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

Filing 430

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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1 2 3 4 5 6 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 7 8 9 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. 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 APPLE INC., a California corporation, Plaintiff, 16 17 18 19 20 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, 21 Defendants. 22 23 PUBLIC VERSION EXHIBITS A, B, C, D, M, P, S, W, Z, EE, FF, GG, JJ, KK, LL FILED UNDER SEAL 24 25 26 27 28 HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 11-CV-01846-LHK sf-3051192 1 I, FRANCIS HO, declare as follows: 2 1. I am an associate at the law firm of Morrison & Foerster LLP, attorneys of record 3 in this action for plaintiff Apple Inc. (“Apple”). I submit this declaration in support of Apple’s 4 Reply in Support of its Motion for a Preliminary Injunction. Unless otherwise indicated, I have 5 personal knowledge of the matters set forth below. If called as a witness I could and would 6 testify competently as follows: 7 A. Foreign Actions 8 2. Apple has obtained provisional relief in several foreign actions. 9 3. On August 1, 2011, in response to Apple’s application for a preliminary 10 injunction, the Federal Court of Australia for New South Wales entered an order confirming the 11 undertaking of Samsung Electronics Co., Ltd. and its Australian affiliate that Samsung will not 12 import, offer for sale or sell in Australia the Galaxy Tab 10.1 without Apple’s permission pending 13 resolution of Apple’s application, and that Samsung will provide samples of the Galaxy Tab 10.1 14 to Apple at least seven days before the intended date of distribution. I understand that the 15 Australian court has been hearing this week Apple’s application for a preliminary injunction, and 16 that during the hearing Samsung has further agreed to remove certain accused features from the 17 Australian version of the Tab 10.1 before releasing the product. 18 4. On August 24, 2011, the Court of Justice of the Hague in the Netherlands 19 enjoined—in the Netherlands, as to Samsung Electronics Co., Ltd., and Europe-wide as to 20 Samsung’s Dutch entities—the manufacture, stocking, offering, importing, commercializing, 21 selling and/or otherwise trading of Samsung Galaxy S, S II and Ace smartphones. The 22 smartphones were found to infringe claims of Apple’s European Patent 2,059,868 that are related 23 to claims of the '381 patent asserted in this case. 24 5. On September 9, 2011, the Dusseldorf Regional Court in Germany confirmed an 25 interim injunction of August 9, 2011 enjoining—in Germany, as to Samsung Electronics Co., 26 Ltd., and Europe-wide as to Samsung’s German entity—the manufacture, offering for sale 27 (including advertising), bringing to market, importing, exporting and/or possessing for any of the 28 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 sf-3051192 1 1 Apple's Registered European Community Design 181607-1, the counterpart of which, the D’889 2 patent, is asserted in this case. The Dusseldorf court similarly enjoined the Galaxy Tab 7.7, on 3 September 2, 2011, for infringing the same design right, and it confirmed on September 15, 2011 4 that the Galaxy Tab 8.9 falls within the scope of the injunction against the Galaxy Tab 10.1. 5 6. Proceedings are ongoing in Australia, the Netherlands, and Germany, and Apple 6 has also asserted its rights in Japan, Korea, and the United Kingdom. Samsung has initiated 7 additional proceedings in Italy and France. 8 B. Exhibits 9 7. Attached hereto as Exhibit A is a true and correct copy of portions of a certified 10 Korean to English translation of the “Final Report, Galaxy S Market Response Survey” produced 11 by Samsung at bates numbers SAMNDCA00521309, SAMNDCA00521312, 12 SAMNDCA00521313, SAMNDCA00521316, SAMNDCA00521318, SAMNDCA00521374. 13 14 15 8. 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. 9. Attached hereto as Exhibit C is a true and correct copy of a spreadsheet entitled 16 “Market Share: Mobile Communications Devices by Region and Country, 1Q11,” bates labeled 17 SAMNDCA00025016–SAMNDCA00025079. 18 10. Attached hereto as Exhibit D is a true and correct copy of excerpts from the 19 September 14, 2011 deposition of Michael Wagner. True and correct copies of excerpts from the 20 same deposition are also attached as an exhibit to the Reply Declaration of Terry Musika in 21 Support of Apple’s Motion for a Preliminary Injunction. 22 23 24 25 26 27 11. Attached hereto as Exhibit E is a true and correct copy of deposition exhibit 162 from the September 14, 2011 deposition of Michel Wagner. 12. Attached hereto as Exhibit F is a true and correct copy of deposition exhibit 169 from the September 14, 2011 deposition of Michel Wagner. 13. Attached hereto as Exhibit G is a true and correct copy of deposition exhibit 170 from the September 14, 2011 deposition of Michel Wagner. 28 HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 11-CV-01846-LHK sf-3051192 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 14. Attached hereto as Exhibit H is a true and correct copy of deposition exhibit 173 from the September 14, 2011 deposition of Michel Wagner. 15. Attached hereto as Exhibit I is a true and correct copy of deposition exhibit 175 from the September 14, 2011 deposition of Michel Wagner. 16. Attached hereto as Exhibit J is a true and correct copy of deposition exhibit 176 from the September 14, 2011 deposition of Michel Wagner. 17. Attached hereto as Exhibit K is a true and correct copy of deposition exhibit 177 from the September 14, 2011 deposition of Michel Wagner. 18. Attached hereto as Exhibit L is a true and correct copy of deposition exhibit 183 from the September 14, 2011 deposition of Michel Wagner. 19. Attached hereto as Exhibit M is a true and correct copy of deposition exhibit 184 from the September 14, 2011 deposition of Michel Wagner. 20. Attached hereto as Exhibit N is a true and correct copy of deposition exhibit 185 from the September 14, 2011 deposition of Michel Wagner. 21. Attached hereto as Exhibit O is a true and correct copy of Apple Inc.’s Second 16 Amended Objections and Responses to Samsung’s Interrogatory No. 7 to Apple Relating to 17 Apple Inc.’s Motion for a Preliminary Injunction, served September 30, 2011. 18 19 20 21 22 23 24 25 26 22. Attached hereto as Exhibit P is a true and correct copy of excerpts from the August 5, 2011 deposition of Cooper Woodring. 23. Attached hereto as Exhibit Q is a true and correct copy of excerpts from the September 15, 2011 deposition of Itay Sherman. 24. Attached hereto as Exhibit R is a true and correct copy of a June 17, 2011 hearing transcript in this case. 25. Attached hereto as Exhibit S is a true and correct copy of excerpts from the September 26, 2011 deposition of Jeffrey Johnson. 26. Attached hereto as Exhibit T is a true and correct copy of excerpts from the 27 September 17, 2011 deposition of Benjamin Bederson. A true and correct copy of a redacted 28 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 sf-3051192 3 1 of Ravin Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction. The 2 redactions cover material designated by Samsung as HIGHLY CONFIDENTIAL, ATTORNEYS 3 EYES ONLY. Dr. Balakrishnan did not review the unredacted version of these excerpts. 4 5 27. September 9, 2011 deposition of Nicholas Godici. 6 7 28. Attached hereto as Exhibit V is a true and correct copy of excerpts from the August 16, 2011 deposition of Ravin Balakrishnan. 8 9 Attached hereto as Exhibit U is a true and correct copy of excerpts from the 29. Attached hereto as Exhibit W is a true and correct copy of excerpts from the August 9, 2011 deposition of Bas Ording. 10 30. Attached hereto as Exhibit X is a true and correct copy of excerpts from the 11 September 14, 2011 deposition of Andries Van Dam. A true and correct copy of excerpts from 12 the same deposition is also attached as Exhibit J to the Reply Declaration of Ravin Balakrishnan, 13 Ph.D., in Support of Apple’s Motion for a Preliminary Injunction. 14 15 31. September 23, 2011 deposition of Roger Fidler. 16 17 Attached hereto as Exhibit Y is a true and correct copy of excerpts from the 32. Attached hereto as Exhibit Z is a true and correct copy of excerpts from the August 3, 2011 deposition of Christopher Stringer. 18 33. Attached hereto as Exhibit AA is a true and correct copy of an article entitled 19 “Apple’s Netbook Foray Will Flop,” by Scott Moritz, published by TheStreet.com on March 24, 20 2009. 21 34. Attached hereto as Exhibit BB is a true and correct copy of an article entitled “5 22 Reasons Why Apple’s iPad Tablet Will Fail,” by Daniel Nations, published by About.com on 23 January 26, 2010. 24 35. 25 26 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. 36. Attached hereto as Exhibit DD is a true and correct copy of an articled entitled 27 “Why the iPad Will Fail and Help Windows 7 to Succeed,” by Mike Halsey, published by 28 Windows7news.com on January 28, 2010. HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 11-CV-01846-LHK sf-3051192 4 1 2 3 4 5 6 7 37. Attached hereto as Exhibit EE is a true and correct copy of excerpts from the July 27, 2011 deposition of Sissie Twiggs. 38. Attached hereto as Exhibit FF is a true and correct copy of deposition exhibit 45 from the July 27, 2011 deposition of Sissie Twiggs. 39. Attached hereto as Exhibit GG is a true and correct copy of deposition exhibit 46 from the July 27, 2011 deposition of Sissie Twiggs. 40. Attached hereto as Exhibit HH are three documents. The first document contains 8 images of the Samsung BlackJack, SCH-i830, i700, i730, Galaxy S, Galaxy S 4G, Galaxy S II, 9 and Infuse 4G from the following websites: 10 http://www.mobiledia.com/phones/samsung/blackjack.html 11 http://www.mobiledia.com/phones/samsung/sch-i830.html 12 http://www.mobiledia.com/phones/samsung/sph-i700.html 13 http://www.mobiledia.com/phones/samsung/sch-i730.html 14 http://www.techradar.com/reviews/phones/mobile-phones/samsung-galaxy-s- 15 689293/review 16 http://www.samsung.com/us/topic/our-galaxy-smartphones 17 http://www.samsung.com/us/mobile/cell-phones/SGH-T959HABTMB 18 http://www.androidphonegeek.com/2011/01/samsung-infuse-announced-headed-to- 19 att/ 20 The second document contains images of the Apple iPad 2 and the Samsung Q1 and Galaxy Tab 21 10.1 from the following websites: 22 http://www.digitalworldtokyo.com/index.php/digital_tokyo/articles/samsung_q1_orig 23 ami_device_makes_us_debut/ 24 http://reviews.cnet.com/tablet-pcs/samsung-q1-ultramobile-pc/4505-3126_7- 25 31781057.html 26 http://www.samsung.com/us/mobile/galaxy-tab/GT-P7510UWVXAB-gallery 27 http://www.apple.com/ipad/specs/ 28 HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 11-CV-01846-LHK sf-3051192 5 1 The third document contains images of the Pantech Crossover P8000 and the LG Chocolate from 2 the following websites: 3 http://www.att-phones.org/att-sets-release-date-for-pantech-crossover-p8000-on-june- 4 5-for-69-99.html 5 http://www.letsgomobile.org/en/cellular/0620/lgchocolatewhite/ 6 The other images are from U.S. D616,856, U.S. D561,155, and Exhibit A to the Sherman 7 Declaration. Although I scaled and cropped the images in these documents, I did not otherwise 8 alter the images. 9 10 11 12 13 14 15 16 17 41. Attached hereto as Exhibit II is a photograph of the iPad 2 and Samsung Galaxy Tab 10.1. 42. Attached hereto as Exhibit JJ is a true and correct copy of deposition exhibit 60 from the August 3, 2011 deposition of Christopher Stringer. 43. Attached hereto as Exhibit KK is a true and correct copy of deposition exhibit 61 from the August 3, 2011 deposition of Christopher Stringer. 44. Attached hereto as Exhibit LL is a true and correct copy of deposition exhibit 62 from the August 3, 2011 deposition of Christopher Stringer. 45. A true and correct copy of deposition exhibit 211 from the September 17, 2011 18 deposition of Benjamin Bederson is attached as Exhibit K to the Reply Declaration of Ravin 19 Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction. 20 46. A true and correct copy of deposition exhibit 212 from the September 17, 2011 21 deposition of Benjamin Bederson is attached as Exhibit L to the Reply Declaration of Ravin 22 Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction. 23 47. A true and correct copy of deposition exhibit 213 from the September 17, 2011 24 deposition of Benjamin Bederson is attached as Exhibit M to the Reply Declaration of Ravin 25 Balakrishnan, Ph.D., in Support of Apple’s Motion for a Preliminary Injunction. 26 48. A true and correct copy of deposition exhibit 222 from the September 17, 2011 27 deposition of Benjamin Bederson is attached as Exhibit N to the Reply Declaration of Ravin 28 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 CASE NO. 11-CV-01846-LHK sf-3051192 6 1 2 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. 3 4 5 6 Dated: September 30, 2011 MORRISON & FOERSTER LLP 7 By: 8 9 /s/ Francis Ho Francis Ho Attorneys for Plaintiff APPLE INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 11-CV-01846-LHK sf-3051192 7 1 2 3 ATTESTATION OF E-FILED SIGNATURE I, MICHAEL A. JACOBS, am the ECF User whose ID and password are being used to 4 file this Declaration. In compliance with General Order 45, X.B., I hereby attest that Francis Ho 5 has concurred in this filing. 6 Dated: September 30, 2011 7 By: /s/ Michael A. Jacobs Michael A. Jacobs 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HO DECLARATION ISO APPLE’S REPLY ISO APPLE’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 11-CV-01846-LHK sf-3051192 8

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