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

Filing 627

MOTION to Strike #623 Order on Administrative Motion to File Under Seal, Evidence Not Disclosed as Required by Patent Local Rule 4-3(B), Refiled by Court Order (D.N. 623) filed by Apple Inc.(a California corporation). Responses due by 1/13/2012. (Attachments: #1 Declaration of Mark D. Selwyn in Support of Apple's Motion to Strike, #2 Exhibit A, #3 Exhibit B, #4 Proposed Order)(Selwyn, Mark) (Filed on 1/13/2012)

EXHIBIT A

HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY
JOE TIPTON COLE - 12/16/2011
Page 1

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
--oOo-APPLE, INC., a California corporation
Plaintiff,
vs.

Case No. 4:11-cv-01846-LHK

SAMSUNG ELECTRONICS CO.,
LTD., et al.
Defendants.
___________________________/
DEPOSITION OF
JOE TIPTON COLE
__________________________________
Friday, December 16, 2011

**HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY**

REPORTED BY: COREY W. ANDERSON, CSR 4096
(2003-439831)

617-542-0039

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declaration?

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"Samsung's proposed construction, a small

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application designed to run within another program."

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A.

No.

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Q.

Was this definition provided to you by

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A.

Yes.

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Q.

Okay.

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claim construction and pre-hearing statement

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pursuant to patent, Local Rule 4-3.

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(Whereupon, Exhibit 2 was marked

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for identification)

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BY MS. WHELAN:

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A.

Yes.

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Q.

Okay.

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A.

Yes.

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Q.

Did you review this document before

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A.

No.

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Q.

In forming the opinions presented in your

617-542-0039

You have this table here and it says

Did you draft this definition of applet?

counsel?

Just going to mark Exhibit 2, a joint

Q.

Do you recognize Exhibit 2?
(Pause)
I have seen it.
Now, if you look on page 3, you can

see the document's dated November 14th, 2011?

November 14th?

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declaration, did you review any documents other than

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the ones that you identified in the declaration?

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that I included are the results of doing Internet

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searches.

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went through and selected these items for support of

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the argument.

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and not suitable for one reason or another for

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presentation, I didn't rely on the other material.

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material was subsequent to the -- to the patent.

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And -- well, that was actually most of -- of the --

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of the difference.

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the items that I selected here, I don't think I ever

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had to go to the second page of the search results

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in order to pick up something that was pertinent.

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617-542-0039

A.

For the purpose of forming the opinion,

Q.

Did you review any other documents other

no.

than for the purpose of forming the opinion?
A.

The -- as I said, most of the exhibits

And so I saw a lot of other material as I

But other than noting that they were there

Q.

How did you decide which of your search

results were suitable?
A.

Generally speaking, by date.

Much of the

I think for whatever searches that I did,

Q.

So you didn't look beyond the second page,

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A.

The search results as they were presented.

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Q.

How did you conduct your search?

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A.

It was mostly word or phrase searches

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Q.

And when did you conduct your search?

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A.

Near the time of the filing of the report

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within for the most part I think four or five days

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before the declaration was put in.

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A.

Yes.

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Q.

And was your goal to identify applets that

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thought properly supported the opinion that I was

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offering.

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suspicion of what the -- of what was going to show

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up.

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to -- to see if what I thought was likely to be the

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case was in fact true.

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617-542-0039

when you stay second page you mean --

using the Google search engine.

Q.

So within four to five days before

November 28th?
Call it a week.

are operating system dependent?
A.

Q.

My goal was to find material that I

So had you formed the opinion before you

conducted the search?
A.

Let's put it this way.

I had a good

But no, I -- I had to look at the material

Q.

And what did you think was likely to be

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"applet" that was absolute, that it didn't allow for

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any possibility of any variants, was unlikely to

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be -- unlikely to be well-founded.

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you aware in advance of specific type of applets

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that you were searching for?

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and you wound up finding the examples that you put

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in your declaration?

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examples with Flash or Ruby or the other examples

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you included?

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A.

Not in the first searches, no.

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Q.

You did do that in later searches?

617-542-0039

the case?
A.

Q.

That selecting a definition for the term

A definition that was absolute in what

sense?
A.

Absolute in the sense that the only

possible explanation for the term was that it had to
be operating system independent.
Q.

A.

Then when you conducted your search, were

I was aware that the term was not limited

in the way that Apple had proposed, yes.
Q.

A.

So did you search broadly for "applets"

Yes.

I began the work just with the term

"applet" bare without any qualification whatsoever.
Q.

So you didn't specifically search for

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A.

Yes.

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Q.

And how did you determine what examples to

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A.

Yes.

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Q.

What --

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A.

I'm sorry, I'm sorry, let me recast that.

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I found applets that were operating system

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independent, yes.

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system independent applet doesn't contradict my

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opinion.

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that were characterized or could reasonably be

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characterized as operating -- operating system

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independent were I believe almost exclusively Java

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applets.

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A.

Not initially, no.

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Q.

You just chose not to use those results in

617-542-0039

search for?
A.

Because of the results that I found along

the way.
Q.

And in your search, did you identify any

applets that did not support your opinion?

Q.

But the existence of an operating

What were the operating system independent

applets that you found?
A.

Q.

Almost exclusively the ones that I found

So did you specifically exclude Java

applets from your search results?

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