOCUMENT, 586, IS THERE A STATEMENT

13

THAT APPLE WOULD NOT LICENSE DESIGN PATENTS TO

14

SAMSUNG?

15

A

16

SPECIFIC APPLE PROPRIETARY FEATURES TO BE

17

DISCUSSED.

18

SIR, I'M NOT ASKING YOU ABOUT THE MEETING
I'M ASKING YOU ABOUT THE PRESENTATION.

I THINK THERE IS A BULLET IN HERE THAT SAYS

AND IN THAT CONSTRUCT, WE TALKED ABOUT

19

NOT HAVING THE ABILITY TO CLONE OUR PRODUCTS.

20

Q

21

PRESENTATION, THERE'S NO STATEMENT THAT APPLE WOULD

22

NOT LICENSE ITS DESIGN PATENTS TO SAMSUNG; CORRECT?

23

A

I AGREE.

24

Q

AND NOWHERE IN THIS DOCUMENT DOES APPLE SAY

25

THAT IT WOULD NOT LICENSE CERTAIN UTILITY PATENTS

AGAIN, WITHIN THE CONTEXT OF THIS

1971

1

TO SAMSUNG; CORRECT?

2

A

3

MADE EARLIER, YES.

4

Q

SUBJECT TO THE SAME, YOU KNOW, POINT THAT I

LET'S PUT UP 586, PAGE 13, PLEASE.

5

AT THE TOP OF THE PAGE, IT SAYS "WE WILL

6

PROVIDE SAMSUNG WITH A NUMBER OF OPTIONS FOR

7

OBTAINING A COST-EFFECT LICENSE TO OUR PATENT

8

PORTFOLIO."

9

DID I READ THIS CORRECTLY?

10

A

YES, THAT'S CORRECT.

11

Q

AND THIS REFERS TO LICENSING PATENT PORTFOLIO;

12

RIGHT?

13

A

YES, THAT'S CORRECT.

14

Q

IT DOES NOT SAY "PATENT PORTFOLIO EXCEPT

15

DESIGN PATENTS."

16

A

NO, I AGREE THE SLIDE DOESN'T SAY THAT.

17

Q

AND IT DOESN'T SAY "EXCEPT FOR CERTAIN UTILITY

18

PATENTS."

19

A

THAT'S CORRECT.

20

Q

IN EXHIBIT 586, APPLE PROPOSED CERTAIN

21

DISCOUNTS ON THE LICENSE FEES BASED ON CERTAIN

22

ELEMENTS; CORRECT?

23

A

YES, THAT'S CORRECT.

24

Q

AND ONE OF THOSE ELEMENTS WERE PROPRIETARY,

25

SO-CALLED PROPRIETARY FEATURES?

CORRECT?

CORRECT?

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 11, 2012