Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
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Declaration of Francis Ho in Support of #424 Apple's Reply in Support of its Motion for a Preliminary Injunction, filed by Apple Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F-1, #7 Exhibit F-2, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J-1, #12 Exhibit J-2, #13 Exhibit K, #14 Exhibit L-1, #15 Exhibit L-2, #16 Exhibit M, #17 Exhibit N, #18 Exhibit O, #19 Exhibit P, #20 Exhibit Q, #21 Exhibit R, #22 Exhibit S, #23 Exhibit T, #24 Exhibit U, #25 Exhibit V, #26 Exhibit W, #27 Exhibit X, #28 Exhibit Y, #29 Exhibit Z, #30 Exhibit AA, #31 Exhibit BB, #32 Exhibit CC, #33 Exhibit DD, #34 Exhibit EE, #35 Exhibit FF, #36 Exhibit GG, #37 Exhibit HH, #38 Exhibit II, #39 Exhibit JJ, #40 Exhibit KK, #41 Exhibit LL)(Related document(s) #424 ) (Bartlett, Jason) (Filed on 11/29/2011) Modified text on 11/30/2011 (dhm, COURT STAFF).
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HAROLD J. MCELHINNY (CA SBN 66781)
hmcelhinny@mofo.com
MICHAEL A. JACOBS (CA SBN 111664)
mjacobs@mofo.com
RICHARD S.J. HUNG (CA SBN 197425)
rhung@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
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MARK D. SELWYN (SBN 244180)
mark.selwyn@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 858-6000
Facsimile: (650) 858-6100
WILLIAM F. LEE (pro hac vice)
william.lee@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
Attorneys for Plaintiff
APPLE INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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APPLE INC., a California corporation,
Plaintiff,
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v.
Case No. 11-cv-01846-LHK
DECLARATION OF FRANCIS HO IN
SUPPORT OF APPLE’S REPLY IN
SUPPORT OF ITS MOTION FOR A
PRELIMINARY INJUNCTION
SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
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Defendants.
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PUBLIC VERSION
EXHIBITS A, B, C, D, M, P, S, W, Z, EE, FF, GG, JJ, KK, LL FILED UNDER SEAL
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HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
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I, FRANCIS HO, declare as follows:
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I am an associate at the law firm of Morrison & Foerster LLP, attorneys of record
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in this action for plaintiff Apple Inc. (“Apple”). I submit this declaration in support of Apple’s
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Reply in Support of its Motion for a Preliminary Injunction. Unless otherwise indicated, I have
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personal knowledge of the matters set forth below. If called as a witness I could and would
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testify competently as follows:
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A.
Foreign Actions
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Apple has obtained provisional relief in several foreign actions.
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3.
On August 1, 2011, in response to Apple’s application for a preliminary
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injunction, the Federal Court of Australia for New South Wales entered an order confirming the
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undertaking of Samsung Electronics Co., Ltd. and its Australian affiliate that Samsung will not
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import, offer for sale or sell in Australia the Galaxy Tab 10.1 without Apple’s permission pending
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resolution of Apple’s application, and that Samsung will provide samples of the Galaxy Tab 10.1
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to Apple at least seven days before the intended date of distribution. I understand that the
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Australian court has been hearing this week Apple’s application for a preliminary injunction, and
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that during the hearing Samsung has further agreed to remove certain accused features from the
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Australian version of the Tab 10.1 before releasing the product.
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4.
On August 24, 2011, the Court of Justice of the Hague in the Netherlands
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enjoined—in the Netherlands, as to Samsung Electronics Co., Ltd., and Europe-wide as to
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Samsung’s Dutch entities—the manufacture, stocking, offering, importing, commercializing,
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selling and/or otherwise trading of Samsung Galaxy S, S II and Ace smartphones. The
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smartphones were found to infringe claims of Apple’s European Patent 2,059,868 that are related
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to claims of the '381 patent asserted in this case.
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On September 9, 2011, the Dusseldorf Regional Court in Germany confirmed an
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interim injunction of August 9, 2011 enjoining—in Germany, as to Samsung Electronics Co.,
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Ltd., and Europe-wide as to Samsung’s German entity—the manufacture, offering for sale
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(including advertising), bringing to market, importing, exporting and/or possessing for any of the
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above purposes the Samsung Galaxy Tab 10.1. The Galaxy Tab 10.1 was found to infringe
HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
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Apple's Registered European Community Design 181607-1, the counterpart of which, the D’889
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patent, is asserted in this case. The Dusseldorf court similarly enjoined the Galaxy Tab 7.7, on
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September 2, 2011, for infringing the same design right, and it confirmed on September 15, 2011
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that the Galaxy Tab 8.9 falls within the scope of the injunction against the Galaxy Tab 10.1.
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Proceedings are ongoing in Australia, the Netherlands, and Germany, and Apple
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has also asserted its rights in Japan, Korea, and the United Kingdom. Samsung has initiated
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additional proceedings in Italy and France.
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B.
Exhibits
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Attached hereto as Exhibit A is a true and correct copy of portions of a certified
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Korean to English translation of the “Final Report, Galaxy S Market Response Survey” produced
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by Samsung at bates numbers SAMNDCA00521309, SAMNDCA00521312,
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SAMNDCA00521313, SAMNDCA00521316, SAMNDCA00521318, SAMNDCA00521374.
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Attached hereto as Exhibit B is a true and correct copy of excerpts from the
September 21, 2001 Rule 30(b)(6) deposition of Justin Denison.
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Attached hereto as Exhibit C is a true and correct copy of a spreadsheet entitled
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“Market Share: Mobile Communications Devices by Region and Country, 1Q11,” bates labeled
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SAMNDCA00025016–SAMNDCA00025079.
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Attached hereto as Exhibit D is a true and correct copy of excerpts from the
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September 14, 2011 deposition of Michael Wagner. True and correct copies of excerpts from the
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same deposition are also attached as an exhibit to the Reply Declaration of Terry Musika in
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Support of Apple’s Motion for a Preliminary Injunction.
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Attached hereto as Exhibit E is a true and correct copy of deposition exhibit 162
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit F is a true and correct copy of deposition exhibit 169
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit G is a true and correct copy of deposition exhibit 170
from the September 14, 2011 deposition of Michel Wagner.
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HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
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Attached hereto as Exhibit H is a true and correct copy of deposition exhibit 173
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit I is a true and correct copy of deposition exhibit 175
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit J is a true and correct copy of deposition exhibit 176
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit K is a true and correct copy of deposition exhibit 177
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit L is a true and correct copy of deposition exhibit 183
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit M is a true and correct copy of deposition exhibit 184
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit N is a true and correct copy of deposition exhibit 185
from the September 14, 2011 deposition of Michel Wagner.
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Attached hereto as Exhibit O is a true and correct copy of Apple Inc.’s Second
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Amended Objections and Responses to Samsung’s Interrogatory No. 7 to Apple Relating to
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Apple Inc.’s Motion for a Preliminary Injunction, served September 30, 2011.
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Attached hereto as Exhibit P is a true and correct copy of excerpts from the August
5, 2011 deposition of Cooper Woodring.
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Attached hereto as Exhibit Q is a true and correct copy of excerpts from the
September 15, 2011 deposition of Itay Sherman.
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Attached hereto as Exhibit R is a true and correct copy of a June 17, 2011 hearing
transcript in this case.
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Attached hereto as Exhibit S is a true and correct copy of excerpts from the
September 26, 2011 deposition of Jeffrey Johnson.
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Attached hereto as Exhibit T is a true and correct copy of excerpts from the
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September 17, 2011 deposition of Benjamin Bederson. A true and correct copy of a redacted
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version of excerpts from the same deposition is also attached as Exhibit I to the Reply Declaration
HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
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of Ravin Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction. The
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redactions cover material designated by Samsung as HIGHLY CONFIDENTIAL, ATTORNEYS
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EYES ONLY. Dr. Balakrishnan did not review the unredacted version of these excerpts.
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September 9, 2011 deposition of Nicholas Godici.
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Attached hereto as Exhibit V is a true and correct copy of excerpts from the
August 16, 2011 deposition of Ravin Balakrishnan.
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Attached hereto as Exhibit U is a true and correct copy of excerpts from the
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Attached hereto as Exhibit W is a true and correct copy of excerpts from the
August 9, 2011 deposition of Bas Ording.
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Attached hereto as Exhibit X is a true and correct copy of excerpts from the
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September 14, 2011 deposition of Andries Van Dam. A true and correct copy of excerpts from
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the same deposition is also attached as Exhibit J to the Reply Declaration of Ravin Balakrishnan,
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Ph.D., in Support of Apple’s Motion for a Preliminary Injunction.
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September 23, 2011 deposition of Roger Fidler.
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Attached hereto as Exhibit Y is a true and correct copy of excerpts from the
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Attached hereto as Exhibit Z is a true and correct copy of excerpts from the August
3, 2011 deposition of Christopher Stringer.
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Attached hereto as Exhibit AA is a true and correct copy of an article entitled
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“Apple’s Netbook Foray Will Flop,” by Scott Moritz, published by TheStreet.com on March 24,
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2009.
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Attached hereto as Exhibit BB is a true and correct copy of an article entitled “5
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Reasons Why Apple’s iPad Tablet Will Fail,” by Daniel Nations, published by About.com on
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January 26, 2010.
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Attached hereto as Exhibit CC is a true and correct copy of an article entitled
“Why the iPad Will Flop,” by Alex Cook, published by SeekingAlpha.com on April 4, 2010.
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Attached hereto as Exhibit DD is a true and correct copy of an articled entitled
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“Why the iPad Will Fail and Help Windows 7 to Succeed,” by Mike Halsey, published by
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Windows7news.com on January 28, 2010.
HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
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Attached hereto as Exhibit EE is a true and correct copy of excerpts from the July
27, 2011 deposition of Sissie Twiggs.
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Attached hereto as Exhibit FF is a true and correct copy of deposition exhibit 45
from the July 27, 2011 deposition of Sissie Twiggs.
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Attached hereto as Exhibit GG is a true and correct copy of deposition exhibit 46
from the July 27, 2011 deposition of Sissie Twiggs.
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Attached hereto as Exhibit HH are three documents. The first document contains
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images of the Samsung BlackJack, SCH-i830, i700, i730, Galaxy S, Galaxy S 4G, Galaxy S II,
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and Infuse 4G from the following websites:
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http://www.mobiledia.com/phones/samsung/blackjack.html
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http://www.mobiledia.com/phones/samsung/sch-i830.html
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http://www.mobiledia.com/phones/samsung/sph-i700.html
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http://www.mobiledia.com/phones/samsung/sch-i730.html
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http://www.techradar.com/reviews/phones/mobile-phones/samsung-galaxy-s-
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689293/review
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http://www.samsung.com/us/topic/our-galaxy-smartphones
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http://www.samsung.com/us/mobile/cell-phones/SGH-T959HABTMB
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http://www.androidphonegeek.com/2011/01/samsung-infuse-announced-headed-to-
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att/
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The second document contains images of the Apple iPad 2 and the Samsung Q1 and Galaxy Tab
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10.1 from the following websites:
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http://www.digitalworldtokyo.com/index.php/digital_tokyo/articles/samsung_q1_orig
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ami_device_makes_us_debut/
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http://reviews.cnet.com/tablet-pcs/samsung-q1-ultramobile-pc/4505-3126_7-
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31781057.html
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http://www.samsung.com/us/mobile/galaxy-tab/GT-P7510UWVXAB-gallery
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http://www.apple.com/ipad/specs/
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HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
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The third document contains images of the Pantech Crossover P8000 and the LG Chocolate from
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the following websites:
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http://www.att-phones.org/att-sets-release-date-for-pantech-crossover-p8000-on-june-
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5-for-69-99.html
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http://www.letsgomobile.org/en/cellular/0620/lgchocolatewhite/
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The other images are from U.S. D616,856, U.S. D561,155, and Exhibit A to the Sherman
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Declaration. Although I scaled and cropped the images in these documents, I did not otherwise
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alter the images.
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Attached hereto as Exhibit II is a photograph of the iPad 2 and Samsung Galaxy
Tab 10.1.
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Attached hereto as Exhibit JJ is a true and correct copy of deposition exhibit 60
from the August 3, 2011 deposition of Christopher Stringer.
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Attached hereto as Exhibit KK is a true and correct copy of deposition exhibit 61
from the August 3, 2011 deposition of Christopher Stringer.
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Attached hereto as Exhibit LL is a true and correct copy of deposition exhibit 62
from the August 3, 2011 deposition of Christopher Stringer.
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A true and correct copy of deposition exhibit 211 from the September 17, 2011
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deposition of Benjamin Bederson is attached as Exhibit K to the Reply Declaration of Ravin
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Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction.
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A true and correct copy of deposition exhibit 212 from the September 17, 2011
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deposition of Benjamin Bederson is attached as Exhibit L to the Reply Declaration of Ravin
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Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction.
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A true and correct copy of deposition exhibit 213 from the September 17, 2011
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deposition of Benjamin Bederson is attached as Exhibit M to the Reply Declaration of Ravin
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Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction.
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A true and correct copy of deposition exhibit 222 from the September 17, 2011
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deposition of Benjamin Bederson is attached as Exhibit N to the Reply Declaration of Ravin
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Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction.
HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
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I declare under the penalty of perjury that the forgoing is true and correct. Executed this
30th day of September, 2011, at San Francisco, California.
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Dated: September 30, 2011
MORRISON & FOERSTER LLP
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By:
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/s/ Francis Ho
Francis Ho
Attorneys for Plaintiff
APPLE INC.
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HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
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ATTESTATION OF E-FILED SIGNATURE
I, MICHAEL A. JACOBS, am the ECF User whose ID and password are being used to
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file this Declaration. In compliance with General Order 45, X.B., I hereby attest that Francis Ho
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has concurred in this filing.
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Dated: September 30, 2011
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By:
/s/ Michael A. Jacobs
Michael A. Jacobs
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HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION
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