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

Filing 713

OPPOSITION to ( #658 First MOTION for Leave to Supplement Its Infringement Contentions ) filed by Apple Inc.. (Attachments: #1 Hung Declaration, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K, #13 Exhibit L, #14 Exhibit M, #15 Proposed Order)(Hung, Richard) (Filed on 2/3/2012) Modified text on 2/6/2012 (dhm, COURT STAFF).

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
JASON BARTLETT (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
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]
Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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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,

Case No.

11-cv-01846-LHK

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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company.,

DECLARATION OF RICHARD
HUNG IN SUPPORT OF APPLE’S
OPPOSITION TO SAMSUNG’S
MOTION FOR LEAVE TO
SUPPLEMENT INFRINGEMENT
CONTENTIONS

Defendants.

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DECLARATION OF R. HUNG ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION FOR LEAVE
CASE NO. 11-cv-01846-LHK

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I, Richard S.J. Hung, do hereby declare as follows:

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1.

I am a partner at the law firm of Morrison & Foerster LLP, attorneys of record in

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this action for Apple Inc. (“Apple”). I submit this declaration in support of Apple’s Opposition to

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Samsung’s Motion for Leave to Supplement Its Infringement Contentions. Unless otherwise

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indicated, I have personal knowledge of the matters set forth below. If called as a witness, I could

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and would testify competently as follows.

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2.

On August 26, 2011, Apple served its Patent Local Rule 3-1 Disclosure of

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Asserted Claims and Infringement Contentions and an addendum thereto (“Infringement

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Contentions”) on Samsung. That disclosure identified 27 products including the Galaxy Tab,

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Galaxy S 2, Captivate, Epic 4G, Nexus S, Showcase Galaxy S, and Transform. One product, the

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Gravity Smart, was mistakenly identified as the “Gravity Smart.”

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3.

On November 9, 2011, Apple wrote to Samsung to ask that new products be added

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to this lawsuit. Based on its continuing review of Samsung’s products, Apple proposed that the

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Galaxy Player 4.0, Galaxy Player 5.0, Galaxy Tab 7.0 Plus, Galaxy Tab 8.9, and Galaxy S II

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Skyrocket be added to this lawsuit. Attached as Exhibit A is a true and correct copy of the

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November 9, 2011 e-mail and stipulation sent by Jason Bartlett to counsel for Samsung.

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4.

On November 22, Samsung responded by e-mail indicating its willingness to agree

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to the addition of these products, but asked that the iPhone 4S be added in return. Attached as

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Exhibit B is a true and correct copy of the November 22, 2011 correspondence from Victoria

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Maroulis to Richard Hung.

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5.

Over the next six weeks, the parties discussed how adding these products might

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affect this litigation. The parties discussed whether the parties could change their infringement

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theories, as compared to previously disclosed theories, when adding these products. Attached as

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Exhibit C is a true and correct copy of correspondence from Samuel Maselli to Victoria Maroulis

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on November 30, 2011. Attached as Exhibit D is a true and correct copy of correspondence from

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Victoria Maroulis to Samuel Maselli on December 5, 2011. Attached as Exhibit E is a true and

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correct copy of correspondence from Samuel Maselli to Victoria Maroulis on December 14, 2011.

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DECLARATION OF R. HUNG ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION FOR LEAVE
CASE NO. 11-cv-01846-LHK

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Attached as Exhibit F is a true and correct copy of correspondence from Todd Briggs to Samuel

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Maselli on December 22, 2011.

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6.

While the parties’ discussions were ongoing, Samsung continued to release new

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products. These new products included the Galaxy Nexus, which was released on December 15,

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2011. See http://latimesblogs.latimes.com/technology/2011/12/samsung-galaxy-nexus-finally-

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has-a-us-release-date-thursday.html.

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7.

On January 6, 2012, the parties appeared to have reached agreement on the scope

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of the parties’ supplementation of their infringement theories. At Samsung’s request, Apple

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agreed to draft a stipulation identifying the products that the parties sought to be added. Attached

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as Exhibit G is a true and correct copy of correspondence and draft stipulation sent by Mark

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Selwyn to Todd Briggs on January 6, 2012.

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8.

As a result in part of Samsung’s continued product releases, Apple identified 18

Samsung products in the proposed stipulation:

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5 products that were previously identified in Apple’s November 9,
2011 draft of the stipulation (i.e., the Galaxy Tab 7.0 Plus, the Galaxy
Tab 8.9, the Galaxy Player 4.0, the Galaxy Player 5.0, and the Galaxy S
II Skyrocket);

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1 product that was identified to avoid confusion over its slightly
different product names (i.e., the Showcase i500, which is identical to
the Showcase Galaxy S listed in Apple’s original Infringement
Contentions);

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1 product that had been misnamed in Apple’s Infringement Contentions
(i.e., the Gravity Smart, mistakenly identified as the “Gravity”);

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1 product that Apple had overlooked in its original Infringement
Contentions (the Dart); and

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10 products that were released between August 21, 2011 (just before
Apple served its Infringement Contentions) and December 15, 2011
(the Conquer 4G, Admire, Galaxy S II Epic 4G Touch, Focus S,
Stratosphere, Transform Ultra, Captivate Glide, and Galaxy Nexus).

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9.

Samsung rejected Apple’s proposed stipulation on January 10, 2012. Attached as

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Exhibit H is a true and correct copy of correspondence from Todd Briggs to Mark Selwyn on

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January 10, 2012.

DECLARATION OF R. HUNG ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION FOR LEAVE
CASE NO. 11-cv-01846-LHK

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10.

On January 27, 2012, the Court encouraged the parties to confer about possible

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compromises in its grant of Samsung’s motion to shorten time. Over the next seven days, the

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parties conferred in good faith about such compromises.

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Samsung ultimately was willing to agree that, in return for adding the iPhone 4S to

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this case, Apple could add one new product -- the Galaxy Nexus. Apple also could add (or clarify

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the earlier inclusion of) six products as Accused Instrumentalities -- the Galaxy Tab 7.0 Plus, the

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Galaxy Tab 8.9, the Galaxy S II Epic 4G Touch, the Galaxy S II SkyRocket, the Showcase i500,

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and the Gravity Smart. The parties also were even willing to agree that any supplemental

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infringement contentions would not change from theories previously disclosed. Finally, the

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parties were willing to agree that the added products would not require amendments to the

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parties’ claim construction positions or invalidity contentions, the discovery cutoff, or the trial

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schedule. Attached as Exhibit I is a true and correct copy of correspondence exchanged between

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Samsung and Apple between January 26, 2012 and February 2, 2012. Attached as Exhibit J is a

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true and correct copy of an e-mail from Richard Hung to Todd Briggs, attaching Apple’s redline

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to the proposed stipulation.

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12.

The parties ultimately disagreed on one key issue – whether depositions could be

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re-taken. Samsung proposed that depositions be allowed to be re-taken with good cause.

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Attached as Exhibit K is a true and correct copy of a February 3, 2012 e-mail from Todd Briggs

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to Richard Hung. Apple, by contrast, proposed that depositions could not be retaken based on the

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addition of any products and communicated this via a telephone call from Richard Hung to Todd

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Briggs on the morning of February 3, 2012.

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13.

Attached as Exhibit L is a true and correct excerpt of the January 17, 2012

Markman hearing transcript.
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Attached as Exhibit M is a true and correct excerpt of the January 19, 2012 hearing

transcript before Magistrate Judge Grewal.
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More than 115 depositions have already been taken in the above captioned action,

with more than 50 more remaining (and more still to be scheduled in the co-pending ITC actions).

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DECLARATION OF R. HUNG ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION FOR LEAVE
CASE NO. 11-cv-01846-LHK

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I declare under the penalty of perjury under the laws of the United States of America that
the forgoing is true and correct. Executed on February 3, 2012 at San Francisco, California.

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By: /s/ Richard S.J. Hung _______
Richard S.J. Hung

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DECLARATION OF R. HUNG ISO APPLE’S OPPOSITION TO SAMSUNG’S MOTION FOR LEAVE
CASE NO. 11-cv-01846-LHK

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