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

Filing 637

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Wheeler Declaration ISO Motion to Seal, # 2 Proposed Order ISO Motion to Seal, # 3 Bartlett Declaration ISO Opposition to Motion to Enforce, # 4 Ex A to Bartlett Decl, # 5 Ex B to Bartlett Decl, # 6 Ex C to Bartlett Decl, # 7 Ex D to Bartlett Decl, # 8 Ex E to Bartlett Decl, # 9 Ex F to Bartlett Decl, # 10 Ex G to Bartlett Decl, # 11 Ex H to Bartlett Decl, # 12 Ex I to Bartlett Decl, # 13 Ex J to Bartlett Decl, # 14 Ex K to Bartlett Decl, # 15 Opposition to Motion to Enforce, # 16 Maselli Decl ISO Opposition to Motion to Compel, # 17 Ex A Maselli Decl, # 18 Ex B Maselli Decl, # 19 Ex C Maselli Decl, # 20 Ex D Maselli Decl, # 21 Ex E Maselli Decl, # 22 Opposition to Motion to Compel, # 23 Mazza Declaration ISO Opposition to Motion for Clarification, # 24 Ex A Mazza Decl, # 25 Ex B Mazza Decl, # 26 Ex C Mazza Decl)(Jacobs, Michael) (Filed on 1/17/2012)

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Exhibit K Page 1 1 UNITED STATES INTERNATIONAL TRADE COMMISSION 2 WASHINGTON, D.C. 3 4 _____________________________ ) 5 In the Matter of: ) ) Investigation No. 6 CERTAIN ELECTRONIC DIGITAL ) MEDIA DEVICES AND COMPONENTS ) 337-TA-796 7 THEREOF ) _____________________________) 8 9 10 *** HIGHLY CONFIDENTIAL *** 11 12 VIDEOTAPED DEPOSITION OF TRACY-GENE DURKIN 13 Washington, D.C. 14 Friday, January 6, 2012 15 16 17 18 19 20 21 22 23 Reported by: 24 John L. Harmonson, RPR 25 Job No. 45197 TSG Reporting - Worldwide 877-702-9580 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 * T.G. DURKIN - HIGHLY CONFIDENTIAL * 1 2 3 4 5 January 6, 2012 6 9:36 a.m. 7 8 Videotaped Deposition of TRACY-GENE DURKIN, 9 10 held at the offices of Quinn, Emanuel, Urquhart & 11 Sullivan, LLP, 1299 Pennsylvania Avenue, N.W., 12 Washington, D.C., pursuant to Notice, before John 13 L. Harmonson, a Registered Professional Reporter 14 and Notary Public of the District of Columbia. 15 * T.G. DURKIN - HIGHLY CONFIDENTIAL * A P P E A R A N C E S: MORRISON & FOERSTER Attorneys for Complainant Apple, Inc. 425 Market Street San Francisco, California 94105 BY: PETER J. STERN, ESQ. QUINN, EMANUEL, URQUHART & SULLIVAN Attorneys for the Samsung Respondents 865 South Figueroa Street Los Angeles, California 90017 BY: MICHAEL T. ZELLER, ESQ. and 16 17 18 19 20 21 22 23 24 25 TSG Reporting - Worldwide 877-702-9580 QUINN, EMANUEL, URQUHART & SULLIVAN 555 Twin Dolphin Drive Redwood Shores, California 94065 BY: ANNA T. NEILL, Ph.D., ESQ. TSG Reporting - Worldwide Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * A P P E A R A N C E S C O N T I N U E D: STERNE, KESSLER, GOLDSTEIN & FOX Attorneys for Sterne Kessler and the Witness 1100 New York Avenue, N.W. Washington, D.C. 20005 BY: MARK FOX EVENS, ESQ. ALSO PRESENT: CONWAY BARKER, VIDEOGRAPHER TSG Reporting - Worldwide 877-702-9580 877-702-9580 Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * PROCEEDINGS THE VIDEOGRAPHER: This is the beginning of tape labeled No. 1 in the video deposition of Tracy Durkin, in the matter of Certain Electronic Digital Media Devices and Components Thereof, before the United States International Trade Commission, Washington, D.C., Case No. 337-TA-796. This deposition is being held at Quinn Emanuel, 1299 Pennsylvania Avenue, Northwest, Washington, D.C., on January 6, 2012. The time is approximately 9:37. Would counsel please introduce yourselves and state whom you represent. MR. ZELLER: Mike Zeller for Samsung. MS. NEILL: Anna Neill for Samsung. MR. STERN: Peter Stern of Morrison & Foerster for Apple and the witness. MR. EVENS: Mark Evens for the witness and for Sterne, Kessler, Goldstein & Fox. THE VIDEOGRAPHER: The court reporter is John Harmonson and the video camera operator is Conway Barker, both in TSG Reporting - Worldwide 877-702-9580 2 (Pages 2 to 5) Page 262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * MR. STERN: Ms. Durkin, in answering that question, I caution you not to disclose any information obtained from Apple with regard to the device that's the subject of the photographs. A. No. Q. Is it your understanding that these images that we're talking about here that we marked as Exhibit 12 were part of what Apple publicly submitted to the Patent Office back in about the 2004 time period in connection with the prosecution of the '889 design patent application? A. I would have to see the file wrapper. I don't recall. MR. ZELLER: Let's please mark as Exhibit 13 a copy of the file wrapper for United States Patent 504,889. (Exhibit 13 marked for identification and attached hereto.) Q. And if you take a look at the pages ending 10208 through 10223, such as they are. And I'll represent to you this is the way it was produced to us. TSG Reporting - Worldwide 877-702-9580 Page 263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * don't recall. Q. And that's just something you don't know one way or another? A. Not today, no. Q. Are you familiar with a person named Ted Mayle? A. I am. Q. He's someone who used to work at Sterne Kessler? A. Correct. Q. Do you know where he is today? A. I don't. Q. Have you had any contact with him since he left? A. I have not. Q. Do you remember about when he left? A. I couldn't say. Q. During the time or at the time that there was the transition of responsibility for certain design patents from Beyer Weaver to Sterne Kessler, were there physical or electronic materials that were transferred in any way from Beyer Weaver to Sterne Kessler? A. Yes. TSG Reporting - Worldwide 877-702-9580 * T.G. DURKIN - HIGHLY CONFIDENTIAL * Is it generally your understanding that the images we marked as Exhibit 12 are the images that were these pages I just indicated in the 50 -- excuse me, in the '889 design patent file wrapper? A. Some of the pages are just blank white so it's hard for me to say. But there's some similarity between them, what I see here and what I saw in Exhibit 12. Q. And when you saw the images that are marked here as Exhibit 12, did you see it in the context of the overall '889 design patent file wrapper? MR. STERN: Objection; vague. Q. In other words, did you see it in the context of these other pages that we've marked here as Exhibit 13? A. When I saw this the first time, is that what you're asking me? Q. Yes. A. Did I see it in the context of a file wrapper? I don't recall. I know they were in the file. I don't recall whether they were a submission and how they were submitted. I just TSG Reporting - Worldwide 877-702-9580 Page 265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * Q. And were some of those materials in hard copy form? A. Yes. Q. Were some of those materials in electronic form? A. Yes. Q. Was there a CD or more than one CD of electronic documents that was transferred? A. Yes. Q. Did you ever see that CD or CDs? A. Yes. Q. Can you tell me, was it one or more than one? A. More than one. Q. And did you yourself actually load those CDs and review them in any way? A. I have not. Q. Does Sterne Kessler still have the CDs? A. Yes. Q. And in whose possession there at Sterne Kessler are those CDs? A. They are in mine. Q. And when was the last time you looked TSG Reporting - Worldwide 877-702-9580 67 (Pages 262 to 265) Page 266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * at them? A. Yesterday. Q. Was that in connection with your preparation to testify today? A. Correct. Q. And please tell me, how are the CDs generally arranged in terms of their information? A. I don't know. Q. When you went and looked at them, did they have file folders that you saw? MR. STERN: Counsel, you're talking about looking at the contents or looking at the exterior objects themselves? MR. ZELLER: No, I'm talking about looking at the information on the CD. A. I told you I've never done that. Q. I'm sorry, maybe I'm very confused, because when I asked if you reviewed them, you said yesterday. So let me try again, because I do know you did say you had not loaded them, so I thought maybe someone else had done it. So let me try again. Have you ever reviewed the contents of any of those CDs? TSG Reporting - Worldwide 877-702-9580 Page 267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 268 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * '889 design patent or its application? A. I don't know. Q. Do you know if there are any images of the item that we marked here as Exhibit 12 on there? A. There are not. Q. And how do you know that? A. Because I have inquired about that, and the answer I was given was no. Q. Are there photographs of any kind on there? A. I don't believe so. Q. Do you know where any copies or images or photographs of the -- of the device or mock-up or tangible we'll call it here in Exhibit 12 are? A. I have no idea. Q. Do you know what other design patents, setting aside the '889 design patent, the CDs have information about? A. Yes. Q. What else? A. Applications that were filed in the first instance by Beyer Weaver. Q. And are these -- When you say TSG Reporting - Worldwide 877-702-9580 * T.G. DURKIN - HIGHLY CONFIDENTIAL * A. Not personally. Q. Do you have any knowledge or information as to what is on those CDs? A. Yes. Q. And how do you know what's on the CDs? A. Based on information that others have provided to me. Q. Have you ever seen a printout or seen on any computer screen whether or not there is some kind of directory or file folder structure? A. No. Q. Have you ever seen -- Whether you loaded it yourself or not, have you ever seen any hard copy printouts or any displays on any screen of the content of the CDs? A. No. Q. And so please explain to me, what were you doing yesterday about the CDs to assist you in testifying here today? A. Nothing. I just happened to see them. Q. And where did you see them? A. On my desk. Q. Are there any documents or files or any information on these CDs that relate to the TSG Reporting - Worldwide 877-702-9580 Page 269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * "applications," are these the -- the applications themselves are on the CDs? A. No. Q. What kinds of materials are you aware of being on the CD as it relates to Apple design patent work? A. Drawings. Q. Are there other categories of documents or information that you know are on there? A. No. Q. I think you said you didn't know whether or not any of that information related to the '889 design patent or its application. A. I don't know. Q. Do you know if any of the files on that CD relate to the '678 design patent? A. No. Q. Or the '757 design patent? A. Was your question do I know? Q. Right. A. Can you repeat the question? Q. I'll repeat it. Do you know if any of the files on the TSG Reporting - Worldwide 877-702-9580 68 (Pages 266 to 269) Page 294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * Q. Do you know if there was anything that was different about the '387 design patent as compared to the prior art? MR. STERN: That question as phrased invades the privilege and work product protection, and I instruct the witness not to answer the question. Q. Did Apple represent to the Patent Office, including through Sterne Kessler, at any time that this design that's shown here in the '387 design patent was different from the prior art? MR. STERN: Same instruction. Q. Did Sterne Kessler have any oral communications with the Patent Office about the '387 design patent? MR. STERN: Objection; outside the scope of the subpoena. A. I don't recall. Q. Did Sterne Kessler have any written e-mail communications with the Patent Office about the '387 design patent? MR. STERN: Same objection. A. I don't recall. TSG Reporting - Worldwide 877-702-9580 Page 295 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * MR. ZELLER: We need to change tapes. MR. STERN: Counsel, I think we're concluded. Let's stay on the record. We've already gone about 20 minutes beyond when this witness said that she had reached the limit of being able to give her best testimony. We both have our positions on the time term of the deposition, but for today, we're concluded. MR. ZELLER: And I've certainly said that I don't intend to hold her beyond what she can reasonably testify to, and if she's not giving her best testimony, again, it's obviously without waiving my position about what still needs to be done. But if we're at that point, just let us know. THE WITNESS: I think we are. MR. ZELLER: All right. So we'll adjourn for now. THE VIDEOGRAPHER: This deposition -The deposition of Ms. Durkin is adjourned for the day. Off the record at 6 -MR. STERN: Before we go off the record, I would just like to be clear that TSG Reporting - Worldwide Page 296 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * our position is that the deposition is concluded. THE VIDEOGRAPHER: Off the record at 6 -MR. ZELLER: So is Apple now saying that all the witnesses it's now had multi-day depositions with was inappropriate? THE VIDEOGRAPHER: Can I go off the record now? MR. STERN: Yes. THE VIDEOGRAPHER: Off the record at 6:19 and it consists of six tapes. (Time noted: 6:19 p.m.) __________________________ TRACY-GENE DURKIN Subscribed and sworn to before me this ____ day of _________, 2012. ____________________________ TSG Reporting - Worldwide 877-702-9580 877-702-9580 Page 297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * T.G. DURKIN - HIGHLY CONFIDENTIAL * CERTIFICATE DISTRICT OF COLUMBIA I, JOHN L. HARMONSON, a Notary Public within and for the District of Columbia, do hereby certify: That TRACY-GENE DURKIN, the witness whose deposition is hereinbefore set forth, was duly sworn by me and that such deposition is a true record of the testimony given by such witness. I further certify that I am not related to any of the parties to this action by blood or marriage; and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of January, 2012. ______________________________ JOHN L. HARMONSON, RPR My commission expires: 11/14/15 TSG Reporting - Worldwide 877-702-9580 75 (Pages 294 to 297)

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