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

Filing 284

EXHIBITS re #283 MOTION to Compel Apple to Schedule Inventor Depositions -- Exhibits 1 and 2 to the Kassabian Declaration in support of Samsung's Motion to Compel (Dkt No. 283-1) filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit)(Related document(s) #283 ) (Maroulis, Victoria) (Filed on 10/1/2011)

EXHIBIT 1

02198.51855/4377948.1

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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,

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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.

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C-11-01846 LHK
SAN JOSE, CALIFORNIA
AUGUST 24, 2011
PAGES 1-90

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
UNITED STATES DISTRICT JUDGE

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APPEARANCES ON NEXT PAGE

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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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A P P E A R A N C E S:

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FOR PLAINTIFF
APPLE:

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MORRISON & FOERSTER
BY: HAROLD J. MCELHINNY,
MICHAEL A. JACOBS, AND
RICHARD S.J. HUNG
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105

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FOR COUNTERCLAIMANT WILMER, CUTLER, PICKERING,
APPLE:
HALE AND DORR
BY: WILLIAM F. LEE AND
MARK D. SELWYN

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FOR APPLE:

TAYLOR & COMPANY
BY: STEPHEN E. TAYLOR AND
STEPHEN MCG. BUNDY
ONE FERRY BUILDING, SUITE 355
SAN FRANCISCO, CALIFORNIA 94111

FOR THE DEFENDANT:

QUINN, EMANUEL, URQUHART,
OLIVER & HEDGES
BY: KATHLEEN M. SULLIVAN
51 MADISON AVENUE, 22ND FLOOR
NEW YORK, NEW YORK 10010

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BY:

VICTORIA F. MAROULIS AND
KEVIN P.B. JOHNSON
555 TWIN DOLPHIN DRIVE
SUITE 560
REDWOOD SHORES, CALIFORNIA 94065
BY: MICHAEL T. ZELLER
865 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90017

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DISCOVERY DISPUTES AS TO THE PRELIMINARY INJUNCTION

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DISCOVERY?

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MR. MCELHINNY:

THERE'S MEETS AND CONFERS

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AND STUFF GOING ON.

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DON'T THINK WE'VE GOT A MOTION.

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MR. JOHNSON:

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MR. MCELHINNY:

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WE DO, YOUR HONOR.
WE DON'T HAVE ANY

DISCOVERY YET.

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I DON'T THINK THERE'S A -- I

THE COURT:

OKAY.

THAT WILL GO TO

JUDGE GREWAL.

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I'M GOING TO REQUIRE, AND I'M SURE HE

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WOULD AGREE, THAT LEAD TRIAL COUNSEL HAVE TO MEET

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IN PERSON TO MEET AND CONFER ON ANY DISCOVERY

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DISPUTE BEFORE YOU FILE A MOTION.

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MR. MCELHINNY:

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I HAVE YOUR -- I'M SORRY.

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OKAY?

THANK YOU, YOUR HONOR.
I HAVE YOUR

DATE.

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THE COURT:

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MR. MCELHINNY:

OKAY.
WE CAN -- THE INVENTORS

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AND THE PROSECUTING ATTORNEYS ON OR BEFORE

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DECEMBER 1ST, YOUR HONOR.

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THE COURT:

WELL, THAT'S TOO LATE.

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YOU'RE ASKING THEM TO FILE ALL THEIR CLAIM

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CONSTRUCTION BRIEFS --

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MR. MCELHINNY:

I'M NOT SURE WHAT
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INVENTORS OR PROSECUTING ATTORNEYS HAVE TO DO WITH

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THE CLAIM CONSTRUCTION, YOUR HONOR.

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THE COURT:

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WHAT'S YOUR DATE?

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LET ME HEAR FROM SAMSUNG.
AND IS THAT SOON

ENOUGH FOR YOU?

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MR. JOHNSON:

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HONOR.

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NO.

THAT'S TOO LATE, YOUR

CONSTRUCTION.

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I MEAN, IT HAS EVERYTHING TO DO WITH CLAIM

I MEAN, TO THE POINT THAT -- YOU KNOW,

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AS -- WELL, I CAN'T TALK ABOUT WHAT MR. ORDING

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TESTIFIED SINCE IT'S UNDER SEAL, THEIR INVENTOR.

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BUT BASICALLY THE INVENTORS ARE GOING TO

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TESTIFY ABOUT PRIOR ART THAT THEY'RE AWARE OF;

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THEY'RE GOING TO TESTIFY ABOUT UNENFORCEABILITY

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ISSUES AS WELL; THEY'RE GOING TO TESTIFY ABOUT THE

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SCOPE OF THE CLAIMS WITH RESPECT TO THE PRIOR ART.

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THAT'S THE REASON WE TOOK MR. ORDING'S

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DEPOSITION IN THE CONTEXT OF THE PRELIMINARY

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INJUNCTION HEARING, AND WE -- AS WE SPELLED OUT IN

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OUR PAPERS, WE LEARNED A LOT OF IMPORTANT

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INFORMATION THAT AFFECTS THE CLAIM CONSTRUCTION OF

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THE TERMS THAT ARE INVOLVED IN THAT -- ON THE '381

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PATENT; WE LEARNED FACTS ASSOCIATED WITH

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INDEFINITENESS, WHICH ALSO SHOULD BE CONSIDERED --

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AT LEAST LOOKED AT IN THE CONTEXT OF CLAIM
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CONSTRUCTION.

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SO I'M NOT LOOKING TO DELAY THINGS THAT
ARE TOO FAR.

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BUT AT THIS POINT, THERE ARE 32

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INVENTORS.

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DECEMBER AND I HAVE TO DO ALL THE CLAIM

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CONSTRUCTION BEFORE THEN AND HAVE THE CLAIM

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CONSTRUCTION HEARING, YOU KNOW, THE FIRST -- IN THE

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MIDDLE PART OF JANUARY, THAT PUTS ME AT A SEVERE

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PREJUDICE.

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THE COURT:
DATES.

WELL, THESE ARE COMPLETION

THESE AREN'T BEGINNING DATES.

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IF THE FIRST DATE I GET FROM THEM IS

MR. MCELHINNY:

THAT'S CORRECT, YOUR

HONOR.

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THE COURT:

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BEFORE.

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I'M ASSUMING IT'S HAPPENING

DEPOSED --

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THERE'S NO WAY YOU CAN HAVE 32 PEOPLE

MR. MCELHINNY:

YOUR HONOR, I ALWAYS GET

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IN TROUBLE WITH THESE THINGS, BUT TO BE REALISTIC

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AND NOT TAKE YOUR TIME RIGHT NOW, THERE WILL COME A

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TIME AT THE END OF PROCESS THAT YOUR HONOR HAS SET

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WHERE SAMSUNG WILL FILE A MOTION TO CONTINUE THE

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TRIAL DATE.

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DISCOVERY THEY NEEDED AND THEY DIDN'T GET

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DEPOSITIONS AND THEY DIDN'T GET WHATEVER.

THEY WILL SAY THEY DIDN'T GET THE

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AND AT THAT TIME YOU'RE GOING TO BE

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LOOKING AT WHETHER OR NOT WE DID WHAT THEY NEEDED

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IN ORDER TO GET READY.

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HAPPEN.

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THAT'S JUST GOING TO

AND AS OPPOSED TO TRY TO HAMMER THIS OUT

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RIGHT NOW, I THINK YOU -- WE UNDERSTAND WHAT YOUR

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HONOR WANTS AND, YOU KNOW, I WOULD LIKE TO HAVE A

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LITTLE BIT OF, YOU KNOW, TRUST HERE.

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MR. JOHNSON:

UNDER THE CURRENT SCHEDULE,

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YOUR HONOR, THE CLOSE OF CLAIM CONSTRUCTION

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DISCOVERY IS NOVEMBER 28TH.

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LET'S PUSH BACK THE DATES BY EVEN A

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COUPLE OF, JUST A COUPLE OF MONTHS, WHICH

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SHOULDN'T -- WHETHER THE TRIAL IS IN JULY OR

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AUGUST OR SEPTEMBER OF NEXT YEAR, YOU KNOW, I --

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THERE CAN'T BE ANY PREJUDICE WITH RESPECT TO TWO

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MONTHS.

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THEY DELAYED TWO AND A HALF MONTHS WHEN
THEY BROUGHT THE PRELIMINARY INJUNCTION MOTION.
AND AS I MENTIONED, YOUR HONOR, THE REAL

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ISSUE THAT I SEE IS ALSO ON THE BACK END WITH

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RESPECT TO DISPOSITIVE MOTIONS.

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GIVING US A WEEK AFTER THE CLOSE OF

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REBUTTAL -- OF EXPERT DISCOVERY TO FILE MOTIONS ON,

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AT THAT POINT, WHICH COULD BE, YOU KNOW, 15 APPLE
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PATENTS AND THERE WILL BE 12 --

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THE COURT:

OKAY.

I'M SORRY.

I'VE GOT

TO CUT THIS OFF.

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APPLE, YOU'RE GOING TO HAVE YOUR

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INVENTORS AND PROSECUTING ATTORNEYS DEPOSED BY

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NOVEMBER 1; AND SAMSUNG WILL BE DECEMBER 1.

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OKAY?

AS FAR AS THE LAST DAY TO FILE

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DISPOSITIVE MOTIONS -- ALL RIGHT.

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MOVE THAT TO MAY 17TH, 2012, AND THE HEARING ON

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I CAN -- I'LL

DISPOSITIVE MOTIONS WILL BE JUNE 21, 2012 AT 1:30.

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OKAY?

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JURY TRIAL DATES REMAIN.

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ANYTHING ELSE?

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MR. LEE:

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THE COURT:

THE PRETRIAL CONFERENCE AND THE

NO, YOUR HONOR.
LET ME ASK ONE LAST QUICK

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QUESTION.

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TIMEFRAME TO RESPOND TO DISCOVERY REQUESTS THAN 30

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DAYS?

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IS APPLE WILLING TO AGREE TO A SHORTER

MR. MCELHINNY:

AGAIN, IF IT WAS MUTUAL,

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WE WOULD DO IT, YOUR HONOR.

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MR. LEE:

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MR. MCELHINNY:

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SURE.
JUST -- I MEAN, JUST LET

ME --

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THE COURT:

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MR. MCELHINNY:

YEAH.
THEY'VE NEVER ASKED FOR
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AN EXPEDITED TRIAL AND YOUR HONOR HAS GIVEN THEM AN

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EXPEDITED TRIAL AS WELL, AND THAT'S FINE, BUT NOW

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WE'RE BOTH IN THE SAME BOAT HERE EXCEPT THAT

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THEY'VE HAD DISCOVERY AND WE HAVEN'T HAD ANY.

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THE COURT:

SO LET ME ASK WHETHER SAMSUNG

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IS WILLING TO SHORTEN THE TIMEFRAME TO RESPOND TO

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WRITTEN DISCOVERY REQUESTS.

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MR. JOHNSON:

I THINK IT'S SOMETHING THAT

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WE COULD MEET AND CONFER WITH THEM ABOUT AND SEE IF

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THERE'S A TIME -- YOU KNOW, I'M OPEN TO SOME PERIOD

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OF POTENTIALLY EXPEDITING, BUT AT THIS POINT, NOT

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ANYTHING BEYOND -- I MEAN, LIKE I SAID, THEY MOVED

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TO EXPEDITE, SO I THINK THEY SHOULD RESPOND TO THE

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DISCOVERY MORE QUICKLY.

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BUT I'M WILLING TO MEET AND CONFER WITH
THEM AND SEE IF WE CAN COME UP WITH SOMETHING.

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MR. MCELHINNY:

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ACTUALLY.

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I AGREE WITH MR. JOHNSON,

WORK ALL THIS STUFF OUT.

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NOW THAT YOU'VE GIVEN US DATES, WE'LL

THE COURT:

OKAY.

YOU KNOW, IF YOU DON'T

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WORK IT OUT, THEN THERE ARE GOING TO BE PROBABLY

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CONSEQUENCES THAT BOTH SIDES DON'T WANT, SO I HOPE

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YOU WORK IT OUT.

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MR. MCELHINNY:

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THE COURT:

THANK YOU, YOUR HONOR.

OKAY.

LET'S HAVE A FOLLOW-UP
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