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

Filing 604

EXHIBITS re #602 Administrative Motion to File Under Seal re Samsung's January 10, 2012 Filings Exhibit 2 - [Proposed] Public Redacted Version of Samsung's Renewed Motion to Compel filed bySamsung Electronics Co. Ltd.. (Attachments: #1 Declaration Trac Declaration, #2 Declaration Hutnyan Declaration, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E, #8 Exhibit F, #9 Exhibit G, #10 Proposed Order)(Related document(s) #602 ) (Maroulis, Victoria) (Filed on 1/11/2012)

quinn emanuel trial lawyers | washington, dc
1299 Pennsylvania Avenue NW, Suite 825, Washington, District of Columbia 20004-2400 | TEL: [phone] FAX: [phone]

December 20, 2011
VIA ELECTRONIC MAIL
Mia Mazza
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
Re:

Apple v. Samsung Electronics, et al., No. 5:11-cv-01846-LHK (N.D.Cal.)

Dear Mia:
I write in response to your December 15, 2011, letter producing certain source code and a
computer for inspection. Attorneys from Samsung inspected the production on Tuesday,
December 20. The production was deficient and its deficiencies are immediately prejudicial to
Samsung.
First, the produced source code relating to Mac OS X v.10.0 was incomplete. No code was
produced detailing the operation of timers, such as the NSTimer or NSDate classes. Such code is
relevant evidence for claim construction, invalidity, and non-infringement of the ’891 patent.
Samsung’s responsive claim construction brief is due on Thursday, and Apple’s delay in
producing the relevant Mac OS X v.10.0 source code, which only Apple possesses, is actively
damaging Samsung’s case. Please immediately produce the Mac OS X v.10.0 code in its
entirety, including all code that relates to timers and timing.
Second, Apple did not produce documents sufficient to show when the code it produced became
part of a commercial release or otherwise available to the public, which is critically relevant
evidence for the invalidity of the ’891 patent. Please immediately produce such documentation.
Alternatively, let us know whether Apple will stipulate that the code produced for Mac OS X
quinn emanuel urquhart & sullivan, llp
LOS ANGELES | 865

South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL [phone] FAX [phone]
Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL [phone] FAX [phone]
SAN FRANCISCO | 50 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL [phone] FAX [phone]
SILICON VALLEY | 555 Twin Dolphin Drive, 5th Floor, Redwood Shores, California 94065-2139 | TEL [phone] FAX [phone]
NEW YORK | 51

CHICAGO | 500

W. Madison Street, Suite 2450, Chicago, Illinois 60661-2510 | TEL [phone] FAX [phone]
Old Bailey, London EC4M 7EG, United Kingdom | TEL [phone] FAX [phone]
TOKYO | NBF Hibiya Building, 25F, 1-1-7, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan | TEL [phone] FAX [phone]
MANNHEIM | Erzbergerstraße 5, 68165 Mannheim, Germany | TEL [phone] FAX [phone]
MOSCOW | Voentorg Building, 3rd Floor, 10 Vozdvizhenka Street, Moscow 125009, Russia | TEL [phone] FAX [phone]
LONDON | 16

v.10.0 was in public use before July 10, 2001.
Third, the computer running Mac OS X v.10.0 was inadequate. Not only was the computer
improperly set up and lacking connecting cables—forcing a Samsung attorney to visit an
electronics store to purchase the proper equipment—but the computer lacked hardware-dedicated
brightness adjustment buttons. Such buttons are necessary for the operating system to produce
the brightness panel that closes without additional user input and is the subject of Samsung’s
motion to compel. In Rachel Herrick Kassabian's letter dated November 15, 2011, we provided
identification of this specific function of the operating system. The pictures showed the fading
of the brightness panel after a timer has expired. Apple was informed of this function, and the
hardware required to activate it, yet deliberately chose to produce a computer that did not have
the function.
Please produce immediately, on a computer in public use before July 10, 2001 that has a
brightness adjustment button, (1) the source code and (2) running version of the software, as we
have repeatedly requested. Alternatively, please let us know if Apple will agree to allow
Samsung to load the software on such a machine that Apple will stipulate was in public use (with
the source code) before July 10, 2001.
Apple represented at the hearing on Samsung's motion to compel that its production of the source
code and working copy was complete and based on that representation, Samsung told Judge
Grewal that he did not need to address the issue. Now it is apparent that the production was not
at all complete, and much of the most significant information is inexplicably missing. If this
matter is not resolved in full by tomorrow, Samsung will bring the matter to the attention of
Judge Grewal and will seek sanctions for Apple's misconduct.
Best regards,
/s/ Marissa R. Ducca
Marissa R. Ducca
MRD

2