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

Filing 290

AMENDED DECLARATION of Jason R. Bartlett in Support of 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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 6 APPLE INC., A CALIFORNIA CORPORATION, 7 PLAINTIFF, 8 9 10 11 12 13 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, 14 DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C-11-01846 LHK SAN JOSE, CALIFORNIA AUGUST 24, 2011 PAGES 1-90 15 16 17 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE LUCY H. KOH UNITED STATES DISTRICT JUDGE 18 19 20 APPEARANCES ON NEXT PAGE 21 22 23 24 OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595 25 1 1 2 A P P E A R A N C E S: 3 FOR PLAINTIFF APPLE: 4 5 MORRISON & FOERSTER BY: HAROLD J. MCELHINNY, MICHAEL A. JACOBS, AND RICHARD S.J. HUNG 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 6 8 FOR COUNTERCLAIMANT WILMER, CUTLER, PICKERING, APPLE: HALE AND DORR BY: WILLIAM F. LEE AND MARK D. SELWYN 9 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 7 10 11 12 13 14 15 BY: 16 17 VICTORIA F. MAROULIS AND KEVIN P.B. JOHNSON 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CALIFORNIA 94065 18 19 20 BY: MICHAEL T. ZELLER 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 21 22 23 24 25 2 1 SAN JOSE, CALIFORNIA 2 P R O C E E D I N G S 3 4 AUGUST 24, 2011 (WHEREUPON, COURT CONVENED AND THE FOLLOWING PROCEEDINGS WERE HELD:) 5 THE CLERK: CALLING CASE NUMBER 11-1846, 6 APPLE, INC. V. SAMSUNG ELECTRONICS, ON FOR MOTION 7 TO DISQUALIFY COUNSEL, MOTION FOR EXPEDITED TRIAL. 8 9 COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES. 10 MR. MCELHINNY: GOOD AFTERNOON, YOUR 11 HONOR. 12 RICHARD HUNG FOR APPLE AS PLAINTIFF. 13 HAROLD MCELHINNY, MIKE JACOBS, AND MR. LEE: GOOD AFTERNOON, YOUR HONOR. 14 BILL LEE, AND MY PARTNER, MARK SELWYN, REPRESENTING 15 APPLE ON THE COUNTERCLAIMS AND OUR COUNTERCLAIMS IN 16 REPLY. 17 THE COURT: 18 MS. SULLIVAN: 19 OKAY. GOOD AFTERNOON. GOOD AFTERNOON, YOUR HONOR. 20 I'M SORRY. 21 MR. TAYLOR: GOOD MORNING, YOUR HONOR, OR 22 AFTERNOON, YOUR HONOR. 23 APPLE IN CONNECTION WITH THE MOTION FOR 24 DISQUALIFICATION FOR BRIDGES & MAVRAKAKIS. 25 THE COURT: STEPHEN TAYLOR REPRESENTING OKAY. IS MR. BUNDY WITH YOU? 3 1 MR. TAYLOR: HE IS WITH ME. 2 THE COURT: 3 MS. SULLIVAN: ALL RIGHT. THANK YOU. GOOD AFTERNOON, YOUR 4 HONOR. KATHLEEN SULLIVAN FROM QUINN EMANUEL FOR 5 SAMSUNG, TOGETHER WITH MY PARTNERS, KEVIN JOHNSON, 6 VICTORIA MAROULIS, AND MICHAEL ZELLER. 7 THE COURT: 8 MR. JOHNSON: 9 THE COURT: OKAY. GOOD AFTERNOON. GOOD AFTERNOON, YOUR HONOR. OKAY. LET'S HANDLE THE 10 DISQUALIFICATION MOTION FIRST AND THEN WE CAN 11 HANDLE THE MOTION FOR EXPEDITED TRIAL AND THE CMC. 12 SO I HAVE QUESTIONS FOR BOTH SIDES ON THE 13 DISQUALIFICATION MOTION, SO I THINK WE'LL JUST DO 14 PING PONG AND JUST GO BACK AND FORTH BETWEEN THE 15 TWO PARTIES. 16 17 18 LET ME FIRST ASK JUST SOME FACTUAL QUESTIONS. WHY DID BRIDGES NOT FILE THEIR NOTICE OF 19 APPEARANCE UNTIL JUNE 16TH OF 2011 IF APPLE HAD 20 HIRED BRIDGES ATTORNEYS TO WORK ON THE SAMSUNG 21 DISPUTE AS EARLY AS SPRING OF 2010? 22 MR. TAYLOR: MY UNDERSTANDING IS, YOUR 23 HONOR, THAT WHILE BRIDGES, MAVRAKAKIS WAS RETAINED 24 BY APPLE AND WAS HELPING APPLE ON THE ANDROID 25 RELATED DISPUTES, THAT IT WASN'T UNTIL THE FIRST 4 1 AMENDED COMPLAINT WAS FILED THAT THEY JOINED THIS 2 LITIGATION ON THE APPLE CLAIMS. 3 I BELIEVE IT HAD A LOT TO DO WITH THE 4 FACT THAT THE FIRM WAS SMALL AND WAS HEAVILY 5 INVOLVED IN THE ITC PROCEEDING AGAINST HTC. 6 BUT THEIR FIRST -- THEY FILED THEIR 7 NOTICE OF APPEARANCE WHEN THAT FIRST AMENDED 8 COMPLAINT WAS FILED. 9 THE COURT: 10 MR. TAYLOR: 11 THE COURT: OKAY. 12 THE THING -OKAY. WITH SAMSUNG'S OWN CASE OF FILING THE '604 PATENT? 13 MR. TAYLOR: 14 THE COURT: 15 16 IT HAD NOTHING TO DO NOTHING, YOUR HONOR. OKAY. LET ME ASK A QUESTION TO SAMSUNG. IT SEEMS A LITTLE BIT HARD TO BELIEVE 17 THAT THE SAMSUNG REPRESENTATIVES AT THAT 18 NEGOTIATION MEETING BACK IN THE FALL OF 2010 19 WOULDN'T HAVE RECOGNIZED AT LEAST 20 MR. MICHAEL PIEJA, AND PERHAPS AT LEAST THE BRIDGES 21 FIRM AND THE POTENTIAL CONFLICT. 22 MS. SULLIVAN: SO, YOUR HONOR, FOR 23 SAMSUNG -- FIRST OF ALL, JUST TO PUT IT IN CONTEXT, 24 WHERE THERE IS THE POSSESSION OF CONFIDENTIAL 25 INFORMATION ON A SUBSTANTIALLY RELATED CASE, IT WAS 5 1 THE DUTY OF APPLE TO SEEK INFORMED -- IT WAS THE 2 DUTY OF BRIDGES TO SEEK INFORMED CONSENT FROM 3 SAMSUNG. 4 5 THE SUBSTANTIAL RELATIONSHIP SHOULD HAVE PUT THE BURDEN ON THEM. 6 IT WAS NOT SAMSUNG'S BURDEN TO SMOKE OUT, 7 SO TO SPEAK, WHETHER THERE WAS A CONFLICT -- A 8 CONFLICTED COUNSEL WORKING FOR THE OTHER SIDE. 9 BUT TO YOUR HONOR'S QUESTION ABOUT PIEJA, 10 REMEMBER, HE WAS A VERY JUNIOR PERSON IN THE 11 ERICSSON MATTER WITH MINIMAL HOURS COMPARED TO THE 12 HOURS EXTENDED BY MR. BRIDGES, ESPECIALLY IN 13 CONNECTION WITH THE FRAND ISSUES, AND BY MR. LEVIN 14 IN CONNECTION WITH THE '604 PATENT. 15 BIT PLAYER, VERY JUNIOR PERSON. 16 PIEJA WAS A AND THE PEOPLE AT SAMSUNG AT THE MEETING 17 WERE FRONT LINE ENGINEERS, NOT NECESSARILY 18 FAMILIAR -- THEY WEREN'T LAWYERS FAMILIAR WITH THE 19 LITIGATION TEAM. 20 21 22 23 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. 24 SO WITH RESPECT, THERE WAS NO BASIS FOR 25 SAMSUNG TO INTUIT THAT, FROM THE PRESENCE OF THIS 6 1 VERY JUNIOR PERSON WHO THEY DIDN'T NECESSARILY 2 RECOGNIZE, THAT CONFLICTED COUNSEL WAS ACROSS THE 3 TABLE FROM THEM. 4 BUT WE REALLY DON'T THINK THAT WAS 5 SAMSUNG'S BURDEN IN THE FIRST PLACE. 6 BRIDGES' DUTY TO SAMSUNG TO DISCLOSE THE CONFLICT 7 AND SEEK INFORMED WRITTEN CONSENT, NOT SAMSUNG'S 8 DUTY TO TRY TO FIGURE OUT WHETHER THERE WAS A 9 FAMILIAR FACE NOW WORKING FOR THE OTHER SIDE 10 IT WAS ADVERSE IN A RELATED MATTER. 11 THE COURT: ISN'T THERE A LITTLE BIT OF A 12 TENSION -- THE OPENING MOTION SAYS MR. PIEJA DID A 13 LOT OF WORK AND INCLUDES HIS TOTAL BILLED HOURS, 14 BUT THEN THE REPLY SAYS, WELL, ACTUALLY, HE'S 15 REALLY A JUNIOR ASSOCIATE WHO DIDN'T DO A 16 SIGNIFICANT AMOUNT OF WORK. 17 SO WHICH ONE IS IT? WAS HE A SIGNIFICANT 18 PLAYER IN THE SAMSUNG LITIGATIONS THUS REQUIRING 19 DISQUALIFICATION, OR WAS HE A SMALL BIT PLAYER AND 20 THUS JUSTIFIES WHY THE CONFLICT WASN'T PERCEIVED 21 EARLIER? 22 MR. TAYLOR: WELL, ALL OF THE BRIDGES, 23 MAV LAWYERS I THINK WERE NOT SIGNIFICANT PLAYERS AS 24 YOUR HONOR WOULD KNOW FROM HAVING REVIEWED 25 MR. BRIDGES' DECLARATION WHERE HE SAYS HE WAS AT 7 1 LEAST A FOURTH TIER LAWYER HIMSELF. 2 BUT MR. PIEJA'S ROLE WAS MUCH LESS, 3 SIGNIFICANTLY MUCH LESS AS THE HOURS REFLECT. 4 IT IS TRUE, THOUGH, THAT HE IDENTIFIED 5 HIMSELF WITH THAT FIRM, WITH THE BRIDGES, 6 MAVRAKAKIS FIRM AT THAT MEETING THAT HE WAS HAVING 7 WITH SAMSUNG, AND WE THOUGHT IT WAS CLEAR TO THEM, 8 AND I THINK THE BRIDGES, MAVRAKAKIS FIRM THOUGHT IT 9 WAS CLEAR TO SAMSUNG, THAT THAT FIRM, THOSE 10 LAWYERS, WERE REPRESENTING APPLE ON SOMETHING VERY 11 UNRELATED TO ANYTHING THEY HAD DONE FOR SAMSUNG IN 12 CONNECTION WITH THE ERICSSON LITIGATION. 13 THE COURT: WELL, LET ME ASK, IT ALSO 14 SEEMS TO BE A LITTLE BIT HARD TO BELIEVE THAT APPLE 15 WOULD NOT BE ABLE TO PREDICT THAT SAMSUNG WOULD 16 ACTUALLY COUNTERCLAIM AND WOULD NOT GO ON THE 17 OFFENSIVE IN THIS KIND OF NUCLEAR WAR BETWEEN, YOU 18 KNOW, FIERCE COMPETITORS. 19 SO I FIND IT A LITTLE BIT HARD TO BELIEVE 20 THAT APPLE THINKS THAT IT CAN JUST GO ON THE 21 OFFENSIVE IN ONE SORT OF UNILATERAL WAY, AND 22 ANYTHING WHERE SAMSUNG GOES ON THE OFFENSIVE IS 23 TOTALLY UNRELATED AND SEPARATE. 24 25 ISN'T THIS WHAT HAPPENS IN THESE KINDS OF CASES? THE DEFENSE ALWAYS GOES ON THE OFFENSIVE 8 1 2 3 4 5 6 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, 7 IS THAT I THINK THE BRIDGES, MAVRAKAKIS FIRM AND 8 APPLE CONDUCTED THEMSELVES EXACTLY IN COMPLIANCE 9 WITH THE RULE OF PROFESSIONAL CONDUCT 3-310(E) IN 10 THIS SENSE: 11 ACCEPT EMPLOYMENT IF THAT EMPLOYMENT WILL REQUIRE 12 THE DISCLOSURE, OR MIGHT INVOLVE THE DISCLOSURE, OF 13 CONFIDENTIAL INFORMATION RELATING TO A PRIOR 14 EMPLOYMENT. 15 THAT RULE SAYS THAT A MEMBER SHALL NOT SO YOU DON'T AGREE TO REPRESENT APPLE IN 16 THE APPLE-ANDROID LOOK AND FEEL MULTITOUCH CASE 17 AGAINST SAMSUNG IF YOU'VE HAD A PRIOR 18 REPRESENTATION FOR SAMSUNG WHICH IS SUBSTANTIALLY 19 RELATED TO THIS APPLE-ANDROID CLAIM. 20 APPLE COMES TO THE FIRM AND SAYS, "CAN 21 YOU HANDLE THIS MATTER? 22 THE ANDROID MATTER, INCLUDING AGAINST SAMSUNG?" 23 CAN YOU REPRESENT US ON THE FIRM SAYS, I THINK ENTIRELY 24 APPROPRIATELY, "WELL, LET'S LOOK AND SEE WHETHER 25 THERE'S ANY SUBSTANTIAL RELATIONSHIP BETWEEN THIS 9 1 ANDROID CASE AND WHAT WE DID FOUR YEARS AGO IN THE 2 ERICSSON CASE." 3 AND APPLYING CALIFORNIA LAW, I THINK 4 COMPLETELY CORRECTLY, WHAT THEY DECIDE IN COMPARING 5 THE CURRENT REQUEST FOR REPRESENTATION WITH THE 6 PRIOR REPRESENTATION IS IF -- AS THE FARRIS AND 7 OTHER CASES SAY, YOU LOOK FOR OVERLAP IN THE FACTS 8 AND THE LEGAL ISSUES AND THEY LOOK AND SAY, "IN 9 ERICSSON, WE WERE TALKING ABOUT STANDARDS PATENTS, 10 11 12 WE WERE TALKING ABOUT" -THE COURT: BUT SUBJECT TO INTERFACE, USER INTERFACE. 13 MR. TAYLOR: 14 BUT I THINK THE KEY IN THIS CASE IS ABOUT 15 16 FRAND ISSUES, YES. A USER INTERFACE THAT INVOLVES TOUCH SCREENS. AND AS MR. BRIDGES SAYS, NOT ONLY DID 17 THESE PHONES THAT ARE AT ISSUE HERE NOT EXIST, BUT 18 NO ANDROID PHONE, AS FAR AS WE'RE AWARE OF, EXISTED 19 AT THE TIME THAT THEY WERE DOING THE REPRESENTATION 20 OF ERICSSON. 21 NONE. SO THE PHONE THAT THE BRIDGES, MAVRAKAKIS 22 FIRM WAS WORKING ON WHEN IT WAS DOING THE ERICSSON 23 CASE WAS NOT ONLY A WHOLE DIFFERENT GENERATION OF 24 PHONE, IT WAS BUILT ON AN ENTIRELY DIFFERENT 25 SOFTWARE PLATFORM. 10 1 MY UNDERSTANDING IS, AND THE RECORD WOULD 2 SHOW, THAT THE ANDROID SOFTWARE PLATFORM, FROM THE 3 VERY BOTTOM TO THE VERY TOP OF THE USER INTERFACE, 4 IS COMPLETELY INDEPENDENT AND SEPARATE FROM 5 ANYTHING IN THE OTHER CASE. 6 SO THE PHONES INVOLVED IN THIS CASE AND 7 THE TECHNOLOGY INVOLVED IN THIS CASE DIDN'T EXIST 8 AT THAT TIME. 9 10 11 12 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 13 AND YOU LOOK AT THE CIBA-GEIGY CASE AND YOU LOOK AT 14 THE ARCTIC CAT CASE, THESE ARE PATENT CASES WHERE 15 SOMEONE TRIES TO DISQUALIFY SOMEONE FOR DOING 16 ANOTHER PATENT CASE IN THE SAME AREA OF 17 TECHNOLOGY -- LIKE IN THE MICROSOFT CASE ON THE 18 WIRELESS LAN CONNECTIONS, OR PATCHES, YOU KNOW, 19 INTERDERMAL PATCHES IN THE CASE OF THE CIBA-GEIGY 20 CASE -- AND THE COURT SAID THAT IS NOT, FOR 21 PURPOSES OF A SUBSTANTIAL RELATIONSHIP FOR AN 22 ETHICS VIOLATION AND FOR A CONFLICT OF INTEREST, 23 THAT IS NOT A SUBSTANTIALLY RELATED CASE. 24 25 TO BE SUBSTANTIALLY RELATED, YOU HAVE TO SHOW THAT THERE IS OVERLAP SUCH THAT THE SAME 11 1 ISSUES, OR VERY, VERY SIMILAR ISSUES, ARISE. 2 I SEE IT THIS WAY -- 3 THE COURT: BUT YOU WOULD CONCEDE THAT IF 4 THE COUNTERCLAIMS STAY IN THIS CASE, THE '604 5 PATENT IS A VERY OBVIOUS AND VERY BLATANT OVERLAP 6 AND SUBSTANTIAL REPRESENTATION BETWEEN WHAT BRIDGES 7 DID IN ERICSSON AND IT'S DOING NOW FOR APPLE? 8 9 10 MR. TAYLOR: WELL, THE -- THAT'S, I THINK, THE FUNDAMENTAL ISSUE THAT THE MOTION RAISES. 11 IF YOU'RE GOING TO ACCUSE A LAWYER OF 12 UNETHICAL CONDUCT OR CONFLICT OF INTEREST AND TRY 13 AND DEPRIVE A CLIENT OF THEIR LAWYER, IS IT OKAY, 14 IS IT PERMISSIBLE FOR A LAWYER TO SAY, "I CAN 15 ACCEPT THE REPRESENTATION YOU'RE ASKING ME TO 16 UNDERTAKE. 17 YES, I CAN ACCEPT THAT." NOW, AT THE TIME BRIDGES, MAV SAID -- 18 BRIDGES, MAVRAKAKIS SAID, "WE HAVE DONE OTHER WORK 19 FOR APPLE. 20 OF THE STANDARDS MATERIAL, PATENTS OR THESE OTHER 21 ISSUES ARISE, WE WOULDN'T BE ABLE TO DO THAT. 22 WE CAN DO THIS." 23 YOU NEED TO UNDERSTAND THIS. IF SOME BUT AND THE LAW IN CALIFORNIA IS THAT YOU CAN 24 DO THAT. THERE'S NO LIFETIME BAN ABOUT EVER BEING 25 ADVERSE TO A FORMER CLIENT. 12 1 THE BAN IS TWO THINGS: KEEP EVERYTHING 2 YOU LEARN CONFIDENTIAL, WE ALL DO THAT ALL THE TIME 3 FOR A FORMER CLIENT; AND SECONDLY, DON'T DO 4 SOMETHING THAT'S SO CLOSELY RELATED THAT IF YOU'RE 5 REPRESENTING THE CLIENT, YOUR DUTIES WILL BE 6 CONFLICTED. 7 SO IT'S LIKE THIS, AND IT'S PRETTY STARK 8 AND, I THINK, TANGIBLE. DON'T TAKE A 9 REPRESENTATION FOR APPLE THAT INVOLVES THE 10 STANDARDS PATENTS OR ANYTHING RELATING TO THOSE 11 PHONES OR THOSE TECHNOLOGY FOR THIS REASON: 12 HAVE AN OBLIGATION TO SAMSUNG TO KEEP EVERYTHING 13 CONFIDENTIAL, EVERYTHING YOU LEARNED BACK IN -- 14 15 THE COURT: YOU I JUST -- I'M SORRY TO INTERRUPT YOU. 16 MR. TAYLOR: 17 THE COURT: SURE. I JUST FIND IT HARD TO 18 BELIEVE THAT APPLE WOULD HIRE BRIDGES IN SPRING OF 19 2010 FOR THE DISPUTE WITH SAMSUNG AND NOT THINK IT 20 HAD AN ADVANTAGE THAT THESE BRIDGES LAWYERS HAD 21 PREVIOUSLY WORKED FOR SAMSUNG IN LITIGATION ON 22 THESE MOBILE PHONE PRODUCTS, AS THEY EXISTED AT THE 23 TIME, AND I UNDERSTAND WHAT YOU'RE SAYING, THAT 24 2006/2007 LOOKS DIFFERENT THAN 2010/2011. 25 I THINK APPLE ASSUMED THE RISK WHEN IT 13 1 HIRED THESE LAWYERS, PERHAPS THINKING IT AN 2 ADVANTAGE THAT THEY HAD REPRESENTED SAMSUNG, SO YOU 3 SUFFER THE CONSEQUENCE OF THE DISQUALIFICATION. 4 MR. TAYLOR: I THINK WHAT THE LAW IS, AND 5 THIS IS WHAT WE'RE SUBMITTING TO YOUR HONOR, IS 6 THAT CLIENTS AND LAWYERS MAY HAVE SEPARATE 7 REPRESENTATION. 8 MAVRAKAKIS IS GOING TO COME IN AND REPRESENT US ON 9 THESE PATENTS, EVEN IF WE ANTICIPATE THAT THERE THEY MAY SAY, "YES, BRIDGES, 10 WILL BE COUNTERCLAIMS. 11 SEPARATE COUNSEL FOR THOSE COUNTERCLAIMS," AS APPLE 12 HAS DONE HERE. 13 14 15 16 17 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 18 TO THINK THEY'RE NOT GOING TO COORDINATE ON 19 POSITIONS TO KNOW WHAT THE IMPLICATIONS ARE GOING 20 TO BE FOR INFRINGEMENT ARGUMENTS, FOR VALIDITY 21 ARGUMENTS, BOTH ON APPLE'S AFFIRMATIVE CASE AND ON 22 SAMSUNG'S COUNTERCLAIMS. 23 IT'S JUST NOT CREDIBLE THAT THERE'S NOT 24 GOING TO BE SOME COMMUNICATION TO COORDINATE TO 25 MAKE SURE THAT YOU'RE NOT TAKING A POSITION IN ONE 14 1 CASE THAT'S GOING TO UNDERMINE THE POSITION IN THE 2 OTHER CASE. 3 MR. TAYLOR: WELL, THERE'S -- IN THIS 4 MATTER, YOUR HONOR, THERE'S CERTAINLY NO EVIDENCE 5 OF ANY SUCH COORDINATION. 6 BRIDGES, MAVRAKAKIS HAS ETHICAL 7 OBLIGATIONS NOT TO GET INVOLVED IN THE 8 REPRESENTATION BASED ON RULE 3-310. 9 10 11 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 14 MIGHT, AT SOME POINT, BREACH AN ETHICAL 15 OBLIGATION." 16 IT'S PARTICULARLY TRUE HERE WHEN THE TWO 17 MATTERS ARE INDEED VERY SEPARATE. 18 AS SEPARATE CASES. 19 YOUR HONOR WHATSOEVER. 20 THEY WERE FILED THEY WERE ORIGINALLY NOT BEFORE SAMSUNG THEN TOOK ADVANTAGE OF THE 21 OPPORTUNITY TO DISMISS AND REFILE HERE, AND IT'S 22 REALLY ONLY BECAUSE THEY TOOK THE ACTION THAT THEY 23 TOOK TO COMBINE TWO COMPLETELY UNRELATED CASES THAT 24 HAVE, FROM THE BEGINNING, DIFFERENT REPRESENTATION 25 FROM COUNSEL, THAT THEY'RE ABLE TO COME TO YOUR 15 1 HONOR AND MAKE THIS ARGUMENT. 2 AND THE CONCERN I HAVE IS THAT WHEN WE'RE 3 LOOKING AT CONFLICTS OF INTEREST, WE LOOK TO SEE AT 4 ONE THING: 5 ISSUES AND FACTUAL ISSUES IN THE FIRST 6 REPRESENTATION, THE ERICSSON REPRESENTATION, AND 7 THE REPRESENTATION, THE REPRESENTATION THAT 8 BRIDGES, MAVRAKAKIS AGREED TO TAKE, WHICH IS 9 LIMITED IN SCOPE? IS THERE A RELATIONSHIP IN THE LEGAL 10 IT'S LIMITED ONLY TO THE APPLE 11 AFFIRMATIVE CLAIMS HAVING TO DO WITH THE LOOK AND 12 FEEL AND MULTITOUCH SCREEN. 13 THE COURT: 14 MR. TAYLOR: 15 THE COURT: 16 MR. TAYLOR: LET ME ASK -- I'M SORRY. GO AHEAD. GO AHEAD. AND, YOUR HONOR, I THINK THE 17 LAW IN CALIFORNIA IS CLEAR THAT LAWYERS MAY, JUST 18 AS THEY DID IN THE HILLEBY CASE AND PLANT CASE AND 19 AS WE'VE SEEN IN OTHER CASES, LAWYERS MAY, DO, AND 20 SHOULD LIMIT THEIR REPRESENTATION SO THAT THEY 21 DON'T VIOLATE THESE ETHICAL CANONS AND GET 22 CONFLICTS OF INTEREST. 23 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, 16 1 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 6 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. 71 1 BUT AT THAT POINT -- AT THE POINT OF 2 TRIAL, WE'RE GOING TO PICK JUST VERY NARROWLY. 3 IT'S NOT GOING TO BE 19 PATENTS GOING TO 4 TRIAL. 5 WHAT I'M SAYING? 6 7 MR. LEE: I UNDERSTAND. FAIR ENOUGH. FAIR ENOUGH. 8 9 IT'S NOT GOING TO BE ALL THE -- DO YOU SEE AND I THINK WE'LL BE ABLE TO CRYSTALIZE THINGS BETTER FOR YOUR HONOR, BECAUSE DEPENDING 10 UPON WHICH PATENTS THEY WANT TO ASSERT, THAT WILL 11 PERHAPS NECESSARILY BRING ALONG SOME OF THE OTHER 12 ISSUES. 13 BUT THAT'S SOMETHING THAT WE OUGHT TO BE 14 ABLE TO WORK OUT SOME TIME DURING THE NEXT SIX 15 MONTHS OR SO. 16 THE COURT: 17 MR. LEE: 18 THE COURT: BUT THE TEN MEANS TEN. GOT IT. OKAY? SO I DON'T WANT A 19 WHOLE CLAIM THAT'S, LIKE, FOUR PARAGRAPHS LONG AND 20 YOU'RE SAYING THAT'S THE WHOLE TERM. 21 NARROW, JUST TEN TERMS. 22 I REALLY WANT AND WE'LL DECIDE AFTER THE TRIAL WHETHER 23 WE NEED TO DO ROUND TWO OF THIS WHOLE PROCESS. 24 HOPING NOT. 25 MR. LEE: FAIR ENOUGH. I'M GOT IT. 72 1 2 MR. JOHNSON: AND YOUR HONOR, JUST QUICKLY? 3 THE COURT: 4 MR. JOHNSON: YES? WITH RESPECT TO THE 5 DISCOVERY THAT HAS ALREADY HAPPENED, I JUST WANT TO 6 POINT OUT, OBVIOUSLY, THAT THE DISCOVERY HAS ONLY 7 BEEN WITH RESPECT TO ONE UTILITY PATENT THAT APPLE 8 HAS ASSERTED. 9 THERE'S SEVEN OTHER UTILITY PATENTS, OF 10 WHICH WE'VE RECEIVED NO DISCOVERY AT THIS POINT, 11 AND WE HAVE ISSUES EVEN WITH THE SCOPE OF DISCOVERY 12 THAT WE'VE RECEIVED SO FAR, IN ADDITION TO THE FACT 13 THAT THERE ARE FOUR OTHER DESIGN PATENTS THAT WE 14 DON'T HAVE DISCOVERY ON YET. 15 SO MY POINT IS THAT THERE'S STILL -- 16 THESE ARE -- THIS IS OBVIOUSLY A BIG CASE WITH A 17 LOT OF PATENTS IN IT. 18 WITH A MARKMAN -- WITH US STARTING TO 19 CHOOSE MARKMAN TERMS AND PROCEEDING TO CLAIM 20 CONSTRUCTION IN OCTOBER AND NOVEMBER, I UNDERSTAND 21 AND OBVIOUSLY WE'RE GOING TO BE FOCUSSING DOWN THE 22 CASE ULTIMATELY FOR TRIAL, BUT AT LEAST AT THE 23 BEGINNING, WE HAVE TO GET THE DISCOVERY FROM THEM. 24 25 THERE ARE 32 INVENTORS JUST ON THEIR SIDE WITH RESPECT TO THE PATENTS. THERE ARE ANOTHER 73 1 SEVEN LAWYERS THAT PROSECUTED THE PATENTS ON THEIR 2 SIDE. 3 I'M CONCERNED ABOUT THE TIME. 4 UNDERSTAND YOUR HONOR'S DESIRE TO EXPEDITE AT SOME 5 POINT AND MOVE THINGS FORWARD, BUT UNDER THIS 6 SCHEDULE, IT DOESN'T -- IT DOESN'T LEAVE US, I 7 THINK, SUFFICIENT TIME TO PUT TOGETHER THE DEFENSES 8 THAT WE NEED IN ORDER TO PROPERLY FOCUS THE CASE. 9 AND I AND I'M PARTICULARLY CONCERNED ABOUT 10 MOVING FORWARD WITH RESPECT TO CLAIM CONSTRUCTION 11 AND NOT HAVING THE BENEFIT OF ALL THE DEPOSITIONS 12 THAT NEED TO OCCUR AND THE PRIOR ART THAT NEEDS TO 13 OCCUR AND, YOU KNOW, LOOKING AT THE FOREIGN 14 COUNTERPARTS THAT EXIST EVERYWHERE ELSE AND 15 UNDERSTANDING WHAT'S BEEN GOING ON IN THE FOREIGN 16 PROSECUTIONS. 17 THE COURT: WELL, IF THESE CASES -- I'M 18 SORRY TO INTERRUPT YOU -- HAVE BEEN GOING ON SINCE 19 SEPTEMBER 2010, I ASSUME YOU'VE ALREADY BEEN 20 SEARCHING FOR PRIOR ART FOR THE LAST YEAR AT LEAST. 21 MR. JOHNSON: BUT THESE PATENTS ARE 22 DIFFERENT, AND THEY'RE -- AND NOW THEY'RE -- YOU 23 KNOW, WE DON'T HAVE THEIR INFRINGEMENT CONTENTIONS 24 YET, BUT WHEN I GET THEIR INFRINGEMENT CONTENTIONS, 25 THAT'S OBVIOUSLY -- DEPENDING ON HOW BROADLY THEY 74 1 CONSTRUE THINGS, IT'S GOING TO TURN US -- I MEAN, 2 IT MAY UNLEASH ADDITIONAL PRIOR ART. 3 SO I'M CONCERNED ABOUT HOW TIGHT THIS 4 SCHEDULE IS, AND PARTICULARLY WHEN WE GET WITH 5 RESPECT TO SOME OF THE DATES ON THE BACK END OF THE 6 SCHEDULE THAT HAVE US, FOR EXAMPLE, FILING 7 DISPOSITIVE MOTIONS A WEEK AFTER THE CLOSE OF 8 EXPERT DISCOVERY. 9 AND I DO THINK THAT THAT'S AN OPPORTUNITY 10 FOR US TO REALLY FOCUS THE CASE AND FIGURE OUT 11 REALLY ON BOTH SIDES WHAT ARE THE STRENGTHS AND 12 WEAKNESSES AND WHAT'S ACTUALLY GOING TO GET TRIED. 13 I THINK THAT'S AN IMPORTANT TIME FOR THE 14 PARTIES TO FIGURE OUT WHAT DISPOSITIVE MOTIONS ARE 15 GOING TO BE FILED AND THEN COME TO YOUR HONOR WITH, 16 WITH THE -- YOU KNOW, ULTIMATELY WITH WHAT THE 17 BEST, WHAT THE BEST THEORIES ARE GOING TO BE AND 18 WHAT'S GOING TO ACTUALLY GET TRIED. 19 SO COMPRESSING IT ON THE BACK END AS WELL 20 WITH RESPECT TO DISPOSITIVE MOTIONS, I'D ASK FOR A 21 LITTLE BIT MORE TIME IN THAT RESPECT. 22 THE COURT: ALL RIGHT. WELL, BEFORE I DO 23 THAT, LET ME ASK, APPLE, YOU WANTED THIS FAST. 24 WHY DON'T YOU GIVE YOUR INFRINGEMENT 25 CONTENTIONS ON MONDAY? 75 1 MR. MCELHINNY: 2 THE COURT: 3 MR. MCELHINNY: 4 THE COURT: YES. ARE YOU GOING TO DO THAT? YES. HOW QUICKLY CAN YOU DO THAT? 5 CAN YOU DO IT FRIDAY? GIVE ME A SOONER DATE. 6 ME INITIAL DISCLOSURES VERY QUICKLY. 7 THIS, YOU'RE GOING TO GET IT. 8 MR. MCELHINNY: 9 THE COURT: 10 11 DISCLOSURES? GIVE YOU WANTED YES, YOUR HONOR. WHEN CAN YOU DO YOUR INITIAL YOU WANT TO DO THEM ON FRIDAY? I'M GOING TO LET SAMSUNG KEEP 12 SEPTEMBER 7TH AS THEIR DATE. THEY GET THE FULL 14 13 DAYS PROVIDED BY THE CIVIL RULES OF PROCEDURE. 14 WHERE ARE WE? 15 HOW QUICKLY CAN APPLE GET ITS INITIAL 16 17 18 19 WE'RE AUGUST 24TH. DISCLOSURES AND INFRINGEMENT CONTENTIONS? MR. MCELHINNY: WE CAN GIVE THEM ON FRIDAY, YOUR HONOR. THE COURT: OKAY. SO AUGUST 26TH IS 20 GOING TO BE THE DATE JUST FOR APPLE FOR 21 INFRINGEMENT CONTENTIONS AND FOR INITIAL 22 DISCLOSURES. 23 NOW, ARE YOU GOING TO BE MAKING A 24 DOCUMENT PRODUCTION WITH YOUR INITIAL DISCLOSURES, 25 OR ONLY A LISTING OF CATEGORIES OF DOCUMENTS? 76 1 2 MR. MCELHINNY: NO, YOUR HONOR. WE'RE GOING TO PRODUCE DOCUMENTS ON FRIDAY AS WELL. 3 THE COURT: OKAY. 4 MR. MCELHINNY: 5 THE COURT: CAN I -- NOW, I THINK THAT -- I THINK 6 MR. JOHNSON'S RAISED A GOOD POINT. 7 TO GET ALL THESE DEPOSITIONS IN TIME? 8 9 HOW IS HE GOING IF YOU WANT TO KEEP THIS DATE, I THINK APPLE'S GOING TO HAVE TO AGREE THAT RATHER THAN 10 GETTING THE NORMAL 30 DAYS TO RESPOND TO ANY 11 DISCOVERY, YOU'RE GOING TO DO IT ON A MUCH MORE 12 EXPEDITED BASIS. 13 OTHERWISE I AM GOING TO MOVE THIS CLAIM 14 CONSTRUCTION DATE SOMEWHAT. 15 MR. LEE: 16 WHATEVER WE NEED TO DO TO KEEP THE DATES. 17 18 WELL, YOUR HONOR, WE'LL DO BUT LET ME MAKE ONE POINT JUST TO MAKE SURE THAT THE PLAYING FIELD IS EVEN HERE. 19 THE COURT: 20 MR. LEE: YEAH. THERE ARE FOUR PATENTS THAT ARE 21 GOING TO BE IN THIS CASE. 22 ASSERTED ARE PATENTS THAT SAMSUNG ASSERTED ON 23 JUNE 30TH. 24 25 THE FOUR LATEST PATENTS WE'RE GOING TO HAVE TO SUBMIT OUR INFRINGEMENT CONTENTIONS ON THOSE PATENTS, WHICH 77 1 CAME INTO THE CASE FOR THE FIRST TIME ABOUT 30 DAYS 2 AGO, 40 DAYS AGO, BY OCTOBER 7TH. 3 BOTH OF US, IN ORDER TO GET THIS 4 RESOLVED, ARE GOING TO HAVE TO SUFFER A LITTLE BIT 5 OF PAIN AND GO A LITTLE BIT FASTER. 6 AND THE REASON WE NEED TO DO IT, YOUR 7 HONOR, NOT TO REITERATE WHAT MR. MCELHINNY SAID OR 8 TO REVISIT THE ARGUMENT THAT MS. SULLIVAN AND 9 MR. MCELHINNY HAD, BUT MR. VERHOEVEN IS RIGHT, THE 10 TECHNOLOGY IN THIS FIELD HAS THE LIFE OF A CABBAGE, 11 WHETHER YOU'RE FROM IOWA OR BOSTON OR FROM 12 SAN FRANCISCO. 13 THE REASON THAT WE NEED AN EARLY 14 DETERMINATION -- AND JULY NEXT YEAR IS AN EARLY 15 DETERMINATION -- IS SO THAT NO PARTY, SAMSUNG OR 16 APPLE, CONVINCES THE COURT TO DELAY PROCEEDINGS SO 17 THAT THERE ARE FOUR OR FIVE CROPS OF CABBAGES 18 BEFORE WE GET TO A FINAL DETERMINATION AND THAT 19 FINAL DETERMINATION IS NOTHING ABOUT YESTERDAY'S 20 TECHNOLOGY AND YESTERDAY'S DOLLARS. 21 22 BOTH OF US ARE GOING TO HAVE TO BASICALLY SUCK IT UP AND GO FASTER. 23 AND THE FOUR PATENTS -- 24 THE COURT: 25 BUT YOU INITIATED THE WAR, SO IT'S PROBABLY MORE APPROPRIATE FOR YOU TO HAVE TO 78 1 SUFFER THE -- 2 MR. LEE: YOUR HONOR, THE QUESTION OF WHO 3 INITIATED THE WAR IS OPEN TO DISCUSSION AND IT'S 4 PROBABLY THE SUBJECT OF SOME DEBATE. 5 BUT IF YOUR HONOR CONSIDERS THIS, THE 6 '771 PATENT, THE '460 PATENT, THE '893 PATENT, AND 7 THE '871 PATENT, THE FIRST TIME THAT WE KNEW THEY 8 WERE IN THE CASE WAS 40 DAYS AGO, 50 DAYS AGO. 9 WE'RE GOING TO GET INFRINGEMENT 10 CONTENTIONS ON SEPTEMBER 7TH, SO I'M GOING TO BE IN 11 EXACTLY THE SAME SITUATION THAT MR. JOHNSON IS 12 GOING TO BE IN. 13 14 WE'LL GET OUR INVALIDITY CONTENTIONS IN BY OCTOBER 7TH SO WE CAN HAVE THE MARKMAN HEARING. 15 16 WHY? BECAUSE WE THINK COLLECTIVELY WE NEED TO GET THESE ISSUES RESOLVED NEXT JULY. 17 THE COURT: WELL, THAT STILL DOESN'T 18 ANSWER MY QUESTION. 19 CORRECT, THE EXPEDITED DISCOVERY HAS LARGELY BEEN 20 ONE-SIDED. 21 FOR THE APPLE P.I. MOTION. 22 HOW QUICKLY -- MR. JOHNSON IS IT'S BEEN GETTING THE SAMSUNG DISCOVERY MR. MCELHINNY: 23 OPPOSITE, YOUR HONOR. 24 NO. IT'S EXACTLY THE WE'VE HAD NONE. 25 MR. JOHNSON: THEY'VE HAD DISCOVERY. YOUR HONOR, WE DID NOT ASK 79 1 FOR THIS CASE TO BE EXPEDITED. 2 THE COURT: 3 MR. LEE: I KNOW. YEAH, THAT'S ACTUALLY -- THAT 4 ACTUALLY IS THE POINT. 5 MR. JOHNSON: AND SO -- AND NOW FOR US -- 6 IF THE GOAL IS ULTIMATELY TO TRY THIS CASE AND 7 FIGURE OUT WHAT ACTUALLY GETS TRIED AND STREAMLINE 8 IT, THEN WE HAVE TO BE IN A SITUATION, AND THEY -- 9 AND THEY DID FILE THIS CASE FIRST. 10 I MEAN, SO WE HAVE TO BE IN A SITUATION 11 WHERE WE CAN TAKE THE INVENTOR DEPOSITIONS -- I'D 12 LIKE TO HEAR WHEN I'M GOING TO GET THE INVENTOR -- 13 THE COURT: 14 MR. JOHNSON: 15 THE COURT: I'M SORRY TO INTERRUPT YOU. GO AHEAD. LET'S AT LEAST GIVE US A 16 COMMITMENT ON THE INVENTORS. I THINK APPLE HAS TO 17 BE SOMEWHAT ACCOMMODATING HERE. 18 INVENTORS AND -- 19 MR. JOHNSON, WHAT ELSE? 20 MR. JOHNSON: AT LEAST YOUR 21 22 INVENTORS, PROSECUTING LAWYERS. YOU KNOW, WE WERE TOLD THERE WERE NO 23 DESIGN -- THERE WERE NO INVENTOR'S NOTEBOOKS DURING 24 THE PRELIMINARY INJUNCTION DISCOVERY PROCEEDINGS. 25 WE TOOK A DEPOSITION. WE FIGURED OUT 80 1 THAT THERE ARE NOTEBOOKS. 2 3 SO, YOU KNOW, I UNDERSTAND THEY'RE SAYING THEY PRODUCED DOCUMENTS -- 4 5 THE COURT: LET ME GET A COMMITMENT FROM APPLE ON THE INVENTORS AND PROSECUTORS. 6 MR. LEE: CAN WE GET A MUTUAL COMMITMENT, 7 YOUR HONOR? 8 SITUATION, LET'S HAVE A MUTUAL COMMITMENT THAT 9 WE'LL GIVE THEM OUR INVENTORS, THE PROSECUTING 10 ATTORNEYS. 11 BECAUSE IF WE'RE IN THE SAME LET'S GET IT BACK FROM THEM AS WELL. THE COURT: ALL RIGHT. BUT I'M ACTUALLY 12 OKAY WITH THIS NOT BEING PERFECTLY SYMMETRICAL AND 13 HAVING APPLE GIVE AN EARLIER DATE FROM SAMSUNG. 14 SO GIVE ME A DATE. 15 MR. MCELHINNY: 16 19 I'M SORRY. I GOT LOST. 17 18 I'M SORRY. YOU WERE TALKING ABOUT LESS THAN 30 DAYS NOTICE. WHAT SPECIFICALLY DO YOU NEED A DATE FOR? THE COURT: WELL, THERE ARE A COUPLE OF 20 ISSUES HERE. 21 WHICH THE INVENTORS AND PROSECUTORS WILL BE 22 DEPOSED, WHEN THE APPLE FOLKS WILL BE. 23 24 25 ONE IS I WANT A COMMITMENT DATE BY AND THEN I'LL HAVE A DATE, A COMMITMENT OF A COMPLETION DATE FROM SAMSUNG. THE OTHER QUESTION WAS WHETHER APPLE 81 1 WOULD AGREE TO A LESSER PERIOD THAN 30 DAYS FOR 2 DISCOVERY RESPONSES. 3 AND I'M REALLY SORRY TO MY NEXT CASE, THE 4 QUALITY INVESTMENT VERSUS SERRANO ELECTRIC AND 5 PETERSON POWER, I'M VERY SORRY THAT YOU'RE HAVING 6 TO WAIT. THANK YOU FOR YOUR PATIENCE. 7 MR. MCELHINNY: 8 CAN I ASK JUST A TECHNICAL -- 9 THE COURT: 10 WE'RE CHECKING THAT DATE. YES. MR. MCELHINNY: -- AS WE SAY IN THE 11 TRADE, HOUSEKEEPING QUESTION? 12 THE COURT: 13 MR. MCELHINNY: YES. AT THE BEGINNING OF THIS 14 CASE, YOU SAID THAT YOU WERE GOING TO USE 15 MAGISTRATE GREWAL FOR DISCOVERY MATTERS. 16 THE COURT: UM-HUM. 17 MR. MCELHINNY: AND THEN YOU HAVE KEPT 18 WITH YOURSELF THE DISCOVERY MATTERS, IF ANY, THAT 19 ARISE CONCERNING THE PRELIMINARY INJUNCTION. 20 THE COURT: UM-HUM. 21 MR. MCELHINNY: SO THAT WE'RE NOT 22 CONFUSED, DO YOU STILL ANTICIPATE A TRANSFER THERE? 23 AND IF SO, HOW WILL WE KNOW WHEN TO START DOING 24 THAT? 25 THAT'S THE QUESTION I HAVE. THE COURT: WELL, DO YOU HAVE ANY 82 1 DISCOVERY DISPUTES AS TO THE PRELIMINARY INJUNCTION 2 DISCOVERY? 3 MR. MCELHINNY: THERE'S MEETS AND CONFERS 4 AND STUFF GOING ON. 5 DON'T THINK WE'VE GOT A MOTION. 6 MR. JOHNSON: 7 MR. MCELHINNY: 8 WE DO, YOUR HONOR. WE DON'T HAVE ANY DISCOVERY YET. 9 10 I DON'T THINK THERE'S A -- I THE COURT: OKAY. THAT WILL GO TO JUDGE GREWAL. 11 I'M GOING TO REQUIRE, AND I'M SURE HE 12 WOULD AGREE, THAT LEAD TRIAL COUNSEL HAVE TO MEET 13 IN PERSON TO MEET AND CONFER ON ANY DISCOVERY 14 DISPUTE BEFORE YOU FILE A MOTION. 15 MR. MCELHINNY: 16 I HAVE YOUR -- I'M SORRY. 17 OKAY? THANK YOU, YOUR HONOR. I HAVE YOUR DATE. 18 THE COURT: OKAY. 19 MR. MCELHINNY: WE CAN -- THE INVENTORS 20 AND THE PROSECUTING ATTORNEYS ON OR BEFORE 21 DECEMBER 1ST, YOUR HONOR. 22 THE COURT: WELL, THAT'S TOO LATE. 23 YOU'RE ASKING THEM TO FILE ALL THEIR CLAIM 24 CONSTRUCTION BRIEFS -- 25 MR. MCELHINNY: I'M NOT SURE WHAT 83 1 INVENTORS OR PROSECUTING ATTORNEYS HAVE TO DO WITH 2 THE CLAIM CONSTRUCTION, YOUR HONOR. 3 THE COURT: 4 WHAT'S YOUR DATE? 5 LET ME HEAR FROM SAMSUNG. AND IS THAT SOON ENOUGH FOR YOU? 6 MR. JOHNSON: 7 HONOR. 8 NO. THAT'S TOO LATE, YOUR CONSTRUCTION. 9 I MEAN, IT HAS EVERYTHING TO DO WITH CLAIM I MEAN, TO THE POINT THAT -- YOU KNOW, 10 AS -- WELL, I CAN'T TALK ABOUT WHAT MR. ORDING 11 TESTIFIED SINCE IT'S UNDER SEAL, THEIR INVENTOR. 12 BUT BASICALLY THE INVENTORS ARE GOING TO 13 TESTIFY ABOUT PRIOR ART THAT THEY'RE AWARE OF; 14 THEY'RE GOING TO TESTIFY ABOUT UNENFORCEABILITY 15 ISSUES AS WELL; THEY'RE GOING TO TESTIFY ABOUT THE 16 SCOPE OF THE CLAIMS WITH RESPECT TO THE PRIOR ART. 17 THAT'S THE REASON WE TOOK MR. ORDING'S 18 DEPOSITION IN THE CONTEXT OF THE PRELIMINARY 19 INJUNCTION HEARING, AND WE -- AS WE SPELLED OUT IN 20 OUR PAPERS, WE LEARNED A LOT OF IMPORTANT 21 INFORMATION THAT AFFECTS THE CLAIM CONSTRUCTION OF 22 THE TERMS THAT ARE INVOLVED IN THAT -- ON THE '381 23 PATENT; WE LEARNED FACTS ASSOCIATED WITH 24 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 5 INVENTORS. 6 DECEMBER AND I HAVE TO DO ALL THE CLAIM 7 CONSTRUCTION BEFORE THEN AND HAVE THE CLAIM 8 CONSTRUCTION HEARING, YOU KNOW, THE FIRST -- IN THE 9 MIDDLE PART OF JANUARY, THAT PUTS ME AT A SEVERE 10 PREJUDICE. 11 12 THE COURT: DATES. WELL, THESE ARE COMPLETION THESE AREN'T BEGINNING DATES. 13 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 -- 18 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 23 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 85 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 -- 16 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 24 REBUTTAL -- OF EXPERT DISCOVERY TO FILE MOTIONS ON, 25 AT THAT POINT, WHICH COULD BE, YOU KNOW, 15 APPLE 86 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.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 1 2 3 4 CERTIFICATE OF REPORTER 5 6 7 8 9 I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED STATES DISTRICT COURT FOR 10 THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH 11 FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 12 CERTIFY: 13 THAT THE FOREGOING TRANSCRIPT, 14 CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND 15 CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS 16 SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS 17 HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED 18 TRANSCRIPTION TO THE BEST OF MY ABILITY. 19 20 21 22 23 24 /S/ _____________________________ LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595 25 90

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