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
2
OTHER CASE.
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MR. TAYLOR:
WELL, THERE'S -- IN THIS
4
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
8
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
12
IN THE ORACLE CASE RECENTLY, POINTED TO AUTHORITIES
13
THAT SAY "WE WILL NOT SPECULATE ON WHETHER SOMEONE
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MIGHT, AT SOME POINT, BREACH AN ETHICAL
15
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
25
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
9
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.
13
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
18
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
20
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
24
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,
2
AND THEN SAY, "OH, WAIT A MINUTE.
3
TO DISMISS THAT CASE AND NOW I'M GOING TO ASSERT
4
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.
7
IF YOU RECALL, IT WAS AT YOUR HONOR'S
8
INVITATION THAT WE FILED -- REFILED AS
9
COUNTERCLAIMS.
IN THE MAY CONFERENCE WITH YOUR
10
HONOR, IT WAS YOUR HONOR'S SUGGESTION, AND WE
11
THOUGHT IT WAS APPROPRIATE.
12
THERE WAS NOTHING STRATEGIC ABOUT THIS.
13
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.
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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 --
25
AT LEAST LOOKED AT IN THE CONTEXT OF CLAIM
84
1
CONSTRUCTION.
2
3
SO I'M NOT LOOKING TO DELAY THINGS THAT
ARE TOO FAR.
4
BUT AT THIS POINT, THERE ARE 32
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INVENTORS.
6
DECEMBER AND I HAVE TO DO ALL THE CLAIM
7
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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12
THE COURT:
DATES.
WELL, THESE ARE COMPLETION
THESE AREN'T BEGINNING DATES.
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14
IF THE FIRST DATE I GET FROM THEM IS
MR. MCELHINNY:
THAT'S CORRECT, YOUR
HONOR.
15
THE COURT:
16
BEFORE.
17
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
19
IN TROUBLE WITH THESE THINGS, BUT TO BE REALISTIC
20
AND NOT TAKE YOUR TIME RIGHT NOW, THERE WILL COME A
21
TIME AT THE END OF PROCESS THAT YOUR HONOR HAS SET
22
WHERE SAMSUNG WILL FILE A MOTION TO CONTINUE THE
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TRIAL DATE.
24
DISCOVERY THEY NEEDED AND THEY DIDN'T GET
25
DEPOSITIONS AND THEY DIDN'T GET WHATEVER.
THEY WILL SAY THEY DIDN'T GET THE
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1
AND AT THAT TIME YOU'RE GOING TO BE
2
LOOKING AT WHETHER OR NOT WE DID WHAT THEY NEEDED
3
IN ORDER TO GET READY.
4
HAPPEN.
5
THAT'S JUST GOING TO
AND AS OPPOSED TO TRY TO HAMMER THIS OUT
6
RIGHT NOW, I THINK YOU -- WE UNDERSTAND WHAT YOUR
7
HONOR WANTS AND, YOU KNOW, I WOULD LIKE TO HAVE A
8
LITTLE BIT OF, YOU KNOW, TRUST HERE.
9
MR. JOHNSON:
UNDER THE CURRENT SCHEDULE,
10
YOUR HONOR, THE CLOSE OF CLAIM CONSTRUCTION
11
DISCOVERY IS NOVEMBER 28TH.
12
LET'S PUSH BACK THE DATES BY EVEN A
13
COUPLE OF, JUST A COUPLE OF MONTHS, WHICH
14
SHOULDN'T -- WHETHER THE TRIAL IS IN JULY OR
15
AUGUST OR SEPTEMBER OF NEXT YEAR, YOU KNOW, I --
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THERE CAN'T BE ANY PREJUDICE WITH RESPECT TO TWO
17
MONTHS.
18
19
20
THEY DELAYED TWO AND A HALF MONTHS WHEN
THEY BROUGHT THE PRELIMINARY INJUNCTION MOTION.
AND AS I MENTIONED, YOUR HONOR, THE REAL
21
ISSUE THAT I SEE IS ALSO ON THE BACK END WITH
22
RESPECT TO DISPOSITIVE MOTIONS.
23
GIVING US A WEEK AFTER THE CLOSE OF
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REBUTTAL -- OF EXPERT DISCOVERY TO FILE MOTIONS ON,
25
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.
4
APPLE, YOU'RE GOING TO HAVE YOUR
5
INVENTORS AND PROSECUTING ATTORNEYS DEPOSED BY
6
NOVEMBER 1; AND SAMSUNG WILL BE DECEMBER 1.
7
OKAY?
AS FAR AS THE LAST DAY TO FILE
8
DISPOSITIVE MOTIONS -- ALL RIGHT.
9
MOVE THAT TO MAY 17TH, 2012, AND THE HEARING ON
10
I CAN -- I'LL
DISPOSITIVE MOTIONS WILL BE JUNE 21, 2012 AT 1:30.
11
OKAY?
THE PRETRIAL CONFERENCE AND THE
12
JURY TRIAL DATES REMAIN.
13
ANYTHING ELSE?
14
MR. LEE:
15
THE COURT:
NO, YOUR HONOR.
LET ME ASK ONE LAST QUICK
16
QUESTION.
17
TIMEFRAME TO RESPOND TO DISCOVERY REQUESTS THAN 30
18
DAYS?
19
IS APPLE WILLING TO AGREE TO A SHORTER
MR. MCELHINNY:
AGAIN, IF IT WAS MUTUAL,
20
WE WOULD DO IT, YOUR HONOR.
21
MR. LEE:
22
MR. MCELHINNY:
23
SURE.
JUST -- I MEAN, JUST LET
ME --
24
THE COURT:
YEAH.
25
MR. MCELHINNY:
THEY'VE NEVER ASKED FOR
87
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
7
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.
15
16
BUT I'M WILLING TO MEET AND CONFER WITH
THEM AND SEE IF WE CAN COME UP WITH SOMETHING.
17
MR. MCELHINNY:
18
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
22
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?
5
6
MR. MCELHINNY:
NO.
THANK YOU, YOUR
HONOR.
7
THE COURT:
NO?
8
THANK YOU.
I'LL SEE YOU ALL IN OCTOBER.
9
MR. JOHNSON:
10
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,
14
CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND
15
CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS
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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS
17
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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