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

Filing 796

Declaration of Marc J. Pernick in Support of #795 MOTION for Sanctions Apple's Rule 37(b)(2) Motion Based on Samsung's Violation of the Court's December 22, 2011 Order Regarding Source Code filed byApple Inc.(a California corporation). (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G)(Related document(s) #795 ) (Jacobs, Michael) (Filed on 3/9/2012)

Exhibit A

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WRITER'S INTERNET ADDRESS
[e-mail]

February 5, 2012
VIA E-MAIL
Marc J. Pernick
Morrison & Foerster
755 Page Mill Road
Palo Alto, CA 94304-1018
Re:

Apple v. Samsung, Case No. 11-cv-1846-LHK (PSG) (N.D. Cal.)

Dear Marc:
In your letter to me on January 26, 2012, you requested that Samsung identify version
information with respect to the source code provided for each accused device and suggested that
such information is required under Patent Local Rule 3-4(a). As a preliminary matter, Patent
Local Rule 3-4(a) provides that the party opposing a claim of patent infringement shall produce
or make available “[s]ource code, specifications, schematics, flow charts, artwork, formulas, or
other documentation sufficient to show the operation of any aspects or elements of an Accused
Instrumentality identified by the patent claimant in its Patent L.R. 3-1(c) chart.” (Patent Local
Rule 3-4(a)) (emphasis added). As is apparent on its face, Patent L.R. 3-4 provides that
documentation be produced for instrumentalities identified by the patent claimant in its Patent
L.R. 3-1(c) chart. Apple’s Patent L.R. 3-1(c) disclosures do not identify any source code
versions at all, despite the fact that the version of Android running on an Android device can be
readily identified by the user of the device. Samsung has already provided the source code
sufficient to show the operation of the accused instrumentality identified in Apple’s Patent L.R.
3-1(c) charts, as required by the Patent Local Rules.
Moreover, it is apparent from the way the timing of the local rules is structured that Apple bears
the initial burden of identifying what it is accusing. Apple served its Patent L.R. 3-1 contentions
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on September 7, 2011 and Samsung responded with its L.R. 3-4 document production on
October 7, 2011. This is furthermore consistent with the fact that as the patentee Apple bears
the burden of proof on infringement on the patents it is asserting. Contrary to the assertions in
your letter, Samsung’s Patent Local Rule 3-4(a) production is not deficient as it shows the
operation of the accused instrumentalities identified in Apple’s Patent L.R. 3-1(c) charts.
Nevertheless, in hopes of avoiding unnecessary discovery disputes, Samsung will provide the
following additional information. The version of the source code which has already been made
available for inspection is the one which was shipped with each device as of April 2011, except
that for devices released after this time, the version of the source code made available for
inspection was the one shipped on the release date of the device. Furthermore, Samsung has
already produced change logs for each accused device identifying changes to the source code on
the various accused devices, at SAMNDCA00324067 and SAMNDCA00324068, with the
exception of the Exhibit 4G, Indulge, Intercept, Galaxy Tablet 10.1 Wi-Fi and Transform whose
source code has not been modified since release.
In addition, you requested that Samsung specify a path to each device’s source code on the
source code review computers. Samsung will provide the information through shortcuts on the
source code review computer that will link to the folder containing the source code for each
accused device. We expect Apple will provide similar information as to which device each
folder of source code relates.

Sincerely,
/s/ Rachel Herrick Kassabian
Rachel Herrick Kassabian

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