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

Filing 2130

Declaration Reply Declaration Of John R. Hauser In Support Of Apples Motion For A Permanent Injunction filed byApple Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Jacobs, Michael) (Filed on 11/9/2012)

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Exhibit G Confidential Page 1 1 2 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ----------------------------------------X APPLE INC., a California corporation, 4 PLAINTIFF, 5 -against6 7 8 SAMSUNG ELECTRONIC CP., LTD., a Korean business entity; SAMSUNG ELECTRONICS AMERICAN, INC., A New York Corporation; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, 9 10 11 12 13 14 15 DEFENDANTS. ---------------------------------------X REVISED ***CONFIDENTIAL*** DEPOSITION OF TULIN ERDEM New York, New York Wednesday, November 7, 2012 16 17 18 19 20 21 22 23 24 Reported by: Rebecca Schaumloffel, RPR, CLR Job No: 55304 25 TSG Reporting - Worldwide (877) 702-9580 Confidential Page 21 1 2 3 T. ERDEM of demand is for Samsung smartphones? A. Based on the research, the ones 11:20AM 11:20AM 4 that are, again, often cited as important 11:20AM 5 ones tend to be things that -- actually, you 11:20AM 6 can even read. 11:20AM 7 paragraph that lists from Samsung documents 11:20AM 8 what they think consumers look at. 11:20AM 9 example, in their case, brand is a driver. 10 Q. Can I refer -- there is a For Just to be clear, I'm not asking 11:21AM 11:21AM 11 for what features generally are important or 11:21AM 12 what the top three features or top seven 11:21AM 13 features are. 11:21AM 14 an opinion on what the single primary driver 11:21AM 15 of demand is for a smartphone? 11:21AM 16 A. I'm simply asking, do you have I'm saying that kind of question, 11:21AM 17 single primary demand factor, there is no 11:21AM 18 single primary demand factor in most 11:21AM 19 categories, including here, although there 11:21AM 20 might be some consumers where one single 11:21AM 21 thing makes them to decide. 11:21AM 22 Q. So it is your opinion that there 11:21AM 23 is no single primary driver of demand for 11:21AM 24 smartphones? 11:21AM 25 A. 11:21AM If you want me to single out one TSG Reporting - Worldwide (877) 702-9580 Confidential Page 22 1 T. ERDEM 2 attribute that determines demand and not 11:21AM 3 others, I can't name such a single attribute. 11:21AM 4 Q. And again, you haven't tested for 11:22AM 5 that in terms of your own primary research, 11:22AM 6 right? 11:22AM 7 A. I haven't done my own primary 11:22AM I'm relying on, as I said, both 11:22AM 8 research. 9 Apple and Samsung internal marketing research 11:22AM where they cite multiple attributes. 11:22AM 10 11 Q. You devote some time in your 11:22AM 12 Declaration to this distinction between 11:22AM 13 features and sub-features, correct? 11:22AM 14 A. Um-hum. 11:22AM 15 Q. I believe that you characterize 11:22AM 16 the patents at issue in this case, the 11:22AM 17 patents and features for the three utility 11:22AM 18 patents, the '163, the '915, the '381, as 11:22AM 19 relating to sub-features, correct? 11:22AM 20 A. I did mention -- I did refer them 11:22AM 21 as sub-features, not to say 11:22AM 22 sub-sub-sub-features. 11:22AM 23 asked me, for example, whether ability to 11:22AM 24 listen to music or ability to look at 11:22AM 25 pictures, whether they drive demand. Just a minute ago, you TSG Reporting - Worldwide Even (877) 702-9580 11:22AM Confidential Page 23 1 T. ERDEM 2 those are a sub-feature. 3 defined patents are kind of such a granular 11:23AM 4 level, it is like sub-sub-sub-sub-features. 11:23AM 5 6 Q. So the narrowly Is having a clock on a smartphone a sub-feature, in your view? 7 A. that. 9 11:23AM 11:23AM It depends on how consumers view 8 11:22AM what consumers view -- I didn't see any research in terms of 11:23AM 11:23AM 11:23AM 10 Q. What about -- 11:23AM 11 A. -- in terms of a clock. 11:23AM 12 Q. Sorry. 11:23AM 13 A. Yes. 11:23AM 14 Q. I'm going to try hard not to cut 11:23AM 15 you off. 16 17 18 19 20 Are you done? 11:23AM As between a world clock -- do you know what a world clock is? A. 11:23AM Just one that shows different time zones in different -- okay. 11:23AM 11:23AM 21 world clock as distinct from an ordinary 11:23AM 22 clock, do you have a view as to whether the 11:23AM 23 world clock would be a sub-feature of the 11:23AM 24 phone? 11:23AM A. Correct. 11:23AM As between use of a 25 Q. 11:23AM Again, it would depend on how TSG Reporting - Worldwide (877) 702-9580 11:23AM Confidential Page 25 1 T. ERDEM 2 are things that are, like in the smartphone 11:25AM 3 category, connectivity, ease of use, these -- 11:25AM 4 if you want, you can use the term 11:25AM 5 "mega-attributes." 11:25AM 6 Things like, does it have a clock 11:25AM 7 or not, these are not as big features but you 11:25AM 8 can call them features in terms of whether it 11:25AM 9 has a clock or not. 11:25AM Whether it has -- what 10 else could a phone have? 11 that sort of most clocks have are some 11:25AM 12 functional features of that product. 11:25AM 13 Q. All these things Do you have a view as to whether 11:25AM 11:25AM 14 a patented feature of a multi-touch phone can 11:25AM 15 ever be the primary driver of demand? 11:25AM 16 17 18 A. It depends what that patented 11:25AM feature is. 11:25AM Q. 11:25AM As you sit here today, are you 19 able to think of such a feature that could in 11:25AM 20 fact constitute a primary driver of demand 11:26AM 21 for a multi-touch smartphone? 11:26AM 22 MR. WATSON: Hang on one second. 11:26AM 23 Can you clarify something? 24 prior question you referred to "the" 11:26AM 25 primary driver of demand. 11:26AM TSG Reporting - Worldwide In your In your (877) 702-9580 11:26AM Confidential Page 26 1 T. ERDEM 2 second question, you said "a" primary 11:26AM 3 driver of demand. 11:26AM 4 you want her to speak to? 5 MR. HUNG: Which of those do 11:26AM I will restate the 11:26AM 6 question. 11:26AM 7 Q. 11:26AM As you sit here today, are you 8 able to think of a feature that could 11:26AM 9 constitute the primary driver of demand for a 11:26AM smartphone? 11:26AM 11 A. For a patent feature? 11:26AM 12 Q. Correct. 11:26AM 13 A. I'm not aware of any patent 11:26AM 10 14 feature that might drive the demand. 15 I do research, maybe I was given or I do my 11:26AM 16 own research, maybe there is. 11:26AM 17 what is all the patent features, because I 11:26AM 18 looked only at those three patents. 11:26AM 19 don't know -- 11:26AM Q. 11:26AM 20 But if I don't know So I And I understand there was a 11:26AM 21 limitation on what you reviewed or did not 11:26AM 22 review in the month that you have worked on 11:27AM 23 this case. 11:27AM 24 can you conceptualize, can you think of a 11:27AM 25 patented feature that would constitute the 11:27AM My question is with respect to, TSG Reporting - Worldwide (877) 702-9580 Confidential Page 27 1 2 T. ERDEM primary driver of demand for a smartphone? 3 A. At this point, I can't really. 11:27AM I 11:27AM 4 mean, I can't say for -- this is going out of 11:27AM 5 the smartphone category, but let's say if 11:27AM 6 pharmaceutical company comes up with a new 11:27AM 7 drug that cures cancer and then patents that, 11:27AM 8 I can see that drives demand for that 11:27AM 9 company. 11:27AM 10 I cannot right now from the top 11:27AM 11 of my head think of a similar thing in a 11:27AM 12 smartphone that is patented and it 11:27AM 13 corresponds to kind of curing cancer. 11:27AM 14 Q. Part of today's 11:27AM 15 exercise, again, is understanding what your 11:28AM 16 opinions are, what your opinions aren't, what 11:28AM 17 work you have done and what work you haven't 11:28AM 18 done. 11:28AM 19 Let's be clear. Did you conduct any research with 11:28AM 20 respect to running a study with respect to 11:28AM 21 determining what the primary patented feature 11:28AM 22 would be that drives demand for a smartphone? 11:28AM 23 A. I haven't done my own primary 11:28AM 24 research in the context of like collecting 11:28AM 25 data and doing something like a conjoint. 11:28AM TSG Reporting - Worldwide (877) 702-9580 Confidential Page 33 1 2 T. ERDEM start again. 3 11:34AM Did you speak with anyone at 11:34AM 4 Samsung in preparing your opinion for this 11:34AM 5 case? 11:34AM 6 A. No. 11:34AM 7 Q. Did you speak with anyone at 11:34AM 8 Apple in preparing your opinions for this 11:34AM 9 case? 11:35AM 10 A. No. 11:35AM 11 Q. Did you ask to speak to anyone at 11:35AM 12 Samsung in preparing your opinions for this 11:35AM 13 case? 11:35AM 14 A. No. 11:35AM 15 Q. Did you speak with any consumers 11:35AM 16 in preparing your opinions for this case? 11:35AM 17 A. I didn't do any primary research. 11:35AM 18 Q. Did you ask anyone whether the 11:35AM 19 patents and features in the '163 patent was a 11:35AM 20 factor in their purchase of a smartphone? 11:35AM 21 A. No, because if -- unless you do a 11:35AM 22 study, one person's opinion wouldn't matter 11:35AM 23 in any case. 11:35AM 24 plus I wasn't even allowed to ask. 25 not public information, I guess. Wouldn't be a scientific -- TSG Reporting - Worldwide This is (877) 702-9580 11:35AM 11:35AM Confidential Page 34 1 2 T. ERDEM Q. Samsung's -- the fact that the 11:35AM 3 jury found at least for some products Samsung 11:35AM 4 infringes the '163 patent, you believe is a 11:35AM 5 confidential matter? 11:35AM 6 A. The infringement information is 11:35AM 7 out, I think. 8 discuss the details of the case. Unless I'm 11:36AM 9 conducting on -- in the context of the case, 11:36AM 10 my own research, I wouldn't discuss it with 11:36AM 11 people. 11:36AM 12 But obviously, I wouldn't Plus it is kind of difficult to 11:36AM 11:36AM 13 differentiate what is public information, 11:36AM 14 what is not at this -- it is more cautious to 11:36AM 15 err on the conservative side and not to talk 11:36AM 16 about it. 11:36AM 17 Q. Do you have any empirical 11:36AM 18 evidence that consumers were not driven to 11:36AM 19 purchase Samsung products because of the 11:36AM 20 infringing technology relating to the '163, 11:36AM 21 the '381 and the '915 patents? 11:36AM 22 A. There was no empirical evidence 11:36AM 23 in everything I reviewed that links the 11:36AM 24 patented features to demand except for an 11:37AM 25 attempt by the Hauser study, and we can 11:37AM TSG Reporting - Worldwide (877) 702-9580 Confidential Page 35 1 T. ERDEM 2 discuss that, combined with my expertise in 11:37AM 3 decision making and all the frameworks that 11:37AM 4 were verified in many different contexts, 11:37AM 5 which show us patterns in terms of how 11:37AM 6 consumers behave in such markets, like they 11:37AM 7 don't go through these very granular-level 11:37AM 8 features and then these very granular 11:37AM 9 features driving their demand. 11:37AM The totality 10 of that analysis made me to opinionate the 11:37AM 11 way I did. 11:37AM 12 Q. Did you perform any Internet 11:37AM 13 research in preparing your opinions for this 11:37AM 14 case? 11:37AM 15 16 17 A. No. I didn't do Internet research in terms of to base my opinion on. Q. Did you do any research in terms 11:37AM 11:37AM 11:37AM 18 of periodicals, newspapers, magazines, 11:37AM 19 articles? 11:38AM 20 A. Not in terms of linking the 11:38AM 21 patented features to -- there is -- there 11:38AM 22 wouldn't be that kind of research out there. 11:38AM 23 Q. Did you do any research on the 11:38AM 24 Internet to determine whether in fact 11:38AM 25 customers even liked the features patented in 11:38AM TSG Reporting - Worldwide (877) 702-9580 Confidential Page 36 1 2 3 T. ERDEM the '915, '381 and '163 patents? A. 11:38AM Well, everything I relied on in 11:38AM 4 terms of the opinions expressed are already 11:38AM 5 in Exhibit 2, so it is constrained by those. 11:38AM 6 7 8 9 Q. Were you given a set of materials 11:38AM to rely on in this case? A. 11:38AM I asked them to send me all the 11:38AM relevant marketing research documents, like 11:38AM 10 everything, so I had basically everything. 11 had given -- I was given declarations, 11:38AM 12 reports, like I read Hauser report as well as 11:38AM 13 Vince Declaration. 11:39AM 14 15 16 Again, they are listed in 11:38AM 11:39AM Exhibit 2. 11:39AM Did you feel it was important or 11:39AM 17 unimportant to do any Internet searching to 11:39AM 18 determine whether consumers liked the 11:39AM 19 patented features or not? 11:39AM 20 Q. I A. I did, for example, background 11:39AM 21 research in terms of not to opinionate on 11:39AM 22 this, but to familiarize myself with the 11:39AM 23 terms like Android platform, et cetera. 24 it was just that kind of -- so I know the 11:39AM 25 terms that are used in all these forums. 11:39AM TSG Reporting - Worldwide (877) 702-9580 So 11:39AM Confidential Page 75 1 T. ERDEM 2 level, people making, aha, this must be with 12:31PM 3 a high price. 12:32PM 4 am talking about. 5 Q. So that's the kind of thing I 12:32PM Let me quickly turn to 12:32PM 6 paragraph 46 of your Declaration. 7 first line of paragraph 46 you state, 12:32PM 8 "Consequently, the consumer research 12:32PM 9 available from Apple and Samsung has been 12:32PM 10 conducted in a manner that it will rarely, if 12:32PM 11 ever, be possible to link a specific patent 12:32PM 12 of the types at issue here to a feature 12:32PM 13 attribute contained in the consumer research, 12:32PM 14 especially in a manner that would reasonably 12:32PM 15 permit one to conclude that the patents have 12:32PM 16 any impact on consumer demand." 12:32PM 17 In the 12:32PM Did I read that correctly? 12:33PM 18 A. Yes, you read it correctly. 12:33PM 19 Q. In your view, is it possible to 12:33PM 20 perform consumer research that would link a 12:33PM 21 specific patent of the types at issue here to 12:33PM 22 a feature attribute contained? 12:33PM 23 A. What I have seen in the research 24 done, it wasn't done. 25 be done. Hypothetically, it can It could, but one needs to be TSG Reporting - Worldwide (877) 702-9580 12:33PM 12:33PM 12:33PM Confidential Page 76 1 2 3 T. ERDEM extremely difficult -- extremely careful. Q. Did you run any tests to check or 12:33PM 12:33PM 4 determine whether the features excluded in 12:33PM 5 Hauser's conjoint survey bias the estimates? 12:33PM 6 A. No, I haven't done any, you know, 12:33PM 7 primary research to test Hauser's results. 12:33PM 8 That was Wind's job. 12:33PM 9 Q. Your report -- I understand that 12:33PM 10 you are adopting Dr. Wind's opinions. 11 Declaration does not include 12:34PM 12 characterizations, for lack of a better word, 12:34PM 13 of how one should have run the Hauser 12:34PM 14 conjoint study, correct? 12:34PM Your 12:33PM 15 A. Can you repeat that? 12:34PM 16 Q. Sure. 12:34PM Your report does not specifically 12:34PM 17 18 include suggested improvements to 12:34PM 19 Dr. Hauser's conjoint study separate and 12:34PM 20 apart from your adoption of Dr. Wind's 12:34PM 21 opinions? 12:34PM 22 23 A. No. My report itself doesn't cover it. 12:34PM 12:34PM 24 Q. Do you know who Art Sukumar is? 12:34PM 25 A. I heard it was one of the 12:34PM TSG Reporting - Worldwide (877) 702-9580 Confidential Page 77 1 2 T. ERDEM witnesses, but I don't know. 3 4 Q. 12:34PM Had you heard of him before your involvement in this case? 12:34PM 12:34PM 5 A. No. 12:34PM 6 Q. You don't know whether he is an 12:34PM 7 academic or a -- 12:34PM 8 A. I don't know. 12:34PM 9 Q. -- statistician or economist? 12:34PM 10 A. He is not one of the usual 12:34PM 11 players for me, people like Russ or John or 12:35PM 12 Jerry. 12:35PM 13 Q. Do you know whether he performed 12:35PM 14 a conjoint study analysis for Samsung in this 12:35PM 15 case? 12:35PM 16 A. I don't know. 12:35PM 17 Q. You don't know one way or the 12:35PM 18 other? 12:35PM 19 A. No. 12:35PM 20 Q. So I take it that you didn't 12:35PM 21 review any expert report that Dr. Sukumar 12:35PM 22 might have done in this case? 12:35PM 23 24 25 A. No, I haven't reviewed a report from him. Q. 12:35PM 12:35PM If Dr. Sukumar's -- strike that. TSG Reporting - Worldwide (877) 702-9580 12:35PM Confidential Page 164 1 T. ERDEM 2 Q. 3 proposition. 4 your qualifications. 5 I am asking just as a general I understand you are qualified, 02:29PM 02:29PM 02:29PM As a general proposition, is it 02:29PM 6 true that the demand curve can be 02:29PM 7 characterized as a willingness-to-pay curve? 02:29PM 8 9 MR. WATSON: Objection. Asked 02:29PM and answered. 02:29PM A. There is a correspondence to it 02:29PM 11 if willingness to pay is correctly defined 02:29PM 12 and captured. 02:29PM 10 13 Q. That's my answer. Earlier, we talked about this 02:29PM 14 concept of transactional data. 15 this concept of secondary research. 16 recall that? 02:29PM 17 A. Yes. 02:29PM 18 Q. I had asked you, when you don't 02:30PM 19 have public surveys that give you granular 02:30PM 20 data, don't you typically perform your own 02:30PM 21 primary research, when writing your academic 02:30PM 22 papers, as an example. 02:30PM 23 discussion? 02:30PM A. 02:30PM 24 25 You mentioned Do you Do you recall that We talked about that you can have -- if you don't have transactional data, TSG Reporting - Worldwide (877) 702-9580 02:29PM 02:29PM 02:30PM Confidential Page 165 1 T. ERDEM 2 you don't have any other data, and you have a 02:30PM 3 specific question that can be answered by you 02:30PM 4 collecting your own data, you can do so. 02:30PM 5 Q. And that's exactly what I was 02:30PM 6 going to ask you. 7 surveys and you don't have secondary data, 02:30PM 8 transactional data, one commonly or 02:30PM 9 frequently does perform your own primary 02:30PM 10 research to get the granular data that one 02:30PM 11 might need, right? 02:30PM 12 When you don't have public MR. WATSON: 13 A. 02:30PM ambiguous. 14 Vague and 02:30PM 02:30PM Again, it depends. Because in 02:30PM 15 some contexts, it might be not possible. 16 some contexts, it is possible. 17 define the exact context, whether it is 02:30PM 18 doable or not. 02:31PM 19 Q. In We have to Here, you did not conduct your 02:30PM 02:30PM 02:31PM 20 own primary research, I believe you stated in 02:31PM 21 part due to time, correct? 02:31PM 22 23 24 25 A. That's correct. I haven't done any primary research. MR. HUNG: 02:31PM 02:31PM Thank you for your time, Dr. Erdem. TSG Reporting - Worldwide 02:31PM 02:31PM (877) 702-9580 Confidential Page 166 1 T. ERDEM 2 THE WITNESS: 3 THE VIDEOGRAPHER: 4 concludes today's deposition. 5 time is 2:31 p.m.; we are off the 02:31PM 6 record. 02:31PM 7 Thank you. 02:31PM This 02:31PM The (Whereupon, at 2:31 p.m., the 8 Examination of this Witness was 9 concluded.) 10 11 12 __________________________ TULIN ERDEM 13 Subscribed and sworn to before me 14 this _____ day of ________, 2012. 15 __________________________ NOTARY PUBLIC 16 17 18 19 20 21 22 23 24 25 TSG Reporting - Worldwide (877) 702-9580 02:31PM

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