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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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
APPLE INC.

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MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
WILLIAM F. LEE (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,

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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.

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APPLE INC.’S OBJECTION TO SAMSUNG’S REQUEST FOR JUDICIAL NOTICE
CASE NO. 11-CV-01846-LHK

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Samsung’s Request for Judicial Notice is an unauthorized, untimely sur-reply to Apple’s

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Opening Claim Construction brief. Because Samsung has failed to satisfy the requirements of

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Civil Local Rule 7-3(d) and Federal Rule of Evidence 201, its request should be denied.

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First, Samsung has not complied with Civil Local Rule 7-3(d), which prohibits, with

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limited exceptions, the filing of “additional memoranda, papers or letters . . . without prior Court

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approval.” Samsung’s argument that “[t]he stocks list has an internal edge within the Stocks

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application document, and content exists beyond this internal edge” (Request at 3), is an attempt

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to offer additional claim construction arguments, eleven days after the Markman hearing. Rule 7-

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3 does not authorize such additional briefing; the only exceptions to Rule 7-3(d) contemplate

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supplementation shortly after the filing of the reply brief or before the hearing. Moreover,

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Samsung mischaracterizes the content of the two exhibits before the Court. There is not, as

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Samsung contends, “an internal edge” in the stocks list. Rather, the stocks list has an external

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edge, beyond which is a graph. See Request at 3; see also Samsung’s Ex. 2 at 2 (noting that the

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“list of stocks” is the electronic document in question, not the Stocks application as a whole). If

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Samsung’s argument were correct, one would expect the rubber-banding or bounce feature to

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occur, for example, between each listed stock, and not at the actual edge of the entire list. This is

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not the case, as seen in Samsung’s own video. Accordingly, far from supporting Samsung’s

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contention, the two exhibits at issue in Samsung’s request are fully consistent with Apple’s

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position regarding “an edge of the electronic document.”

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Second, Samsung’s request is untimely. Samsung asserts that “Samsung’s counsel

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became aware of these documents just days before the claim construction hearing.” (Request at

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2.) While Samsung admits that the documents at issue have existed for over half a year (since

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July 8, 2011), it fails to mention that its counsel, Quinn Emanuel Urquhart & Sullivan, LLP, is

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also counsel of record in the ITC investigation in question, No. 337-TA-797. The respondent

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there, HTC Corporation, is represented by Quinn Emanuel. Samsung offers no justification for its

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own counsel’s failure to timely raise this issue.

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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

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(WHA), 2008 WL 2445080, at *2 (N.D. Cal. June 16, 2008), as quoted by Samsung, stands for

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the proposition that “judicial notice may be taken of orders and decisions taken by other courts

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and administrative agencies.” (emphasis added.) Neither a complaint filed with the International

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Trade Commission nor a claim chart attached thereto (Exhibits 1 and 2 to Samsung’s request)

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satisfies this legal standard. Moreover, Exhibit 3 to the request is an unauthenticated video

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created by counsel for Samsung, and plainly does not constitute “a fact” of which the Court may

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take notice. See Fed. R. Evid. 201(b); Natural Wellness Centers of America, Inc. v. J.R. Andorin

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Inc., No. 11-cv-4642 (EDL), 2012 WL 216578, at * 4 (N.D. Cal. Jan. 24, 2012) (declining to take

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judicial notice of proffered evidence “because it has not been properly authenticated and is not

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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

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disputed issue through the procedure for judicial notice. See, e.g., Heller v. Cepia, LLC, No. 11-

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cv-1146 (JSW), 2012 WL 13572, at *5 n.2 (N.D. Cal. Jan. 4, 2012) (where parties disputed an

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issue of fact and requested “judicial notice of documents which purport to support their respective

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positions,” the court denied the parties requests because “the parties, through their respective

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requests for judicial notice, inappropriately seek to have the Court resolve factual disputes . . .”).

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Samsung was afforded ample opportunity to identify evidence in support of its claim

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constructions, and it should not be allowed now to undermine that process under the guise of

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Federal Rule of Evidence 201. For all these reasons, Samsung’s request should be denied.

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Dated: February 1, 2012

MORRISON & FOERSTER LLP
By:

/s/ Michael A. Jacobs
Michael A. Jacobs
Attorneys for Plaintiff
APPLE INC.

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APPLE INC.’S OBJECTION TO SAMSUNG’S REQUEST FOR JUDICIAL NOTICE
CASE NO. 11-CV-01846-LHK

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