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

Filing 441

OBJECTIONS to Samsung's Untimely New Evidence Regarding Preliminary Injunction Motion by Apple Inc.. (Attachments: #1 Grant Kim Declaration (Public Redacted Version), #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E (Redacted), #7 Exhibit F, #8 Exhibit G (Redacted), #9 Exhibit H, #10 Exhibit I, #11 Exhibit J)(Jacobs, Michael) (Filed on 11/30/2011)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
WILLIAM F. LEE (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
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,

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Plaintiff,
v.

Case No. 11-cv-01846-LHK
APPLE’S OBJECTIONS TO SAMSUNG’S
UNTIMELY NEW EVIDENCE
REGARDING PRELIMINARY
INJUNCTION MOTION

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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APPLE’S OBJECTIONS TO SAMSUNG’S UNTIMELY NEW EVIDENCE REGARDING PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
sf-3058807

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Table of Abbreviations
Abbreviation

Meaning

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Bloomberg
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SAMNDCA00019932-33

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SAMNDCA00020402-04

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German document bearing the number 40301867, which appears to be
related to the first two documents (produced by Samsung on the afternoon of
October 17, 2011)

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Bressler Dec

Reply Declaration of Peter W. Bressler In Support of Apple’s Motion for a
Preliminary Injunction, filed September 30, 2011 (D.N. 279)

Chung Dec

Declaration of Minn Chung In Support of Apple’s Administrative Motion To
Augment Record, submitted under seal on Oct. 12, 2011

Diamond
Touch

Refers to two recently produced Samsung documents:

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Three untranslated German documents recently produced by Samsung

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Exhibit G-7 to Samsung’s Invalidity Contentions of October 7, 2011
Video referenced in the presentation that Samsung provided to the Court on
October 13, 2011, which Samsung provided to Apple on October 15, 2011

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DT Chart

Exhibit G-7 to Samsung’s Invalidity Contentions of October 7, 2011

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DT Rebuttal
Chart

Ex. I to the Kim Dec., which is a chart rebutting Samsung’s DT Chart, and
which Apple is submitting on a contingent basis if Samsung’s chart is
considered.

Fidler Dep

Deposition of Roger F. Fidler, taken September 23, 2011, excerpts of which are
submitted as Kim Dec. Ex. D.

JP 1178470

SAMNDCA00027686-90, untranslated Japanese document produced by
Samsung on October 12, 2011

Kim Dec.

Declaration of Grant Kim In Support of Apple’s Objections to Samsung’s
Untimely New Evidence, filed herewith.

March 2011
ITC pleading

Apple’s Statement on the Public Interest (Public Version) filed on March 10,
2011 in ITC Investigation No. 337-TA-703, Certain Mobile Telephones and
Wireless Communication Devices Featuring Digital Cameras,and Components
Thereof, Docket No. 2706.

Motion to
Augment

Apple’s Administrative Motion To Augment Record On Its Motion For
Preliminary Injunction, dated Oct. 11, 2011, and submitted under seal on
October 12, 2011.

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APPLE’S OBJECTIONS TO SAMSUNG’S UNTIMELY NEW EVIDENCE REGARDING PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
sf-3058807

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Nokia

SAMNDCA00045058-00045063, Oct. 11, 2011 website printout of “Ricardo
Vilas-Bos Portfolio,” produced by Samsung on October 12, 2011

Ozolins

SAMNDCA00027692-708 (US 2004/0041504 A1), recently produced by
Samsung

Reply

Apple’s Reply In Support of Its Motion for Preliminary Injunction, filed
September 30, 2011 (D.N. 275).

SP

250-page presentation that Samsung submitted to the Court at the Preliminary
Injunction Hearing on October 13, 2011.

Taylor Dec.

Declaration of Jennifer Lee Taylor In Support of Apple’s Objections to
Samsung’s Untimely New Evidence, filed herewith.

Zhang Dec.

Declaration of Patrick Zhang in Support of Apple’s Motion for a Preliminary
Injunction, filed July 1, 2011 (D.N. 87).

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APPLE’S OBJECTIONS TO SAMSUNG’S UNTIMELY NEW EVIDENCE REGARDING PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
sf-3058807

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At the recent hearing, Apple submitted a focused presentation limited to images of

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evidence in the record. Samsung, in contrast, submitted a massive, 250-page document that cites

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entirely new evidence, cases, and arguments. Samsung’s new material should be rejected.

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I.

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SAMSUNG’S NEW EVIDENCE SHOULD BE REJECTED AS UNTIMELY
Samsung’s new alleged prior art is untimely because Samsung failed to include it in its

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August 22 Opposition. Bloomberg, Ozolins, JP 1178470, and Nokia are publicly available

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patents and website printouts. DiamondTouch was allegedly developed in 2002. Samsung’s

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failure to submit this evidence by the Court deadline is Samsung’s own fault. Its October 7

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invalidity contentions do not cure its disregard of the preliminary injunction schedule. Samsung’s

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submission of a publicly available March 2011 ITC pleading should also be rejected as untimely.

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As to depositions, Samsung rejected Apple’s proposal to allow further designations if

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Apple’s counter-designations of related testimony are included. (Kim Dec. ¶¶ 4-5.) The Court

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should either allow further designations by both sides, or reject all further designations.

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II.

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SAMSUNG’S NEW EVIDENCE IS INADMISSIBLE AND IRRELEVANT
Samsung’s new evidence is also inadmissible and irrelevant. DiamondTouch consists of

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an unauthenticated demonstrative video and an argumentative chart. (SP 172-77; DT Chart.)

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Neither is admissible evidence that DiamondTouch was “prior art” or had specific features.

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DiamondTouch is also irrelevant for the reasons in Apple’s DT Rebuttal Chart.

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Bloomberg and JP 1178470 are unauthenticated and untranslated German and Japanese

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documents. Bloomberg is irrelevant because it has a square protrusion on the back, unlike the

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D889’s sleek profile. (SAMNDCA00019932; cf. Zhang Dec. Ex. 50, Figs. 5-8.) Ozolins has a

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square back opening and a thick side profile with slanted angles, similar to Bloomberg and unlike

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the D889’s thin, rounded profile. (SAMNDCA00027701.) JP 1178479 has a square profile with

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no rounding, unlike the D889. (SAMNDCA00027689.) Nokia is an unauthenticated website

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printout that does not prove the design was sold or qualifies as prior art. (SAMNDCA00045058-

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63.) It also has bulging sides, unlike the straight sides of the iPhone design. (Id.; see SP 44.)

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Samsung has violated the best evidence rule by submitting misleading photos of the
mock-ups identified as Fidler Dep. Exs. 267-69. The actual mock-ups (the best evidence) would
APPLE’S OBJECTIONS TO SAMSUNG’S UNTIMELY NEW EVIDENCE REGARDING PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
sf-3058807

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not be objectionable, but Samsung failed to submit them. Samsung’s photos suggest Ex. 267 was

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a real prototype; in fact, it was merely a sheet of Plexiglas, with no display or border, used to ask

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how consumers would hold it to read a newspaper. (Fidler Dep. 138:16-145:10) Samsung’s

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photos suggest Exs. 268-69 had smooth fronts; in fact, they had raised frames and a square side

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profile. (Bressler Dec. ¶ 46 & Ex. 7; Taylor Dec. Exs. 1-8.) The raised frame distinguishes all

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Fidler mock-ups—including Knight-Ridder—from the D889’s smooth, uninterrupted reflective

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surface that extends to the edge. (Bressler Dec. ¶ 45 & Exs. 5, 6; Zhang Dec. Ex. 50, Figs. 1, 3.)

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Finally, the Apple ITC pleading that Samsung belatedly seeks to present is from a

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different case with different issues. It does not rebut the admissions of Samsung and its expert

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that Samsung is Apple’s “avowed competitor” and that Samsung’s sales have taken market share

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away from Apple. (See Reply at 21-22.)

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III.

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APPLE’S RESPONSE TO SAMSUNG’S OBJECTIONS
Apple’s reply declarations properly replied to Samsung’s opposition. Samsung had an

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opportunity to address that evidence at the hearing. Apple offered to allow further Samsung

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deposition designations if Apple’s designations were included, but Samsung rejected that offer.

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Samsung’s objections to Apple’s Motion to Augment the Record should be overruled.

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Apple could not have submitted the Samsung documents before Samsung produced them on

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October 7 and 10, after the September 12 deadline, and after Judge Grewal ordered production for

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the preliminary injunction by October 7. In contrast, the new evidence that Samsung seeks to

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submit was available to Samsung from public and third party sources before Samsung filed its

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Opposition on August 22. Further, unlike the inadmissible and irrelevant evidence that Samsung

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seeks to submit, the belatedly produced Samsung documents bear directly on the preliminary

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injunction. They show, for example, that Samsung added Apple’s patented “bounce” feature to

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the Galaxy Tab 10.1 after deeming the lack of this feature to be a “serious” and “critical”

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shortcoming that deprived the Tab 10.1 of the iPad 2’s “Fun, Wow Effect.” (Motion to Augment

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at 2; Chung Dec. Ex. A at SAMNDCA 00532601, 655.) This shows that Samsung copied this

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patented feature and that “bounce” is important to consumers and helps to drive sales.

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APPLE’S OBJECTIONS TO SAMSUNG’S UNTIMELY NEW EVIDENCE REGARDING PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
sf-3058807

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Dated: October 17, 2011

MORRISON & FOERSTER LLP

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By:

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/s/ Michael A. Jacobs
Michael A. Jacobs
Attorneys for Plaintiff
APPLE INC.

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APPLE’S OBJECTIONS TO SAMSUNG’S UNTIMELY NEW EVIDENCE REGARDING PRELIMINARY INJUNCTION
CASE NO. 11-CV-01846-LHK
sf-3058807

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