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

Filing 289

DECLARATION of Jason R. Bartlett in Opposition to #283 MOTION to Compel Apple to Schedule Inventor Depositions and Prosecuting Attorney Depositions, filed by Apple Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Related document(s) #283 ) (Jacobs, Michael) (Filed on 10/4/2011) Modified text on 10/5/2011 (dhm, COURT STAFF).

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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,

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DEFENDANTS.

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

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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:
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VICTORIA F. MAROULIS AND
KEVIN P.B. JOHNSON
555 TWIN DOLPHIN DRIVE
SUITE 560
REDWOOD SHORES, CALIFORNIA 94065

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BY: MICHAEL T. ZELLER
865 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90017

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SAN JOSE, CALIFORNIA

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P R O C E E D I N G S

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AUGUST 24, 2011

(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)

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THE CLERK:

CALLING CASE NUMBER 11-1846,

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APPLE, INC. V. SAMSUNG ELECTRONICS, ON FOR MOTION

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TO DISQUALIFY COUNSEL, MOTION FOR EXPEDITED TRIAL.

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COUNSEL, PLEASE COME FORWARD AND STATE
YOUR APPEARANCES.

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MR. MCELHINNY:

GOOD AFTERNOON, YOUR

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HONOR.

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RICHARD HUNG FOR APPLE AS PLAINTIFF.

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HAROLD MCELHINNY, MIKE JACOBS, AND

MR. LEE:

GOOD AFTERNOON, YOUR HONOR.

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BILL LEE, AND MY PARTNER, MARK SELWYN, REPRESENTING

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APPLE ON THE COUNTERCLAIMS AND OUR COUNTERCLAIMS IN

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REPLY.

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THE COURT:

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MS. SULLIVAN:

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OKAY.

GOOD AFTERNOON.

GOOD AFTERNOON, YOUR

HONOR.

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I'M SORRY.

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MR. TAYLOR:

GOOD MORNING, YOUR HONOR, OR

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AFTERNOON, YOUR HONOR.

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APPLE IN CONNECTION WITH THE MOTION FOR

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DISQUALIFICATION FOR BRIDGES & MAVRAKAKIS.

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THE COURT:

STEPHEN TAYLOR REPRESENTING

OKAY.

IS MR. BUNDY WITH YOU?
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MR. TAYLOR:

HE IS WITH ME.

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THE COURT:

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MS. SULLIVAN:

ALL RIGHT.

THANK YOU.

GOOD AFTERNOON, YOUR

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HONOR.

KATHLEEN SULLIVAN FROM QUINN EMANUEL FOR

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SAMSUNG, TOGETHER WITH MY PARTNERS, KEVIN JOHNSON,

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VICTORIA MAROULIS, AND MICHAEL ZELLER.

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THE COURT:

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MR. JOHNSON:

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THE COURT:

OKAY.

GOOD AFTERNOON.

GOOD AFTERNOON, YOUR HONOR.
OKAY.

LET'S HANDLE THE

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DISQUALIFICATION MOTION FIRST AND THEN WE CAN

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HANDLE THE MOTION FOR EXPEDITED TRIAL AND THE CMC.

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SO I HAVE QUESTIONS FOR BOTH SIDES ON THE

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DISQUALIFICATION MOTION, SO I THINK WE'LL JUST DO

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PING PONG AND JUST GO BACK AND FORTH BETWEEN THE

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TWO PARTIES.

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LET ME FIRST ASK JUST SOME FACTUAL
QUESTIONS.
WHY DID BRIDGES NOT FILE THEIR NOTICE OF

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APPEARANCE UNTIL JUNE 16TH OF 2011 IF APPLE HAD

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HIRED BRIDGES ATTORNEYS TO WORK ON THE SAMSUNG

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DISPUTE AS EARLY AS SPRING OF 2010?

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MR. TAYLOR:

MY UNDERSTANDING IS, YOUR

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HONOR, THAT WHILE BRIDGES, MAVRAKAKIS WAS RETAINED

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BY APPLE AND WAS HELPING APPLE ON THE ANDROID

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RELATED DISPUTES, THAT IT WASN'T UNTIL THE FIRST
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AMENDED COMPLAINT WAS FILED THAT THEY JOINED THIS

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LITIGATION ON THE APPLE CLAIMS.

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I BELIEVE IT HAD A LOT TO DO WITH THE

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FACT THAT THE FIRM WAS SMALL AND WAS HEAVILY

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INVOLVED IN THE ITC PROCEEDING AGAINST HTC.

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BUT THEIR FIRST -- THEY FILED THEIR

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NOTICE OF APPEARANCE WHEN THAT FIRST AMENDED

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COMPLAINT WAS FILED.

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THE COURT:

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MR. TAYLOR:

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THE COURT:

OKAY.

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THE THING -OKAY.

WITH SAMSUNG'S OWN CASE OF FILING THE '604 PATENT?

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MR. TAYLOR:

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THE COURT:

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IT HAD NOTHING TO DO

NOTHING, YOUR HONOR.
OKAY.

LET ME ASK A QUESTION

TO SAMSUNG.
IT SEEMS A LITTLE BIT HARD TO BELIEVE

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THAT THE SAMSUNG REPRESENTATIVES AT THAT

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NEGOTIATION MEETING BACK IN THE FALL OF 2010

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WOULDN'T HAVE RECOGNIZED AT LEAST

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MR. MICHAEL PIEJA, AND PERHAPS AT LEAST THE BRIDGES

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FIRM AND THE POTENTIAL CONFLICT.

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MS. SULLIVAN:

SO, YOUR HONOR, FOR

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SAMSUNG -- FIRST OF ALL, JUST TO PUT IT IN CONTEXT,

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WHERE THERE IS THE POSSESSION OF CONFIDENTIAL

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INFORMATION ON A SUBSTANTIALLY RELATED CASE, IT WAS
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THE DUTY OF APPLE TO SEEK INFORMED -- IT WAS THE

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DUTY OF BRIDGES TO SEEK INFORMED CONSENT FROM

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SAMSUNG.

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THE SUBSTANTIAL RELATIONSHIP SHOULD HAVE
PUT THE BURDEN ON THEM.

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IT WAS NOT SAMSUNG'S BURDEN TO SMOKE OUT,

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SO TO SPEAK, WHETHER THERE WAS A CONFLICT -- A

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CONFLICTED COUNSEL WORKING FOR THE OTHER SIDE.

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BUT TO YOUR HONOR'S QUESTION ABOUT PIEJA,

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REMEMBER, HE WAS A VERY JUNIOR PERSON IN THE

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ERICSSON MATTER WITH MINIMAL HOURS COMPARED TO THE

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HOURS EXTENDED BY MR. BRIDGES, ESPECIALLY IN

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CONNECTION WITH THE FRAND ISSUES, AND BY MR. LEVIN

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IN CONNECTION WITH THE '604 PATENT.

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BIT PLAYER, VERY JUNIOR PERSON.

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PIEJA WAS A

AND THE PEOPLE AT SAMSUNG AT THE MEETING

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WERE FRONT LINE ENGINEERS, NOT NECESSARILY

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FAMILIAR -- THEY WEREN'T LAWYERS FAMILIAR WITH THE

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LITIGATION TEAM.

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MR. BRIDGES WAS NOT PRESENT AT THE
MEETING.

THAT WOULD HAVE BEEN A RED LINE.
AND MR. ROBERT MAVRAKAKIS, WHO WAS THERE,

HAD NOT BEEN INVOLVED IN ERICSSON.

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SO WITH RESPECT, THERE WAS NO BASIS FOR

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SAMSUNG TO INTUIT THAT, FROM THE PRESENCE OF THIS
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VERY JUNIOR PERSON WHO THEY DIDN'T NECESSARILY

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RECOGNIZE, THAT CONFLICTED COUNSEL WAS ACROSS THE

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TABLE FROM THEM.

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BUT WE REALLY DON'T THINK THAT WAS

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SAMSUNG'S BURDEN IN THE FIRST PLACE.

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BRIDGES' DUTY TO SAMSUNG TO DISCLOSE THE CONFLICT

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AND SEEK INFORMED WRITTEN CONSENT, NOT SAMSUNG'S

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DUTY TO TRY TO FIGURE OUT WHETHER THERE WAS A

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FAMILIAR FACE NOW WORKING FOR THE OTHER SIDE

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IT WAS

ADVERSE IN A RELATED MATTER.

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THE COURT:

ISN'T THERE A LITTLE BIT OF A

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TENSION -- THE OPENING MOTION SAYS MR. PIEJA DID A

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LOT OF WORK AND INCLUDES HIS TOTAL BILLED HOURS,

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BUT THEN THE REPLY SAYS, WELL, ACTUALLY, HE'S

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REALLY A JUNIOR ASSOCIATE WHO DIDN'T DO A

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SIGNIFICANT AMOUNT OF WORK.

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SO WHICH ONE IS IT?

WAS HE A SIGNIFICANT

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PLAYER IN THE SAMSUNG LITIGATIONS THUS REQUIRING

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DISQUALIFICATION, OR WAS HE A SMALL BIT PLAYER AND

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THUS JUSTIFIES WHY THE CONFLICT WASN'T PERCEIVED

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EARLIER?

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MR. TAYLOR:

WELL, ALL OF THE BRIDGES,

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MAV LAWYERS I THINK WERE NOT SIGNIFICANT PLAYERS AS

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YOUR HONOR WOULD KNOW FROM HAVING REVIEWED

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MR. BRIDGES' DECLARATION WHERE HE SAYS HE WAS AT
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LEAST A FOURTH TIER LAWYER HIMSELF.

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BUT MR. PIEJA'S ROLE WAS MUCH LESS,

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SIGNIFICANTLY MUCH LESS AS THE HOURS REFLECT.

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IT IS TRUE, THOUGH, THAT HE IDENTIFIED

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HIMSELF WITH THAT FIRM, WITH THE BRIDGES,

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MAVRAKAKIS FIRM AT THAT MEETING THAT HE WAS HAVING

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WITH SAMSUNG, AND WE THOUGHT IT WAS CLEAR TO THEM,

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AND I THINK THE BRIDGES, MAVRAKAKIS FIRM THOUGHT IT

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WAS CLEAR TO SAMSUNG, THAT THAT FIRM, THOSE

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LAWYERS, WERE REPRESENTING APPLE ON SOMETHING VERY

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UNRELATED TO ANYTHING THEY HAD DONE FOR SAMSUNG IN

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CONNECTION WITH THE ERICSSON LITIGATION.

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THE COURT:

WELL, LET ME ASK, IT ALSO

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SEEMS TO BE A LITTLE BIT HARD TO BELIEVE THAT APPLE

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WOULD NOT BE ABLE TO PREDICT THAT SAMSUNG WOULD

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ACTUALLY COUNTERCLAIM AND WOULD NOT GO ON THE

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OFFENSIVE IN THIS KIND OF NUCLEAR WAR BETWEEN, YOU

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KNOW, FIERCE COMPETITORS.

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SO I FIND IT A LITTLE BIT HARD TO BELIEVE

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THAT APPLE THINKS THAT IT CAN JUST GO ON THE

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OFFENSIVE IN ONE SORT OF UNILATERAL WAY, AND

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ANYTHING WHERE SAMSUNG GOES ON THE OFFENSIVE IS

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TOTALLY UNRELATED AND SEPARATE.

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ISN'T THIS WHAT HAPPENS IN THESE KINDS OF
CASES?

THE DEFENSE ALWAYS GOES ON THE OFFENSIVE
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AND COUNTERCLAIM WITH THEIR OWN I.P.
SO THIS IS SOMETHING THAT APPLE SHOULD
HAVE ANTICIPATED.
MR. TAYLOR:

WELL, PERHAPS, YOUR HONOR,

BUT APPLE I THINK DID ANTICIPATE IT.
AND THE IRONY OF THIS MOTION, IF I MAY,

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IS THAT I THINK THE BRIDGES, MAVRAKAKIS FIRM AND

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APPLE CONDUCTED THEMSELVES EXACTLY IN COMPLIANCE

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WITH THE RULE OF PROFESSIONAL CONDUCT 3-310(E) IN

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THIS SENSE:

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ACCEPT EMPLOYMENT IF THAT EMPLOYMENT WILL REQUIRE

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THE DISCLOSURE, OR MIGHT INVOLVE THE DISCLOSURE, OF

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CONFIDENTIAL INFORMATION RELATING TO A PRIOR

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EMPLOYMENT.

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THAT RULE SAYS THAT A MEMBER SHALL NOT

SO YOU DON'T AGREE TO REPRESENT APPLE IN

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THE APPLE-ANDROID LOOK AND FEEL MULTITOUCH CASE

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AGAINST SAMSUNG IF YOU'VE HAD A PRIOR

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REPRESENTATION FOR SAMSUNG WHICH IS SUBSTANTIALLY

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RELATED TO THIS APPLE-ANDROID CLAIM.

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APPLE COMES TO THE FIRM AND SAYS, "CAN

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YOU HANDLE THIS MATTER?

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THE ANDROID MATTER, INCLUDING AGAINST SAMSUNG?"

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CAN YOU REPRESENT US ON

THE FIRM SAYS, I THINK ENTIRELY

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APPROPRIATELY, "WELL, LET'S LOOK AND SEE WHETHER

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THERE'S ANY SUBSTANTIAL RELATIONSHIP BETWEEN THIS
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ANDROID CASE AND WHAT WE DID FOUR YEARS AGO IN THE

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ERICSSON CASE."

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AND APPLYING CALIFORNIA LAW, I THINK

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COMPLETELY CORRECTLY, WHAT THEY DECIDE IN COMPARING

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THE CURRENT REQUEST FOR REPRESENTATION WITH THE

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PRIOR REPRESENTATION IS IF -- AS THE FARRIS AND

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OTHER CASES SAY, YOU LOOK FOR OVERLAP IN THE FACTS

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AND THE LEGAL ISSUES AND THEY LOOK AND SAY, "IN

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ERICSSON, WE WERE TALKING ABOUT STANDARDS PATENTS,

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WE WERE TALKING ABOUT" -THE COURT:

BUT SUBJECT TO INTERFACE,

USER INTERFACE.

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MR. TAYLOR:

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BUT I THINK THE KEY IN THIS CASE IS ABOUT

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FRAND ISSUES, YES.

A USER INTERFACE THAT INVOLVES TOUCH SCREENS.
AND AS MR. BRIDGES SAYS, NOT ONLY DID

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THESE PHONES THAT ARE AT ISSUE HERE NOT EXIST, BUT

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NO ANDROID PHONE, AS FAR AS WE'RE AWARE OF, EXISTED

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AT THE TIME THAT THEY WERE DOING THE REPRESENTATION

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OF ERICSSON.

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NONE.

SO THE PHONE THAT THE BRIDGES, MAVRAKAKIS

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FIRM WAS WORKING ON WHEN IT WAS DOING THE ERICSSON

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CASE WAS NOT ONLY A WHOLE DIFFERENT GENERATION OF

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PHONE, IT WAS BUILT ON AN ENTIRELY DIFFERENT

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SOFTWARE PLATFORM.
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MY UNDERSTANDING IS, AND THE RECORD WOULD

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SHOW, THAT THE ANDROID SOFTWARE PLATFORM, FROM THE

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VERY BOTTOM TO THE VERY TOP OF THE USER INTERFACE,

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IS COMPLETELY INDEPENDENT AND SEPARATE FROM

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ANYTHING IN THE OTHER CASE.

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SO THE PHONES INVOLVED IN THIS CASE AND

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THE TECHNOLOGY INVOLVED IN THIS CASE DIDN'T EXIST

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AT THAT TIME.

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THE PATENTS WERE DIFFERENT.
THE PRODUCTS WERE COMPLETELY DIFFERENT.
THERE WAS NO APPLE ISSUE IN THE ERICSSON CASE.
AND WHEN YOU LOOK AT THE MICROSOFT CASE

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AND YOU LOOK AT THE CIBA-GEIGY CASE AND YOU LOOK AT

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THE ARCTIC CAT CASE, THESE ARE PATENT CASES WHERE

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SOMEONE TRIES TO DISQUALIFY SOMEONE FOR DOING

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ANOTHER PATENT CASE IN THE SAME AREA OF

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TECHNOLOGY -- LIKE IN THE MICROSOFT CASE ON THE

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WIRELESS LAN CONNECTIONS, OR PATCHES, YOU KNOW,

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INTERDERMAL PATCHES IN THE CASE OF THE CIBA-GEIGY

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CASE -- AND THE COURT SAID THAT IS NOT, FOR

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PURPOSES OF A SUBSTANTIAL RELATIONSHIP FOR AN

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ETHICS VIOLATION AND FOR A CONFLICT OF INTEREST,

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THAT IS NOT A SUBSTANTIALLY RELATED CASE.

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TO BE SUBSTANTIALLY RELATED, YOU HAVE TO
SHOW THAT THERE IS OVERLAP SUCH THAT THE SAME
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ISSUES, OR VERY, VERY SIMILAR ISSUES, ARISE.

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I SEE IT THIS WAY --

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THE COURT:

BUT YOU WOULD CONCEDE THAT IF

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THE COUNTERCLAIMS STAY IN THIS CASE, THE '604

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PATENT IS A VERY OBVIOUS AND VERY BLATANT OVERLAP

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AND SUBSTANTIAL REPRESENTATION BETWEEN WHAT BRIDGES

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DID IN ERICSSON AND IT'S DOING NOW FOR APPLE?

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MR. TAYLOR:

WELL, THE -- THAT'S, I

THINK, THE FUNDAMENTAL ISSUE THAT THE MOTION
RAISES.

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IF YOU'RE GOING TO ACCUSE A LAWYER OF

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UNETHICAL CONDUCT OR CONFLICT OF INTEREST AND TRY

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AND DEPRIVE A CLIENT OF THEIR LAWYER, IS IT OKAY,

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IS IT PERMISSIBLE FOR A LAWYER TO SAY, "I CAN

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ACCEPT THE REPRESENTATION YOU'RE ASKING ME TO

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UNDERTAKE.

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YES, I CAN ACCEPT THAT."
NOW, AT THE TIME BRIDGES, MAV SAID --

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BRIDGES, MAVRAKAKIS SAID, "WE HAVE DONE OTHER WORK

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FOR APPLE.

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OF THE STANDARDS MATERIAL, PATENTS OR THESE OTHER

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ISSUES ARISE, WE WOULDN'T BE ABLE TO DO THAT.

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WE CAN DO THIS."

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YOU NEED TO UNDERSTAND THIS.

IF SOME

BUT

AND THE LAW IN CALIFORNIA IS THAT YOU CAN

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DO THAT.

THERE'S NO LIFETIME BAN ABOUT EVER BEING

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ADVERSE TO A FORMER CLIENT.
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THE BAN IS TWO THINGS:

KEEP EVERYTHING

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YOU LEARN CONFIDENTIAL, WE ALL DO THAT ALL THE TIME

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FOR A FORMER CLIENT; AND SECONDLY, DON'T DO

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SOMETHING THAT'S SO CLOSELY RELATED THAT IF YOU'RE

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REPRESENTING THE CLIENT, YOUR DUTIES WILL BE

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CONFLICTED.

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SO IT'S LIKE THIS, AND IT'S PRETTY STARK

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AND, I THINK, TANGIBLE.

DON'T TAKE A

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REPRESENTATION FOR APPLE THAT INVOLVES THE

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STANDARDS PATENTS OR ANYTHING RELATING TO THOSE

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PHONES OR THOSE TECHNOLOGY FOR THIS REASON:

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HAVE AN OBLIGATION TO SAMSUNG TO KEEP EVERYTHING

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CONFIDENTIAL, EVERYTHING YOU LEARNED BACK IN --

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THE COURT:

YOU

I JUST -- I'M SORRY TO

INTERRUPT YOU.

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MR. TAYLOR:

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THE COURT:

SURE.
I JUST FIND IT HARD TO

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BELIEVE THAT APPLE WOULD HIRE BRIDGES IN SPRING OF

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2010 FOR THE DISPUTE WITH SAMSUNG AND NOT THINK IT

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HAD AN ADVANTAGE THAT THESE BRIDGES LAWYERS HAD

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PREVIOUSLY WORKED FOR SAMSUNG IN LITIGATION ON

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THESE MOBILE PHONE PRODUCTS, AS THEY EXISTED AT THE

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TIME, AND I UNDERSTAND WHAT YOU'RE SAYING, THAT

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2006/2007 LOOKS DIFFERENT THAN 2010/2011.

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I THINK APPLE ASSUMED THE RISK WHEN IT
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HIRED THESE LAWYERS, PERHAPS THINKING IT AN

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ADVANTAGE THAT THEY HAD REPRESENTED SAMSUNG, SO YOU

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SUFFER THE CONSEQUENCE OF THE DISQUALIFICATION.

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MR. TAYLOR:

I THINK WHAT THE LAW IS, AND

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THIS IS WHAT WE'RE SUBMITTING TO YOUR HONOR, IS

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THAT CLIENTS AND LAWYERS MAY HAVE SEPARATE

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REPRESENTATION.

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MAVRAKAKIS IS GOING TO COME IN AND REPRESENT US ON

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THESE PATENTS, EVEN IF WE ANTICIPATE THAT THERE

THEY MAY SAY, "YES, BRIDGES,

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WILL BE COUNTERCLAIMS.

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SEPARATE COUNSEL FOR THOSE COUNTERCLAIMS," AS APPLE

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HAS DONE HERE.

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WE ARE GOING TO HAVE

WILMER, HALE REPRESENTS APPLE ON THE
COUNTERCLAIMS.
BRIDGES, MAVRAKAKIS DOES NOTHING ON THE
COUNTERCLAIMS.
THE COURT:

OKAY.

BUT IT'S NOT REALISTIC

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TO THINK THEY'RE NOT GOING TO COORDINATE ON

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POSITIONS TO KNOW WHAT THE IMPLICATIONS ARE GOING

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TO BE FOR INFRINGEMENT ARGUMENTS, FOR VALIDITY

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ARGUMENTS, BOTH ON APPLE'S AFFIRMATIVE CASE AND ON

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SAMSUNG'S COUNTERCLAIMS.

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IT'S JUST NOT CREDIBLE THAT THERE'S NOT

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GOING TO BE SOME COMMUNICATION TO COORDINATE TO

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MAKE SURE THAT YOU'RE NOT TAKING A POSITION IN ONE
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CASE THAT'S GOING TO UNDERMINE THE POSITION IN THE

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OTHER CASE.

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MR. TAYLOR:

WELL, THERE'S -- IN THIS

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MATTER, YOUR HONOR, THERE'S CERTAINLY NO EVIDENCE

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OF ANY SUCH COORDINATION.

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BRIDGES, MAVRAKAKIS HAS ETHICAL

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OBLIGATIONS NOT TO GET INVOLVED IN THE

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REPRESENTATION BASED ON RULE 3-310.

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BRIDGES, MAVRAKAKIS HAS AN OBLIGATION NOT
TO DISCLOSE ANY CONFIDENTIAL INFORMATION.
AND THE COURT, EVEN IN ITS OWN DECISION

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IN THE ORACLE CASE RECENTLY, POINTED TO AUTHORITIES

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THAT SAY "WE WILL NOT SPECULATE ON WHETHER SOMEONE

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MIGHT, AT SOME POINT, BREACH AN ETHICAL

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OBLIGATION."

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IT'S PARTICULARLY TRUE HERE WHEN THE TWO

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MATTERS ARE INDEED VERY SEPARATE.

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AS SEPARATE CASES.

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YOUR HONOR WHATSOEVER.

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THEY WERE FILED

THEY WERE ORIGINALLY NOT BEFORE

SAMSUNG THEN TOOK ADVANTAGE OF THE

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OPPORTUNITY TO DISMISS AND REFILE HERE, AND IT'S

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REALLY ONLY BECAUSE THEY TOOK THE ACTION THAT THEY

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TOOK TO COMBINE TWO COMPLETELY UNRELATED CASES THAT

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HAVE, FROM THE BEGINNING, DIFFERENT REPRESENTATION

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FROM COUNSEL, THAT THEY'RE ABLE TO COME TO YOUR
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HONOR AND MAKE THIS ARGUMENT.

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AND THE CONCERN I HAVE IS THAT WHEN WE'RE

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LOOKING AT CONFLICTS OF INTEREST, WE LOOK TO SEE AT

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ONE THING:

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ISSUES AND FACTUAL ISSUES IN THE FIRST

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REPRESENTATION, THE ERICSSON REPRESENTATION, AND

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THE REPRESENTATION, THE REPRESENTATION THAT

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BRIDGES, MAVRAKAKIS AGREED TO TAKE, WHICH IS

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LIMITED IN SCOPE?

IS THERE A RELATIONSHIP IN THE LEGAL

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IT'S LIMITED ONLY TO THE APPLE

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AFFIRMATIVE CLAIMS HAVING TO DO WITH THE LOOK AND

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FEEL AND MULTITOUCH SCREEN.

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THE COURT:

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MR. TAYLOR:

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THE COURT:

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MR. TAYLOR:

LET ME ASK -- I'M SORRY.
GO AHEAD.
GO AHEAD.
AND, YOUR HONOR, I THINK THE

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LAW IN CALIFORNIA IS CLEAR THAT LAWYERS MAY, JUST

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AS THEY DID IN THE HILLEBY CASE AND PLANT CASE AND

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AS WE'VE SEEN IN OTHER CASES, LAWYERS MAY, DO, AND

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SHOULD LIMIT THEIR REPRESENTATION SO THAT THEY

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DON'T VIOLATE THESE ETHICAL CANONS AND GET

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CONFLICTS OF INTEREST.

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THE COURT:

LET ME ASK MS. SULLIVAN, IT

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DOES LOOK LIKE SORT OF SOME STRATEGIC OR TACTICAL

25

MANEUVERING FOR SAMSUNG TO FILE A SEPARATE CASE,
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MAKE AN ADMINISTRATIVE MOTION TO HAVE IT RELATED,

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AND THEN SAY, "OH, WAIT A MINUTE.

3

TO DISMISS THAT CASE AND NOW I'M GOING TO ASSERT

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ALL OF THAT SAME I.P. AS A COUNTERCLAIM IN APPLE'S

5

CASE."

I'M JUST GOING

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MS. SULLIVAN:

NOT AT ALL, YOUR HONOR.

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IF YOU RECALL, IT WAS AT YOUR HONOR'S

8

INVITATION THAT WE FILED -- REFILED AS

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COUNTERCLAIMS.

IN THE MAY CONFERENCE WITH YOUR

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HONOR, IT WAS YOUR HONOR'S SUGGESTION, AND WE

11

THOUGHT IT WAS APPROPRIATE.

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THERE WAS NOTHING STRATEGIC ABOUT THIS.

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APPLE SUED SAMSUNG, SAMSUNG WANTED TO MAKE AN

14

AGGRESSIVE MOVE BACK, WANTED TO FILE OUR CLAIMS

15

BEFORE WE HAD TO ANSWER APPLE'S CLAIMS.

16

THAT.

17

WE DID

WHEN WE WERE CONFERRING WITH YOUR HONOR,

18

IT WAS YOUR HONOR'S OWN SUGGESTION THAT WE REFILE

19

THEM AS COUNTERCLAIMS, AND YOUR HONOR PROPERLY

20

RULED ON MAY 20TH THAT THEY ARE RELATED, AND

21

THEY'RE RELATED FOR REASONS THAT WERE OBVIOUS THEN,

22

AND I THINK WHAT MR. TAYLOR IS REALLY TRYING TO DO

23

HERE IS TO ASK YOU, OUTSIDE OF THE SCOPE OF THESE

24

MOTIONS, TO RECONSIDER YOUR DECISION ON THE MOTION

25

TO TREAT AS RELATED ON WHICH YOUR HONOR CORRECTLY
17

1
2

RULED THE CASES WERE RELATED.
BUT LET ME JUST GO BACK AND -- YOUR

3

HONOR, WE DO UNDERSTAND THAT ARGUING FOR A

4

DISQUALIFICATION IS A GRAVE MATTER.

5

IT LIGHTLY.

6

FOR ALL THE REASONS THAT YOUR HONOR ALREADY GAVE.

7

WE DO NOT DO

WE DO NOT THINK THIS IS A CLOSE CASE

AND LET ME START WITH THE POINT THAT YOUR

8

HONOR STARTED WITH, WHICH IS THAT IF THE '604

9

PATENT IS IN THE CASE THROUGH THE COUNTERCLAIMS,

10

WE'RE DONE BECAUSE THAT PATENT WAS INVOLVED IN

11

SONY-ERICSSON AND WAS THE SUBJECT OF THOUSANDS OF

12

HOURS OF WORK BY THE BRIDGES FIRM, AND THAT

13

ESTABLISHES AN ALMOST PER SE SUBSTANTIAL

14

RELATIONSHIP HERE.

15

BUT WHAT I WANT TO STRESS TO YOUR HONOR

16

IS THAT EVEN IF YOU WERE TO CONSIDER THE APPLE

17

CLAIMS SEPARATELY, YOU STILL MUST DISQUALIFY

18

BRIDGES & MAVRAKAKIS BECAUSE THEIR KNOWLEDGE

19

FROM -- OF CONFIDENTIAL INFORMATION, PRIVILEGED

20

INFORMATION, STRATEGIC DECISIONS BY SAMSUNG IN THE

21

SONY-ERICSSON LITIGATION IS SUBSTANTIALLY RELATED

22

TO APPLE'S CLAIMS AGAINST SAMSUNG.

23

IN OTHER WORDS, THE DISQUALIFICATION IS

24

OBVIOUS WITH RESPECT TO SAMSUNG'S COUNTERCLAIMS

25

AGAINST APPLE .
18

1

BUT IT EXISTS TO DISQUALIFY THE BRIDGES

2

FIRM EVEN WITH RESPECT TO APPLE'S CLAIMS.

3

ME EXPLAIN THAT.

4
5
6
7
8

AND LET

MR. TAYLOR, AS IN THE PAPERS, KEEPS
SAYING, "OH, WELL, WE'RE IN A NEW WORLD."
THE COURT:

WELL, THAT'S WHAT

MR. VERHOEVEN SAID AS WELL.
MS. SULLIVAN:

WELL, HE HAD SOMETHING

9

ABOUT CABBAGES, YOUR HONOR, AND NONE OF THE REST OF

10

US IS FROM IOWA AND WE DIDN'T QUITE UNDERSTAND THAT

11

PEOPLE KEPT CABBAGES FOR SIX MONTHS IN IOWA.

12
13
14
15
16

BUT THE POINT IS THAT OF COURSE THE
TECHNOLOGY IS CHANGING, YOUR HONOR.
BUT LET'S TALK ABOUT THE WAYS IN WHICH
THE TECHNOLOGY IS CONTINUOUS.
SO SAMSUNG HAS BEEN MAKING MOBILE PHONES

17

FOR A LONG TIME, AND IN FACT, THE POINT OF THE

18

ANDROID PHONES, THEY'RE ALL MADE TO BE BACKWARD

19

COMPATIBLE WITH THE EARLIER MODELS.

20

THE CELL PHONES THAT SAMSUNG IS MAKING

21

AND THE CELL PHONES THAT WE ACCUSE APPLE OF

22

INFRINGING, THE PATENTS IN THE CELL PHONES THAT WE

23

ACCUSE APPLE OF INFRINGING ARE PART OF A CONTINUOUS

24

EVOLUTION THAT GOES BACK TO 2006 AND 2007, THE VERY

25

TIMEFRAME THAT THE BRIDGES FIRM WAS REPRESENTING
19

1
2

SAMSUNG.
AND YOUR HONOR, I NEED TO POINT YOU -- I

3

CAN POINT YOU TO A VERY SPECIFIC POINT IN THE APPLE

4

COMPLAINT AS AMENDED IN JUNE AGAINST SAMSUNG.

5

IF YOU LOOK AT PARAGRAPH 80 OF THE

6

AMENDED COMPLAINT, THE APPLE COMPLAINT IS ACCUSING

7

A PHONE THAT SAMSUNG INTRODUCED IN KOREA IN

8

DECEMBER OF 2006, THAT'S THE F700, AND THIS IS --

9

IF YOU LOOK AT COMPLAINT PARAGRAPH 80, THE F700,

10

ACCORDING TO THE TERMS OF THE AMENDED COMPLAINT

11

ITSELF, WAS INTRODUCED IN, A KOREAN VERSION, IN

12

DECEMBER OF 2006 AND WAS BEING DISCUSSED IN THE

13

UNITED STATES IN THE TIME PERIOD IN EARLY 2007 WHEN

14

THE IPHONE'S ABOUT TO BE INTRODUCED.

15

SO THERE'S CONTEMPORANEOUS TECHNOLOGY

16

THAT IS NOW BEING ACCUSED IN THIS CASE, EVEN IF YOU

17

JUST LOOK AT SAMSUNG VERSUS APPLE.

18

SO YOUR HONOR, TO BE CLEAR, WE THINK YOU

19

CORRECTLY RELATED THE CASES.

20

PROPERLY ONE CASE NOW.

21
22
23

THE CASES ARE

THERE ARE TREMENDOUS MATTERS -- JUDICIAL
EFFICIENCIES THAT COME FROM TRYING THEM TOGETHER.
BUT THE DISQUALIFICATION HERE MUST OCCUR,

24

WHETHER YOU CONSIDER APPLE VERSUS SAMSUNG TOGETHER

25

OR SEPARATELY FROM SAMSUNG VERSUS APPLE.
20

1
2
3

AND, YOUR HONOR, IF I COULD JUST SAY A
FEW MORE WORDS ABOUT THE TECHNOLOGY?
THE POINT IS THAT THE CELL PHONE -- WE'RE

4

NOT TALKING HERE ABOUT SOME VAGUE KNOWLEDGE OF A

5

BROAD TECHNOLOGY.

6

WE'RE TALKING ABOUT THE EVOLUTION OF

7

SMART PHONES FROM 2006 AND 2007 TO THE PRESENT INTO

8

THEIR CURRENT FORM.

9

SO THIS IDEA THAT THERE'S A DISCONTINUOUS

10

LEDGE AND THAT ANDROID IS A NEW THING THAT CAME OUT

11

OF THE ETHER LONG AFTER BRIDGES WAS GONE FROM THE

12

SAMSUNG REPRESENTATION IS JUST INCORRECT.

13
14
15

YOU KNOW THAT'S NOT HOW TECHNOLOGY WORKS.
EVERY TECHNOLOGY BUILDS ON THE PRIORS.
AND TO HAVE THE LAWYERS WHO SAT WITH

16

SAMSUNG -- THE LAWYERS AT BRIDGES, MAVRAKAKIS WHO

17

SAT WITH SAMSUNG'S ENGINEERS AND DESIGNERS AND

18

LEARNED EVERYTHING ABOUT SAMSUNG'S TELEPHONE

19

DESIGNS IN 2006 AND 2007 TURN AROUND AND GO OVER TO

20

APPLE TO SUE SAMSUNG ON CELL PHONE PATENTS RELATING

21

TO SMART PHONES IS, IS SO CLEARLY SUBSTANTIALLY

22

RELATED, WITHOUT REGARD TO THE COUNTERCLAIMS, THAT

23

THIS IS AN EASY DISQUALIFICATION MOTION.

24
25

YOUR HONOR, AMONG THE ISSUES IN THIS CASE
WILL BE WHETHER THERE'S PRIOR ART THAT INVALIDATES
21

1

THE APPLE PATENTS THAT IT'S ASSERTING, AND AMONG

2

THE PRIOR ART MAY BE SAMSUNG'S OWN PRIOR ART.

3

AND THE IDEA THAT SOMEHOW YOU COULD

4

REPRESENT SAMSUNG, LEARN ALL ABOUT PRIOR ART THAT

5

MIGHT BE RELEVANT TO THE CURRENT INVALIDITY

6

DEFENSES, AND JUST SAY, "OH, NO, WE'RE NOT GOING TO

7

DISCLOSE ANY CONFIDENTIAL INFORMATION," IS, AS YOUR

8

HONOR SUGGESTED, WHOLLY UNREALISTIC.

9
10

OF COURSE THE LAWYERS HAVE TO COORDINATE
AS YOUR HONOR SUGGESTED.

11

WE THINK THE ONLY REMEDY THAT CAN WORK IS

12

DISQUALIFICATION BECAUSE THIS MENTAL SEVERANCE,

13

THIS MENTAL WALL THAT APPLE -- THAT BRIDGES IS

14

PROPOSING IS COMPLETELY UNWORKABLE.

15

THE LAWYERS IN THE TWO TEAMS HAVE TO

16

COORDINATE, THEY HAVE TO STRATEGIZE, THEY HAVE TO

17

BE IN THE SAME CASE MANAGEMENT CONFERENCES.

18

HAVE TO BE IN THE SAME MEETS AND CONFERS.

19

THEY

THEY HAVE AN ETHICAL DUTY TO APPLE TO

20

TELL APPLE ANYTHING OUTSIDE THE IMMEDIATE SCOPE OF

21

THE REPRESENTATION THAT MIGHT AFFECT APPLE'S

22

INTERESTS.

23

IF THEY KNOW SOMETHING FROM THEIR SAMSUNG

24

REPRESENTATION, THEY'D BE VIOLATING THEIR ETHICAL

25

DUTY TO APPLE NOT TO TELL THEM.
22

1

SO THE IDEA THAT YOU CAN RELY ON THE

2

SCOPE OF REPRESENTATION TO CONFINE THE ETHICAL

3

DUTIES HERE IS UNREALISTIC.

4

WHAT IS GOING TO HAPPEN?

HOW WOULD THE

5

COURT ENFORCE IT?

6

CONFERENCE WHERE THE BRIDGES LAWYERS SUDDENLY GO ON

7

MUTE FOR A FEW MINUTES -- SORRY -- GO ON HOLD FOR A

8

FEW MINUTE?

9

CALL," AND THEN THEY COME BACK ON?

10

THERE'S GOING TO BE A TELEPHONE

OR SAY "WE'RE GOING TO DROP OFF THE

HOW WOULD THE COURT POSSIBLY ENFORCE THE

11

SUPPOSED MENTAL POLICING OF THE SUPPOSED MENTAL

12

WALL?

13

CALIFORNIA LAW, AS YOUR HONOR WELL KNOWS,

14

DOES NOT EVEN RESPECT ETHICAL WALLS THAT ARE

15

FORMALIZED WITHIN A FIRM AS A BASIS FOR UNDOING A

16

DISQUALIFICATION WHEN THERE IS A SUBSTANTIAL

17

RELATIONSHIP AND THE POSSESSION OF CONFIDENTIAL

18

INFORMATION.

19

HOW COULD AN INFORMAL, METAPHYSICAL,

20

MENTAL WALL POSSIBLY SUFFICE AS A REMEDY HERE?

21

SO YOUR HONOR IS ABSOLUTELY CORRECT.

22

THERE'S GOING TO BE COORDINATION BETWEEN THE TEAMS,

23

AND THERE'S GOING TO -- THERE'S GOING TO BE

24

KNOWLEDGE THAT'S IMPORTED TO THE APPLE TEAM FROM

25

THE BRIDGES FOLKS THAT IS CONFIDENTIAL AND VIOLATES
23

1

SAMSUNG'S RIGHTS, UNDER THE ETHICAL RULES, TO HAVE

2

A DUTY OF LOYALTY FROM ITS FORMER EMPLOYEES.

3

APPLE -- BRIDGES OWES A DUTY TO ITS

4

FORMER CLIENT, SAMSUNG.

5

CURRENT CLIENT, APPLE.

6
7

IT CANNOT PERFORM THOSE DUTIES WITHOUT
THE PROPHYLACTIC OF A DISQUALIFICATION HERE.

8
9

IT OWES A DUTY TO ITS

AND THAT DOESN'T PREJUDICE APPLE IN ANY
WAY.

THEY HAVE EXTRAORDINARILY ABLE COUNSEL, AS

10

YOUR HONOR -- IN MORRISON & FOERSTER AND IN WILMER,

11

HALE ON THE COUNTERCLAIMS.

12

PREJUDICED.

13

THEY'RE NOT GOING TO BE

AS YOUR HONOR NOTED, BRIDGES WAS VERY

14

LATE TO THE TABLE.

15

LATE.

16

SO LATE?

WHY WERE THEY BROUGHT IN SO

WHY DID THEY FILE THEIR NOTICE OF APPEARANCE
THEY WERE BUSY?

I DON'T THINK SO.

17

THE NOTION THAT A LATE COMER IS

18

INDISPENSABLE TO THE REPRESENTATION OF A VERY WELL

19

REPRESENTED AND ABLY REPRESENTED CLIENT IS

20

EXTREMELY UNPERSUASIVE.

21

SO -- AND I JUST WANTED TO ANSWER YOUR

22

HONOR'S LAST QUESTION ABOUT PIEJA, WHICH I DIDN'T

23

WANT TO GO UNANSWERED.

24
25

PIEJA DID BILL A LOT OF TIME BEHIND THE
SCENES, BUT HE WAS NOT SOMEONE WHO INTERFACED WITH
24

1

THE SAMSUNG EMPLOYEES, SO THE PEOPLE THAT WERE IN

2

THE SEPTEMBER 2010 MEETING WOULD NOT HAVE

3

RECOGNIZED HIM, SO WE DON'T THINK THERE'S ANY

4

WAIVER OF THEIR ARGUMENT.

5

THE COURT:

LET ME ASK, A CASE THAT APPLE

6

RELIES A LOT ON IN ITS OPPOSITION IS THE HILLEBY

7

CASE, AND IN THE HILLEBY CASE, HILLEBY WAS GIVEN

8

THE CHOICE, "YOU CAN KEEP TOWNSEND & TOWNSEND, BUT

9

IF YOU DO, YOU HAVE TO GIVE UP ALL OF YOUR DEFENSES

10

THAT ATTACK THE PATENT THAT," WHAT IS IT, MR. SEKA

11

OR THE OTHER ATTORNEY, MR. HESLIN, ACTUALLY

12

PROSECUTED THE PATENT.

13

SO WHAT IF I GAVE YOU THAT CHOICE, THAT,

14

OKAY, YOU CAN KEEP BRIDGES, BUT YOU'RE GOING TO

15

HAVE TO GIVE UP YOUR FAIR AND NON-DISCRIMINATORY,

16

ALL YOUR FRAND AND OTHER DEFENSES, ANTITRUST

17

DEFENSES ABOUT FAILURE TO MAKE THE PROPER

18

DISCLOSURES TOWARD THE STANDARD SETTING, ET CETERA,

19

ET CETERA?

20

KEEP BRIDGES BUT GIVE UP ALL OF THOSE DEFENSES THAT

21

THE BRIDGES ATTORNEYS WOULD HAVE WORKED ON IN THE

22

ERICSSON LITIGATION?

23

ARE YOU GOING TO MAKE THAT CHOICE, TO

MR. TAYLOR:

NO, YOUR HONOR, I DON'T

24

THINK WE'RE GOING TO MAKE THAT CHOICE, NOR, WITH

25

ALL DUE RESPECT, DO I THINK THAT'S WHAT HILLEBY
25

1

STANDS FOR OR SAYS.

2

WHAT HILLEBY SAYS IS THAT THE LAWYERS IN

3

THE BRIDGES, MAV SITUATION HERE CAN LIMIT THEIR

4

REPRESENTATION TO ONLY REPRESENTING THE CLIENT ON

5

COUNTERCLAIMS THAT ARE NOT RELATED TO WHAT THEY DID

6

BEFORE.

7

IF THERE ARE SOME COUNTERCLAIMS WHICH ARE

8

RELATED TO WHAT THOSE LAWYERS DID BEFORE, THEY MAY

9

NOT REPRESENT THE CLIENT.

10

EITHER THEY GET NEW COUNSEL, OR THE

11

CLIENT HAS TO DECIDE TO LET THOSE CLAIMS GO

12

FORWARD.

13

BUT THAT FIRM CANNOT REPRESENT -- THAT'S

14

ALL THE COURT SAID -- CANNOT REPRESENT THE CLIENT

15

ON CLAIMS THAT ARE RELATED TO SOMETHING THEY DID

16

BEFORE.

17

SO THAT WOULD BE THE SITUATION HERE WHERE

18

IT'S AS IF BRIDGES, MAV DID NOT HAVE A LIMITED

19

SCOPE OF REPRESENTATION AND IF THEY SAID, "WE ARE

20

ACTUALLY REPRESENTING APPLE IN CONNECTION WITH SOME

21

PART OF THE '604 OR SOMETHING ELSE," THIS COURT

22

COULD THEN SAY, "YOU HAVE TO GET SEPARATE COUNSEL

23

FOR THAT, OR YOU HAVE TO GIVE UP THOSE CLAIMS IF

24

YOU WANT BRIDGES, MAV TO CONTINUE TO REPRESENT

25

YOU."
26

1

BUT WHAT'S KEY IN THE CASE IS THEY SAID,

2

"IF YOU," BRIDGES MAV, THE EQUIVALENT, "IF YOU'RE

3

REPRESENTING YOUR CLIENT, EVEN ON A COUNTERCLAIM,

4

EVEN IN THE SAME CASE, ON SOMETHING THAT'S NOT

5

RELATED TO ANYTHING YOU DID BEFORE, YOU STAY IN THE

6

CASE.

7

TO AVOID A CONFLICT."

8

YOU MAY LIMIT YOUR REPRESENTATION THAT WAY

THE IRONY HERE IS MS. SULLIVAN'S ONLY

9

TODAY ABLE TO MAKE HER LEAD ARGUMENT ABOUT THE

10

RELATIONSHIP BETWEEN THE ERICSSON CASE AND THIS

11

CASE BECAUSE OF ACTION THAT SAMSUNG TOOK TO PUT

12

THEM TOGETHER.

13

THEY WERE TWO SEPARATE CASES.

THAT RAISES NO ISSUE OF SUBSTANTIAL

14

RELATIONSHIP AND BRIDGES, MAV.

15

ONLY IN ONE CASE.

16

BRIDGES, MAV WAS

SAMSUNG AND -- EXCUSE ME -- APPLE WAS

17

REPRESENTED VERY ABLY IN THE OTHER CASE BY WILMER,

18

HALE.

19

THERE WAS NO SUBSTANTIAL RELATIONSHIP

20

BETWEEN THOSE TWO CLAIMS UNTIL SAMSUNG THREW THEM

21

TOGETHER BY DISMISSING THEIR ACTION AND FILING THEM

22

BOTH IN THIS ACTION.

23

THERE IS NO CASE IN CALIFORNIA, AND THAT

24

IS THE LAW THAT YOUR HONOR IS FOLLOWING, THAT SAYS

25

WHAT YOU DO IS YOU COMPARE WHAT A LAWYER DID BEFORE
27

1

TO EVERYTHING THAT'S IN THE CASE, PARTICULARLY WHEN

2

THE OTHER PARTY HAS COMPLETE CONTROL OVER WHAT YOU

3

CAN PUT IN THE CASE.

4

THINK OF WHAT THAT WOULD MEAN.

IF YOU

5

HAD A PARTY UP HERE THAT WORKED, AT SOME POINT IN

6

THEIR PAST, ON SOME ASPECT OF SOME PIECE OF

7

LITIGATION, IF AGGRESSIVE AND CREATIVE COUNSEL CAN

8

GO FIND SOME COUNTERCLAIM SOMEPLACE TO PUT IN THAT

9

CASE, EVEN THOUGH THE LAWYER IS NOT DOING ANY WORK

10

ON THAT, NOT REPRESENTING THEM ON THAT, IF THAT

11

STRATEGIC AND TACTICAL MANEUVER CAN SUCCEED IN

12

COSTING THE CLIENT THIS LAWYER WHO PROPERLY

13

ACCEPTED REPRESENTATION, WHO'S PROPERLY LIMITED THE

14

SCOPE OF HIS OR HER REPRESENTATION, IF THAT

15

STRATEGIC MANEUVER COULD DO THAT, THIS COURT WILL

16

SEE MANY MORE MOTIONS FOR DISQUALIFICATION, BECAUSE

17

IT'S NOT A HARD THING TO DO TO LOAD UP A CASE WITH

18

A COUNTERCLAIM THAT WOULD CREATE THAT KIND OF A

19

PROBLEM.

20

THAT'S WHY CALIFORNIA COURTS SAY THE ONE

21

THING, IS THE PRIOR REPRESENTATION SUBSTANTIALLY

22

SIMILAR TO THE CURRENT REPRESENTATION, TO WHAT

23

BRIDGES, MAV HAS AGREED TO DO AND IS DOING?

24
25

CAN BRIDGES, MAV LIMIT THIS?

YES, THEY

CAN LIMIT IT.
28

1

THAT'S WHAT HILLEBY SAYS.

THAT'S WHAT

2

PLANT SAYS.

THAT'S WHAT THE OTHER AUTHORITIES THAT

3

WE HAVE CITED IN THE PROPOSED RULE SAY IN THE

4

COMMENTARY.

5

AND LAWYERS LIMIT THEIR REPRESENTATION

6

ALL THE TIME IN ORDER TO STAY WITHIN THE ETHICAL

7

BOUNDARIES.

8

THE ONLY THING THAT'S CHANGING THAT --

9

AND SAMSUNG'S LEAD ARGUMENT IS A MISSTATEMENT OF

10

THE LAW.

YOU DO NOT COMPARE WHAT BRIDGES, MAV DID

11

BEFORE TO WHAT'S GOING ON IN A CASE THAT SEPARATE

12

COUNSEL ARE SEPARATELY HANDLING ON AN EVIDENTIARY

13

RECORD WHERE BRIDGES, MAV -- AND THERE'S NO

14

CONTRADICTION TO THIS -- SAYS "WE ARE NOT DOING ANY

15

WORK ON THE PART THAT'S RELATED.

16

THE UNRELATED PART.

17

THE SCOPE OF OUR LIMITED REPRESENTATION.

18

ANOTHER FIRM, THEY WERE ORIGINALLY HIRED TO DO IT,

19

THEY'RE STILL HIRED TO DO IT."

20

THE COURT:

21

MR. TAYLOR:

22

THE COURT:

WE ARE ONLY DOING

WE'RE ONLY DOING WORK WITHIN
THERE'S

LET ME ASK A QUESTION.
SURE.
HOW DO YOU DO THE ETHICAL

23

WALL WITHIN APPLE ITSELF?

24

ABOUT WILMER, HALE VERSUS BRIDGES.

25

I SEE WHAT YOU'RE SAYING

BUT ARE YOU GOING TO HAVE DIFFERENT APPLE
29

1

IN-HOUSE ATTORNEYS FOR THE SAMSUNG AFFIRMATIVE CASE

2

VERSUS THE APPLE AFFIRMATIVE CASE?

3

I MEAN, HOW -- IT'S VERY FEASIBLE TO

4

THINK THAT THE APPLE IN-HOUSE ATTORNEYS ARE GOING

5

TO HEAR SOME INFORMATION FROM BRIDGES THAT COULD

6

BLEED OVER AND TAINT THE OTHER SIDE.

7
8
9

SO WHAT KIND OF ETHICAL WALL ARE YOU
GOING TO HAVE IN-HOUSE?
MR. TAYLOR:

I THINK, YOUR HONOR, THAT AN

10

ETHICAL WALL IS NOT REQUIRED, AND I THINK THAT FOR

11

THIS REASON, NOR APPROPRIATE.

12

FIRST OF ALL, ETHICAL WALLS REALLY EXIST

13

ONLY WHEN YOU'RE TALKING ABOUT A SITUATION WITHIN

14

LAW FIRMS WHERE YOU HAVE PEOPLE WITH FIDUCIARY

15

DUTIES TO EACH OTHER, THEY'RE ALL PRESUMED TO HAVE

16

CONFIDENTIAL INFORMATION OF THE OTHER PERSON, AND

17

YOU'RE TRYING TO FIND A WAY TO OVERCOME THAT

18

PRESUMPTION.

19

AS YOUR HONOR INDICATED IN THE ORACLE

20

DECISION THAT CAME DOWN LAST MONTH, WE DON'T

21

PRESUME THAT BETWEEN CO-COUNSEL OR BETWEEN COUNSEL

22

AND A CLIENT THAT THEY'RE GOING TO VIOLATE THEIR

23

ETHICAL DUTIES AND THEY'RE GOING TO DISCLOSE

24

CONFIDENTIAL INFORMATION.

25

THERE'S NO EVIDENCE OF THAT IN THIS RECORD.

WE DON'T PRESUME THAT.

30

1

THERE'S ALSO EVIDENCE IN THE RECORD THAT

2

FROM THE BEGINNING, APPLE HAS UNDERSTOOD THAT

3

BRIDGES, MAV IS NOT TO CONTRIBUTE, NOT TO HAVE

4

ANYTHING TO DO WITH THE -- WITH ANYTHING HAVING TO

5

DO WITH THE SAMSUNG PATENTS OR THOSE STANDARDS

6

PATENTS OR FRAND AND THEY HAVE NOT.

7

THAT'S WHAT APPLE SAYS.

8

COUNSEL IN THE CASE SAY.

9

THAT'S WHAT THE

HAS DONE.

10

THAT'S WHAT BRIDGE, MAV

AND THAT IS BRIDGES, MAV'S ETHICAL

11

RESPONSIBILITY, NOT TO MAKE ANY AFFIRMATIVE

12

CONTRIBUTION, NOT TO DO ANYTHING ON THAT CASE.

13

AND AS WE INDICATED TO YOUR HONOR,

14

ALTHOUGH IT'S NOT NECESSARY, IF THE COURT WOULD

15

LIKE THE FIRM TO CONFIRM THAT IT WILL ABIDE BY THAT

16

OBLIGATION, NOT UNDERTAKE TO REPRESENT APPLE IN

17

CONNECTION WITH ANYTHING ON THE SAMSUNG CLAIMS, THE

18

FIRM IS WILLING TO HAVE THE COURT ENTER AN ORDER

19

THAT SAYS "YOU SHALL NOT REPRESENT APPLE IN

20

CONNECTION WITH ANY OF THE SAMSUNG CLAIMS, ANY OF

21

THE CLAIMS THAT ARE NOW THE COUNTERCLAIMS."

22

SO THAT THEY NOT ONLY HAVE THE ETHICAL

23

OBLIGATION NOT TO DO IT, BUT THEY ALSO HAVE THE

24

POWER OF THE COURT AND CONTEMPT OF COURT IN THE

25

EVENT THAT THEY ARE TO VIOLATE IT.
31

1
2

THEY HAVEN'T VIOLATED IT.
EVIDENCE THAT THEY WILL.

3
4

AND HERE WE HAVE SEPARATE COUNSEL WHO'S
HANDLING THAT CASE AND TAKING CARE OF THAT CASE.

5
6

THERE'S NO

THERE'S ONE OTHER ISSUE I'D LIKE TO
RAISE, AND I THANK YOUR HONOR FOR YOUR PATIENCE.

7

YOUR HONOR SUGGESTED THAT IT'S IMPOSSIBLE

8

THAT MAYBE MR. BRIDGES OR SOME OTHER MEMBER OF THE

9

FIRM DOESN'T HAVE SOME INFORMATION THAT MAY BE

10

RELEVANT.

11

IT'S A REALLY IMPORTANT POINT, BECAUSE IT

12

SUGGESTS -- AND SAMSUNG MAKES THIS POINT -- THAT

13

THERE IS SOME LIFE OR THERE IS SOME VITALITY IN

14

CALIFORNIA TO THIS GENERAL NOTION THAT YOU HAVE

15

INFORMATION ABOUT SOMEBODY'S PLAYBOOK OR HOW PEOPLE

16

DO THINGS.

17
18

THAT IS SIMPLY NOT THE LAW OF CALIFORNIA.
THERE IS NO GENERAL PLAYBOOK LAW IN CALIFORNIA.

19

AND WE CITED IN OUR BRIEFS, YOU KNOW, THE

20

BANNING RANCH CASE AND A WHOLE SERIES OF CASES THAT

21

SAY THAT OVER AND OVER AGAIN.

22

THE ONLY TIME THE COURTS DECIDE AND

23

PRESUME THAT SOMEONE MAY HAVE SOME INFORMATION THAT

24

THEY WOULD CONVEY AND USE IT FOR DISQUALIFICATION

25

IS WHEN SOMEONE HAS HAD ACCESS -- WE HAVE THE
32

1

FARRIS CASE WHERE WE HAVE A LAWYER WITH TEN YEARS

2

OF EXPERIENCE WITH AN INSURANCE COMPANY HANDLING

3

226 CASES WHERE THAT LAWYER ACTUALLY WROTE THE

4

PRACTICES FOR THE CLAIMS HANDLING PROCEDURES AND

5

DID THE TRAINING THAT WAS GOING TO BE AT ISSUE IN

6

LITIGATION THAT HE WANTED TO HANDLE AGAINST THE

7

INSURANCE COMPANY.

8
9

WE HAVE THE OLIVER CASE, WHICH IS VERY
DIFFERENT.

10

WE HAVE HERE, YOU KNOW, MR. BRIDGES, WHO,

11

BY HIS OWN INDICATION, IS -- HAS THREE LAWYERS

12

SENIOR TO HIM, THERE ARE 20 LAWYERS ON THE CASE, HE

13

HAS NO ONE-ON-ONE COMMUNICATIONS WITH THE DECISION

14

MAKER AT SAMSUNG, HE'S NOT INVOLVED IN SETTLEMENT,

15

HE'S NOT INVOLVED WITH ANY OF THAT.

16

AND IF SOMEONE LIKE MR. BRIDGES CAN BE

17

FOUND TO HAVE, IN SOME MANNER, INFORMATION THAT

18

COULD RESULT IN HIS BEING DISQUALIFIED FROM HAVING

19

BEEN A JUNIOR PARTNER WORKING ON A CASE WHERE

20

THERE'S NO EVIDENCE THAT HE LEARNED ANYTHING, AND

21

THEY HAVE -- THE BURDEN'S ON SAMSUNG.

22

THERE'S NO EVIDENCE THAT HE LEARNED

23

ANYTHING OF ANY SIGNIFICANT, YOU KNOW, CONFIDENTIAL

24

NATURE.

25

AND MORE IMPORTANTLY, THE BURDEN IS ON
33

1

SAMSUNG TO DEMONSTRATE THAT WHATEVER HE LEARNED, IF

2

IT WAS CONFIDENTIAL, THEY HAVE TO DEMONSTRATE THAT

3

IT WAS MATERIAL IN THIS SENSE:

4

RELATED TO AN ISSUE IN THIS CASE WHERE THEY'RE

5

REPRESENTING -- DIRECTLY RELATED TO THE ANDROID

6

CASE; AND/OR THAT IT'S OF CRITICAL IMPORTANCE.

THAT IT DIRECTLY

7

AND THAT'S A BIG STANDARD, AND IF YOUR

8

HONOR REVIEWS THE FOUST CASE, YOU'LL SEE THAT IT

9

IS -- IN CALIFORNIA, TO DISQUALIFY A LAWYER WHO

10

HAS -- WHERE THERE'S NO OVERLAP BETWEEN THE TWO

11

MATTERS WHERE THEY'VE ACCEPTED REPRESENTATION

12

BECAUSE THEY KNOW SOMETHING FROM THEIR PAST

13

REPRESENTATION IS A VERY, VERY DIFFICULT THING TO

14

DO AND THERE'S NO WAY THE LAW, WE WOULD SUBMIT,

15

WOULD APPLY TO SOMEONE, ON THIS EVIDENTIARY RECORD,

16

FOR WHAT MR. BRIDGES' ROLE WAS IN THIS CASE.

17

SO I AM CONCERNED, AND I THINK THAT APPLE

18

IS AND I THINK THE COURT SHOULD BE, TOO, OF THE

19

IMPLICATIONS OF GRANTING A MOTION TO DISQUALIFY ON

20

THIS PARTICULAR MATTER ON THIS RECORD GIVEN

21

CALIFORNIA LAW ON THE ISSUE, AND WE'VE TRIED TO

22

ADDRESS IT AS CLEARLY AS WE COULD IN OUR BRIEF.

23

IT REALLY DOES ALLOW A PARTY TO TAKE

24

TREMENDOUS TACTICAL ADVANTAGE OF A MOTION TO

25

DISQUALIFY BY THEIR OWN STRATEGIC DECISION MAKING
34

1

OF PUTTING THESE CLAIMS IN THIS CASE WHERE THEY

2

WERE NOT IN THE FIRST PLACE.

3

THE COURT:

LET ME -- I JUST HAVE A

4

CLARIFICATION AND I WOULD LIKE TO WRAP THIS UP

5

BECAUSE I ALSO HAVE A FINAL PRETRIAL CONFERENCE IN

6

ANOTHER CASE TODAY.

7

I JUST WAS UNCLEAR ON -- IN SAMSUNG'S

8

MOTION, MUCH WAS MADE OF THE DICAM AND SPANSION

9

LITIGATIONS.

10

THAT LARGELY SEEMS TO HAVE BEEN SORT

OF IGNORED IN THE REPLY.

11

EXACTLY WHAT'S SAMSUNG'S POSITION ON

12

THOSE?

13

YOUR VIEW FOR A DISQUALIFICATION, OR ARE YOU SORT

14

OF WALKING AWAY FROM THAT?

15

POSITION IS ON THOSE TWO.

16

DO YOU THINK THAT'S AN INDEPENDENT BASIS IN

MS. SULLIVAN:

OR TELL ME WHAT YOUR

YOUR HONOR, WE'RE RELYING

17

PRINCIPALLY ON THE SONY-ERICSSON LITIGATION.

18

THINK THAT CREATES AN OBVIOUS CONFLICT WITH RESPECT

19

TO THE COUNTERCLAIMS, THE FRAND, IF THE

20

COUNTERCLAIMS REMAIN IN.

21
22
23

WE

BUT IF I COULD TAKE JUST A MINUTE TO
RESPOND TO MR. TAYLOR, YOUR HONOR?
THE -- APPLE HAS CONCEDED THE SUBSTANTIAL

24

RELATIONSHIP BETWEEN THE '604 PATENT AND THE FRAND

25

ISSUES AND THE COUNTERCLAIMS.
35

1

WE DON'T -- THEREFORE, THE POSSESSION OF

2

CONFIDENTIAL INFORMATION IS CONCLUSIVELY PRESUMED

3

UNDER CALIFORNIA LAW.

4

SAMSUNG HAS NO OBLIGATION TO PROVE THAT

5

THEY POSSESSED CONFIDENTIAL INFORMATION WITH

6

RESPECT TO THOSE ISSUES IN THE COUNTERCLAIMS.

7

SO IF THE COUNTERCLAIMS STAY IN THE CASE

8

AND YOUR HONOR PROPERLY FOUND THE CASES, THE CLAIMS

9

RELATED AND THEY ARE NOW ONE CASE, WE'RE DONE.

10

THERE'S DISQUALIFICATION THAT HAS TO FOLLOW BECAUSE

11

THEIR PROPOSED MENTAL WALL IS UNWORKABLE.

12

YOUR HONOR, HILLEBY IS AN OLD CASE.

13

DIDN'T CITE CALIFORNIA LAW.

14

WHO HAD SOME OTHER PARTNER IN THE FIRM INVOLVED IN

15

THE PROSECUTION.

16

IT'S 1992.

AND
IT

IT INVOLVED A PARTNER

THAT'S A FAR CRY FROM MR. BRIDGES, WHO

17

WAS THE LITIGATOR FOR SAMSUNG, WHO TURNS AROUND TO

18

BECOME THE LITIGATOR FOR APPLE.

19

AND I, WITH ALL DUE RESPECT, CAN'T CREDIT

20

MR. TAYLOR'S NOTION THAT HE WAS JUST A JUNIOR

21

PARTNER.

22

JUNIOR PARTNERS POSSESS PLENTY OF

23

KNOWLEDGE, OFTEN MORE THAN THE SENIOR PARTNERS IN A

24

CASE.

25

SO THAT'S NOT A PERSUASIVE ARGUMENT.
BUT CRUCIALLY, HILLEBY DID NOT TALK ABOUT
36

1

THE LATER CASES IN WHICH CALIFORNIA COURTS HAVE

2

REJECTED ETHICAL WALLS.

3

SO IF FORMAL ETHICAL WALLS HAVE BEEN

4

REJECTED AS A GROUND FOR PRESERVING -- PREVENTING

5

CONFLICTS OF INTEREST, A MENTAL WALL CERTAINLY

6

CAN'T SUFFICE.

7
8
9
10

AND HILLEBY DIDN'T DISCUSS THOSE LATER
CASES WHICH ARE CITED IN OUR BRIEF.
THE COURT:

IT ALSO SAID THE NINTH

CIRCUIT HASN'T APPROVED ETHICAL WALLS ANYWAY.

11

MS. SULLIVAN:

12

SO THE NOTION THAT -- WE'RE A FAR CRY

13
14

CORRECT, YOUR HONOR.

FROM HILLEBY AS AN AUTHORITY HERE.
BUT YOUR HONOR, THE MOST IMPORTANT POINT

15

I WANT TO MAKE IS WE THINK WE WIN SO EASILY WHEN

16

THE COUNTERCLAIMS STAY IN THE CASE, GIVEN THE

17

CONCESSION OF THE SUBSTANTIAL RELATIONSHIP HERE,

18

BECAUSE OF THE UNWORKABILITY AND UNSUSTAINABILITY

19

OF THE MENTAL WALL.

20

BUT I WANT TO STRESS TO YOUR HONOR THAT

21

IT'S A CANARD TO SAY THAT WE BROUGHT THE CONFLICT

22

INTO THE CASE BY ASSERTING, PROPERLY, A RELATED

23

COUNTERCLAIM IN THIS CASE AT YOUR HONOR'S

24

INVITATION, BECAUSE THE CONFLICT EXISTS EVEN AS TO

25

APPLE VERSUS SAMSUNG.
37

1

APPLE IS ACCUSING SAMSUNG NOT JUST OF --

2

THEIR CLAIMS ARE NOT JUST DIRECTED AT THE ANDROID

3

PHONES.

4

SAMSUNG'S PHONES, NOT JUST AT THE TECHNICAL

5

FEATURES, BUT AT THE LOOK AND FEEL.

6

THEY'RE DIRECTED AT THE LOOK AND FEEL OF

BRIDGES & MAVRAKAKIS WERE PRIVY TO

7

SAMSUNG'S TECHNOLOGY, ENGINEERS, PRIVILEGED AND

8

CONFIDENTIAL INFORMATION IN 2006 AND 2007 WITH

9

RESPECT TO THE LOOK AND FEEL OF SAMSUNG'S PHONES.

10

SO THEY HAVE CONFIDENTIAL INFORMATION

11

WITH RESPECT TO APPLE'S CLAIMS ABOUT APPLE'S

12

PATENTS RELEVANT TO SAMSUNG'S PRODUCTS.

13

SO IT'S NOT THE COUNTERCLAIMS THAT BRING

14

THE CONFLICT OF INTEREST TO THIS CASE.

THAT

15

CONFLICT OF INTEREST IS THERE BECAUSE OF ERICSSON

16

AND THE KNOWLEDGE THAT WAS GAINED IN THE ERICSSON

17

REPRESENTATION ON WHICH WE PRINCIPALLY RELY THAT

18

CONFLICTS THEM OUT OF TURNING AROUND, CROSSING THE

19

STREET, GOING OVER TO APPLE AND SAYING, "NOW LET'S

20

SUE OUR FORMER CLIENT ON THE LOOK AND FEEL OF ITS

21

PHONES THAT WE LEARNED ABOUT FROM ITS ENGINEERS IN

22

THE COURSE OF OUR REPRESENTATION."

23

THAT IS NOT SOMETHING THAT'S CLOSE.

24

THERE SHOULD HAVE BEEN A REQUEST FOR INFORMED

25

WRITTEN CONSENT.
38

1

IT WAS NOT PROPER FOR BRIDGES &

2

MAVRAKAKIS TO APPOINT THEMSELVES THE JUDGES OF AN

3

ETHICAL CONFLICT.

4
5

IT IS THEIR DUTY TO FIND OUT WHETHER
THEIR CLIENT ABSOLVES THEM OF THE CONFLICT.

6

SAMSUNG WAS NOT GIVEN THAT OPPORTUNITY,

7

AND WE SHOULDN'T EVEN HAVE TO ENGAGE IN SUCH A

8

PROTRACTED DIALOG ABOUT SUCH A CLEAR VIOLATION.

9
10

DISQUALIFICATION IS THE ONLY REMEDY HERE
BECAUSE THE MENTAL WALL WON'T WORK.

11
12
13
14
15
16

THE COURT:

OKAY.

I WOULD LIKE TO WRAP

THIS UP.
DO YOU WANT TO SAY SOMETHING?

IF SO,

I'LL GIVE YOU A MINUTE.
MR. TAYLOR:

YOUR HONOR, JUST TWO QUICK

THINGS AND THEN I'M DONE.

17

THE COURT:

18

MR. TAYLOR:

OKAY.
ONE IS I DO -- I WOULD LIKE

19

TO SAY AGAIN THAT IF THE COURT PERMITS SAMSUNG TO

20

DEPRIVE APPLE OF COUNSEL AND DISQUALIFIES

21

BRIDGES, MAV IN THIS CASE WHEN THEY ARE OTHERWISE

22

UNDISQUALIFIABLE, AND I BELIEVE THEY ARE, EXCEPT

23

FOR WHAT SAMSUNG DECIDES TO PUT IN THE CASE THAT

24

CREATES A CONFLICT, WE HAVE THE KIND OF TACTICAL

25

ABUSE THAT THE MARLOW CASE TALKS ABOUT, YOUR HONOR
39

1

TALKS ABOUT, WHERE MOTIONS FOR DISQUALIFICATION

2

NEED TO BE JUDGED WITH STRICT SCRUTINY BECAUSE THEY

3

ARE SO SUSCEPTIBLE TO BEING USED BY PEOPLE, IN THIS

4

CASE, FUTURE CASES AND OTHER CASES, TO BRING A

5

COUNTERCLAIM IN FOR OTHER STRATEGIC REASONS, IT

6

DOESN'T MATTER WHAT THE REASON IS, AND THEN USE

7

THAT, TURN AROUND AND USE THAT TO DISQUALIFY A

8

PARTIES' COUNSEL WHEN THAT IS NOT THE STANDARD.

9

IT'S NOT THE COMPARISON BETWEEN -- AS

10

RULE 310 SAYS, YOU COMPARE THE EMPLOYMENT THAT WAS

11

ACCEPTED WITH THE EMPLOYMENT THAT WAS PREVIOUSLY

12

ENTERED.

13

TO REMAIN CLEAR FROM ANYTHING THAT THE OTHER PARTY

14

MAY BRING INTO THE CASE.

15

THAT'S THE ONLY ETHICAL OBLIGATION, NOT

THE SECOND THING IS IF I CAN, YOUR HONOR,

16

I SUGGESTED THAT BOTH APPLE AND BRIDGES, MAV WOULD

17

BE WILLING TO HAVE THE COURT ENTER AN ORDER SIMPLY

18

CONFIRMING WHAT THEIR ETHICAL OBLIGATIONS ARE.

19

IF YOUR HONOR WOULDN'T MIND, I WOULD LIKE

20

JUST TO SUBMIT THAT TO YOUR HONOR FOR YOUR HONOR'S

21

CONSIDERATION.

22

I'VE GIVEN A COPY TO OPPOSING COUNSEL.

23

THE COURT:

24

MR. TAYLOR:

25

THE COURT:

HAVE YOU FILED IT?
I HAVE NOT.
OKAY.

IT NEEDS TO BE FILED.
40

1

MR. TAYLOR:

2

AND UNLESS YOUR HONOR HAS ANY OTHER

3

QUESTIONS --

4
5

OKAY.

OR PROFESSOR, DO YOU HAVE ANYTHING TO
ADD?

6

I THINK THAT I WOULD JUST URGE THE COURT

7

TO DENY THE MOTION FOR THE REASONS THAT WE'VE

8

SUGGESTED.

9
10

THE COURT:

THANK YOU.

THANK YOU

BOTH.

11
12

OKAY.

LET'S GO TO THE MOTION FOR EXPEDITED
TRIAL AND THE CMC PORTION OF THE CASE.

13

LET ME ASK APPLE, WHY ISN'T YOUR PENDING

14

PRELIMINARY INJUNCTION MOTION SUFFICIENT TO PROTECT

15

YOUR INTEREST?

16

PRELIMINARY INJUNCTION, THAT'S ESSENTIALLY THE

17

RELIEF THAT YOU WOULD GET IF YOU WERE TO GO TO

18

TRIAL, SO WHY ARE YOU ENTITLED TO BOTH?

19

YOU'VE GOT -- IF YOU DO GET A

MR. MCELHINNY:

20

TO THAT, YOUR HONOR.

21

THE COURT:

22

MR. MCELHINNY:

I -- THERE'S TWO ANSWERS

23
24
25

YEAH.
BOTH OF WHICH ARE

ACCURATE.
ONE IS YOU -- AGAIN, YOU HAVE TO
UNDERSTAND THE CONTEXT.

YOUR HONOR MENTIONED -- I
41

1

MEAN, YOU CLEARLY DO UNDERSTAND THE CONTEXT OF

2

WHAT'S GOING ON HERE, WHICH IS THIS IS A CASE

3

THAT'S LARGER THAN THE UNITED STATES.

4

I MEAN, IT'S GOING ON ACROSS THE WORLD IN

5

ALMOST EVERY COUNTRY IN TERMS OF A CONCERTED EFFORT

6

BY SAMSUNG TO, AS WE SAY, COPY, USE THE APPLE

7

ENTREE IN ORDER TO GET INTO THE MARKETPLACE, CREATE

8

MARKET SHARE, AND TO DO THAT WITHOUT REGARD TO OUR

9

INTELLECTUAL PROPERTY.

10

AND PART OF THAT STRATEGY, WHICH TO US IS

11

AS CLEAR AS DAY, PART OF THAT STRATEGY IS TO OUTRUN

12

AND OUTMANEUVER THE ABILITY OF THE COURT SYSTEMS TO

13

CATCH THEM.

14

I -- IT'S A VERY SOPHISTICATED

15

COMBINATION OF WHAT I WOULD CALL WHACK-A-MOLE AND

16

CATCH US IF YOU CAN.

17

AND IN ALL OF THE COURTS SO FAR, IN THE

18

COUNTRIES THAT HAVE AN I.P. REGIMEN, ALL OF THEM

19

ARE MOVING AS EXPEDITIOUSLY AS POSSIBLE TO SORT OF

20

CATCH UP WITH THAT.

21

AND SO WE'VE HAD PROCEEDINGS IN

22

AUSTRALIA, WE'VE HAD PROCEEDINGS IN GERMANY, WE'VE

23

HAD PROCEEDINGS IN THE NETHERLANDS.

24
25

AND IN EVERY ONE OF THOSE COUNTRIES,
ALTHOUGH THE LAW IS DIFFERENT AND THE PROCESS, IT'S
42

1

CERTAINLY NOT PRECEDENTIAL IN ANY WAY, BUT IN EVERY

2

ONE OF THOSE COUNTRIES, THE RESULTS OF THOSE

3

HEARINGS HAVE BEEN A LIMITATION ON SAMSUNG'S

4

ABILITY TO MARKET.

5

AND IN EVERY CASE WE'VE SEEN AN

6

INSTANTANEOUS RESPONSE FROM SAMSUNG EITHER TO MOVE

7

INTO THE NEXT ADJOINING COUNTRY WHERE THE

8

PRELIMINARY INJUNCTION DOESN'T WORK, OR TO RELEASE

9

SLIGHTLY DIFFERENT PHONES --

10
11

THE COURT:

HOW MANY INJUNCTIONS HAVE YOU

GOTTEN?

12

MR. MCELHINNY:

TO BE CLEAR, THERE WAS A

13

STIPULATED AGREEMENT IN AUSTRALIA BY WHICH SAMSUNG

14

AGREED NOT TO RELEASE THE PRODUCT THAT WAS

15

CHALLENGED; THERE WAS AN INJUNCTION THAT WAS ISSUED

16

BY A GERMAN COURT THAT WAS OF PAN EUROPEAN EXPOSURE

17

THAT -- WHERE A CHALLENGE TO JURISDICTION WAS THEN

18

WITHDRAWN SO THAT IT ONLY COVERS GERMANY; AND THERE

19

WAS AN INJUNCTION ISSUED THIS MORNING IN THE

20

NETHERLANDS THAT RESTRICTS THREE NETHERLANDS

21

ENTITIES.

22
23
24
25

THE COURT:

WHAT DOES THAT MEAN, IT

RESTRICTS THREE NETHERLANDS ENTITIES?
MR. MCELHINNY:

THE EUROPEAN COURTS HAVE

A JURISDICTIONAL ISSUE ABOUT ENJOINING SAMSUNG
43

1

ITSELF, SO THEY ENJOIN THE COMPANIES THAT DO

2

BUSINESS IN THEIR JURISDICTIONS.

3

BUT SAMSUNG ISSUED A PRESS RELEASE THIS

4

MORNING SAYING, "YEAH, YOU GOT YOUR PRELIMINARY

5

INJUNCTION IN THE NETHERLANDS."

6

BUT IT'S NOT GOING TO DO US ANY GOOD

7

BECAUSE THEY HAVE OTHER COMPANIES THAT CAN DO THE

8

DISTRIBUTION AND THEY RELEASED FOUR DIFFERENT

9

PHONES TODAY.

10

IT'S LITERALLY A QUESTION -- AND TO JUST

11

BRING IT HOME SO THAT YOUR HONOR WILL SEE IT, WE

12

LITIGATED, BEFORE YOUR HONOR, THE SCHEDULE AT WHICH

13

WE COULD GET TO A PRELIMINARY INJUNCTION, AND WE

14

ASKED FOR A FAST ONE AND SAMSUNG ASKED FOR A SLOWER

15

ONE, AND YOUR HONOR GAVE A REASONABLE BASIS TO DO

16

THAT AND SORT OF AN EXTENDED BRIEFING SCHEDULE.

17

BUT LAST SUNDAY, YOUR HONOR, LAST

18

SUNDAY -- IF I CAN PRESENT THIS, I MEAN, THE

19

EVIDENCE IN THIS CASE COMES DOWN SO FAST -- LAST

20

SUNDAY, SAMSUNG, WITH BEST BUY, INAUGURATED A

21

PROGRAM WHERE THEY ARE NOW GIVING AWAY THEIR

22

TABLETS, THE THING THAT WE ARE CHALLENGING IN YOUR

23

PRELIMINARY INJUNCTION MOTION THAT WON'T BE HEARD

24

UNTIL OCTOBER, THEY ARE FLOODING THE MARKET WITH

25

THEM FOR FREE TO ANYONE WHO BUYS ONE OF THEIR
44

1

TELEVISIONS BECAUSE THEY UNDERSTAND MARKETING, THEY

2

UNDERSTAND MARKET SHARE, THEY UNDERSTAND TYING A

3

PRODUCT TO CUSTOMERS WHO WILL NOT MOVE FROM THAT

4

PRODUCT.

5

AND THEY ARE MOVING FASTER THAN THIS

6

COURT CAN MOVE IN ORDER TO ESTABLISH A MARKET SHARE

7

AND A POSITION THAT CANNOT BE UNDONE.

8

SO THE FIRST ANSWER TO YOUR HONOR'S

9

QUESTION IS THAT PRELIMINARY INJUNCTIONS GO TO

10

SPECIFIC PRODUCTS, THEY'RE TARGETED, THEY COME

11

AFTER A COMPLETE HEARING, BUT THEY COME OUT WITH A

12

RELATIVELY LIMITED ORDER.

13

AND BECAUSE OF THE NATURE OF THE PRODUCTS

14

THAT ARE AT ISSUE IN THIS CASE, SAMSUNG CAN CHANGE

15

THE NUMBER OF PHONES, THEY HAVE PRODUCTS THAT THEY

16

HAVEN'T EVEN RELEASED YET THAT ARE NOT THE SUBJECT

17

OF A PRELIMINARY INJUNCTION THAT THEY CAN RELEASE A

18

WEEK LATER.

19

FRANKLY.

20

THEY CAN MOVE FASTER THAN YOU CAN,

AND SO WHILE A PRELIMINARY INJUNCTION

21

ESTABLISHES RULES, IT DISRUPTS THEM, IT ESTABLISHES

22

THE WILLINGNESS OF THE COURT TO ENFORCE OUR RIGHTS,

23

IT DOES NOT, BECAUSE OF THE WAY SAMSUNG LOOKS AT

24

THESE CASES -- SAMSUNG IS BIGGER THAN ANY COUNTRY,

25

YOUR HONOR -- AND BECAUSE OF THE WAY SAMSUNG LOOKS
45

1

AT THESE CASES, IT CAN TAKE LITTLE LOSSES, IT CAN

2

TAKE LITTLE ORDERS HERE AND THERE, AND IT CAN STILL

3

ACCOMPLISH ITS LARGER MISSION, WHICH IS TO

4

GENERICIZE THE APPLE PRODUCT.

THAT'S ANSWER ONE.

5

ANSWER TWO, AS YOUR HONOR KNOWS, THE

6

DISADVANTAGE TO A MOVING PARTY LIKE US IS THAT

7

PRELIMINARY INJUNCTIONS SHIFT THE BURDENS.

8

AND SO WE HAD THIS DIALOGUE EARLIER WHERE

9

YOU WERE TALKING ABOUT YOU'RE NOT GOING TO MOVE ON

10

A UTILITY PATENT AND THOSE ARE VERY DIFFICULT AND

11

THOSE ARE TRUE BECAUSE THE BURDENS SHIFT.

12

THE NATURE OF OUR COMPLAINT, AND THE

13

REASON WE DRAFTED IT AS A COMPLAINT, IS BECAUSE THE

14

APPLE PRODUCTS, THE PHONE AND THE TABLET, THEY'RE

15

NOT A SINGLE PATENT, THEY'RE NOT A SINGLE DESIGN,

16

THEY'RE NOT A SINGLE ELEMENT.

17
18
19

WHAT THEY ARE IS A PRODUCT THAT INVOLVES
A GARDEN OF NOVEL INVENTION.
AND WE FIRMLY BELIEVE THAT IF, IN FACT --

20

THAT THE ONLY WAY TO STOP THIS, THE ONLY WAY THAT

21

IS GOING TO HAVE A PRACTICAL EFFECT ON SAMSUNG IS

22

TO HAVE A JURY IN THE UNITED STATES HEAR ALL THE

23

EVIDENCE ON ALL OF THE I.P. THAT WE HAVE ASSERTED

24

AND TO COME FORTH WITH A VERDICT ENFORCED BY THIS

25

COURT AS A PERMANENT INJUNCTION THAT ESTABLISHES
46

1

OUR RIGHTS TO THE FULL SPECTRUM OF THE INTELLECTUAL

2

PROPERTY THAT WE'VE ASSERTED.

3

IF WE KEEP GOING -- WE HAVE TO GO WITH

4

RIFLE SHOTS.

WE'RE NOT ABANDONING THAT BECAUSE

5

WE'VE GOT THEM AND BECAUSE WE THINK THEY'RE STRONG.

6

BUT RIFLE SHOTS ARE NOT GOING TO BRING

7

DOWN THIS STRATOSPHERIC BOMBER WHICH IS DROPPING

8

THESE PRODUCTS ALL OVER THE WORLD.

9

TO BE ABLE TO DO THAT WITH A SMALL WEAPON.

10
11
12
13

WE'RE NOT GOING
WE

NEED -- WE NEED A JUDGMENT AND WE NEED A VERDICT.
THE COURT:

HAVE ANY OF THE CASES IN THE

OTHER JURISDICTIONS SETTLED?
MR. MCELHINNY:

THEY'RE -- NO.

14

ANSWER TO YOUR QUESTION IS NO.

15

THE COURT:

THE

16

OKAY.

DO YOU HAVE TRIAL

DATES IN ANY OF THE OTHER JURISDICTIONS?

17

MR. MCELHINNY:

18

THE COURT:

19

MR. MCELHINNY:

NOW YOU'RE TESTING ME.

OKAY.
MY UNDERSTANDING IN

20

AUSTRALIA -- MY UNDERSTANDING IS THAT IN AUSTRALIA,

21

IT'S BEING HELD UP BECAUSE SAMSUNG HAS SAID THEY'RE

22

NOT GOING TO MARKET.

23

SO PROBABLY NOTHING WILL GO FORWARD THERE

24

UNTIL SAMSUNG GIVES NOTICE THAT THEY'RE GOING TO

25

PUT THEIR PRODUCT OUT.
47

1

I BELIEVE THERE'S A HEARING -- THERE'S A

2

HEARING ON THE MERITS THAT'S SCHEDULED FOR GERMANY,

3

BUT FRANKLY, I'M NOT ENOUGH OF AN EXPERT TO KNOW

4

WHETHER IT'S A FULL TRIAL ON THE MERITS OR IT'S A

5

FURTHER TRIAL ON THE PRELIMINARY INJUNCTION.

6

BUT I THINK THE ANSWER --

7

THE COURT:

8

IS IT THE SAME PRODUCTS IN

EACH JURISDICTION THAT'S BEING ACCUSED?

9

MR. MCELHINNY:

10

THE COURT:

IT IS.

IS IT THE SAME I.P., JUST

11

THE, YOU KNOW, EUROPEAN EQUIVALENT OR THE

12

AUSTRALIAN EQUIVALENT?

13

MR. MCELHINNY:

THESE ARE REALLY SIMPLE

14

QUESTIONS AND YOU'D THINK I COULD GIVE YOU A SAMPLE

15

ANSWER.

16

THE ANSWER IS THE PRODUCTS ARE SIMILAR,

17

BUT THEY'RE NOT THE SAME BECAUSE SAMSUNG HAS THE

18

ABILITY TO CHANGE THEM FROM JURISDICTION TO

19

JURISDICTION.

20

IN AUSTRALIA, THEY SAID, "YOU'RE

21

CHALLENGING THIS PRODUCT, SO WE WILL NOT RELEASE

22

THAT PRODUCT."

23

BUT A WEEK LATER, THEY ISSUED -- THEN

24

THEY ISSUED A PRESS RELEASE SAYING, "WE WERE NEVER

25

GOING TO ISSUE THAT PRODUCT IN AUSTRALIA ANYWAY,"
48

1

AND A WEEK LATER THEY RELEASED THE SAME PRODUCT IN

2

NEW ZEALAND.

3

THE I.P. IS ALL SORT OF -- YOU KNOW, IS

4

ALL DIFFERENT IN THE SENSE THAT IT'S ALL THE SAME

5

BASIC PATENTS, BUT THEY HAVE BEEN PROSECUTED IN

6

PARALLEL AND SO THE CLAIMS ARE NOT EXACTLY THE

7

SAME.

8
9
10

THE ANSWER IS GLOBALLY, GLOBALLY, APPLE
IS ASSERTING, I THINK, IN EXCESS OF 70 UTILITY AND
DESIGN PATENTS.

11

SO YOU WILL NOT --

12

THE COURT:

13

MR. MCELHINNY:

WHAT ABOUT -SO THERE WILL NOT BE

14

RULINGS FROM ANY FOREIGN COURT, I BELIEVE, THAT

15

SOMEONE WILL COME IN HERE AND ANSWER THE QUESTIONS

16

THAT WERE PRESENTED TO YOUR HONOR BECAUSE THE LAW

17

WILL BE SLIGHTLY DIFFERENT.

18

AND THAT'S NOT REALLY MY POINT.

19

MY POINT IS THAT IN EVERY JURISDICTION,

20

SO FAR, SUBJECT TO WHATEVER CREDIT YOU GIVE A

21

STIPULATION, THAT THE COURTS HAVE CONCLUDED THAT

22

SAMSUNG IS VIOLATING THE INTELLECTUAL PROPERTY

23

RIGHTS OF APPLE IN THAT JURISDICTION.

24

THE COURT:

HAVE YOU RECEIVED DISCOVERY

25

IN THESE OTHER JURISDICTIONS?

I KNOW GERMANY
49

1

REALLY DOESN'T HAVE DISCOVERY.

2

MR. MCELHINNY:

THEY DON'T HAVE BROAD

3

DISCOVERY.

4

GOTTEN, FRANKLY, AND IT'S BEEN FAIRLY -- IT'S BEEN

5

ONE-SIDED BUT IT'S BEEN QUITE EXTENSIVE SO FAR --

6

HAS BEEN THE PRELIMINARY INJUNCTION DISCOVERY HERE.

7

WE HOPE IT WILL BE EQUALLY BROAD STARTING

8

TOMORROW.

9
10

THE COURT:

OKAY.

WHY DIDN'T YOU SEEK A

PRELIMINARY INJUNCTION AS TO ALL OF YOUR CLAIMS?

11
12

THE BROADEST DISCOVERY THAT WE'VE

MR. MCELHINNY:

AGAIN, THERE'S A COUPLE

OF REASONS.

13

IF YOUR HONOR REMEMBERS BACK, OUR

14

ORIGINAL MOTION FOR EXPEDITED DISCOVERY OF THE

15

PRODUCTS CHALLENGED FIVE PRODUCTS.

16

WERE RELEASED.

17

RELEASED.

18

THREE OF THOSE

TWO OF THEM HAVE NOT YET BEEN

THERE'S A LOT OF -- YOU KNOW, WE'VE DONE

19

THIS BEFORE.

20

THEY'RE GOING TO GET RELEASED, BUT SAMSUNG CONTROLS

21

THE RELEASE DATE AND THEY HAVE NOT BEEN RELEASED

22

YET.

23

THERE'S STUFF IN THE PRESS SAYING

SO WE HAVE NOT CHALLENGED, HERE, PRODUCTS

24

THAT HAVE NOT BEEN RELEASED.

25

THAT'S PART OF THE

ANSWER.
50

1

THE OTHER ANSWER IS A LARGE NUMBER OF

2

THE -- WE'RE ALL AWARE OF THE STANDARDS THAT THE

3

FEDERAL CIRCUIT APPLIES FOR UTILITY PATENTS ON, ON

4

PRELIMINARY INJUNCTION AND SO WE CHOSE, WE CHOSE

5

THE UTILITY PATENT THAT HAD BEEN THROUGH

6

RE-EXAMINATION AND HAD, YOU KNOW, GONE FORWARD

7

WITHOUT, YOU KNOW, SERIOUS CHALLENGE TO THE NEED OF

8

A MARKMAN HEARING.

9

WE PICKED THE PATENT THAT WE THOUGHT WE

10

COULD CONVINCE YOUR HONOR THAT WE MET THE STANDARD

11

UNDER.

12

BUT THAT'S ACTUALLY MY POINT.

13

PRELIMINARY INJUNCTIONS ARE NOT A SUBSTITUTE FOR A

14

TRIAL ON THE MERITS IN A PERIOD OF TIME WHEN THE

15

BURDENS ARE AS THEY SHOULD BE, WHEN ALL OF THE

16

EVIDENCE COMES IN, IN A PERIOD OF TIME THAT

17

ACTUALLY ALLOWS SOMEBODY TO CATCH SOMEBODY WHO'S

18

TRYING TO MOVE FASTER THAN THE JUDICIAL SYSTEM.

19

WE FILED PRELIMINARY INJUNCTIONS, AND THE

20

ANSWER IS, OH, THAT'S AN EXTRAORDINARY REMEDY, YOU

21

SHOULD ONLY BE GIVEN -- I MEAN, WE DON'T DENY ANY

22

OF THAT.

23

ONES WE'VE CHOSEN ON THE PRELIMINARY INJUNCTION.

24
25

WE THINK WE MEET THAT STANDARD FOR THE

BUT ON THE OTHERS, WE'RE ENTITLED TO OUR
PRESUMPTIONS OF VALIDITY.

WE'RE ENTITLED TO PUT IN
51

1

EVIDENCE.

THERE MAY BE A NEED FOR A CLAIM

2

CONSTRUCTION ON SOME.

3

AND THE ONLY WAY TO DO THAT IS WITH AN

4

EXPEDITED TRIAL, AGAIN, AS YOUR HONOR SUGGESTED.

5

THE COURT:

ALL RIGHT.

6

LET ME HEAR FROM

SAMSUNG ON WHAT YOUR VIEW IS.

7

MS. SULLIVAN:

8

THIS CASE IS TOO COMPLEX TO BE EXPEDITED

9
10
11
12
13
14
15

THANK YOU, YOUR HONOR.

AND APPLE HAS SHOWN NO LEGITIMATE REASON FOR
URGENCY.
AS YOUR HONOR'S QUESTIONS SUGGEST, AN
EXPEDITION WOULD GRAVELY PREJUDICE SAMSUNG.
LET'S RETURN TO HOW EXTRAORDINARY THIS
MOTION TO EXPEDITE IS.
APPLE PROPOSES A SCHEDULE THAT WOULD

16

DEPART FROM THE CAREFUL, ORDERLY NORTHERN DISTRICT

17

PATENT CASE RULES BY SETTING A TRIAL FOR THEIR

18

PATENTS TO OCCUR IN MARCH OF 2012, WHILE ALLOWING

19

SAMSUNG TO COME TO TRIAL ON ITS PATENTS IN JUNE OF

20

2013, AN EXTRAORDINARY DISPARITY AND ONE THAT, IN

21

THE ACCELERATION OF THE APPLE PATENTS, WOULD

22

VIOLATE THE ORDERLY PROCESSES THAT THE NORTHERN

23

DISTRICT OF CALIFORNIA RULES PROVIDE FOR.

24
25

NOW, YOUR HONOR, THE POINT OF THE RULES
IS TO MAKE SURE THAT THERE'S ADEQUATE TIME, AND
52

1
2

ADEQUATE TIME IS NEEDED.
WE'VE JUST FILED A LONG, SUBSTANTIVE

3

OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION

4

THAT YOUR HONOR WILL CONSIDER IN DUE COURSE.

5

BUT IN THE COURSE OF THE INVESTIGATION

6

THAT WE DID IN CONNECTION WITH THAT OPPOSITION, WE

7

DISCOVERED PRIOR ART COMING FROM JAPAN THAT WAS NOT

8

DISCLOSED BY APPLE TO THE PATENT OFFICE.

9

DISCUSSED IN OUR OPPOSITION TO THE PRELIMINARY

10
11
12
13

IT'S

INJUNCTION MOTION AT PAGES 3 AND 7.
THAT'S THE KIND OF EXAMPLE OF WHY TIME IS
NEEDED FOR ORDERLY DEVELOPMENT OF CASES.
AND EVEN JUST STICKING TO APPLE'S CLAIMS,

14

YOUR HONOR, THE TIME NEEDED FOR DISCOVERY FAR

15

OUTSTRIPS THE SUPPOSED EXPEDITED SCHEDULE.

16

WE WOULD -- WE NEED TIME FOR -- IF WE

17

JUST LOOK AT THE UTILITY AND DESIGN PATENTS THAT

18

APPLE HAS ASSERTED, THERE ARE 32 INVENTORS AND SIX

19

PROSECUTING LAWYERS FOR WHOM WE NEED DEPOSITIONS,

20

SO 38 DEPOSITIONS ARE NEEDED.

21
22
23

THE TIME TABLE THAT APPLE PROPOSES IS SO
TRUNCATED IT DOESN'T ALLOW PROPER TIME.
SO THE TIME TABLE THAT THE RULES

24

ESTABLISH IS THERE FOR A REASON.

IT'S TO ALLOW

25

ADEQUATE TIME FOR PEOPLE TO DEVELOP THEIR CLAIMS,
53

1

AND I'M NOT EVEN TALKING HERE ABOUT THE

2

COUNTERCLAIMS.

3

SO, YOUR HONOR, THE FIRST POINT IS WE

4

WOULD BE PREJUDICED BY THIS ASYMMETRICAL SCHEDULE

5

AND BY THE DELAY IN OUR CLAIMS THAT APPLE PROPOSES,

6

AND THEIR SCHEDULE IS WILDLY UNREALISTIC, AND

7

THEY'VE PROPOSED NO REASON FOR IT.

8

YOUR HONOR, IN THE ITC, IT'S 18 MONTHS,

9

NOT SEVEN MONTHS TO TRIAL UNDER CURRENT CALENDAR.

10
11
12

THIS IS SUCH AN EXTRAORDINARY EXPEDITION
MOTION, IT HAS NO PRECEDENT THAT WE'RE AWARE OF.
NOW, YOUR HONOR, AS YOU SUGGESTED,

13

THERE'S NO REASON FOR URGENCY HERE.

APPLE HAD ITS

14

CHANCE TO MOVE FOR A P.I., AND WHAT DID IT DO?

15

MOVED FOR A PARTIAL P.I. ON ONLY A SUBSECTION OF

16

PATENTS, NOT THE PATENTS ON WHICH THEY SOUGHT

17

EXPEDITED DISCOVERY, NOT THE FUTURE PATENTS, BUT ON

18

A SUBSECTION OF PATENTS.

IT

19

AND WHAT'S THE NEW REASON FOR URGENCY?

20

MR. MCELHINNY SUGGESTS THAT SOMEHOW THIS IS SOME

21

NEW SORT OF AMBUSH.

22

BUT THE FEATURES THAT ARE BEING

23

CHALLENGED IN THESE NEW PHONES HAVE BEEN IN

24

EXISTENCE IN SAMSUNG PHONES FOR A LONG TIME.

25

LOOK AND FEEL IS NOT NEW.

THE

THE LOOK AND FEEL THAT'S
54

1

BEING CHALLENGED ON THE NEW PHONE IS THE SAME THING

2

THAT WAS IN SAMSUNG PHONES OF WHICH APPLE WAS AWARE

3

A LONG TIME AGO.

4

THEY WERE AWARE IN THE GALAXY S PHONE

5

INTRODUCED IN KOREA AS OF MARCH 2010.

6

A YEAR TO FILE SUIT.

7

THEY WAITED

THEY FILED TWO AND A HALF -- THEY WAITED

8

TWO AND A HALF MONTHS AFTER THE COMPLAINT TO FILE

9

FOR THE P.I., AND THEN THEY FILED FOR A PARTIAL

10

P.I.

11
12

AS YOUR HONOR SUGGESTS, THAT REALLY
UNDERCUTS ANY ARGUMENT FOR URGENCY HERE.

13

YOUR HONOR PROPERLY DENIED THE EARLIER

14

EFFORTS TO EXPEDITE.

15

DISCOVERY.

16

HAVE APPROPRIATE AND ORDERLY BRIEFING ON THE P.I.

17

MOTION.

18

BRIEFING ON THAT.

19

THEY TRIED TO EXPEDITE

THEY TRIED TO DENY US THE CHANCE TO

YOU REJECTED THE MOTION FOR EXPEDITED

AND FINALLY, YOUR HONOR, WE'D REFER YOU

20

TO OUR OPPOSITION TO THE MOTION FOR PRELIMINARY

21

INJUNCTION.

22

YOU WHY THERE IS NO IRREPARABLE HARM HERE TO APPLE.

23

WE GO AT GREAT LENGTH TO DESCRIBE TO

SO FOR THE SAME REASONS AS THERE'S NO

24

IRREPARABLE HARM JUSTIFYING THE PRELIMINARY

25

INJUNCTION, THERE'S NO REASON FOR EXPEDITION HERE.
55

1

SO YOUR HONOR, I THINK IF -- I'M NOT SURE

2

WHETHER WE SHOULD BE FLATTERED THAT SAMSUNG WAS

3

SAID TO BE BIGGER THAN A COUNTRY, OR I DARE SAY

4

CONCERNED AT THE VERY SERIOUS AND REALLY RATHER

5

SURPRISING ALLEGATIONS THAT MR. MCELHINNY JUST MADE

6

OFF THE CUFF ABOUT THE NATURE OF SAMSUNG'S PRODUCT

7

DEVELOPMENT.

8

BUT I THINK AT A MINIMUM, WE NEED TO

9

CORRECT A COUPLE OF PLAIN MISSTATEMENTS THAT WERE

10

MADE, SO I'D LIKE TO ASK MR. JOHNSON TO RESPOND ON

11

THE NETHERLANDS INJUNCTION FOR A MOMENT.

12

MR. JOHNSON:

13

JUST TO CLARIFY THE RECORD, THERE WAS A

14

PRELIMINARY OPINION THAT CAME DOWN FROM THE COURT

15

IN THE NETHERLANDS THIS MORNING.

16

PRELIMINARY INJUNCTION.

17

VERY QUICKLY, YOUR HONOR.

THERE'S NO

THERE'S A DATE OF OCTOBER 13TH IN THE

18

NETHERLANDS WHEN THERE MAY BE SOME FUTURE FINDING

19

BY THE COURT.

20

BUT IN ESSENCE, THE NETHERLANDS' OPINION

21

WAS A VICTORY FOR SAMSUNG.

22

UTILITY PATENTS INVOLVED THERE, AND THERE WERE SIX

23

DESIGN PATENTS INVOLVED THERE, SO NINE PATENTS.

24
25

THERE WERE THREE

EIGHT OUT OF THE NINE PATENTS WERE FOUND
TO BE EITHER INVALID OR NOT INFRINGED.
56

1

AND THE ONES THAT OVERLAP, THAT HAVE

2

NETHERLANDS COUNTERPARTS TO THE U.S. DESIGN PATENTS

3

THAT ARE AT ISSUE IN THIS CASE, WERE FOUND BY THE

4

COURT TO BE NOT INFRINGED.

5

THE ONE PATENT THAT WAS FOUND TO BE

6

INFRINGED -- THERE WERE THREE PHONES THAT WERE

7

FOUND TO BE INFRINGED AND, FRANKLY, THAT ONE PATENT

8

DOESN'T HAVE ANY COUNTERPART IN THE UNITED STATES

9

AND IS NOT AT ISSUE IN THIS CASE.

10

THE THREE PHONES THAT WERE FOUND TO BE

11

INFRINGED, THERE WERE THREE PHONES, AND YET, THE

12

TAB IN THE NETHERLANDS, THE GALAXY TAB WAS FOUND

13

NOT TO BE INFRINGED OF THAT SAME PATENT.

14

SO SAMSUNG'S POSITION, WHICH WAS ALSO

15

INCLUDED IN THE PRESS RELEASE, IS THAT IT'S VERY

16

EASY TO FIX THOSE THREE PHONES TO PUT IN THE DESIGN

17

FROM THE GALAXY TAB.

18

AND SO THERE'S -- FROM SAMSUNG'S

19

STANDPOINT, BY THE OCTOBER 13TH DATE, THERE WILL BE

20

A NOT -- THERE WILL BE A SERIES OF PRODUCTS THAT

21

WILL HAVE BEEN FOUND BY THE COURT TO BE NOT

22

INFRINGED.

23

SO THE NETHERLANDS WAS A VICTORY.

24

GERMANY, THERE'S A HEARING ON THE

25

PRELIMINARY INJUNCTION ISSUE, FRANKLY, TOMORROW.
57

1

AND AUSTRALIA, THERE WAS A STIPULATION BY

2

THE PARTIES.

BECAUSE SAMSUNG NEVER HAD ANY

3

INTENTION OF INTRODUCING THE GALAXY TAB THAT WAS AT

4

ISSUE IN THE APPLE PRELIMINARY INJUNCTION PAPERS IN

5

AUSTRALIA, SO RATHER THAN FIGHT THAT PARTICULAR

6

ISSUE, SAMSUNG STIPULATED TO NOT BRINGING THAT

7

PRODUCT IN.

8

SO WITH RESPECT TO THE STATEMENTS THAT

9

THESE ARE VICTORIES AND THEY'RE RIFLE SHOTS THAT

10

HAVE TO OCCUR AROUND THE WORLD, BY AND LARGE,

11

SAMSUNG HAS FARED VERY WELL WITH RESPECT TO THE

12

LITIGATIONS AROUND THE WORLD.

13

AND WHERE APPLE HAS LOST IN THE FORUM

14

PROCEEDINGS, IT'S THE SAME OR ALMOST IDENTICAL

15

DESIGN RIGHTS THAT ARE AT ISSUE IN THE U.S. CASE.

16

WHERE APPLE HAS WON IN THE NETHERLANDS,

17

THERE'S NO U.S. EQUIVALENT TO THAT PATENT.

18

SO I JUST WANTED TO CLEAR THAT UP.

19

AND FINALLY, THE OTHER STATEMENT THAT I

20

WANTED TO CLEAR UP FROM MS. SULLIVAN WAS THE ITC

21

CASES, ACTUALLY THE TARGET DATES ARE 16 MONTHS AND

22

18 MONTHS OUT.

23

THE HEARINGS ARE ACTUALLY NOT UNTIL MAY

24

AND JUNE OF NEXT YEAR, BUT THE TARGET DATES IN

25

THOSE CASES ARE 16 MONTHS AND 18 MONTHS OUT.
58

1

SO AFTER THE HEARINGS OCCUR IN THE EARLY

2

PART OF NEXT SUMMER, THEN AFTERWARDS, AS YOUR HONOR

3

KNOWS, THERE WILL BE SOME POST-TRIAL BRIEFING AND

4

THE PERIOD IN WHICH AN INITIAL DETERMINATION IS

5

MADE BY THE ALJ'S.

6

THOSE HEARINGS ARE GOING TO PROCEED.

7

AND THE TARGET DATES, LIKE I SAID, IN

8

THOSE ARE 16 AND 18 MONTHS, NOTHING CLOSE TO A

9

MARCH 2012 TRIAL DATE.

10
11

MR. MCELHINNY:

BULLET POINTS, IF I MAY,

YOUR HONOR?

12

THE COURT:

OKAY, VERY BRIEFLY.

13

MR. MCELHINNY:

MR. JOHNSON'S SPEECH THAT

14

HE JUST GAVE YOU IS THE REASON WHY WE NEED A TRIAL

15

ON THE MERITS, THAT THEY ARE NOT -- THEY ARE NOT

16

FREE TO DISTRIBUTE PRODUCT IN AUSTRALIA, THEY ARE

17

NOT FREE TO DISTRIBUTE PRODUCT IN GERMANY.

18

THE INJUNCTION THAT WAS ISSUED THIS

19

MORNING IS AN INJUNCTION THAT HAS BEEN STAYED UNTIL

20

OCTOBER.

21
22
23

AND HE JUST TOLD YOU THAT SAMSUNG IS
WINNING ALL OF THESE CASES.
WHEN YOUR HONOR ISSUES A PRELIMINARY

24

INJUNCTION IN THIS CASE, THEY WILL ISSUE AN -- A

25

PRESS RELEASE THAT DECLARES A VICTORY AND THEY WILL
59

1

FIGURE OUT SOME WAY TO GET AROUND THAT SPECIFIC

2

ORDER.

3

BUT IT WILL NOT STOP THEIR STRATEGY.

4

ON THE PATENT RULES, AGAIN, FOR ALL OF US

5

WHO ARE INVOLVED IN THE PATENT RULE COMMITTEES THAT

6

PUT THEM TOGETHER, WE CAN ALL HEAR JUDGE WHYTE SAY

7

OVER AND OVER AND OVER, IF YOU READ THE RESPONSES

8

TO QUESTIONS WHERE THEY SAID THESE WILL BECOME A

9

STRAIGHT JACKET, JUDGES WILL HAVE TO FOLLOW THE

10

RULES, NO ONE WILL EVER CHANGE, JUDGE WHYTE USED TO

11

SAY OVER AND OVER, "READ RULE 1-3.

12

REASON WHY IT'S THE FIRST RULE, BECAUSE IT SAYS THE

13

JUDGES IN THIS DISTRICT WILL ALTER THESE RULES TO

14

MEET THE NEEDS OF PARTICULAR CASES."

THERE'S A

15

THE ASYMMETRICAL PROPOSAL FOR TRIALS IS

16

ASYMMETRICAL BECAUSE IT'S WHAT SAMSUNG ASKED FOR.

17

SAMSUNG HAS NEVER ASKED FOR EXPEDITION.

18

SAMSUNG DIDN'T ASK TO HAVE ITS CASE AND OUR

19

COUNTERCLAIMS TO GO EARLY.

20

TIME PRESSURE.

21
22
23

SAMSUNG IS UNDER NO

SO WE AGREED TO THEIR SCHEDULE FOR THEIR
CASE.
BUT WE DO NOT AGREE, AND I -- IF I HEARD

24

HER CORRECTLY THIS MORNING, THEY HAD NO TACTICAL

25

REASON FOR DOING IT, THEY HAD NO STRATEGIC REASON
60

1

FOR DOING IT, BUT THE REASON THEY JOINED THESE

2

CASES WAS BECAUSE YOUR HONOR TOLD THEM TO DO.

3

THAT'S WHAT SHE TOLD YOU ON THE DISQUALIFICATION

4

MOTION.

5

AND IF YOU TOLD THEM TO DO IT, YOU CAN

6

TELL THEM NOT TO DO IT, TOO.

7

FORCE THEM INTO SOME EXPEDITED SCHEDULE THAT THEY

8

DON'T WANT TO DO.

9
10

BUT WE NEED IT AND THAT'S WHY WE'RE
ASKING FOR IT.

11

THE COURT:

12

MR. MCELHINNY:

13

THE COURT:

14
15

WE DON'T NEED TO

I DIDN'T TELL THEM TO DO IT.
I KNOW, YOUR HONOR.

I ASKED IF THEY WERE GOING TO

DO IT.
MR. MCELHINNY:

AND I WAS BEING -- I WAS

16

BEING -- THE RECORD SHOULD REFLECT THAT I

17

UNDERSTOOD THAT PERFECTLY AND THAT WAS THE POINT I

18

WAS TRYING TO MAKE.

19

BUT SHE DID SAY THAT THEY DIDN'T DO IT

20

FOR ANY TACTICAL REASON THAT THEY NEEDED IT FOR.

21

ON THE ITC, TO BE CLEAR ON THE CORRECTION

22

THAT WAS MADE TO HER ARGUMENT, WHILE TELLING YOU

23

THAT THEY CAN'T POSSIBLY TRY THIS CASE IN SIX TO

24

EIGHT MONTHS, THEY FILED AN ITC ACTION IN WHICH THE

25

TRIAL WILL OCCUR WITHIN TEN MONTHS.
61

1

THE DECISION COMES LATER, BUT THEY ARE

2

PREPARED -- YOUR HONOR HAS A LOT OF EXPERIENCE

3

HERE.

4

THAT WE WERE GOING TO TRIAL 90 DAYS FROM TODAY, WE

5

COULD DO THAT.

WE'RE ALL BIG FIRMS.

6
7

WE'RE NOT ASKING FOR THAT.

AND THERE'S JUST NOTHING IN THIS CASE
THAT'S INSURMOUNTABLE TO MAKE THAT TRUE.

10
11

WE'RE ASKING

FOR NEXT MAY, OR APRIL I THINK.

8
9

IF YOUR HONOR TOLD US

THE UNITED STATES IS A LEADER IN THE
PROTECTION OF INTELLECTUAL PROPERTY.

12

THE NORTHERN DISTRICT IS THE LEADER.

13

WE'VE CITED TO YOUR HONOR CASES WHERE NORTHERN

14

DISTRICT JUDGES HAVE SAID, IN CASES OF I.P. RIGHTS

15

BEING CHALLENGED, THE COURTS CAN RESPOND.

16

STEP UP AND PREDICT -- PROTECT THE LEGITIMATE

17

INTERESTS.

THEY CAN

18

WE THINK WE HAVE DEMONSTRATED TO YOUR

19

HONOR THE POSITION THAT APPLE HOLDS, ITS ICONIC

20

POSITION BECAUSE OF ITS DESIGN AND ITS PRODUCTS,

21

AND THAT -- WHAT APPLE HAS ACCOMPLISHED, WHICH IS

22

RECOGNIZED WORLDWIDE, DESERVES TO BE PROTECTED AND

23

THE ONLY WAY TO PROTECT IT IS TO DECIDE THE LEGAL

24

ISSUES THAT ARE BEING CHALLENGED HERE.

25

THANK YOU.
62

1

THE COURT:

2

TALK ABOUT THE CASE SCHEDULE.

3
4

ALL RIGHT.

WE'RE GOING TO

LET ME TALK ABOUT MY FAVORITE TOPIC,
WHICH IS ALTERNATIVE DISPUTE RESOLUTION.

5

BOTH SIDES EXPRESSED AN INTEREST IN DOING

6

PRIVATE MEDIATION, BUT YOU SAID AT THE TIME AND ON

7

A DATE WHEN YOU THOUGHT IT WOULD BE APPROPRIATE.

8

WHEN IS THAT?

9

MR. MCELHINNY:

10

THE COURT:

11

MR. MCELHINNY:

WHEN IS THAT?
THE ANSWER --

WHY IS THAT NOT NOW?
IT IS NOT NOW BECAUSE THE

12

PARTIES ARE SO FAR DIVIDED ON THE LEGAL ISSUES THAT

13

ARE PRESENTED HERE.

14

AS YOUR HONOR KNOWS, SOMETIMES YOU HAVE

15

TO DECIDE SOME KEY LEGAL ISSUES BECAUSE THE

16

PARTIES, THEY CAN'T TALK AROUND THAT GAP.

17

THE COURT:

18

THE P.I. MOTION?

19

IS THAT?

20

AND WHAT IS THAT?

IS THAT

IS THAT A MARKMAN RULING?

WHAT

IS THAT SUMMARY JUDGMENT?
MR. MCELHINNY:

21

TO THAT, YOUR HONOR.

22

THE COURT:

I DON'T KNOW THE ANSWER

23
24
25

SAMSUNG?

OKAY.

WHAT ABOUT FROM

WHEN -MR. JOHNSON:

FROM SAMSUNG'S STANDPOINT,

YOUR HONOR, WE ARE -- WE'RE WILLING AND ABLE TO
63

1

PARTICIPATE, YOU KNOW, SO -- WE DON'T -- WE'RE

2

HEARING FROM APPLE'S STANDPOINT THEY DON'T WANT TO

3

TALK.

4

BUT, YOU KNOW, I'M ALWAYS OF THE BELIEF

5

THAT IT MAKES SENSE TO TALK AND SEE IF THERE'S ANY

6

POTENTIAL TO RESOLVE THE DISPUTE.

7
8

THE COURT:

THAT SOUNDED PRETTY AMENABLE

TO ME.

9

MR. MCELHINNY:

YOUR HONOR, I HAVE NO

10

INFORMATION BEYOND WHAT I TOLD YOU.

11

I MEAN, THEY KNOW WHERE WE LIVE.

12

THE COURT:

13

ALL RIGHT.

WELL, I'M

DISAPPOINTED TO HEAR THAT.

14

NOW, THERE WASN'T -- THERE WAS SORT OF A

15

HINT OF A SEVERANCE ISSUE, BUT THERE WAS NO

16

SEVERANCE MOTION.

17

AT THIS POINT I'M KEEPING THIS ALL AS ONE

18

BIG CASE AND WE'RE GOING TO DO CLAIM CONSTRUCTION,

19

BUT IT'S GOING TO BE LIMITED TO TEN TERMS.

20
21

AND TO THE EXTENT THE PARTIES CAN AGREE,
THOSE WILL BE THE TEN TERMS.

22
23

TO THE EXTENT THAT YOU CANNOT, EACH SIDE
WILL JUST GET TO PICK YOUR OWN.

24
25

HOPEFULLY THERE WILL BE SOME THAT YOU'LL
AGREE TO.

IF NOT, EACH SIDE WILL GET FIVE.
64

1

AND WE'LL DO CLAIM CONSTRUCTION ON THOSE

2

TEN; WE'LL GO THROUGH SUMMARY JUDGMENT ON THOSE

3

TEN; WE'LL GO THROUGH TRIAL ON THOSE TEN.

4

I'M NOT, AT THIS POINT, COMMITTING TO

5

HAVING A SECOND PHASE OR SECOND ROUND OF CLAIM

6

CONSTRUCTION, SUMMARY JUDGMENT, TRIAL.

7

BUT WHAT I WOULD LIKE IS TO HAVE A VERY

8

NARROW CASE GO TO A JURY, AND SO WHAT I'M GOING TO

9

DO WITH REGARD TO -- WELL, LET'S TALK ABOUT

10

DISCOVERY.

11

BOTH SIDES DIDN'T WANT LIMITS ON REQUESTS

12

FOR PRODUCTION OR ADMISSIONS, THAT'S FINE; IT'LL BE

13

80 INTERROGATORIES PER SIDE; AND 250 HOURS OF

14

DEPOSITION, EACH SIDE, EXCLUDING EXPERTS AND THIRD

15

PARTY WITNESSES, AND SEVEN HOUR LIMITS PER

16

DEPOSITION.

17

I THINK THOSE WERE YOUR ONLY DISCOVERY

18

DISPUTES.

19

CHECK YOUR --

20
21
22

DOES THAT SOUND RIGHT?

MR. JOHNSON:

LET ME JUST

I THINK THAT'S CORRECT,

YOUR HONOR.
THE COURT:

OKAY.

ALL RIGHT.

SO THAT

23

WILL BE THE DISCOVERY LIMITS AND ALL CASES, BOTH

24

THE APPLE AFFIRMATIVE CASE AND THE SAMSUNG

25

COUNTERCLAIMS, ARE GOING TOGETHER AND THOSE ARE THE
65

1
2

LIMITS FOR BOTH CASES.
WITH REGARD TO SCHEDULING, THIS IS WHAT

3

I'M GOING TO PROPOSE.

4

EXPEDITED DISCOVERY.

5

EXTENT, HAVE SOME CLAIM CONSTRUCTION IN THE

6

PRELIMINARY INJUNCTION MOTION.

7

HAD SOME CLAIM CONSTRUCTION DISCOVERY IN THE

8

PRELIMINARY INJUNCTION DISCOVERY.

9

I MEAN, WE'VE ALREADY HAD
WE'LL ALREADY, TO SOME

YOU'VE ALREADY EVEN

SO I WOULD LIKE TO HAVE A MORE

10

EXPEDITIOUS SCHEDULE, BUT NOT THE ONE THAT APPLE

11

SUGGESTED BECAUSE I JUST DON'T THINK THAT'S

12

FEASIBLE CONSIDERING THE COMPLEXITY AND ALL OF THE

13

INTELLECTUAL PROPERTY RIGHTS THAT HAVE BEEN

14

ASSERTED IN THIS CASE.

15

BUT THIS IS WHAT I'D LIKE TO PROPOSE, AND

16

I'LL GIVE YOU EACH A CHANCE TO RESPOND:

SO INITIAL

17

DISCLOSURES WILL BE DUE SEPTEMBER 7TH, TWO WEEKS

18

FROM TODAY AS ACCORDING TO THE FEDERAL RULES OF

19

CIVIL PROCEDURE; HAVE YOUR INFRINGEMENT CONTENTIONS

20

DUE ON SEPTEMBER 7TH AS WELL; INVALIDITY

21

CONTENTIONS, OCTOBER 7TH; EXCHANGE PRELIMINARY

22

CLAIM CONSTRUCTION OCTOBER 17TH; EXCHANGE CLAIM

23

TERMS OCTOBER 31ST; FILE YOUR JOINT CLAIM

24

CONSTRUCTION, PREHEARING STATEMENT NOVEMBER 14TH;

25

THE DEADLINE TO AMEND THE PLEADINGS IS ALSO GOING
66

1

TO BE NOVEMBER 14TH; AND THE CLOSE OF CLAIM

2

CONSTRUCTION DISCOVERY IS NOVEMBER 28TH.

3

ALL RIGHT.

SO OPENING CLAIM CONSTRUCTION

4

BRIEF WILL BE DECEMBER 8TH; OPPOSITION,

5

DECEMBER 22ND; REPLIES, DECEMBER 29TH.

6

WE CAN HAVE A TUTORIAL -- LET ME ASK

7

MS. GARCIA IF YOU WOULD CHECK THE WEEK OF

8

JANUARY 19TH, 2012, PLEASE.

9

THAT THURSDAY AND SEE IF THE LAW AND MOTION IS

10

HEAVY.

11
12

IF YOU COULD CHECK

THE CLERK:

YOU DON'T HAVE ANYTHING SET

AT THAT TIME.

13

THE COURT:

OH, OKAY.

14

WHAT ABOUT THE WEEK BEFORE?

15

WHAT ABOUT FOR --

AS WELL, THE 12TH AND THE 19TH?

16

CAN YOU CHECK THE 12TH

THE CLERK:

ONE MATTER IS SET FOR THE

18

THE COURT:

AND WHICH CASE IS THAT?

19

THE CLERK:

MINSHALL.

20

THE COURT:

OH, OKAY.

17

21

12TH.

CASE.

22
23

(DISCUSSION OFF THE RECORD BETWEEN THE
COURT AND THE CLERK.)

24
25

THAT'S AN ERISA

THE COURT:
I'LL DO:

THAT'S OKAY.

THIS IS WHAT

I'LL SET A HALF DAY TUTORIAL ON MONDAY,
67

1

JANUARY 16TH OF 2012.

LET'S SET IT IN THE

2

AFTERNOON FROM 1:30 TO 4:30.

3

AND THEN I'LL SET THE CLAIM CONSTRUCTION

4

HEARING FOR THAT FRIDAY, JANUARY 20TH OF 2012 -- I

5

WOULD LIKE TO JUST SET THAT --

6
7

(DISCUSSION OFF THE RECORD BETWEEN THE
COURT AND THE CLERK.)

8
9

THE COURT:

ALL RIGHT.

WHY DON'T I SET

THAT, THEN, ON THE -- I'LL SET IT ON THE 17TH AND

10

SET THE CLAIM CONSTRUCTION ON THE 20TH, AND I WON'T

11

SET ANY LAW AND MOTION THAT WEEK.

12

20TH, WHICH IS FRIDAY, AND WE'LL START AT 10:00.

13
14

THAT'LL BE THE

I WOULD JUST LIKE TO DO IT FOR FOUR
HOURS, SO 10:00 TO 12:00, AND THEN 1:00 TO 3:00.

15

NOW, I CAN SET THE FACT DISCOVERY CUT OFF

16

SOONER, OTHERWISE I'D SET IT FOR MARCH 8TH OF 2012.

17

WHY DON'T -- I'LL KEEP THAT DATE, MARCH 8TH OF

18

2012; INITIAL EXPERT REPORTS, MARCH 22ND OF 2012;

19

REBUTTAL, APRIL 16TH; CLOSE OF EXPERT DISCOVERY,

20

I'LL SAY APRIL 27TH OF 2012; FILE YOUR DISPOSITIVE

21

MOTIONS ON MAY 3RD; HEARING WILL BE JUNE 7TH AT

22

1:30; PRETRIAL CONFERENCE, JULY 18TH AT 2:00

23

O'CLOCK; AND THE TRIAL ON MONDAY, JULY 30TH AT

24

9:00 A.M.

25

AND I'LL JUST PUT IT IN, FOR NOW, AS A 13
68

1

DAY ESTIMATE, BUT WE CAN FINE TUNE THAT LATER.

2

DOES ANYONE WANT TO BE HEARD ON THIS

3

SCHEDULE?

4

STILL PROVIDES ENOUGH TIME.

5

BECAUSE WE HAVE ALREADY HAD SOME, QUITE A BIT OF

6

DISCOVERY FOR THE P.I. MOTION.

7
8
9
10

SO IT'S MORE EXPEDITED, BUT I THINK IT

MR. LEE:

I'M EXPEDITING IT

YES, BILL LEE FROM WILMER,

HALE.
THE COURT:
MR. LEE:

YES.
THE SCHEDULE IS FINE, YOUR

11

HONOR, FROM OUR COLLECTIVE POINT OF VIEW.

12

JUST ONE QUESTION.

13

THE COURT:

14

MR. LEE:

I HAVE

YES.
YOUR HONOR SAID THERE WOULD BE

15

TEN CLAIM TERMS WITH THE HOPE OF NARROWING THE

16

PATENTS AND THE CLAIMS TO ACTUALLY BE TRIED

17

BEGINNING ON JULY 30TH.

18

IS THAT SOMETHING YOUR HONOR CONTEMPLATES

19

WILL HAPPEN DURING THE COURSE OF THE PROCESS OF

20

IDENTIFYING THE CLAIM TERMS AND NARROWING THE

21

CLAIMS DOWN BY US WORKING TOGETHER?

22

THE COURT:

YES.

SO WHEN YOU HAVE TO

23

MEET AND CONFER -- AFTER YOU EXCHANGE YOUR PROPOSED

24

CLAIM TERMS AND YOU HAVE TO MEET AND CONFER TO

25

NARROW THOSE TEN TERMS, IF YOU REACH AGREEMENT ON
69

1

SOME, THEN THOSE WILL OBVIOUSLY BE PART OF THE TEN,

2

AND WHATEVER YOU DON'T, YOU'LL HAVE TO JUST SPLIT

3

IT WHERE YOU GET TO PICK SOME AND YOU GET TO PICK

4

SOME.

5

MR. LEE:

AND JUST HYPOTHETICALLY, YOUR

6

HONOR, LET'S SAY THERE'S A PATENT AND WE AGREE UPON

7

WHAT THE CLAIM TERMS MEAN, BUT WE'D LIKE TO HAVE

8

THAT PATENT BE PART OF THE TRIAL.

9

SOMETHING WE'LL RESOLVE WITH YOUR HONOR DURING THE

10

COURSE OF THE MARKMAN, SUMMARY JUDGMENT, PRETRIAL

11

PROCEEDING?

12
13

THE COURT:

MR. LEE:

15

THE COURT:

17

YOU'RE SAYING THAT

THERE'S NO DISPUTE AS TO THE CLAIM TERM'S --

14

16

WAIT.

IS THAT

RIGHT.

I GUESS --

-- CONSTRUCTION, BUT YOU

STILL WANT IT TO BE PART OF THE TRIAL?
MR. LEE:

YEAH.

I COULD CONTEMPLATE THAT

18

THERE WILL BE CERTAIN CLAIMS THAT HAVE BEEN

19

ASSERTED, LIKE THE CONTRACT CLAIMS, BUT ALSO THERE

20

MAY BE PATENT CLAIMS WHERE WE AGREED ON WHAT THE

21

CLAIM TERMS MEAN, BUT EITHER OR BOTH OF US WANT

22

THEM TO BE PART OF THE TRIAL.

23
24
25

NOW, IF WE AGREE THAT WE'LL AGREE, WE'LL
COME TO YOUR HONOR AND SAY WE AGREE.
BUT HYPOTHETICALLY, I COULD SEE A
70

1

SITUATION WHERE WE HAVE NO DISPUTE AS TO WHAT THE

2

CLAIM TERMS MEAN AS A MATTER OF MARKMAN CLAIM

3

CONSTRUCTION --

4

THE COURT:

5

MR. LEE:

UM-HUM.
-- BUT WE MIGHT HAVE A DISPUTE

6

AS TO WHETHER THIS IS ONE OF THE, YOU KNOW, 19

7

PATENTS YOUR HONOR SHOULD CONSIDER PARING DOWN FOR

8

PURPOSES OF THE TRIAL.

9

NOW, MAYBE THE THING TO DO IS LET US GO

10

THROUGH THE MEET AND CONFER ON THE CLAIM

11

CONSTRUCTION PROCESS, LET US CONFER AS TO WHETHER

12

MY HYPOTHETICAL EVEN EXISTS, AND THEN WE COME BACK

13

TO YOUR HONOR AT THAT POINT IN TIME.

14

THE COURT:

I WOULD PREFER THAT.

I'M

15

NOT, AT THIS POINT, LIMITING THE TRIAL TO WHAT YOU

16

ACTUALLY HAVE CONSTRUED IF THAT'S THE QUESTION.

17

MR. LEE:

18

THE COURT:

THAT WAS MY QUESTION.
BUT I WOULD WANT -- EXCUSE

19

ME -- I WOULD WANT, BEFORE THE TRIAL, THAT WE COME

20

TO SOME AGREEMENT AS TO WHAT THE VERY NARROW ISSUES

21

ARE GOING TO BE.

22

AND AT THIS POINT I THINK IT'S PREMATURE

23

TO NARROW THE SCOPE UNTIL YOU HAVE MORE DISCOVERY,

24

YOU HAVE MORE INFORMATION, AND YOU HAVE MORE

25

RULINGS.
71

1

BUT AT THAT POINT -- AT THE POINT OF

2

TRIAL, WE'RE GOING TO PICK JUST VERY NARROWLY.

3

IT'S NOT GOING TO BE 19 PATENTS GOING TO

4

TRIAL.

5

WHAT I'M SAYING?

6
7

MR. LEE:

I UNDERSTAND.

FAIR ENOUGH.

FAIR ENOUGH.

8
9

IT'S NOT GOING TO BE ALL THE -- DO YOU SEE

AND I THINK WE'LL BE ABLE TO CRYSTALIZE
THINGS BETTER FOR YOUR HONOR, BECAUSE DEPENDING

10

UPON WHICH PATENTS THEY WANT TO ASSERT, THAT WILL

11

PERHAPS NECESSARILY BRING ALONG SOME OF THE OTHER

12

ISSUES.

13

BUT THAT'S SOMETHING THAT WE OUGHT TO BE

14

ABLE TO WORK OUT SOME TIME DURING THE NEXT SIX

15

MONTHS OR SO.

16

THE COURT:

17

MR. LEE:

18

THE COURT:

BUT THE TEN MEANS TEN.
GOT IT.
OKAY?

SO I DON'T WANT A

19

WHOLE CLAIM THAT'S, LIKE, FOUR PARAGRAPHS LONG AND

20

YOU'RE SAYING THAT'S THE WHOLE TERM.

21

NARROW, JUST TEN TERMS.

22

I REALLY WANT

AND WE'LL DECIDE AFTER THE TRIAL WHETHER

23

WE NEED TO DO ROUND TWO OF THIS WHOLE PROCESS.

24

HOPING NOT.

25

MR. LEE:

FAIR ENOUGH.

I'M

GOT IT.
72

1
2

MR. JOHNSON:

AND YOUR HONOR, JUST

QUICKLY?

3

THE COURT:

4

MR. JOHNSON:

YES?
WITH RESPECT TO THE

5

DISCOVERY THAT HAS ALREADY HAPPENED, I JUST WANT TO

6

POINT OUT, OBVIOUSLY, THAT THE DISCOVERY HAS ONLY

7

BEEN WITH RESPECT TO ONE UTILITY PATENT THAT APPLE

8

HAS ASSERTED.

9

THERE'S SEVEN OTHER UTILITY PATENTS, OF

10

WHICH WE'VE RECEIVED NO DISCOVERY AT THIS POINT,

11

AND WE HAVE ISSUES EVEN WITH THE SCOPE OF DISCOVERY

12

THAT WE'VE RECEIVED SO FAR, IN ADDITION TO THE FACT

13

THAT THERE ARE FOUR OTHER DESIGN PATENTS THAT WE

14

DON'T HAVE DISCOVERY ON YET.

15

SO MY POINT IS THAT THERE'S STILL --

16

THESE ARE -- THIS IS OBVIOUSLY A BIG CASE WITH A

17

LOT OF PATENTS IN IT.

18

WITH A MARKMAN -- WITH US STARTING TO

19

CHOOSE MARKMAN TERMS AND PROCEEDING TO CLAIM

20

CONSTRUCTION IN OCTOBER AND NOVEMBER, I UNDERSTAND

21

AND OBVIOUSLY WE'RE GOING TO BE FOCUSSING DOWN THE

22

CASE ULTIMATELY FOR TRIAL, BUT AT LEAST AT THE

23

BEGINNING, WE HAVE TO GET THE DISCOVERY FROM THEM.

24
25

THERE ARE 32 INVENTORS JUST ON THEIR SIDE
WITH RESPECT TO THE PATENTS.

THERE ARE ANOTHER
73

1

SEVEN LAWYERS THAT PROSECUTED THE PATENTS ON THEIR

2

SIDE.

3

I'M CONCERNED ABOUT THE TIME.

4

UNDERSTAND YOUR HONOR'S DESIRE TO EXPEDITE AT SOME

5

POINT AND MOVE THINGS FORWARD, BUT UNDER THIS

6

SCHEDULE, IT DOESN'T -- IT DOESN'T LEAVE US, I

7

THINK, SUFFICIENT TIME TO PUT TOGETHER THE DEFENSES

8

THAT WE NEED IN ORDER TO PROPERLY FOCUS THE CASE.

9

AND I

AND I'M PARTICULARLY CONCERNED ABOUT

10

MOVING FORWARD WITH RESPECT TO CLAIM CONSTRUCTION

11

AND NOT HAVING THE BENEFIT OF ALL THE DEPOSITIONS

12

THAT NEED TO OCCUR AND THE PRIOR ART THAT NEEDS TO

13

OCCUR AND, YOU KNOW, LOOKING AT THE FOREIGN

14

COUNTERPARTS THAT EXIST EVERYWHERE ELSE AND

15

UNDERSTANDING WHAT'S BEEN GOING ON IN THE FOREIGN

16

PROSECUTIONS.

17

THE COURT:

WELL, IF THESE CASES -- I'M

18

SORRY TO INTERRUPT YOU -- HAVE BEEN GOING ON SINCE

19

SEPTEMBER 2010, I ASSUME YOU'VE ALREADY BEEN

20

SEARCHING FOR PRIOR ART FOR THE LAST YEAR AT LEAST.

21

MR. JOHNSON:

BUT THESE PATENTS ARE

22

DIFFERENT, AND THEY'RE -- AND NOW THEY'RE -- YOU

23

KNOW, WE DON'T HAVE THEIR INFRINGEMENT CONTENTIONS

24

YET, BUT WHEN I GET THEIR INFRINGEMENT CONTENTIONS,

25

THAT'S OBVIOUSLY -- DEPENDING ON HOW BROADLY THEY
74

1

CONSTRUE THINGS, IT'S GOING TO TURN US -- I MEAN,

2

IT MAY UNLEASH ADDITIONAL PRIOR ART.

3

SO I'M CONCERNED ABOUT HOW TIGHT THIS

4

SCHEDULE IS, AND PARTICULARLY WHEN WE GET WITH

5

RESPECT TO SOME OF THE DATES ON THE BACK END OF THE

6

SCHEDULE THAT HAVE US, FOR EXAMPLE, FILING

7

DISPOSITIVE MOTIONS A WEEK AFTER THE CLOSE OF

8

EXPERT DISCOVERY.

9

AND I DO THINK THAT THAT'S AN OPPORTUNITY

10

FOR US TO REALLY FOCUS THE CASE AND FIGURE OUT

11

REALLY ON BOTH SIDES WHAT ARE THE STRENGTHS AND

12

WEAKNESSES AND WHAT'S ACTUALLY GOING TO GET TRIED.

13

I THINK THAT'S AN IMPORTANT TIME FOR THE

14

PARTIES TO FIGURE OUT WHAT DISPOSITIVE MOTIONS ARE

15

GOING TO BE FILED AND THEN COME TO YOUR HONOR WITH,

16

WITH THE -- YOU KNOW, ULTIMATELY WITH WHAT THE

17

BEST, WHAT THE BEST THEORIES ARE GOING TO BE AND

18

WHAT'S GOING TO ACTUALLY GET TRIED.

19

SO COMPRESSING IT ON THE BACK END AS WELL

20

WITH RESPECT TO DISPOSITIVE MOTIONS, I'D ASK FOR A

21

LITTLE BIT MORE TIME IN THAT RESPECT.

22

THE COURT:

ALL RIGHT.

WELL, BEFORE I DO

23

THAT, LET ME ASK, APPLE, YOU WANTED THIS FAST.

24

WHY DON'T YOU GIVE YOUR INFRINGEMENT

25

CONTENTIONS ON MONDAY?
75

1

MR. MCELHINNY:

2

THE COURT:

3

MR. MCELHINNY:

4

THE COURT:

YES.

ARE YOU GOING TO DO THAT?
YES.

HOW QUICKLY CAN YOU DO THAT?

5

CAN YOU DO IT FRIDAY?

GIVE ME A SOONER DATE.

6

ME INITIAL DISCLOSURES VERY QUICKLY.

7

THIS, YOU'RE GOING TO GET IT.

8

MR. MCELHINNY:

9

THE COURT:

10
11

DISCLOSURES?

GIVE

YOU WANTED

YES, YOUR HONOR.

WHEN CAN YOU DO YOUR INITIAL

YOU WANT TO DO THEM ON FRIDAY?

I'M GOING TO LET SAMSUNG KEEP

12

SEPTEMBER 7TH AS THEIR DATE.

THEY GET THE FULL 14

13

DAYS PROVIDED BY THE CIVIL RULES OF PROCEDURE.

14

WHERE ARE WE?

15

HOW QUICKLY CAN APPLE GET ITS INITIAL

16
17
18
19

WE'RE AUGUST 24TH.

DISCLOSURES AND INFRINGEMENT CONTENTIONS?
MR. MCELHINNY:

WE CAN GIVE THEM ON

FRIDAY, YOUR HONOR.
THE COURT:

OKAY.

SO AUGUST 26TH IS

20

GOING TO BE THE DATE JUST FOR APPLE FOR

21

INFRINGEMENT CONTENTIONS AND FOR INITIAL

22

DISCLOSURES.

23

NOW, ARE YOU GOING TO BE MAKING A

24

DOCUMENT PRODUCTION WITH YOUR INITIAL DISCLOSURES,

25

OR ONLY A LISTING OF CATEGORIES OF DOCUMENTS?
76

1
2

MR. MCELHINNY:

NO, YOUR HONOR.

WE'RE

GOING TO PRODUCE DOCUMENTS ON FRIDAY AS WELL.

3

THE COURT:

OKAY.

4

MR. MCELHINNY:

5

THE COURT:

CAN I --

NOW, I THINK THAT -- I THINK

6

MR. JOHNSON'S RAISED A GOOD POINT.

7

TO GET ALL THESE DEPOSITIONS IN TIME?

8
9

HOW IS HE GOING

IF YOU WANT TO KEEP THIS DATE, I THINK
APPLE'S GOING TO HAVE TO AGREE THAT RATHER THAN

10

GETTING THE NORMAL 30 DAYS TO RESPOND TO ANY

11

DISCOVERY, YOU'RE GOING TO DO IT ON A MUCH MORE

12

EXPEDITED BASIS.

13

OTHERWISE I AM GOING TO MOVE THIS CLAIM

14

CONSTRUCTION DATE SOMEWHAT.

15

MR. LEE:

16

WHATEVER WE NEED TO DO TO KEEP THE DATES.

17
18

WELL, YOUR HONOR, WE'LL DO

BUT LET ME MAKE ONE POINT JUST TO MAKE
SURE THAT THE PLAYING FIELD IS EVEN HERE.

19

THE COURT:

20

MR. LEE:

YEAH.
THERE ARE FOUR PATENTS THAT ARE

21

GOING TO BE IN THIS CASE.

22

ASSERTED ARE PATENTS THAT SAMSUNG ASSERTED ON

23

JUNE 30TH.

24
25

THE FOUR LATEST PATENTS

WE'RE GOING TO HAVE TO SUBMIT OUR
INFRINGEMENT CONTENTIONS ON THOSE PATENTS, WHICH
77

1

CAME INTO THE CASE FOR THE FIRST TIME ABOUT 30 DAYS

2

AGO, 40 DAYS AGO, BY OCTOBER 7TH.

3

BOTH OF US, IN ORDER TO GET THIS

4

RESOLVED, ARE GOING TO HAVE TO SUFFER A LITTLE BIT

5

OF PAIN AND GO A LITTLE BIT FASTER.

6

AND THE REASON WE NEED TO DO IT, YOUR

7

HONOR, NOT TO REITERATE WHAT MR. MCELHINNY SAID OR

8

TO REVISIT THE ARGUMENT THAT MS. SULLIVAN AND

9

MR. MCELHINNY HAD, BUT MR. VERHOEVEN IS RIGHT, THE

10

TECHNOLOGY IN THIS FIELD HAS THE LIFE OF A CABBAGE,

11

WHETHER YOU'RE FROM IOWA OR BOSTON OR FROM

12

SAN FRANCISCO.

13

THE REASON THAT WE NEED AN EARLY

14

DETERMINATION -- AND JULY NEXT YEAR IS AN EARLY

15

DETERMINATION -- IS SO THAT NO PARTY, SAMSUNG OR

16

APPLE, CONVINCES THE COURT TO DELAY PROCEEDINGS SO

17

THAT THERE ARE FOUR OR FIVE CROPS OF CABBAGES

18

BEFORE WE GET TO A FINAL DETERMINATION AND THAT

19

FINAL DETERMINATION IS NOTHING ABOUT YESTERDAY'S

20

TECHNOLOGY AND YESTERDAY'S DOLLARS.

21
22

BOTH OF US ARE GOING TO HAVE TO BASICALLY
SUCK IT UP AND GO FASTER.

23

AND THE FOUR PATENTS --

24

THE COURT:

25

BUT YOU INITIATED THE WAR, SO

IT'S PROBABLY MORE APPROPRIATE FOR YOU TO HAVE TO
78

1

SUFFER THE --

2

MR. LEE:

YOUR HONOR, THE QUESTION OF WHO

3

INITIATED THE WAR IS OPEN TO DISCUSSION AND IT'S

4

PROBABLY THE SUBJECT OF SOME DEBATE.

5

BUT IF YOUR HONOR CONSIDERS THIS, THE

6

'771 PATENT, THE '460 PATENT, THE '893 PATENT, AND

7

THE '871 PATENT, THE FIRST TIME THAT WE KNEW THEY

8

WERE IN THE CASE WAS 40 DAYS AGO, 50 DAYS AGO.

9

WE'RE GOING TO GET INFRINGEMENT

10

CONTENTIONS ON SEPTEMBER 7TH, SO I'M GOING TO BE IN

11

EXACTLY THE SAME SITUATION THAT MR. JOHNSON IS

12

GOING TO BE IN.

13
14

WE'LL GET OUR INVALIDITY CONTENTIONS IN
BY OCTOBER 7TH SO WE CAN HAVE THE MARKMAN HEARING.

15
16

WHY?

BECAUSE WE THINK COLLECTIVELY WE

NEED TO GET THESE ISSUES RESOLVED NEXT JULY.

17

THE COURT:

WELL, THAT STILL DOESN'T

18

ANSWER MY QUESTION.

19

CORRECT, THE EXPEDITED DISCOVERY HAS LARGELY BEEN

20

ONE-SIDED.

21

FOR THE APPLE P.I. MOTION.

22

HOW QUICKLY -- MR. JOHNSON IS

IT'S BEEN GETTING THE SAMSUNG DISCOVERY

MR. MCELHINNY:

23

OPPOSITE, YOUR HONOR.

24

NO.

IT'S EXACTLY THE

WE'VE HAD NONE.

25

MR. JOHNSON:

THEY'VE HAD DISCOVERY.

YOUR HONOR, WE DID NOT ASK
79

1

FOR THIS CASE TO BE EXPEDITED.

2

THE COURT:

3

MR. LEE:

I KNOW.
YEAH, THAT'S ACTUALLY -- THAT

4

ACTUALLY IS THE POINT.

5

MR. JOHNSON:

AND SO -- AND NOW FOR US --

6

IF THE GOAL IS ULTIMATELY TO TRY THIS CASE AND

7

FIGURE OUT WHAT ACTUALLY GETS TRIED AND STREAMLINE

8

IT, THEN WE HAVE TO BE IN A SITUATION, AND THEY --

9

AND THEY DID FILE THIS CASE FIRST.

10

I MEAN, SO WE HAVE TO BE IN A SITUATION

11

WHERE WE CAN TAKE THE INVENTOR DEPOSITIONS -- I'D

12

LIKE TO HEAR WHEN I'M GOING TO GET THE INVENTOR --

13

THE COURT:

14

MR. JOHNSON:

15

THE COURT:

I'M SORRY TO INTERRUPT YOU.
GO AHEAD.
LET'S AT LEAST GIVE US A

16

COMMITMENT ON THE INVENTORS.

I THINK APPLE HAS TO

17

BE SOMEWHAT ACCOMMODATING HERE.

18

INVENTORS AND --

19

MR. JOHNSON, WHAT ELSE?

20

MR. JOHNSON:

AT LEAST YOUR

21
22

INVENTORS, PROSECUTING

LAWYERS.
YOU KNOW, WE WERE TOLD THERE WERE NO

23

DESIGN -- THERE WERE NO INVENTOR'S NOTEBOOKS DURING

24

THE PRELIMINARY INJUNCTION DISCOVERY PROCEEDINGS.

25

WE TOOK A DEPOSITION.

WE FIGURED OUT
80

1

THAT THERE ARE NOTEBOOKS.

2
3

SO, YOU KNOW, I UNDERSTAND THEY'RE SAYING
THEY PRODUCED DOCUMENTS --

4
5

THE COURT:

LET ME GET A COMMITMENT FROM

APPLE ON THE INVENTORS AND PROSECUTORS.

6

MR. LEE:

CAN WE GET A MUTUAL COMMITMENT,

7

YOUR HONOR?

8

SITUATION, LET'S HAVE A MUTUAL COMMITMENT THAT

9

WE'LL GIVE THEM OUR INVENTORS, THE PROSECUTING

10

ATTORNEYS.

11

BECAUSE IF WE'RE IN THE SAME

LET'S GET IT BACK FROM THEM AS WELL.
THE COURT:

ALL RIGHT.

BUT I'M ACTUALLY

12

OKAY WITH THIS NOT BEING PERFECTLY SYMMETRICAL AND

13

HAVING APPLE GIVE AN EARLIER DATE FROM SAMSUNG.

14

SO GIVE ME A DATE.

15

MR. MCELHINNY:

16

19

I'M SORRY.

I

GOT LOST.

17
18

I'M SORRY.

YOU WERE TALKING ABOUT LESS THAN 30 DAYS
NOTICE.

WHAT SPECIFICALLY DO YOU NEED A DATE FOR?
THE COURT:

WELL, THERE ARE A COUPLE OF

20

ISSUES HERE.

21

WHICH THE INVENTORS AND PROSECUTORS WILL BE

22

DEPOSED, WHEN THE APPLE FOLKS WILL BE.

23
24
25

ONE IS I WANT A COMMITMENT DATE BY

AND THEN I'LL HAVE A DATE, A COMMITMENT
OF A COMPLETION DATE FROM SAMSUNG.
THE OTHER QUESTION WAS WHETHER APPLE
81

1

WOULD AGREE TO A LESSER PERIOD THAN 30 DAYS FOR

2

DISCOVERY RESPONSES.

3

AND I'M REALLY SORRY TO MY NEXT CASE, THE

4

QUALITY INVESTMENT VERSUS SERRANO ELECTRIC AND

5

PETERSON POWER, I'M VERY SORRY THAT YOU'RE HAVING

6

TO WAIT.

THANK YOU FOR YOUR PATIENCE.

7

MR. MCELHINNY:

8

CAN I ASK JUST A TECHNICAL --

9

THE COURT:

10

WE'RE CHECKING THAT DATE.

YES.

MR. MCELHINNY:

-- AS WE SAY IN THE

11

TRADE, HOUSEKEEPING QUESTION?

12

THE COURT:

13

MR. MCELHINNY:

YES.
AT THE BEGINNING OF THIS

14

CASE, YOU SAID THAT YOU WERE GOING TO USE

15

MAGISTRATE GREWAL FOR DISCOVERY MATTERS.

16

THE COURT:

UM-HUM.

17

MR. MCELHINNY:

AND THEN YOU HAVE KEPT

18

WITH YOURSELF THE DISCOVERY MATTERS, IF ANY, THAT

19

ARISE CONCERNING THE PRELIMINARY INJUNCTION.

20

THE COURT:

UM-HUM.

21

MR. MCELHINNY:

SO THAT WE'RE NOT

22

CONFUSED, DO YOU STILL ANTICIPATE A TRANSFER THERE?

23

AND IF SO, HOW WILL WE KNOW WHEN TO START DOING

24

THAT?

25

THAT'S THE QUESTION I HAVE.
THE COURT:

WELL, DO YOU HAVE ANY
82

1

DISCOVERY DISPUTES AS TO THE PRELIMINARY INJUNCTION

2

DISCOVERY?

3

MR. MCELHINNY:

THERE'S MEETS AND CONFERS

4

AND STUFF GOING ON.

5

DON'T THINK WE'VE GOT A MOTION.

6

MR. JOHNSON:

7

MR. MCELHINNY:

8

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

DISCOVERY YET.

9
10

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

THE COURT:

OKAY.

THAT WILL GO TO

JUDGE GREWAL.

11

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

12

WOULD AGREE, THAT LEAD TRIAL COUNSEL HAVE TO MEET

13

IN PERSON TO MEET AND CONFER ON ANY DISCOVERY

14

DISPUTE BEFORE YOU FILE A MOTION.

15

MR. MCELHINNY:

16

I HAVE YOUR -- I'M SORRY.

17

OKAY?

THANK YOU, YOUR HONOR.
I HAVE YOUR

DATE.

18

THE COURT:

OKAY.

19

MR. MCELHINNY:

WE CAN -- THE INVENTORS

20

AND THE PROSECUTING ATTORNEYS ON OR BEFORE

21

DECEMBER 1ST, YOUR HONOR.

22

THE COURT:

WELL, THAT'S TOO LATE.

23

YOU'RE ASKING THEM TO FILE ALL THEIR CLAIM

24

CONSTRUCTION BRIEFS --

25

MR. MCELHINNY:

I'M NOT SURE WHAT
83

1

INVENTORS OR PROSECUTING ATTORNEYS HAVE TO DO WITH

2

THE CLAIM CONSTRUCTION, YOUR HONOR.

3

THE COURT:

4

WHAT'S YOUR DATE?

5

LET ME HEAR FROM SAMSUNG.
AND IS THAT SOON

ENOUGH FOR YOU?

6

MR. JOHNSON:

7

HONOR.

8

NO.

THAT'S TOO LATE, YOUR

CONSTRUCTION.

9

I MEAN, IT HAS EVERYTHING TO DO WITH CLAIM

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

10

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

11

TESTIFIED SINCE IT'S UNDER SEAL, THEIR INVENTOR.

12

BUT BASICALLY THE INVENTORS ARE GOING TO

13

TESTIFY ABOUT PRIOR ART THAT THEY'RE AWARE OF;

14

THEY'RE GOING TO TESTIFY ABOUT UNENFORCEABILITY

15

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

16

SCOPE OF THE CLAIMS WITH RESPECT TO THE PRIOR ART.

17

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

18

DEPOSITION IN THE CONTEXT OF THE PRELIMINARY

19

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

20

OUR PAPERS, WE LEARNED A LOT OF IMPORTANT

21

INFORMATION THAT AFFECTS THE CLAIM CONSTRUCTION OF

22

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

23

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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1

CONSTRUCTION.

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3

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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1

PATENTS AND THERE WILL BE 12 --

2
3

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?

THE PRETRIAL CONFERENCE AND THE

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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:

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:

YEAH.

25

MR. MCELHINNY:

THEY'VE NEVER ASKED FOR
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1

AN EXPEDITED TRIAL AND YOUR HONOR HAS GIVEN THEM AN

2

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

3

WE'RE BOTH IN THE SAME BOAT HERE EXCEPT THAT

4

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

5

THE COURT:

SO LET ME ASK WHETHER SAMSUNG

6

IS WILLING TO SHORTEN THE TIMEFRAME TO RESPOND TO

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WRITTEN DISCOVERY REQUESTS.

8

MR. JOHNSON:

I THINK IT'S SOMETHING THAT

9

WE COULD MEET AND CONFER WITH THEM ABOUT AND SEE IF

10

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

11

OF POTENTIALLY EXPEDITING, BUT AT THIS POINT, NOT

12

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

13

TO EXPEDITE, SO I THINK THEY SHOULD RESPOND TO THE

14

DISCOVERY MORE QUICKLY.

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16

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

17

MR. MCELHINNY:

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ACTUALLY.

19

I AGREE WITH MR. JOHNSON,

WORK ALL THIS STUFF OUT.

20

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

THE COURT:

OKAY.

YOU KNOW, IF YOU DON'T

21

WORK IT OUT, THEN THERE ARE GOING TO BE PROBABLY

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

23

YOU WORK IT OUT.

24

MR. MCELHINNY:

25

THE COURT:

THANK YOU, YOUR HONOR.

OKAY.

LET'S HAVE A FOLLOW-UP
88

1

CMC ON OCTOBER 13TH AFTER THE PRELIMINARY

2

INJUNCTION HEARING.

3
4

IS THERE ANYTHING ELSE THAT WE HAVE TO DO
TODAY?

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6

MR. MCELHINNY:

NO.

THANK YOU, YOUR

HONOR.

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THE COURT:

NO?

8

THANK YOU.

I'LL SEE YOU ALL IN OCTOBER.

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MR. JOHNSON:

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11

OKAY.

ALL RIGHT.

THANK YOU, YOUR HONOR.

(WHEREUPON, THE PROCEEDINGS IN THIS
MATTER WERE CONCLUDED.)

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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/S/
_____________________________
LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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