Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
2635
ORDER RE: GEM SALES. Signed by Judge Lucy H. Koh on 11/4/2013. (lhklc3S, COURT STAFF) (Filed on 11/4/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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APPLE, INC., a California corporation,
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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., a
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
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Defendants.
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Case No.: 11-CV-01846-LHK
ORDER RE: GEM SALES
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As part of its Motion to Strike Portions of Michael Wagner’s Updated Expert Report, Apple
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moves to strike the damages calculations for the Samsung Gem phone in Wagner’s Updated Report
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on the ground that these calculations are based on fewer sales than were originally included in
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Wagner’s 2012 expert reports. ECF No. 2381 at 5:25-27. While Wagner’s 2012 reports calculated
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damages for the Gem based on Samsung’s total sales of the Gem in the United States, Wagner’s
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Updated Report calculates damages only for Gem phones sold through Verizon. See ECF No. 2399
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at 6. Samsung contends that Wagner’s updated damages calculations are proper because Apple
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presented evidence of infringement only for Gem phones sold through Verizon at the 2012 trial in
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this case, and thus Apple failed to meet its burden to prove its entitlement to damages for Gem
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Case No.: 11-CV-01846-LHK
ORDER RE: GEM SALES
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models sold through other U.S. carriers. See id.; see also ECF No. 2584 at 1. Apple counters that
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Samsung forfeited this objection by failing to raise it at any point prior to the filing of Wagner’s
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Updated Expert Report. ECF No. 2567 at 1-2.
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Leading up to and during the 2012 trial, both Apple and Samsung treated the “Gem” phone
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as though it were a single product. See, e.g., ECF No. 1 ¶ 54 (identifying the “Gem” as an accused
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product); (“Robinson Decl.”) ECF No. 2568 Ex. C at 14 (Samsung’s Objection and Responses to
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Apple’s Tenth Set of Interrogatories identifying “Gem (Max)” as the sole Gem phone in
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Samsung’s line of products); JX1020 (joint trial exhibit of Verizon Gem phone); JX1500 (joint trial
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exhibit showing combined Gem sales for all U.S. carriers without a carrier-by-carrier breakdown);
United States District Court
For the Northern District of California
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DX676.025-027 (Samsung trial exhibit showing the same). Neither party sought to differentiate
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Gem models by carrier before or during trial, nor did Samsung ever once object that Apple’s
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failure to present infringement evidence regarding Gem phones sold through other carriers limited
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the amount of damages Apple was entitled to seek for the Gem. Samsung’s noninfringement
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contentions did not argue that infringement hinged on the particular carrier model for any accused
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phone, Robinson Decl. Exs. D-E, nor did any Samsung technical expert raise this noninfringement
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theory, id. Exs. F-H.
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Samsung was obligated to raise all of its noninfringement contentions in advance of the
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2012 trial. Thus, Samsung’s failure to raise its Gem noninfringement contentions prior to the 2012
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trial is itself sufficient to find that Samsung forfeited the right to raise the issue now. What is more,
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Samsung did not raise the Gem issue during or even after the 2012 trial concluded. While
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Samsung’s Motions for Judgment as a Matter of Law brought pursuant to Federal Rule of Civil
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Procedure 50 challenged the 2012 jury’s damages award on multiple grounds, see ECF No. 2013 at
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17-24, Apple’s failure to prove infringement for non-Verizon models of the Gem was not one of
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them. See also ECF No. 2584 at 2 (Samsung conceding that it did not raise the Gem issue in its
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post-trial motions). Samsung’s failure to raise the Gem issue in post-trial motions provides yet
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another reason for concluding that Samsung forfeited this argument.
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Samsung argues that, notwithstanding its own failure to bring this issue to the attention of
either Apple or the Court prior to Wagner’s Updated Expert Report in August 2013, a year after the
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Case No.: 11-CV-01846-LHK
ORDER RE: GEM SALES
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2012 trial, the fact that Apple bears the burden of proving its entitlement to damages means that
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Wagner must be allowed to present damages calculations based only on Gem phones sold through
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Verizon. ECF No. 2584 at 1. Samsung misinterprets the relevance of Apple’s burden of proof in
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this instance. While Apple certainly bears the burden of proof to show that it is entitled to damages,
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see, e.g., SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 926 F.2d 1161, 1163-64 (Fed. Cir.
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1991), to this day Samsung has failed to present any evidence that the non-Verizon Gem models
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differ from the Verizon Gem in any way that could impact Apple’s entitlement to damages. See
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(“Oct. 10 Hr’g Tr.”) ECF No. 2535 at 118:25-119:5 (“[The Court:] And are you saying that the
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features of the Gem phone, whether the carrier is AT&T versus Verizon is a different phone, that it
United States District Court
For the Northern District of California
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functions differently, it’s not infringing? [Samsung Counsel:] I can’t say that standing here. I
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would need to compare the phones.”); Robinson Decl. Ex. A at 844:3-846:5 (Wagner stating in
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deposition testimony that he was unaware of any differences between the different models of the
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Gem); ECF No. 2584 (Samsung’s most recent submission regarding the Gem, failing to identify
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any differences between Gem models sold through different carriers). Accordingly, this case has
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proceeded along the assumption that proof of infringement as to one Gem model was adequate
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proof of infringement as to all models. To the extent this assumption was incorrect, it was up to
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Samsung to raise this noninfringement argument before the 2012 trial. Because Samsung failed to
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raise this issue before the 2012 trial, and because to this day Samsung has still not produced any
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evidence to suggest that the various Gem models differ in any way that could conceivably impact
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Apple’s entitlement to damages, the Court finds that Samsung has forfeited this argument.
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Further, to admit Wagner’s reduced damages calculations for the Gem would, under
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Federal Rule of Evidence 403, result in substantial unfair prejudice to Apple. Samsung never raised
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this issue before or during the 2012 trial, or in its post-trial motions; thus, Apple was not afforded
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an opportunity to address this issue previously. Furthermore, Apple cannot introduce evidence to
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prove its entitlement to damages on all Gem phones now that the liability phase of this case is
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closed. Admitting Wagner’s reduced Gem damages calculations also poses a high risk of jury
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confusion and waste of time since introducing this issue will inevitably draw the parties into a
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satellite litigation over what was, or was not, proven at the 2012 trial with respect to the Gem.
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Case No.: 11-CV-01846-LHK
ORDER RE: GEM SALES
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Under a Rule 403 analysis, the Court finds that the probative value of this evidence is substantially
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outweighed by these risks of unfair prejudice, jury confusion, and waste of time, and Rule 403 thus
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provides another reason to exclude Wagner’s reduced damages calculations for the Gem from the
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retrial. Accordingly, the Court GRANTS Apple’s Motion to Strike Portions of Michael Wagner’s
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Updated Expert Report insofar as it relates to Wagner’s reduced damages calculations for the Gem.
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IT IS SO ORDERED.
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Dated: November 4, 2013
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LUCY H. KOH
United States District Judge
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United States District Court
For the Northern District of California
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Case No.: 11-CV-01846-LHK
ORDER RE: GEM SALES
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