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

Filing 275

REPLY (re #272 MOTION for Leave to File Excess Pages Motion for Administrative Relief to Exceed Page Limit ) filed byApple Inc.. (Attachments: #1 Declaration, #2 Exhibit A)(Hung, Richard) (Filed on 9/30/2011)

1
2
3
4
5
6
7
8
9

HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

10

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

11
UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA
13
SAN JOSE DIVISION

14
15

APPLE INC., a California corporation,

16
17
18
19
20
21
22

Plaintiff,
v.

Case No.

11-cv-01846-LHK

APPLE’S REPLY IN SUPPORT
OF ITS MOTION FOR
ADMINISTRATIVE RELIEF TO
EXCEED PAGE LIMIT

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.

23
24
25
26
27
28
REPLY ISO MOTION FOR ADMINISTRATIVE RELIEF TO EXCEED PAGE LIMIT
CASE NO. 4:11-CV-01846-LHK
sf-3052229

1

1

Samsung’s opposition confirms the appropriateness of allowing Apple a 15-page

2

extension for its reply papers in support of its preliminary injunction motion – and not merely 10

3

pages (to which Samsung has already agreed) or no pages (which Samsung requests in its

4

proposed order).

5

In its opposition to Apple’s motion for a page limit extension, Samsung does not dispute

6

that Titan Tire Corp. v. Case New Holland, Inc. alone justifies an extension. Indeed, Samsung

7

does not even address that decision. In Titan Tire, the Federal Circuit explained that:

8
9
10
11
12
13

If a patentee moves for a preliminary injunction and the alleged
infringer does not challenge validity, the very existence of the
patent with its concomitant presumption of validity satisfies the
patentee’s burden of showing a likelihood of success on the
validity issue.
566 F.3d 1372, 1377 (Fed. Cir. 2009). For this reason, Apple did not need to address the issue of
design patent validity at all in its opening papers.
Titan Tire further explains that:

14
15
16
17
18

If, instead, the alleged infringer responds to the preliminary
injunction motion by launching an attack on the validity of the
patent, the burden is on the challenger to come forward with
evidence of invalidity, just as it would be at trial. The patentee, to
avoid a conclusion that it is unable to show a likelihood of success,
then has the burden of responding with contrary evidence, which
of course may include analysis and argument.

19

Id. In its opposition brief, Samsung raised numerous, varied invalidity arguments – including

20

arguments relating to alleged functionality. Samsung did so in the hopes that the sheer number of

21

arguments would persuade the Court that a substantial question exists as to the validity of Apple’s

22

design patents. Under Titan Tire, Apple is entitled to (and in fact, must) address Samsung’s

23

arguments for the first time on reply, and in detail. The rebuttal on invalidity issues will be a

24

central part of Apple’s reply brief.

25

Rather than address the applicability of Titan Tire, Samsung re-raises a bizarre argument

26

that Apple allegedly manipulated photographs in its preliminary injunction papers to mislead this

27

Court. It is unfortunate that Apple must address this allegation in connection with a page limit

28

request, of all things. It should be sufficient to note that, in addressing similar allegations by
REPLY ISO MOTION FOR ADMINISTRATIVE RELIEF TO EXCEED PAGE LIMIT
CASE NO. 4:11-CV-01846-LHK
sf-3052229

2

1

Samsung of photo manipulation in Germany, the Regional Court in Düsseldorf rejected them as

2

“irrelevant” and “non-prejudicial.” (Hung Declaration in Support of Motion for Administrative

3

Relief to Exceed Page Limit, Ex. A at 21) The German court did so in the context of affirming,

4

with modification, the entry of a preliminary injunction against Samsung’s Galaxy Tab 10.1.

5

(Hung Decl. Ex. A at 2.)

6

For the foregoing reasons, Apple respectfully requests leave to file a 30-page Reply brief

7

in support of its Motion for Preliminary Injunction.

8

Dated: September 30, 2011

MORRISON & FOERSTER LLP

9
10
11

By:

/s/ Richard S.J. Hung
Richard S.J. Hung

Attorney for Plaintiff APPLE INC.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
REPLY ISO MOTION FOR ADMINISTRATIVE RELIEF TO EXCEED PAGE LIMIT
CASE NO. 4:11-CV-01846-LHK
sf-3052229

3