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

Filing 263

MOTION for Leave to File Brief of Amicus Curiae T-Mobile re Apple Inc's Motion for a Preliminary Injunction and for Leave to Appear at Preliminary Injunction Hearing filed by T-Mobile USA, Inc.. (Attachments: #1 Proposed Order)(Bettinger, Michael) (Filed on 9/28/2011) Modified on 9/29/2011 counsel failed to select multiple motion event types (dhm, COURT STAFF).

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MICHAEL J. BETTINGER (SBN 122196)
IRENE YANG (SBN 245464)
K&L GATES LLP
4 Embarcadero Center, Suite 1200
San Francisco, California 94111-5994
Telephone: [phone]
Facsimile: 415.882.8220
[e-mail]
[e-mail]
Of Counsel:
MICHAEL J. ABERNATHY
BRIAN J. ARNOLD
K&L GATES LLP
70 West Madison Street, Suite 3100
Chicago, Illinois 560602
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Amicus Curiae
T-MOBILE USA, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION

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APPLE INC., a California corporation,
Plaintiff,

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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,
Defendants.

CASE NO. 11-cv-01846-LHK
NOTICE OF MOTION AND MOTION
FOR LEAVE TO FILE BRIEF OF
AMICUS CURIAE T-MOBILE USA, INC.
REGARDING APPLE INC.’S MOTION
FOR A PRELIMINARY INJUNCTION
AND FOR LEAVE TO APPEAR AT
PRELIMINARY INJUNCTION HEARING

Date: October 13, 2011
Time: 1:30 p.m.
Courtroom 8, 4th Floor
Judge: Hon. Lucy H. Koh

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Mtn for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding Apple’s Mtn for Preliminary Injunction and
Leave to Appear at Preliminary Injunction Hearing
CASE NO. 11-cv-01846-LHK

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on October 13, 2011 at 1:30 p.m. or at any other date and

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time as the Court may order, T-Mobile USA, Inc. (“T-Mobile”) will and hereby does bring to this

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Court its Motion for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding Apple

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Inc.’s Motion for a Preliminary Injunction and for Leave to Appear at the Preliminary Injunction

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Hearing (“Motion for Leave”).

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T-Mobile asks this Court to allow it to file the attached amicus curiae brief regarding Apple

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Inc.’s Motion for a Preliminary Injunction (“P.I. Motion”). T-Mobile also asks this Court to allow it

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to appear at the preliminary injunction hearing on October 13, 2011 and present oral argument on

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issues relating to its amicus curiae brief. As explained below, T-Mobile has a substantial interest in

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this matter, separate and apart from the interests of the parties in the above-captioned action, as to

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why Apple’s P.I. Motion should not be granted and Defendants’ products should not be enjoined.

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This Motion for Leave is based on this Notice of Motion and Motion, the Points and

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Authorities below, the proposed amicus curiae brief of T-Mobile, the concurrently-filed Motion for

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an Order Shortening Time and declaration in support thereof, and such other matters as may be

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presented to the Court at oral argument.

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RELIEF REQUESTED

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T-Mobile seeks leave to file a brief as amicus curiae regarding Apple’s P.I. Motion, which is

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scheduled for hearing before the Court on October 13, 2011 at 1:30 p.m., and seeks leave to appear at

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the hearing and present oral argument on issues relating to its amicus brief.

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POINTS AND AUTHORITIES

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Amicus curiae T-Mobile is a national provider of wireless voice, messaging, and data services

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capable of reaching over 293 million Americans. T-Mobile’s lineup of handheld devices, particularly

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its smartphone offerings, is heavy with Samsung-manufactured devices. T-Mobile respectfully

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requests leave to file the attached amicus brief to apprise the Court of public interest considerations

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implicated by Apple’s P.I. Motion, which seeks to preliminarily enjoin Samsung products, including

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the Galaxy S 4G smartphone and Galaxy Tab 10.1 tablet, in the midst of the critical holiday shopping

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season. See Apple Inc.’s Motion for a Preliminary Injunction (Dkt. No. 86). T-Mobile also
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Mtn for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding Apple’s Mtn for Preliminary Injunction and
Leave to Appear at Preliminary Injunction Hearing
CASE NO. 11-cv-01846-LHK

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respectfully requests leave to appear at the preliminary injunction hearing on October 13, 2011 and

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present oral argument regarding T-Mobile’s interests in the outcome of Apple’s P.I. Motion. Counsel

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for amicus curiae contacted the parties on September 27 and 28, 2011, prior to filing this motion to

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determine whether the parties would oppose this Motion for Leave and the concurrently-filed Motion

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to Shorten Time, which requests that the Court shorten the briefing schedule for this Motion for

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Leave so as to allow T-Mobile’s amicus brief to be considered with respect to Apple’s P.I. Motion.

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Counsel for Apple indicated that Apple opposes and referred T-Mobile to Apple’s Opposition to

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Cellco/Verizon Wireless’s Motion for Leave to File Amicus Curiae Brief Regarding Apple’s Motion

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for a Preliminary Injunction (Dkt. No. 262). Counsel for Samsung indicated that it does not oppose

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the Motion for Leave or Motion to Shorten Time.
“District courts frequently welcome amicus briefs from non-parties concerning legal issues

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that have potential ramifications beyond the parties directly involved or if the amicus has unique

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information or perspective that can help the court beyond the help that the lawyers for the parties are

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able to provide.” Sonoma Falls Devs., LLC v. Nevada Gold & Casinos, Inc., 272 F. Supp. 2d 919,

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925 (N.D. Cal. 2003). In this case, the potential effects of a preliminary injunction would go far

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beyond Apple and Samsung. As a wireless carrier that has traditionally invested heavily in Samsung

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handheld devices and has already prepared its 2011 holiday sales season campaign prominently

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featuring the accused Samsung Galaxy S 4G and Galaxy Tab 10.1 products, T-Mobile is uniquely

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positioned to describe the harms likely to befall it, its business, and U.S. consumers should the

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requested injunction be granted. T-Mobile thus has a direct and substantial interest in the outcome of

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this P.I. Motion, yet is not party to this litigation, and without an amicus brief from T-Mobile and

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appearance at the preliminary injunction hearing, its interests and concerns are unlikely to be fully

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explained to the Court. For these reasons, T-Mobile respectfully requests that this Court exercise its

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discretion and grant T-Mobile’s Motion for Leave.

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Mtn for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding Apple’s Mtn for Preliminary Injunction and
Leave to Appear at Preliminary Injunction Hearing
CASE NO. 11-cv-01846-LHK

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Dated: September 28, 2011

Respectfully submitted,
K&L GATES LLP

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By:

/s/ Michael J. Bettinger
MICHAEL J. BETTINGER (SBN 122196)
Attorneys for Amicus Curiae
T-MOBILE USA, INC.

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Mtn for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding Apple’s Mtn for Preliminary Injunction and
Leave to Appear at Preliminary Injunction Hearing
CASE NO. 11-cv-01846-LHK