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

Filing 265

MOTION to Shorten Time ON #263 MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE T-MOBILE REGARDING APPLE INC.S MOTION FOR A PRELIMINARY INJUNCTION filed by T-Mobile USA, Inc.. (Attachments: #1 Declaration Yang ISO Motion to Shorten Time, #2 Exhibit Exhibit A, #3 Proposed Order)(Bettinger, Michael) (Filed on 9/28/2011) Modified on 9/29/2011 linking entry to document #263 (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,

CASE NO. 11-cv-01846-LHK
NOTICE OF MOTION AND MOTION
FOR ORDER SHORTENING TIME ON
MOTION FOR LEAVE TO FILE BRIEF
OF AMICUS CURIAE T-MOBILE
REGARDING APPLE INC.’S MOTION
FOR A PRELIMINARY INJUNCTION
AND FOR LEAVE TO APPEAR AT
PRELIMINARY INJUNCTION HEARING
Judge: Hon. Lucy H. Koh
Courtroom 8, 4th Floor

Defendants.

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_________________________________________________________________________________
Notice of Motion and Motion to Shorten Time
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 T-Mobile USA, Inc. (“T-Mobile”) will and hereby does

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bring to this Court its Motion for an Order Shortening Time on T-Mobile’s Motion for Leave to File

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Brief of Amicus Curiae T-Mobile USA, Inc. Regarding Apple Inc.’s Motion for a Preliminary

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Injunction and for Leave to Appear at the Preliminary Injunction Hearing, pursuant to Civil L.R. 6-3.

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T-Mobile asks this Court to shorten the briefing and hearing schedule on T-Mobile’s motion

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for leave to file the amicus curiae brief attached thereto, regarding Apple Inc.’s Motion for a

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Preliminary Injunction (“P.I. Motion”), such that if the Motion for Leave is granted, T-Mobile’s

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amicus brief would be considered at the October 13, 2011 hearing. As explained below, T-Mobile

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has a substantial interest in this matter, separate and apart from the interests of the parties in the

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above-captioned action, as to why Apple’s P.I. Motion should not be granted and Defendants’

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products should not be enjoined, and could not present those interests in conjunction with the P.I.

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Motion should this Motion to Shorten Time be denied.

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This Motion is based on this Notice of Motion and Motion, the Points and Authorities below,

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declaration in support of this Motion, the proposed amicus curiae brief of T-Mobile, the

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concurrently-filed Motion for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding

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

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Injunction Hearing, and such other matters as may be presented to the Court at oral argument.

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POINTS AND AUTHORITIES

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Pursuant to Civil L.R. 6-3, amicus curiae T-Mobile USA, Inc. moves for an Order shortening

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time on T-Mobile’s Motion for Leave to File Brief of Amicus Curiae T-Mobile USA, Inc. Regarding

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

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Injunction Hearing (“Motion for Leave”), which is being concurrently filed. Specifically, T-Mobile

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requests that this Court shorten time for briefing and hearing on T-Mobile’s Motion for Leave, such

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that if the Motion for Leave is granted, T-Mobile may file its amicus curiae brief regarding Apple’s

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Motion for a Preliminary Injunction (“P.I. Motion”), which is attached to the Motion for Leave, and

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also 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.

Notice of Motion and Motion for Order Shortening Time
Case No. 11-cv-01846-LHK

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Counsel for T-Mobile contacted counsel for the parties regarding a stipulation to shorten the

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briefing and hearing schedule on T-Mobile’s Motion for Leave as well as on the Motion for Leave

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

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

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Preliminary Injunction (Dkt. No. 262), which asks in the alternative that Apple “be allowed to

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respond to Verizon’s submission on October 6, 2011.” Counsel for Samsung indicated that Samsung

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does not oppose this Motion for Order Shortening Time or T-Mobile’s Motion for Leave.

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Declaration of Irene Yang in Support of T-Mobile’s Motion for an Order Shortening Time, ¶ 6.

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T-Mobile believes there is good cause for a shortened time for briefing and hearing on the

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Motion for Leave. An Order shortening time on the Motion for Leave is efficient and will conserve

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the Court’s and parties’ resources by allowing for briefing from T-Mobile relating to Apple’s P.I.

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Motion to be considered in conjunction with the parties’ arguments on the P.I. Motion, rather than

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having to address T-Mobile’s positions at a later date after the P.I. Motion has already been heard. If

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this Motion for an Order Shortening Time is not granted, allowing T-Mobile’s Motion for Leave to

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be decided in shorter than the normal 35-day briefing and hearing schedule, T-Mobile’s interests in

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this P.I. Motion will not be represented at the preliminary injunction hearing or taken into account in

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deciding the outcome of Apple’s P.I. Motion. T-Mobile does not oppose a shortened schedule

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allowing Apple to respond to T-Mobile’s Motion for Leave on October 6, 2011.

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The underlying dispute here is a motion for preliminary injunction that Apple filed against

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Samsung devices, including the Galaxy S 4G smartphone and Galaxy Tab 10.1 tablet (“Samsung

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Galaxy devices”), on July 1, 2011. Dkt. No. 86. On July 18, the Court issued an expedited

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scheduling order that set the hearing on the P.I. Motion for October 13, 2011. Dkt. No. 115. Apple

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and Samsung are the only parties to the litigation. T-Mobile is a third party with a direct and

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substantial interest in the outcome of the preliminary injunction: the potential effects of a preliminary

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injunction would go far beyond Apple and Samsung. As a wireless carrier that has traditionally

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invested heavily in Samsung handheld devices and has already prepared its 2011 holiday sales season

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campaign prominently featuring the Samsung Galaxy devices, T-Mobile is uniquely positioned to

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describe the harms likely to befall it, its business, and U.S. consumers should the requested injunction
-2Notice of Motion and Motion for Order Shortening Time
Case No. 11-cv-01846-LHK

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be granted in the midst of the critical holiday shopping season. T-Mobile announced on September

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28, 2011 that it would be adding the Samsung Galaxy Tab 10.1 to its lineup. Yang Decl., Exh. A. T-

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Mobile thus has a direct and substantial interest in the outcome of this P.I. Motion, yet is not party to

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this litigation, and without a shortened schedule to decide whether T-Mobile may file an amicus brief

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

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explained to the Court. See Yang Decl., ¶¶ 4, 5.

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T-Mobile has not been involved in any previous modifications to the schedule in this case.

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Yang Decl., ¶ 7. Granting T-Mobile’s Motion for an Order Shortening Time would not affect any

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dates that are currently scheduled in this case. Yang Decl., ¶ 8. However, a denial of this Motion

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may affect the October 13, 2011 date for the preliminary injunction hearing, if T-Mobile’s amicus

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brief is not considered until after the preliminary injunction hearing rather than in conjunction with it.

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Respectfully submitted,

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K&L GATES LLP

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Dated: September 28, 2011

By:

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

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-3Notice of Motion and Motion for Order Shortening Time
Case No. 11-cv-01846-LHK