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

Filing 661

EXHIBITS re #660 Administrative Motion to File Under Seal Apple Inc.'s Notice of Motion and Motion for Partial Summary Judgment Exhibits to Mueller Declaration ISO Apple's Motion for Partial Summary Judgment [660-9] filed byApple Inc.(a California corporation). (Attachments: #1 Exhibit Mueller Decl Exhibit 2, #2 Exhibit Mueller Decl Exhibit 3, #3 Exhibit Mueller Decl Exhibit 4, #4 Exhibit Mueller Decl Exhibit 5, #5 Exhibit Mueller Decl Exhibit 6, #6 Exhibit Mueller Decl Exhibit 7, #7 Exhibit Mueller Decl Exhibit 8, #8 Exhibit Mueller Decl Exhibit 9, #9 Exhibit Mueller Decl Exhibit 10, #10 Exhibit Mueller Decl Exhibit 11, #11 Exhibit Mueller Decl Exhibit 12, #12 Exhibit Mueller Decl Exhibit 13, #13 Exhibit Mueller Decl Exhibit 14, #14 Exhibit Mueller Decl Exhibit 15, #15 Exhibit Mueller Decl Exhibit 16, #16 Exhibit Mueller Decl Exhibit 17, #17 Exhibit Mueller Decl Exhibit 18, #18 Exhibit Mueller Decl Exhibit 19, #19 Exhibit Mueller Decl Exhibit 20, #20 Exhibit Mueller Decl Exhibit 21, #21 Exhibit Mueller Decl Exhibit 22, #22 Exhibit Mueller Decl Exhibit 23, #23 Exhibit Mueller Decl Exhibit 24)(Related document(s) #660 ) (Selwyn, Mark) (Filed on 1/25/2012)

Mueller Exhibit 2

Addendum 1
ETSI/GA 29(9 7)/S CM/3
24 October 1997
page 1 of 6

29th General Assembly
Specially Convened Meeting
Nice, 18-19 November 1997
Source:

ETSI Director-General

Title:

Amendments of the ETSI Interim Intellectual Property Rights
Policy

Agenda item: 4
Document for: Decision
t

2

Decisionlaction requested
The General Assembly is invited to approve the ETS/ (IPR) Policy as contained in the
Annex to this document to become definitive
References
ETSllGA27(96/’11 Rev.1
December 1996 - Nice;

Minutes of the E-I-SI 27t~ General Assembly meeting 11

¯ Annex 6 Rules of Procedure - ETSI Interim IPR Policy approved by the General Assembly
at its Specially Convened Meeting held on 23 November 1994;

3

Rationale

As the beginning of August this year document GA29(97)/SCM/03 was distributed with the
objective to transform the ETSI Interim Intellectual Property Rights Policy into a definite one.
Owing to some indications received at the ETSI Secretariat, we propose a few additional
modifications that can be considered as editorial
The modifications consist of the following aspects:
¯
¯
¯
¯

deletion of the date of approval of the IPR Policy since it will be treated from now on as
any Annexes to the ETSI Rules of Procedure;
complete deletion of the former Article 15 since Annexes to the Rules of Procedure are
modified the same way as the rest of the Rules of Procedure;
replacement of the former Article 15 by the definitions currently contained in the Annex to
the IPR Policy;
as a consequence of the above, a small modification of Article 2 (now referring to the new
Article 15 and not any more to the Annex).

Attached you will find a clean version of the revised Annex 6 to the ETSI Rules of Procedure
containing the proposed ETSI (IPR) Policy.

APLNDC-WH-A 0000012542

Addendum 1
ETSI/GA29(97)/SCM3
page 2 of 6

Annex 6:
ETSI Intellectual Property Rights Policy

1

Introduction

The General Assembly of ETSI has established the following Intellectual Property Rights POLICY.

2

Definitions

Tel-ms in the POLICY which are wa’itten in capital letters shall have the meaning set forth in the Ardcle
15 entitled DEFINITIONS.

3

3.2
3.3

4

Policy Objectives
STANDARDS shalt be based on solutions which best meet the technical objectives of the
European telecommunications sector, as defined by the General Assembly. In order to farther
this objective the ETSI IPR POLICY seeks to reduce the risk to ETSI, MEMBERS, and others
applying ETSI STANDARDS, that investment in the preparation, adoption and application of
STANDARDS could be wasted as a result of an ESSENTIAL IPR for a STANDARD being
unavailable. In achieving this objective, the ETSI IPR POLICY seeks a balance between the
needs of standardization for public use in the field of telecommunications and the rights of the
owners of TPRs.
IPR helders whether members of ETSI and their AFFILIATES or third parties, should be
adequately and faMy rewarded for the use of their IPRs in the implementation of
STANDARDS.
ETSI shall take reasonable measures to ensure, as fat- as possible, that its activities which relate
to the preparation, adoption and application of STANDARDS, enable STANDARDS to be
availabie to potential users in accordance wittt the general principles of standardization.

Disclosure of IPRs
Each MEMBER shall use its reasonable endeavours to timely inform ETSI of ESSENTIAL
IPRs it becomes aware of. In particular, a IVIEMBER submitting a teclmical proposal for a
STANDARD shali, on a bona fide basis, draw the attention of ETSi to any of that MEMBER’s
IPR which might be ESSENTIAL if that proposal is adopted.
The obligations pursuant to Clause 4.1 above do however no* imply any obligation on
MEMBERS to conduct IPR searches.

5

Procedures for Committees

ETSI shall establish guidelines for the chairmen of COMMITTEES with respect to ESSENTIAL IPRs.

APLNDC-WH-A 0000012543

Addendum 1
ETSi/GA29(97)/SCM3
page 3 of 6

6

6.2

7
7.1
7.2

8
8.1
g.l.1

8.1.2

8.2

Availability of Licences
When an ESSENTIAL IPR relating to a pat~ticular STANDARD is brought to the attention of
ETSI, the Dh’ector-GeneraI of ETSI shall hm~aediately request the owner to give within thi’ee
months an undertaking in writing that it is prepared to grant in’evocable licences on fah’,
reasonable and non-discriminatoD~ temas and conditions under such IPR to at least the
following extent:
MANUFACTURE, including the right to make or have made customized components and
sub-systems to the licensee*s own design for use in MANUFACTURE;
¯ soil, lease, or otherwise dispose of EQUIPMENT so MANUFACTURED;
¯ repah’, use, or operate EQUIPMENT; and
¯ use METHODS.
The above undertaking may be made subject to the condition that those who seek licences
aga’ee to reciprocate.
At the request of the European Commission and/or EFTA, initially for a specific STANDARD
or a class of STANDARDS, ETSI shall an’ange to have carried oat in a competent and thnely
masher an investigation including an IPR search, with the objective of ascertaining whether
IPRs exist or are likely to exist wNch may be or may become ESSENTLAL to a proposed
STANDARD and the possible terms and conditions of licences for such IPRs. Tiffs shall be
subject to the European Commission and/or EFTA meeting nil reasonable expenses of such an
investigation, in accordalce with detailed an’angements to be worked out with the European
Commission and/or EFTA prinr to the investigation being undertaken.

Information on IPR by ETSI
Any published STANDARD shall include information pertaining to ESSENTIAL IPRs which
are brought to the attention of ETSl prior to such publication.
ETSI shall establish appropriate procedures to allow access to information at any time with
respect to ESSENTIAL IPRs which have been brought to the attention of ETSI.

Non-availability of Licences
MEMBERS’ refusal to license
Where a MEMBER notifies ETSI that it is not prepared to license an 1PR in respect of a
STANDARD, the General Assembly shall review the requirement for that STANDARD and
satisfy itself that a viable alternative technoiogy is available for the STANDARD which:
¯ is not blocked by that IPR; and
¯ satisfies ETSI’s requh’ements.
Where, in the opinion of the General Assembly, no such viable alternative technology exists,
work on the STANDARD shall cease, and the Director-General of ETSI shall request that
MEMBER to reconsider its position. If the MEMBER decides not to withch-aw its refusal to
license the IPR, it shall infom~ the Director-General of ETSI of its decision and provide a
written explanation of its reasons for refusing to license that IPR, within three months of its
receipt of the Director-General’s request.
TILe Director-General shall then send the MEMBER’s explanation together with relevant
extracts fi’om the minutes of the General Asselnbly to the ETSI Counsellors for their
consideration.
Non-availability of lieenees from fllil-d parties
Where, in respect of a STANDAILD, ETSI becomes awaze that licences are not available
a third pm’ty in accordance with Clause 6.1 above, that STANDARD shall be relented to the
Director-General of ETSI for further consideration in accordance with the following
procedure:
The Dh’ector-Generai shall request fali supporting details fi’om any MEMBER who
i)
has complained that licenees are not avaiIable in accordance with Clause 6.1 above.

APLNDC-WH-A 0000012544

Addendum 1

ETSI/GA29(97)/SCM3
page 4 of 6
The Director-General shall write to the IPR owner concerned for an explanation and
request that licences be granted according to Clause 6.1 above.
iii)
Wqaere the IPR owner refuses the Director-General’s request or does not answer the
letter witNn ttu’ee months, the Dh’ector-General shall info,an the General Assembly. A
vote shall be taken ia the General Assembly on an individual weighted basis to
immediately refer the STANDARD to the relevant COMMITTEE to modi_Sj it so that
the DR is no longer ESSENTIAL.
iv)
Where the vote ha the General Assembly does not succeed, then the General Assembly
shall, where appropriate, consult the ETSI Counsellm-s with a view to finding a
solution to the problem. In parallel, the Genel’ai Assembly may reqnest appropriate
MEMBERS to use theh" good offices to find a solution to the problem.
Where (iv) does not lead to a sofution, then the Generai Assembly shall request the
v)
European Commission to see what further action may be appropriate, including nonrecognition ~£the STANDARD in question.
In canting out the ferego~g procedure due account shaI1 be taken of the interest of the
enterprises that have invested in the hnplementation of the STANDARD in question.
ii)

9
9.2
9.3

10

ETSI ownership of IPRs
The ownership of the copyright in STANDARDS documentation and reports created by ETSI
or any of its COMMITTEES shall vest in ETSI but due acknowledgement shall be given to
copyrights owned by thh-d pro’ties that are identifiable in ETSI copyrighted works.
In respect of IPRs other than copyright in STANDARDS documentation and reports, ETSI
shall only seek ownership of IPRs generated either by its employees or byseeondees to ETSI
fi’om organizations who are not MEMBERS.
ETSI shall, on request by a non-member, go-ant licences to that non-member on fair and
reasonable terms and conditions in respect of any 1PRs, other than those referred to in Clause
9.1 above, owned by ETSI. MEMBERS shall be allowed to use IPRs owned by ETSI fi’ee of
charge.

Confidentiality

The proceedings of a COMMITTEE shall be regm’ded as non-confidential except as expressly wovided
below and all information submitted to a COMMITTEE shall be treated as if non-confidential and shall
be available for public inspection unless:
¯ the information is in written o1" other tangible form; and
¯ the information is identified in writing, when submitted, as confidential; and
¯ the information is first submitted to, and accepted by, the ehait~nan of the COMMITTEE as
confidential.
CONFIDENTIAL INFORMATION incorporated in a STANDARD shall be regm’ded as non~
confidential by ETSI and its MEMBERS, fi’om the date on which the STANDARD is published.

11

Reproduction of Standards Documentation

MEMBERS may make copies of STANDARDS documentation produced by ETSI for their own use
fi’ee of charge but may not distribute such copies to others.

12

Law and Regulation

Tile POLICY shall be governed by the laws of France. However, no MEMBER shall be obliged by the
POLICY to commit a breach of the laws or regulations of its countD, or to act against supranational
laws or regulations applicable to its eountD, insofm- as derogation by agreement between pmties is not
permitted by such laws.

APLNDC-WH-A 0000012545

Addendum 1
ETSI/GA29(97)/SCM3
page 5 of 6

Any right iD’anted to, and any obligation imposed on, a MEMBER which derives from French law and
which are not ah-eady contained in the national or supranational law applicable to that MEMBER is to
be tmderstood as being of solely a contractual nature.

13

Policy Decisions

Without prejudice to ETSI’s Statutes and Rules of Procedure, no decisions shall be taken by ETSI in
relation to implementation of the POLICY unless supported by a 71% majority of the weighted
individual votes cast by MEMBERS.

14

Violation of Policy

Any violation of the POLICY by a MEMBER shah b e deemed to be a breach, by that MEMBER, of its
obligations to ETSI. The ETSI General Assembly shall have the authority to decide the action to be
taken, if any, against the MEMBER in breach, in accordance with the ETSI Statutes.

15

4
5
6

Definitions
"AFFILIATE" ofa fn’st legal entity means any other legal entity:
¯ dh’ectly or indh’ectly owning or conla’olling the fit’st legal entity, or
¯ trader the same dh’ect or indh’ect ownership or control as the first legal entity, or
¯ dh-ectly or indh-ectly owned or controlled by the fit’st legal entity,
for so long as such ownership or control lasts.
Ownership or control shall exist ttu’ough the direct or indirect:
¯ ownerslfip of more than 50% of the nominal value of the issued equity share capital or
of more than 50% of the shares entitling the holders to vote for the election of
directors or persons performing similar functions, or
¯ right by any other means to elect or appoint dh’ectors, or persons who colIectively can
exercise such control. A state, a division of a state or other public entity operating
under" public law, or any legal entity, linked to the fu-st legal entity solely tln’ough a
state or may division of a state or other public entity opel’ath~g under public la~v, shali
be deemed te fall outside the definition of an AFFILIATE.
"COMMITTEE" shalI mean any working party or committee of ETSi and shall include
Technical Coannlttees, Sub-Technical Co~mnittees, Project Teams and rapportem’
gn-oups.
"CONFIDENTIAL INFORMATION" shall mean all information deemed to be
confidential pursuant to Clause 10 of the POLICY disclosed directly or indirectly to the
MEMBER.
"EQUIPMI~NT" shall mean any system, or device fully confot~ning to a STANDARD.
"METttODS" shall mean any method or operation fully co~fforming to a STANDARD.
"ESSENTIAL" as applied to 1PR means that it is not possible on technical (but not
commercial) grotmds, taldng into account normal technical practice and the state ofthe
art generally available at the time of standardization, to make, sell, lease, othe~vise
dispose of, repah’, use or operate EQLr/PMENT or METHODS which comply with a
STANDARD without infi’inging that IPR. For the avoidance of doubt in exceptional
eases where a STANDARD can only be hnplemented by technical solutions, all of which
are infi-ingements of IPRs, all such IPRs shall be considered ESSENTIAL.
"IPR" shall mean any intellectual property right conferred by statute law including
applications there fur other than trademarks. For the avoidance of doubt rights relating te
get-up, eoufidential information, trade secrets or the like are excinded fi’om the definition
of IPR.
"MANUFACTURE", shall mean production of EQUIPMENT.

APLNDC-WH-A 0000012546

Addendum 1
ETSI/GA29(97)/SCM3
page 6 of 6

10
11

"MEMBER" shall mean a member or associate member of ETSI. References to a
MEMBER shaI1 wherever the context pelanits be interpreted as references to that
MEMBER and its AFFILIATES.
"POLICY" shall mean ETSI’s Intellectual Propet~yy Rights Poiicy.
"STANDARD" shall mean any ~tandard adopted by ETSI including options therein or
amended versions and shall include European Standards (ENs) (telecommunications
series), ETSI Standards (ESs), Common Teci~aical Regulatiens (CTRs) which are taken
fi’om ENs (telecommunications series) and kneluding drafts of any of the foregoing, and
documents made trader the previous nomenclatm’e, includingETSs, I-ETSs, parts of
NETs and TBRs, the teclmical specifications of which are available to all MEMBERS,
but not inclnding any standards, or pm~ts thereof, net made by ETSI.
The date on which a STANDARD is considered to be adopted by ETSI for the proposes
of this POLICY shall be the date on which the technical specification of that
STANDARD was available to all MEMBERS.

APLNDC-WH-A 0000012547