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

Filing 83

MOTION to Expedite Trial and Case Management Conference filed by Apple Inc.. (Attachments: #1 Proposed Order)(Bartlett, Jason) (Filed on 7/1/2011)

1
2
3
4
5
6
7
8
9
10

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]
RICHARD S.J. HUNG (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]

KENNETH H. BRIDGES (CA SBN 243541)
[e-mail]
MICHAEL T. PIEJA (CA SBN 250351)
[e-mail]
BRIDGES & MAVRAKAKIS LLP
3000 El Camino Real
One Palo Alto Square, 2nd Floor
Palo Alto, CA 94306
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff
APPLE INC.

11
12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15

APPLE INC., a California corporation,

16
17
18
19
20

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’S MOTION FOR
EXPEDITED TRIAL ON ITS
CLAIMS AND FOR EARLY CASE
MANAGEMENT CONFERENCE
Date:
Time:
Place:
Judge:

July 21, 2011
1:30 p.m.
Courtroom 4, 5th Floor
Hon. Lucy H. Koh

21
Defendants.
22
23
24
25
26
27
28
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

1

TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on July 21, 2011 at 1:30 p.m., or at such earlier or later

3

date as set by the Court, Plaintiff Apple Inc. shall and hereby does move the Court to set an

4

expedited schedule leading to a trial on Apple’s claims in February 2012, in the courtroom of the

5

Honorable Lucy H. Koh at the United States District Court for the Northern District of California,

6

280 South 1st Street, Courtroom 4, 5th Floor, San Jose, and to set an early case management

7

conference coinciding with the hearing date on this motion for expedited trial. This motion is

8

based on this notice of motion and motion, the supporting Declaration of Richard S.J. Hung and

9

exhibits, and such other written or oral argument and as may be presented at or before the time

10

this motion is taken under submission by the Court.

11
12

Dated: July 1, 2011

MORRISON & FOERSTER LLP

13
14
15
16

By:

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

17
18
19
20
21
22
23
24
25
26
27
28
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

1

1

INTRODUCTION

2

Samsung’s infringement is precisely the type of conduct that requires an expedited trial.

3

Apple has presented substantial evidence that Samsung’s new products are designed to mimic

4

Apple’s products, as the Court noted in its Order requiring Samsung to produce samples of its

5

new products.

6

Moreover, at the hearing on Samsung’s motion to compel, the Court suggested the

7

possibility of setting “an expedited schedule for the whole case.” (June 17, 2011, Hearing Tr. at 9,

8

Exhibit 1 to Declaration of Richard S.J. Hung Regarding Meet and Confer Obligations Relating

9

to Apple Inc.’s Motions Filed on July 1, 2011 (“Hung Decl.”), filed herewith.) Accordingly,

10

Apple moves for an order adopting the expedited schedule set forth at the end of this motion,

11

which leads to a trial on Apple’s claims in February 2012, about ten months from the filing of this

12

action. Apple also requests that the Case Management Conference be set for the same date as this

13

motion, instead of the date currently set, August 24, 2011.1

14

An expedited trial is appropriate because prompt relief is needed to protect Apple’s

15

extremely valuable intellectual property, including its trade dress and trademark rights, as well as

16

its design and utility patents. Apple has presented substantial evidence that Samsung is selling

17

copycat products and that Samsung’s sale of such infringing products will cause irreparable harm

18

that cannot be adequately compensated by monetary damages. Samsung cannot reasonably object

19

to an expedited trial, given that it has known of Apple’s claims for many months and just filed its

20

own expedited proceeding against Apple in the U.S. International Trade Commission (“ITC”).

21
22
23
24
25
1

26
27
28

Samsung’s counsel was unavailable to meet and confer before the filing of this motion Apple’s
counsel proposed to confer on Thursday, June 30, but Samsung’s counsel replied that it was not
available until the end of Friday, July 1. (Hung Decl. ¶¶ 2-3.) Samsung’s counsel was
“available,” however, to prepare and file Samsung’s Answer and Counterclaims to Apple’s
complaint on a rush basis at 11 p.m. on June 30 — five days before it was due — as well as a
dismissal of Samsung’s separate countersuit against Apple. (D.N. 80.)
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

2

1
2

ARGUMENT
I.

3
4

THE COURT HAS BROAD DISCRETION TO SET AN EXPEDITED SCHEDULE
AND TRIAL
This Court has broad discretion to set dates for discovery and trial pursuant to its case

5

management authority under Federal Rule of Civil Procedure 16. Indeed, Rule 16(a) specifically

6

authorizes the Court to order counsel to attend a conference for the purpose of “expediting

7

disposition of the action” and “establishing early and continuing control so that the case will not

8

be protracted because of lack of management.” Fed. R. Civ. P. 16(a)(1), (a)(2).

9

District courts have exercised this broad case management authority to set expedited trial

10

dates, especially in intellectual property cases. For example, in a case involving claims for

11

misappropriation of trade secrets, unfair competition, and trademark and copyright infringement,

12

the Northern District of California set an expedited trial date in September 2004, or about ten

13

months after the First Amended Complaint was filed in November 2003. Excelligence Learning

14

Corp. v. Oriental Trading Co., 5:03-cv-4947-JF, 2004 U.S. Dist. LEXIS 28125, at *6 (N.D. Cal.

15

June 14, 2004) (order referring to plaintiff’s motion to expedite discovery and trial). Similarly, in

16

a case where the Northern District of California granted a preliminary injunction based on a

17

patent infringement claim, the court set an expedited trial so that the preliminary injunction “will

18

only be in place for approximately four months before the case is adjudicated definitively.”

19

Kristar Enters., Inc. v. Revel Envtl. Mktg., Inc., No. C 95-2426, 1998 U.S. Dist. LEXIS 19914, at

20

*16 (N.D. Cal. Dec. 16, 1998); see also Novel ID v. Hyman Prods., Inc., No. C 89-0329, 1989

21

U.S. Dist. LEXIS 12653, at *15-16 (C.D. Cal. Jan. 27, 1989) (granting preliminary injunction

22

against trademark infringement and setting expedited trial for four months after complaint was

23

filed); Delta Dental Plan v. Perry, No. C 95-2462 TEH, 1996 U.S. Dist. LEXIS 2086, at *1-3

24

(N.D. Cal. Feb. 21, 1996) (consolidating motion for preliminary injunction in government bid

25

case with expedited trial three months later).

26

II.

27
28

AN EXPEDITED TRIAL IS NECESSARY AND APPROPRIATE
An expedited trial is warranted for the same reasons that the Court noted in its Order

Granting Limited Expedited Discovery. First, Apple “has produced images of Samsung products
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

3

1

and other evidence that provide a reasonable basis for Apple’s belief that Samsung’s new

2

products are designed to mimic Apple’s products.” (Order Granting Limited Expedited

3

Discovery, D.N. 52 at 3.) Second, Apple seeks expedited relief “to prevent alleged infringement

4

of its intellectual property and to forestall allegedly irreparable harm associated with a loss of

5

market share and consumer good will.” (Id.) Third, “expedited discovery would allow the Court

6

to address any request for preliminary injunctive relief at the outset of the case, thereby providing

7

a measure of clarity to the parties early in the proceeding and facilitating effective case

8

management.” (Id. at 4.) Fourth, “this case involves sophisticated parties and counsel who have

9

had ongoing negotiations about this dispute for approximately a year.” (Id.)

10

Apple has presented substantial claims for infringement of its extremely valuable

11

intellectual property rights in the distinctive designs and innovative features of its revolutionary

12

iPhone and iPad products. Prompt relief is essential to prevent irreparable harm to Apple’s rights.

13

An expedited trial will benefit both Apple and Samsung by providing “a measure of clarity”

14

concerning a dispute that is of the utmost importance to both sides. An expedited trial will also

15

facilitate effective case management by avoiding further disputes about expedited discovery and

16

enabling the Court to provide guidance through its rulings on claim construction and other

17

motions that may assist in resolving this dispute.

18

Moreover, an expedited trial will not unduly prejudice Samsung, as it has been on notice

19

of Apple’s infringement claims for many months and is represented by sophisticated and highly

20

experienced counsel. Indeed, just 11 days after the Court raised the issue of an expedited trial,

21

Samsung filed an ITC proceeding against Apple on June 28, 2011, alleging infringement of five

22

patents. (Hung Decl. Ex. 2.) The ITC typically holds a trial within about nine months of the

23

filing of the action. Having initiated its own “expedited” proceeding, Samsung cannot complain

24

if Apple’s claims here are similarly expedited. This is particularly so because Apple’s asserted

25

rights pertain to the appearance and user experience of its best-selling products and are therefore

26

readily understood. That is not true for the patents Samsung has asserted against Apple.

27
28

In view of the urgent need for relief to avoid irreparable harm, Apple is filing a motion for
a preliminary injunction concurrently with this motion for expedited trial. A preliminary
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

4

1

injunction is not, however, an adequate substitute for an expedited trial. To ensure that

2

preliminary relief is granted as quickly as possible, Apple has filed a narrowly focused motion

3

that is limited to one utility patent whose validity was confirmed in a reexamination initiated by a

4

competitor and adverse litigant, and three design patents subject to the “ordinary observer” test

5

that involves a direct comparison between the patented designs and the Samsung products.

6

Because Apple’s preliminary injunction motion is limited to certain claims, Apple is filing

7

this motion for expedited trial on all of its claims. The trial will address additional infringing

8

Samsung products and additional trade dress, trademark, utility patent, and design patent claims

9

that are not covered by Apple’s preliminary injunction motion. All of Apple’s claims present

10

closely related and straightforward issues concerning Samsung’s copying of both the distinctive

11

“look” of the Apple iPhone and iPad products and of Apple’s revolutionary user interface and

12

related functionality. Prompt relief on all of Apple’s claims is essential to protect all of Apple’s

13

intellectual property rights and to prevent irreparable harm resulting from Samsung’s sale of all of

14

the accused products.

15

An expedited trial is appropriate regardless of the Court’s ruling on Apple’s motion for a

16

preliminary injunction. If the Court concludes that injunctive relief should be decided only after

17

full discovery and trial, Apple will have an urgent need for an expedited trial to prevent

18

irreparable harm to its extremely valuable intellectual property. Conversely, if a preliminary

19

injunction is granted, Apple will have a strong interest in obtaining prompt relief as to the other

20

products and claims that are not at issue in its preliminary injunction motion. Samsung will also

21

have a strong interest in obtaining an expedited decision on the merits of Apple’s claims, since it

22

will be subject to a preliminary injunction preventing it from selling some of its products.

23

Apple’s proposed expedited schedule is as follows:

24
25
26
27
28
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

5

1
2

Date

Event

3

July 25, 2011

Case Management Conference

4

Aug. 4, 2011

Apple serves infringement contentions and produces required
documents (Patent L.R. 3-1, 3-2); Apple proposes claim terms for
construction (Patent L.R. 4-1)

Sept. 2, 2011

Samsung serves invalidity contentions and produces required
documents (Patent L.R. 3-3, 3-4); Samsung proposes claim terms
for construction (Patent L.R. 4-1)

Sept. 9, 2011

Parties exchange preliminary claim constructions and identify
supporting evidence and experts (Patent L.R. 4-2)

Sept. 16, 2011

Parties file Joint Claim Construction and Prehearing Statement,
limited to ten total terms in dispute (Patent L.R. 4-3)

Oct. 7, 2011

Close of claim construction discovery

Oct. 13, 2011

Apple’s Opening Claim Construction Brief

Oct. 27, 2011

Samsung’s Claim Construction Opposition

Nov. 3, 2011

Apple’s Claim Construction Reply

Nov. 17, 2011

Claim Construction Hearing

Dec. 2, 2011

Fact discovery cut-off and initial expert disclosures/reports

18

Dec. 16, 2011

Rebuttal expert reports

19

Dec. 29, 2011

Close of expert discovery

20

Jan. 25, 2012

Final pretrial conference

21

Feb. 1, 2012

Jury trial begins on Apple’s claims

5
6
7
8
9
10
11
12
13
14
15
16
17

22
23

CONCLUSION
Expedited trial is appropriate because Apple has presented substantial claims for

24

infringement of the intellectual property rights that protect Apple’s revolutionary iPhone and iPad

25

products, and prompt relief is essential to minimize the damage caused by Samsung’s deliberate

26

and ongoing infringement. Apple requests that the Court exercise its broad case management

27

authority to set an expedited schedule leading to a trial in February 2012, as set forth above and in

28
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

6

1

the attached proposed order. Apple further requests that the case management conference in this

2

action be reset to coincide with the hearing date on this motion.

3
4

Dated: July 1, 2011

MORRISON & FOERSTER LLP

5
6
7
8

By:

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

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

7

1

I, JASON R. BARTLETT, am the ECF User whose ID and password are being used to

2

file the following document: APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS

3

AND FOR EARLY CASE MANAGEMENT CONFERENCE. In compliance with General

4

Order 45, X.B., I hereby attest that Michael A. Jacobs has concurred in this filing.

5
6
7

Dated: July 1, 2011

MORRISON & FOERSTER LLP
By: /s/ Jason R. Bartlett
JASON R. BARTLETT

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPLE’S MOTION FOR EXPEDITED TRIAL ON ITS CLAIMS AND FOR EARLY CASE MANAGEMENT CONFERENCE
CASE NO. 11-CV-01846-LHK
sf-3014754

1