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

Filing 703

OBJECTIONS to re #695 Request for Judicial Notice, by Apple Inc.. (Jacobs, Michael) (Filed on 2/1/2012)

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1 2 3 4 5 6 7 HAROLD J. MCELHINNY (CA SBN 66781) MICHAEL A. JACOBS (CA SBN 111664) RICHARD S.J. HUNG (CA SBN 197425) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Attorneys for Plaintiff APPLE INC. 8 9 MARK D. SELWYN (SBN 244180) WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 WILLIAM F. LEE (pro hac vice) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 APPLE INC., a California corporation, 15 16 17 18 19 20 21 Plaintiff, v. SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; and SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, Case No. 11-cv-01846-LHK APPLE INC.'S OBJECTION TO SAMSUNG’S REQUEST FOR JUDICIAL NOTICE REGARDING APPLE’S CLAIM CONSTRUCTION POSITIONS ON U.S. PATENT NO. 7,469,381 Defendants. 22 23 24 25 26 27 28 APPLE INC.’S OBJECTION TO SAMSUNG’S REQUEST FOR JUDICIAL NOTICE CASE NO. 11-CV-01846-LHK 1 Samsung’s Request for Judicial Notice is an unauthorized, untimely sur-reply to Apple’s 2 Opening Claim Construction brief. Because Samsung has failed to satisfy the requirements of 3 Civil Local Rule 7-3(d) and Federal Rule of Evidence 201, its request should be denied. 4 First, Samsung has not complied with Civil Local Rule 7-3(d), which prohibits, with 5 limited exceptions, the filing of “additional memoranda, papers or letters . . . without prior Court 6 approval.” Samsung’s argument that “[t]he stocks list has an internal edge within the Stocks 7 application document, and content exists beyond this internal edge” (Request at 3), is an attempt 8 to offer additional claim construction arguments, eleven days after the Markman hearing. Rule 7- 9 3 does not authorize such additional briefing; the only exceptions to Rule 7-3(d) contemplate 10 supplementation shortly after the filing of the reply brief or before the hearing. Moreover, 11 Samsung mischaracterizes the content of the two exhibits before the Court. There is not, as 12 Samsung contends, “an internal edge” in the stocks list. Rather, the stocks list has an external 13 edge, beyond which is a graph. See Request at 3; see also Samsung’s Ex. 2 at 2 (noting that the 14 “list of stocks” is the electronic document in question, not the Stocks application as a whole). If 15 Samsung’s argument were correct, one would expect the rubber-banding or bounce feature to 16 occur, for example, between each listed stock, and not at the actual edge of the entire list. This is 17 not the case, as seen in Samsung’s own video. Accordingly, far from supporting Samsung’s 18 contention, the two exhibits at issue in Samsung’s request are fully consistent with Apple’s 19 position regarding “an edge of the electronic document.” 20 Second, Samsung’s request is untimely. Samsung asserts that “Samsung’s counsel 21 became aware of these documents just days before the claim construction hearing.” (Request at 22 2.) While Samsung admits that the documents at issue have existed for over half a year (since 23 July 8, 2011), it fails to mention that its counsel, Quinn Emanuel Urquhart & Sullivan, LLP, is 24 also counsel of record in the ITC investigation in question, No. 337-TA-797. The respondent 25 there, HTC Corporation, is represented by Quinn Emanuel. Samsung offers no justification for its 26 own counsel’s failure to timely raise this issue. 27 28 Third, Samsung’s request does not comply with Rule 201, and is not even backed by the only case cited in support of Samsung’s position. Kurtcy v. U.S. Parking Inc., 08-cv-2113 APPLE INC.’S OBJECTION TO SAMSUNG’S REQUEST FOR JUDICIAL NOTICE CASE NO. 11-CV-01846-LHK 1 1 (WHA), 2008 WL 2445080, at *2 (N.D. Cal. June 16, 2008), as quoted by Samsung, stands for 2 the proposition that “judicial notice may be taken of orders and decisions taken by other courts 3 and administrative agencies.” (emphasis added.) Neither a complaint filed with the International 4 Trade Commission nor a claim chart attached thereto (Exhibits 1 and 2 to Samsung’s request) 5 satisfies this legal standard. Moreover, Exhibit 3 to the request is an unauthenticated video 6 created by counsel for Samsung, and plainly does not constitute “a fact” of which the Court may 7 take notice. See Fed. R. Evid. 201(b); Natural Wellness Centers of America, Inc. v. J.R. Andorin 8 Inc., No. 11-cv-4642 (EDL), 2012 WL 216578, at * 4 (N.D. Cal. Jan. 24, 2012) (declining to take 9 judicial notice of proffered evidence “because it has not been properly authenticated and is not 10 11 capable of accurate and ready determination pursuant to Federal Rule of Evidence 201”). Finally, Samsung’s request should be denied because it essentially seeks to resolve a 12 disputed issue through the procedure for judicial notice. See, e.g., Heller v. Cepia, LLC, No. 11- 13 cv-1146 (JSW), 2012 WL 13572, at *5 n.2 (N.D. Cal. Jan. 4, 2012) (where parties disputed an 14 issue of fact and requested “judicial notice of documents which purport to support their respective 15 positions,” the court denied the parties requests because “the parties, through their respective 16 requests for judicial notice, inappropriately seek to have the Court resolve factual disputes . . .”). 17 Samsung was afforded ample opportunity to identify evidence in support of its claim 18 constructions, and it should not be allowed now to undermine that process under the guise of 19 Federal Rule of Evidence 201. For all these reasons, Samsung’s request should be denied. 20 21 22 23 24 Dated: February 1, 2012 MORRISON & FOERSTER LLP By: /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC. 25 26 27 28 APPLE INC.’S OBJECTION TO SAMSUNG’S REQUEST FOR JUDICIAL NOTICE CASE NO. 11-CV-01846-LHK 2

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