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

Filing 801

Administrative Motion to File Under Seal filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd.(a Korean corporation), Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Declaration, #2 Proposed Order, #3 Exhibit Public Redaction Version of Samsung's Opposition, #4 Declaration Gordon Dec ISO Samsung's Opposition, #5 Exhibit Exhibit 1 to Gordon's Dec, #6 Exhibit Exhibit 2 to Gordon's Dec, #7 Exhibit Exhibit 3 to Gordon's Dec, #8 Exhibit Exhibit 4 to Gordon's Dec, #9 Declaration Martin Dec ISO Samsung's Opposition, #10 Exhibit Exhibit 1 to Martin's Dec, #11 Exhibit Exhibit 10 to Martin's Dec, #12 Exhibit Exhibit 11 to Martin's Dec, #13 Exhibit Exhibit 12 to Martin's Dec, #14 Exhibit Exhibit 13 to Martin's Dec, #15 Declaration Price's Dec ISO Samsung's Opposition, #16 Exhibit Exhibit 2 to Price's Dec, #17 Exhibit Exhibit 5 to Price's Dec, #18 Exhibit Exhibit 6 to Price's Dec, #19 Exhibit Exhibit 8 to Price's Dec, #20 Exhibit Exhibit 11 to Price's Dec, #21 Exhibit Exhibit 13 to Price's Dec, #22 Declaration Sheppard's Dec ISO Samsung's Opposition, #23 Certificate/Proof of Service)(Maroulis, Victoria) (Filed on 3/13/2012)

EXHIBIT 10

425 MARKET STREET
SAN FRANCISCO
CALIFORNIA 94105-2482
TELEPHONE: [phone]
FACSIMILE: 415.268.7522

MO RRI SO N & F O E RST E R L LP
N E W YO RK , SAN F RAN C I SCO ,
L O S A N G E L E S, P A L O A L T O ,
SAC RAME N T O , SAN D I E G O ,
D E N VE R, N O RT H E RN VI RG I N I A,
WASH I N G T O N , D .C.
T O K YO , L O N D O N , BR U SSE L S,
BE I JI N G , SH AN G H AI , H O N G K O N G

WWW.MOFO.COM

November 28, 2011

Writer’s Direct Contact
415.268.6096
[e-mail]

Via E-Mail ([e-mail])
Rachel Herrick Kassabian
Quinn Emanuel Urquhart & Sullivan, LLP
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065-2139
Re:

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

Dear Rachel:
I write to follow-up on my November 9 letter asking Samsung to immediately produce
specific categories of relevant source code and technical documents related to the accused
devices.
Samsung has failed to produce any source code or technical documents related to the
allegedly infringing features, although Samsung was required to produce this information to
Apple six weeks ago in conjunction with Samsung’s invalidity contentions. See Pat. L. R. 34(a). During the preliminary injunction phase of litigation Samsung promised that it would
produce source code and technical documents but failed to produce any source code at all.
See Samsung’s Invalidity Contentions dated Oct. 7, 2011.
Six weeks later, Samsung is still making the same indefinite promises. Most recently in your
November 20 letter, Samsung claims that it will “produce relevant source code on a rolling
basis” and that you would also respond to my November 9 letter. Your response was never
sent, and the requested information has not been produced.
Samsung’s noncommittal response is unacceptable. Samsung has completely disregarded its
obligations under the patent local rules and ignored the urgency of Apple’s requests. The
requested information is directly relevant to infringement and hence to claim construction
issues. Accordingly, Apple urgently needs access to this source code and technical
documents in time to review the information before the claim construction briefing deadlines
and if necessary to update its infringement contentions. Please confirm that Samsung will
produce immediately the following categories of source code and other technical
documents, which are the same exact items identified in my November 9 letter:

sf-3074742

Rachel Herrick Kassabian
November 28, 2011
Page Two
Source code, related configuration files, and version history information for the
following software: TouchWiz, and the Browser, Camera, Contacts, Gallery, and
Maps applications.
Source code in any Samsung Product at Issue relating to the display and operation of
a user interface status bar or a notification in a status bar, together with related
configuration files and version history information.
Source code in any Samsung Product at Issue relating to scrolling and scaling,
together with related configuration files and version history information.
Source code in any Samsung Product at Issue relating to scroll lock, together with
related configuration files and version history information.
Source code in any Samsung Product at Issue relating to pop-up windows, together
with related configuration files and version history information.
Source code in any Samsung Product at Issue relating to the functionality that allows
for an image, list, webpage or document to be scrolled beyond its edge until it is
partially displayed, or that allows for an image, list, webpage or document that is
scrolled beyond its edge to scroll back or bounce back into place so that it returns to
fill the screen, together with related configuration files and version history
information. This includes any source code related to the source code found in the
android.widget.OverScroller class included in Android API Level 9, as well as
equivalent source code or instructions in Android API Levels 8 and 11.
Source code for the touch sensor controllers in any Samsung Product at Issue,
together with related configuration files and version history information.
All requests for quotations relating to the touchscreens, touchscreen controllers, and
touch screen components in each Samsung Product at Issue.
All qualification documentation for the touchscreens, touchscreen controllers, and
touch screen components in each Samsung Product at Issue, including internal
qualification documentation and vendor qualification documentation, specifications
used to qualify both first and third-party-supplied parts and components, and quality
control criteria used for manufacturing.
All documents relating to design, specifications and manufacturing tolerances for the
touch screens, touch sensor controllers, and touch screen components in the Samsung
Products at Issue.

sf-3074742

Rachel Herrick Kassabian
November 28, 2011
Page Three
All Bills of Materials and design drawings relating to the Samsung Products at Issue
provided to or received from vendors or suppliers.
All functional testing results and testing criteria relating to the touch screens, touch
sensor controllers, and touch screen components in the Samsung Products at Issue,
including documents pertaining to prototypes and pre-production touch screens, touch
sensor controllers, and touch screen components.
All testing data related to the shielding of traces of conductive material in the
Samsung Products at Issue
Specifications, schematics, flow charts, artwork, formulas, or other documentation
showing the design and operation the touch screens, touch sensor controllers, and
touch screen components or of other accused features.
Documents concerning each design around, and/or allegedly non-infringing
alternative design that can be used as an alternative to the Design Patents at Issue.
All documents relating to each change or design around that Samsung has made, is
making, or will make in response to the allegations in this lawsuit.
We acknowledge that Samsung has asked this month for two items of old source code related
to Mac OS 10.0 and Super Clock, which Samsung intends to claim are prior art when it
amends its invalidity contentions. As Samsung’s request for Mac OS 10.0 and Super Clock
source code relates only to new assertions of prior art, Apple had no previous obligation to
look for or produce those items. Apple denies that Mac OS 10.0 and Super Clock are
relevant prior art, nor are they within the scope of Samsung’s requests. Nevertheless, Apple
is actively in the process of searching for the source code and will produce it for inspection
as soon as possible.1
By contrast, as stated above, the source code and technical documents listed above are items
that Samsung was required to, but failed to, produce with its Patent Local Rules production
six weeks ago. Apple has already substantially completed its production of source code
and other technical information evidencing the conception and reduction to practice of
the patents in suit, so Samsung’s exclusion of those items from its Patent Local Rules
production is a unilateral failure.

1

Contrary to your assertion in your November 20 letter, this source code, which relates to products that are
more than ten (Mac OS 10.0) and twenty (Super Clock) years old and no longer in use, is far from “readily
available to Apple.”

sf-3074742

Rachel Herrick Kassabian
November 28, 2011
Page Four
Although Apple has included source code as an item for reciprocal negotiation in recent
correspondence, the parties have agreed that requested information that is clearly relevant in
the action should be produced without waiting for further negotiation. Documents that
Samsung was supposed to produce with its Patent Local Rules production fall squarely
within that “clearly relevant” category. There is certainly additional relevant source code
appropriate for the parties’ reciprocal production negotiations, and Apple has highlighted
source code as a topic to be frontloaded, but the above-listed source code should have been
produced long ago. Samsung should not delay its production for this or any other reason.
Apple demands that Samsung immediately produce all of the source code and technical
documents listed in my November 9 letter and repeated above. To the extent that different
versions were used in the accused devices, Samsung should immediately produce for each
accused device documents sufficient to show the version history for software used to perform
the accused features, including when any updates to such software were made available to
consumers. At a minimum, these documents should identify for each accused device dates
during which each version of the accused device’s operating system/kernels/ROMs and the
applications identified above were in use.
Apple is prepared to move to compel production of this information if you do not
provide to us by November 30 a date certain in early December when Samsung’s
production of the requested source code will be complete. Accordingly, this issue will be
placed on Apple’s agenda for the lead trial counsel meet-and-confer currently being
scheduled.
Sincerely,
/s/ Wesley E. Overson
Wesley E. Overson
cc:

Samuel Maselli
Peter Kolovos
S. Calvin Walden

sf-3074742