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

Filing 502

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Declaration, #2 Proposed Order, #3 Exhibit Apple's Opposition to Samsung's Motion to Compel, #4 Mazza Decl ISO Apple's Opposition to Samsung's Motion to Compel, #5 Ex. 1 to Mazza Decl ISO Apple's Opposition to Samsung's Motion to Compel, #6 Ex. 2 to Mazza Decl ISO Apple's Opposition to Samsung's Motion to Compel, #7 Proposed Order Denying Samsung's Motion to Compel, #8 Apple's Opposition to Samsung's Motion to Permit Samsung's Expert Itay Sherman to Review Design Materials Designated Under the Protective Order, #9 Kim Declaration ISO Apple's Opposition to Samsung's Motion to Permit Samsung's Expert Itay Sherman to Review Design Materials Designated Under the Protective Order, #10 Ex. 1 to the Kim Declaration, #11 Ex. 2 to the Kim Declaration, #12 Ex. 3 to the Kim Declaration, #13 Ex. 4 to the Kim Declaration, #14 Ex. 5 to the Kim Declaration, #15 Ex. 6 to the Kim Declaration, #16 Ex. 7 to the Kim Declaration, #17 Ex. 8 to the Kim Declaration, #18 Ex. 9 to the Kim Declaration, #19 Proposed Order Denying Samsung's Motion to Permit Samsung's Expert Itay Sherman to Review Design Materials Designated Under the Protective Order)(Hung, Richard) (Filed on 12/15/2011)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
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]

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Attorneys for Plaintiff and
Counterclaim-Defendant 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.,

Case No.

11-cv-01846-LHK

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Plaintiff,
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v.
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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.,

DECLARATION OF ESTHER KIM
IN SUPPORT OF APPLE’S
OPPOSITION TO SAMSUNG’S
MOTION TO PERMIT
SAMSUNG’S EXPERT ITAY
SHERMAN TO REVIEW DESIGN
MATERIALS DESIGNATED
UNDER THE PROTECTIVE
ORDER

Defendants.

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PUBLIC VERSION
EXHIBITS 3, 4, 5, AND 6 FILED UNDER SEAL

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DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN
11-CV-01846-LHK
sf-3083360

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I, Esther Kim, declare as follows:

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1.

I am an attorney with the law firm of Morrison & Foerster LLP, counsel for

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Apple Inc. (“Apple”). I am licensed to practice law in the State of California. Unless otherwise

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indicated, I have personal knowledge of the matters stated herein and, if called as a witness, could

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and would testify competently thereto. I make this declaration in support of Apple’s Opposition

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to Samsung’s Motion to Permit Samsung’s Expert Itay Sherman to Review Design Materials

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Designated Under the Protective Order.

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2.

Attached hereto as Exhibit 1 is a true and correct copy of the “About us” page

from the Double Touch website, having the universal resource locator (“URL”):
http://dotwo-tech.com/index.html.
3.

Attached hereto as Exhibit 2 is a true and correct copy of the published patent

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application having U.S. Publication Number 2011-0193819 A1 and a publication date of

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August 11, 2011. This publication is titled “Implementation of Multi-Touch Gestures Using a

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Resistive Touch Display” and lists Itay Sherman as the first named inventor.

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4.

Attached hereto as Exhibit 3 is a true and correct copy of excerpts of the

deposition transcript from the deposition of Itay Sherman on September 15, 2011.
5.

Attached hereto as Exhibit 4 is a true and correct copy of a September 6, 2011,

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letter from Samsung’s counsel to Apple’s counsel, disclosing Itay Sherman as an expert. The

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letter requests that Apple inform Samsung by September 9 “whether Apple objects, and the

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grounds for such objection, to the disclosure to Itay Sherman of information produced in this

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litigation by Apple” and designated by Apple as “Confidential” or “Highly Confidential –

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Attorneys’ Eyes Only” under the Interim Model Protective Order.

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6.

Attached hereto as Exhibit 5 is a true and correct copy of an e-mail chain

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containing four e-mails between Samsung’s counsel and Apple’s counsel from

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September 6, 7, and 19, 2011, discussing the disclosure of Apple confidential information to

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Mr. Sherman.

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7.

Attached hereto as Exhibit 6 is a true and correct copy of an October 25, 2011,

letter from Samsung’s counsel to Apple’s counsel, documenting Apple’s objection to
DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN
11-CV-01846-LHK
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Mr. Sherman being shown any confidential documents unless Samsung first provides a list of

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Bates numbers so that Apple can review them and object” and Samsung’s refusal to do so.

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Attached hereto as Exhibit 7 is a true and correct copy of Samsung’s First Set of

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Requests for Production to Apple, Inc., dated August 3, 2011. Request No. 139 states: “All

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DOCUMENTS relating to the functionality—including the ease of manufacturing, costs savings,

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enhanced usability, or any other benefit—of any claimed feature, element, or combination of

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elements in any of the APPLE DESIGN PATENTS, APPLE TRADE DRESS, AND APPLE

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TRADEMARKS.”

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9.

Attached hereto as Exhibit 8 is a true and correct copy of the “Technology” page

from the Double Touch website, having the URL: http://dotwo-tech.com/index.html.
10.

Attached hereto as Exhibit 9 is a true and correct copy of a Technology Review

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article published by M.I.T. and dated Thursday, February 14, 2003. This article is titled

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“Rethinking the Cell Phone” and indicates that Modu intended to compete with Apple’s iPhone.

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The article can be found at the URL:

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http://www.technologyreview.com/printer_friendly_article.aspx?id=20276.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this
15th day of December, 2011 at San Francisco, California.
/s/ Esther Kim
Esther Kim

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DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN
11-CV-01846-LHK
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ATTESTATION OF E-FILED SIGNATURE
I, Richard S.J. Hung, am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Esther Kim has

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concurred in this filing.

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Dated: December 15, 2011

/s/ Richard S.J. Hung
Richard S.J. Hung

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DECLARATION OF ESTHER KIM ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION RE ITAY SHERMAN
11-CV-01846-LHK
sf-3083360

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