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

Filing 313

Memorandum in Support of #306 Samsung's Notice of Lodging of Materials CORRECTION OF DOCKET #306 , filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s) #306 ) (Maroulis, Victoria) (Filed on 10/18/2011) Modified text on 10/19/2011 (dhm, COURT STAFF).

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
2 [e-mail]
50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
4 Facsimile: [phone]
5 Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
6 Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
7 555 Twin Dolphin Drive 5th Floor
Redwood Shores, California 94065
8 Telephone: [phone]
Facsimile: [phone]
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Michael T. Zeller (Cal. Bar No. 196417)
10 [e-mail]
865 S. Figueroa St., 10th Floor
11 Los Angeles, California 90017
Telephone: [phone]
12 Facsimile: [phone]
13 Attorneys for SAMSUNG ELECTRONICS
CO. LTD., SAMSUNG ELECTRONICS
14 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

18 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK

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MEMORANDUM IN SUPPORT OF
SAMSUNG’S NOTICE OF LODGING OF
MATERIALS IN OPPOSITION TO
APPLE’S MOTION FOR PRELIMINARY
INJUNCTION

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Plaintiff,
vs.

21 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
22 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
23 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
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Defendants.
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Date: October 13, 2011
Time: 1:30 pm
Place: Courtroom 8, 4th Floor
Judge: Hon. Lucy H. Koh

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Case No. 11-cv-01846-LHK
MEMORANDUM ISO SAMSUNG’S NOTICE OF LODGING OF MATERIALS IN OPPOSITION TO
APPLE’S MOTION FOR PRELIMINARY INJUNCTION

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Pursuant to the Court’s direction on October 13, 2011, Samsung respectfully submits this

2 memorandum regarding its lodging of supplemental materials on Apple’s motion for a preliminary
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injunction. Given the extraordinary remedy Apple seeks and the limited time it allowed Samsung
for discovery, these materials should be considered in the interests of justice and judicial economy.

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The supporting Declaration of Mark Tung identifies all of Samsung’s lodged materials.
Prior Art References. After filing its opposition papers, Samsung located additional prior

8 art that bears on the invalidity of the patents at issue, the appropriate claim construction, and the
9 proper infringement analysis. This additional prior art was produced to Apple before its reply,
10 and Apple either did examine or had the opportunity to question deponents about it.
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D’889. Excerpts of the deposition of Roger Fidler and related exhibits depict and explain

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additional prior art, including Mr. Fidler’s 1981 and 1997 prior art tablet designs with flat, smooth,
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translucent surfaces. Apple deposed Mr. Fidler on September 23, 2011 and had the opportunity

15 to question him and inspect all of the tablet prior art Samsung seeks to lodge. Samsung also
16 produced before Apple’s reply the “Bloomberg” prior art, which discloses a transparent and
17 smooth-front “bezel-less electronic display” (see e.g., US 2004/0041504 A1, esp. Fig. 2 [200]) and
18 Apple had the opportunity to question Itay Sherman about this prior art during his deposition.
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D’677 and D’089. Prior art evidence reflecting a smart phone design with a smooth front

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(except for a control button) and black front face that placed second in a design competition in
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2004 was produced to Apple before Mr. Sherman’s deposition.
‘381. A video and chart describing the Diamond Touch prior art, and two pages of the

24 deposition transcript of Dr. Bedersen, further confirm the invalidity of the ‘381 patent. Samsung
25 located this art very recently and produced the chart to Apple on October 7, 2011. In addition,
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two pages from each of the deposition transcripts of Dr. Balakrishnan and Mr. Woodring reflect
that those two Apple’s experts submitted reply declarations reversing their deposition positions

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Case No. 11-cv-01846-LHK
-1MEMORANDUM ISO SAMSUNG’S NOTICE OF LODGING OF MATERIALS IN OPPOSITION TO
APPLE’S MOTION FOR PRELIMINARY INJUNCTION

1 concerning the obviousness of prior art and claim constructions.
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Indefiniteness of D’889. Two pages each from the deposition transcripts of Christopher
Stringer and Tracy-Gene Durkin further evidence the indefiniteness of the D’889 patent.
Non-infringement of D’889. Apple does not object to Samsung’s submission of (a)

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photographs of the actual prototype Apple based the D’889 patent on or (b) the Galaxy Tab 10.1
versions Samsung is currently selling in the U.S., which displays the Samsung logo on the front.
Irreparable harm. Samsung’s lodged materials include (1) 10 pages of Mr. Wagner’s

9 testimony that rebut Apple’s mischaracterizations of it; (2) 4 pages of testimony of Justin Denison,
10 Samsung’s 30(b)(6) witness, which clarify that (a) Samsung did not give away Tabs, but that
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BestBuy initiated, and for one week offered, a discount in connection with the bundled purchase

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of a high-end television set and Tab and (b) Samsung used the technology accused as infringing
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the ‘381 patent in a smartphone it sold in 2007; and (3) 2 pages of Sissie Twiggs’ testimony

15 rebutting Apple’s belated (and irrelevant) arguments about brand confusion or dilution.
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Public Interest. Apple’s Statement of Interest before the ITC reflects that Apple’s own

17 conception of the public interest is not as limited as it argued on reply.
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Presentation Materials. The materials presented to the Court during Samsung’s oral
argument during the October 13, 2011 hearing were also provided to Apple’s counsel that day.

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Apple’s Materials. Samsung objects to materials Apple identified earlier today: (i) the
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chart Apple created for this filing to respond to Samsung’s invalidity contentions, but has refused

23 to show Samsung; (ii) Apple’s characterization of additional deposition excerpts as “counter24 designations”; and (iii) Apple’s annotated photographs. Samsung continues to object to Apple’s
25 eve-of-hearing filing to “augment the record” without permission to do so, which included
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documents with numerous translation issues. In contrast, except for the current version of the
Galaxy Tab, Samsung’s submissions address the new arguments of Apple’s reply.

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Case No. 11-cv-01846-LHK
-2MEMORANDUM ISO SAMSUNG’S NOTICE OF LODGING OF MATERIALS IN OPPOSITION TO
APPLE’S MOTION FOR PRELIMINARY INJUNCTION

1 DATED: October 17, 2011
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QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By /s/ Kevin P.B. Johnson
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

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Case No. 11-cv-01846-LHK
-3MEMORANDUM ISO SAMSUNG’S NOTICE OF LODGING OF MATERIALS IN OPPOSITION TO
APPLE’S MOTION FOR PRELIMINARY INJUNCTION

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General Order Attestation
I, Victoria F. Maroulis, am the ECF user whose ID and password are being used to file the

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MEMORANDUM IN SUPPORT OF SAMSUNG’S NOTICE OF LODGING OF

5 MATERIALS IN OPPOSITION TO APPLE’S MOTION FOR PRELIMINARY
6 INJUNCTION
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8 In compliance with General Order 45, X.B., I hereby attest that Kevin P.B. Johnson has concurred
9 in this filing.
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U

/s/ Victoria Maroulis__

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Case No. 11-cv-01846-LHK
-4MEMORANDUM ISO SAMSUNG’S NOTICE OF LODGING OF MATERIALS IN OPPOSITION TO
APPLE’S MOTION FOR PRELIMINARY INJUNCTION