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)

Exhibit K

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UNITED STATES INTERNATIONAL TRADE COMMISSION

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WASHINGTON, D.C.

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_____________________________
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In the Matter of:

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) Investigation No.

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CERTAIN ELECTRONIC DIGITAL

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MEDIA DEVICES AND COMPONENTS ) 337-TA-796
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THEREOF

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_____________________________)
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HIGHLY CONFIDENTIAL

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VIDEOTAPED DEPOSITION OF TRACY-GENE DURKIN

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Washington, D.C.

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Friday, January 6, 2012

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Reported by:

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John L. Harmonson, RPR

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Job No. 45197
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* T.G. DURKIN - HIGHLY CONFIDENTIAL *

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January 6, 2012
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9:36 a.m.
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Videotaped Deposition of TRACY-GENE DURKIN, 9
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held at the offices of Quinn, Emanuel, Urquhart &
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Sullivan, LLP, 1299 Pennsylvania Avenue, N.W.,
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Washington, D.C., pursuant to Notice, before John
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L. Harmonson, a Registered Professional Reporter
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and Notary Public of the District of Columbia.
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* 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

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QUINN, EMANUEL, URQUHART & SULLIVAN
555 Twin Dolphin Drive
Redwood Shores, California 94065
BY: ANNA T. NEILL, Ph.D., ESQ.

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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
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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
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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.
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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.
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* 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
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* 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
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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?
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'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
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* 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
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"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
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* 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.
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* 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
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* 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.
____________________________
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* 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

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