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

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 47

On: 12/27/2011
Supreme Court of Appeal
Commercial chamber
Public hearing of April 7, 1998
Appeal no.: 95-20361
Not published in the bulletin

Rejection.
Presiding: Mr. BEZARD, president

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE
THE COURT OF CASSATION, COMMERCIAL, FINANCIAL AND ECONOMIC
CHAMBER, has delivered the following judgment:
On the appeal brought by:
1º/ The Laboratoires Sandoz company, a limited liability corporation, whose registered
office is…,
2º/ the Sandoz Pharma AG company, a Swiss company, whose registered office is
Lichstrasse 35, 4002 Bale (Switzerland), in appeal of a judgment delivered on
September 21, 1995 by the Versailles Court of Appeal (12th chamber, section 2) in favor
of the Poleval civil partnership, whose registered office is residence Plein Sud, bldg.
C,… defendant in the appeal;
The plaintiffs invoke, in support of their appeal, the two grounds of appeal annexed to
this judgment;
THE COURT, composed according to article L. 131-6, paragraph 2, of the Code of
Judicial Organization, in the public hearing of February 24, 1998 were there were
present: Mr. Bezard, president, Mr. Gomez, rapporteur advisor, Mr. Nicot, advisor, Mr.
Raynaud, advocate general, Ms. Arnoux, Clerk of the chamber;

On the report of Mr. Gomez, advisor, the observations of Ms. Baraduc-Benabent,
attorney of Laboratoires Sandoz and of Sandoz Pharma AG, of Ms. Luc-Thaler, attorney
of the Poleval company, the conclusions of Mr. Raynaud, advocate general, and after
having deliberated thereupon in accordance with the law;
Whereas, according to declarations of the challenged judgment (Versailles, September
21, 1995) that the Poleval company developed a process for packaging of medications
called Diapack for which it applied for a patent on May 28, 1985 and an additive patent
on November 21, 1987 in order to protect in particular the use of the process abroad;
Whereas discussions were undertaken, over the course of the year 1987 between this
company and Sandoz Suisse, itself informed by Sandoz France;
Whereas several meetings were held and correspondence was conducted;
Whereas Sandoz Suisse sent Poleval several draft contracts;
Whereas Poleval responded favorably thereto, but after feasibility studies, Sandoz
Suisse informed its correspondent, on December 19, 1989, that it did not intend to
continue with the project;
Whereas however Sandoz France continued its feasibility studies and at the end of the
month of August 1990, relations were definitely broken off between the two companies;
Whereas Poleval brought proceedings against Sandoz France and Sandoz Suisse in
compensation for damages resulting from this breach;
With regard to the three branches of the first ground,
Whereas Sandoz France and Sandoz Suisse bring complaint against the judgment for
declaring that the breaking off of the discussions was wrongful, since, according to the
appeal, on the one hand, the principle of the freedom not to contract which includes the
freedom to break off discussions at any time is limited by the duty of good faith and
fairness of each of the participants;
Whereas its behavior from which the Court of Appeal notes that Sandoz Suisse broke
off, on December 19, 1989, discussions begun two years before in November 1987
cannot be held as wrongful for having allowed Poleval to hope, for four years, for the
concluding of a definitive agreement, since it was no longer involved, with only the
drafts that had been written by it having been forwarded to Poleval by Sandoz France;

Whereas in declaring that Sandoz Suisse had not been fair with regard to Poleval and in
declaring this company guilty jointly with Sandoz France, the court violates article 1382
of the Civil Code;
Since, on the other hand, the Court of Appeal which doesn’t specify the documents on
which it bases its decision or make an analysis of the documents which were submitted
to it, misinterprets the requirements of article 455 and 458 of the new Code of Civil
Procedure; since by indicating that “the various tests conducted made the project viable
from the standpoint of its industrial implementation as well as its trade outlets” whereas
they state that the discussions with Sandoz France had been broken off in August 1990
as soon as it became obvious that the specifications imposed on the size of the
machine to be used to make the packaging and its yield could not be complied with, the
Court of Appeal tainted its decision with inadequate reasons for judgment, in violation of
articles 455 and subsequent of the new Code of Civil Procedure;
And since, finally, by not ruling on the various documents brought to the proceedings by
them, subsequent to the breaking off of discussions with Sandoz Suisse on December
19, 1989, and in particular on the findings notified by them on March 9, 1995 which
highlighted the agreement of the parties to subject the execution of conventions to the
completion of two suspensive conditions requiring the acceptability of the packaging by
the patients and the practitioners and the construction of a prototype machine
complying with the specifications and the impossibility of the Serea firm, selected by
Poleval, to submit an offer complying with the specifications, the Court of Appeal
violated article 455 of the new Code of Civil Procedure;
But whereas in maintaining that the act of allowing Poleval to hope for a definitive
agreement for four years, which was abandoned according to Sandoz’s own admission
only for considerations internal to the group which did not put the quality of the product
in question, from which it is seen that the breaking off of discussions, which extended
over a very long time and which occasioned many studies, had nothing to do with the
outcome of said studies and was devoid of legitimate grounds, the Court of Appeal,
which did not have to respond to the inoperative ground invoked by the third branch,
decided, for these reasons alone, disregarding the overwhelming grounds criticized by
the second branch of the ground, that Sandoz had not shown fairness with regard to
Poleval, thereby causing it harm;
From which it follows that the ground cannot be granted;
And on the second ground:
Whereas the Sandoz companies bring complaint against the judgment for having
ordered it to pay the sum of four million francs when, according to the appeal, in
compensating both the damages resulting from the immobilization of the patented
project and the damages from the loss of the opportunity to contract with them or with
another partner, by a total sum of four million francs, the Court of Appeal did not enable
the Court of Cassation to exercise its control over the terms and conditions of the

compensation of the loss of the opportunity to contract and to ensure that the
compensation of the damages suffered thereby was not integral in this amount;
Whereas in specifying that Poleval had, due to the wrongful conduct of Sandoz,
immobilized its patented process in complete loss over four years without being able to
negotiate with another partner during this period and had also, for this reason, disclosed
its know-how and in evaluating the damages resulting therefrom, the Court of Appeal
legally justified its decision;
From which it follows that the ground is without merit;
FOR THESE REASONS:
REJECTS the appeal;
Orders Sandoz France and Sandoz Suisse to pay the costs;
Considering article 700 of the new Code of Civil Procedure, rejects Poleval’s request;
Being thus executed and adjudged by the Court of Cassation, Commercial, financial
and economic chamber, and ruled by the president, in his public hearing of April
seventh, nineteen hundred ninety-eight.
Decision challenged: Versailles Court of Appeal (12th chamber, section 2) of
September 21, 1995
Headings and summaries: TORTIOUS OR QUASI-TORTIOUS LIABILITY- Liability of
personal act – Fault- Contractual Negotiation –Discussions - Wrongful breach – Patent
– Immobilization – Damages – Compensation. CONTRATS AND OBLIGATIONS – Civil
Liability – Pre-contractual liability – Process for packaging of medications – Discussions
lasting four years – Breach not based on the quality of the product or studies conducted
– Wrongful breach (yes) – Damages – Assessment.