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 61

The: 01/24/2012

Court of Cassation
Commercial Chamber
Public hearing on January 18, 1971
Appeal no.: 68-13111
Published in the bulletin
REJECTION
PDT Mr. GUILLOT, president
RPR Mr. LARERE, chief clerk
ATT.GEN. Mr. LAMBERT, attorney general
Plaintiff ATT. Messrs. RYZIGER, attorney(s)

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
ON THE SOLE GROUND, CONSIDERED IN ALL THREE BRANCHES THEREOF:
WHEREAS IT EMERGES FROM THE STATEMENTS OF THE CONTESTED
INVALIDATING JUDGMENT (LYONS, NOVEMBER 30, 1967) THAT, THROUGH AN
EARLIER RULING DATED DECEMBER 2, 1964, WHICH HAS BECOME DEFINITIVE,
THE AFOREMENTIONED COURT OF APPEAL DECLARED ISAAC X… WITH THE
COMPANY DOGNIN [sic] OF PATENT NO. 754 697 RELATIVE TO ROBIN ELASTIC
TULLE, GRANTED TO THAT COMPANY ON AUGUST 28, 1933, AND PATENT NO. 762
280 CONCERNING TULLES AND STRAPS WITH MULTIPLE ELASTIC NETS,
GRANTED TO DOGNIN ON JANUARY 18, 1934;

WHEREAS THE RULING DATED DECEMBER 2, 1964 DECIDED THAT ISAAC WILL
RECEIVE 50% OF THE NET PROFIT PROCURED BY THE GRANTING OF A LICENSE
FOR THESE TWO PATENTS, INCLUDING THE PRODUCT OF THE ROYALTIES THAT
WILL BE SET AT THE END OF THE PROCEDURES THEN PENDING, ALLOCATED A
PROVISION TO ISAAC, AND SPECIFIED THAT THE NET AMOUNT OF THE
ROYALTIES NOT APPEARING IN THE ACCOUNT STATEMENT ON DECEMBER 31,
1960 WILL BE SHARED IN HALVES BETWEEN THE TWO Y…;

WHEREAS BY CONTRACT DATED OCTOBER 29, 1945, THE COMPANY DOGNIN AND
THE COMPANY DOGNIN [sic] AND THE COMPANY HAUSSER, HOLDER OF PATENT
NO. 793 950 REGARDING A KNITTED ELASTIC FABRIC SYSTEM AND THE METHOD

FOR MANUFACTURING THE SAME OR TRICOTULLE, WHICH WAS GRANTED TO IT
ON DECEMBER 2, 1935, DECLARED SHARING, TO FORM A POOL, THE
AFOREMENTIONED PATENTS 754 697 AND 793 950 AS WELL AS A PATENT NO. 790
416 RELATIVE TO ELASTIC FABRICS, GRANTED ON SEPTEMBER 9, 1935 TO THE
COMPANY DOGNIN BUT OVER WHICH NO CO-OWNERSHIP RIGHT HAD BEEN
GIVEN TO ISAAC;

WHEREAS ON DECEMBER 31, 1965, THE COMPANY DOGNIN SUED ISAAC BEFORE
THE HIGH COURT [TRIBUNAL DE GRANDE INSTANCE] TO OBTAIN A DECLARATION
THAT HIS CAPACITY AS X… FOR PATENTS 754 697 AND 762 280 DID NOT ENTITLE
HIM TO THE ROYALTIES RECEIVED BY DOGNIN PURSUANT TO THE
AFOREMENTIONED POOL CONVENTION THAT THE COMPANY DOGNIN ONLY
RECOGNIZED THAT ISAAC A… WOULD RECEIVE A FRACTION SMALLER THAN
HALF THE ROYALTIES RECEIVED BY IT OVER PATENT 762 280, AND THAT IT WAS
CONSEQUENTLY RESERVING THE RIGHT TO ASK ISAAC B… FOR THE SUMS THAT
HAD BEEN PAID TO HIM PROVISIONALLY PURSUANT TO THE RULING DATED
DECEMBER 2, 1964;

WHEREAS THE REFERRED RULING IS CRITICIZED IN THAT, TO SET THE AMOUNT
OF THE SHARE OF ROYALTIES DUE TO ISAAC AT 426,235.64 FRANCS, IT STATED
THAT IT WAS APPROPRIATE TO DETERMINE ISAAC’S RIGHTS OVER THE PARTS
OF THE ROYALTIES PAID BY THE LICENSEES TO THE POOL ALLOCATED TO
DOGNIN BECAUSE THE COURT OF APPEAL, IN ITS RULING DATED DECEMBER 2,
1964, DID NOT SET THE METHOD FOR ESTABLISHING THE NET PROFIT OR THE
PROPORTION OF THE RESPECTIVE RIGHTS OF DOGNIN AND ISAAC OVER THAT
NET PROFIT, THEN HAVING REFERRED, TO SET THE SUMS DUE TO ISAAC, TO AN
ARBITRATION AWARD HANDED DOWN BETWEEN DOGNIN AND HAUSSER,
WHEREAS, ACCORDING TO THE APPEAL, ON THE ONE HAND, THE COURT OF
APPEAL COULD NOT, WITHOUT DISREGARDING THE BINDING NATURE OF ITS
OWN RULING DATED DECEMBER 2, 1964, DECIDE THAT IT HAD NOT SET THE
METHOD FOR ESTABLISHING THE NET PROFIT OR THE PROPORTION OF THE
RESPECTIVE RIGHTS OF DOGNIN AND ISAAC OVER THAT NET PROFIT;

WHEREAS ON THE OTHER HAND, THE JUDGMENT IS ONLY BINDING ON THE
PARTIES HAVING APPEARED IN THE CASE, AND ISAAC NOT HAVING BEEN A
PARTY TO THE ARBITRATION PROCEDURE HAVING TAKEN PLACE BETWEEN
HAUSSER AND DOGNIN, WAS NOT BOUND BY THE AWARD, AND INASMUCH AS
THE COURT OF APPEAL WISHED TO ADOPT THE OPINION OF THE ARBITRATORS,
IT COULD NOT SETTLE FOR REFERRING TO THE AWARD, BUT HAD TO JUSTIFY
THE SOLUTION HELD BY THE LATTER;

WHEREAS LASTLY, CONTRARY TO WHAT THE COURT OF APPEAL ASSERTS,
ISAAC NEVER ADMITTED THAT DOGNIN’S CONTRIBUTION OF SERVICES HAD A
VALUE EQUAL TO 45/55 OF THE HAUSSER PATENT, SINCE ON THE CONTRARY, IN
HIS PLEADINGS, WHICH HAVE THUS BEEN DISTORTED BY THE RULING, HE
CONTESTED HAVING TO BEAR THE DEFENSE COSTS INCURRED BY DOGNIN
REGARDING THE VALUATION OF THE HAUSSER PATENT AND IN THE
ALTERNATIVE, HE CLAIMED THAT ASSUMING HE HAD TO BEAR PART OF HIS

COSTS, THE FACT WOULD REMAIN THAT HAUSSER HAD BENEFITTED
THEREFROM, AS WELL AS DOGNIN FOR ITS OWN MANUFACTURING, AND THAT
THERE WAS CAUSE TO TAKE THAT FACT INTO ACCOUNT TO DISTRIBUTE THE
COSTS INCURRED TO DEFEND THE PATENT;

BUT WHEREAS, ON THE ONE HAND, CONTRARY TO WHAT IS CLAIMED BY THE
APPEAL, THE RULING BY THE LYONS COURT OF APPEAL DATED DECEMBER 2,
1964 DID NOT SPECIFY THE METHOD FOR ESTABLISHING THE NET PROFIT
PROCURED BY THE GRANTING OF LICENSES FOR THE TWO PATENTS;

WHEREAS THE CONTESTED RULING, ACCURATELY APPLYING THE PROVISION
OF THE RULING DATED DECEMBER 2, 1964, WHICH SET THE SHARE OF THAT NET
PROFIT RETURNING TO ISAAC AT 50%, IN NO WAY DISREGARDED THE BINDING
NATURE OF THE AFOREMENTIONED RULING, WITH THE POSSIBLE EXCEPTION
OF THE ERRONEOUS GROUND, SET OUT BY THE COUNT, REGARDING THE LACK
OF DETERMINATION BY THE 1964 RULING OF THE PROPORTION OF THE
RESPECTIVE RIGHTS OF DOGNIN AND ISAAC OVER THAT NET PROFIT;

WHEREAS ON THE OTHER HAND, THE CONTESTED RULING ONLY REFERRED TO
THE ARBITRATION AWARD HANDED DOWN IN A DISPUTE OPPOSING DOGNIN AND
HAUSSER TO FIND AN ELEMENT THEREIN TO ASSESS THE RESPECTIVE VALUES
OF THE CONTRIBUTIONS OF THOSE TWO COMPANIES IN THE POOL CONVENTION
AS WELL AS THE VALUE OF DOGNIN’S CONTRIBUTION OF SERVICES CONSISTING
OF ITS EXCLUSIVE COVERAGE OF THE LEGAL AND PROCEDURAL COSTS
AGAINST INFRINGERS OF ALL OF THE PATENTS PUT IN THE POOL, WITHOUT
MAKING THAT AWARD BINDING;

WHEREAS LASTLY, ALTHOUGH THE CONTESTED RULING TARGETED BY THE
THIRD BRANCH OF THE COUNT AND ACCORDING TO WHICH THE VALUE OF
DOGNIN’S CONTRIBUTION OF SERVICES IS SET AT 45/55 OF THE HAUSSER
PATENT AS HELD BY ISAAC INACCURATELY REFERS TO THE PLEADINGS BY THE
LATTER WHO, IN FACT, HAD NOT PROPOSED ANY EVALUATION OF THAT
CONTRIBUTION, THIS REFERENCE HAS NO IMPACT ON THE APPEALED DECISION,
WHICH IS ESSENTIALLY BASED ON THE AFOREMENTIONED ARBITRATION AWARD
TO SET THE VALUE OF THE CONTRIBUTION;

WHEREAS THE COURT OF APPEAL RECALLED, WITHOUT DISTORTING THE
PLEADINGS BY ISAAC Z… LAST IN PRINCIPLE REACHING 710,478.84 FRANCS AND
WHICH DID NOT INCLUDE ANY DEDUCTION FOR THE COSTS OF DEFENDING THE
PATENT IN THE POOL;

WHEREAS THE GRIEVANCE OF DISTORTION OF ISAAC’S PLEADINGS CANNOT BE
RECEIVED;

FROM WHICH IT FOLLOWS THAT NONE OF THE BRANCHES OF THE COUNT ARE

FOUNDED;

ON THESE GROUNDS: REJECTS THE APPEAL LODGED AGAINST THE RULING
HANDED DOWN;

NOVEMBER 30, 1967;

BY THE LYONS COURT OF APPEAL

Publication: Bulletin des arrêts Court of Cassation Commercial Chamber N. 15 P. 16

Contested decision: Lyons Court of Appeal dated November 30, 1967

Titles and summaries: PATENT – LICENSE GRANT – ROYALTIES – DETERMINATION
– UNDIVIDED PATENT – CONTRIBUTION BY A SINGLE CO-OWNER TO A POOL
FORMED FOR THE GRANTING OF VARIOUS PATENTS – ROYALTIES DUE TO
ANOTHER – ASSESSMENT ELEMENTS – ARBITRATION AWARD HAVING
OCCURRED BETWEEN THE MEMBERS OF THE POOL. WHEN ONLY ONE OF THE
CO-OWNERS OF A PATENT HAS CONTRIBUTED THAT PATENT TO A “POOL” THAT
HE HAS FORMED WITH A COMPANY ALSO HOLDING A PATENT, TO GRANT A
LICENSE TO THIRD PARTIES, THE JUDGES ON THE MERITS COULD SET THE
AMOUNT OF THE SHARE OF THE ROYALTIES PAID BY THE LICENSEES IN THE
POOL, RETURNING TO THE OTHER CO-OWNER, IN REFERENCE TO AN
ARBITRATION AWARD HAVING OCCURRED BETWEEN THE TWO MEMBERS OF
THE POOL, TO FIND AN ELEMENT THEREIN TO ASSESS THE RESPECTIVE VALUE
OF THEIR CONTRIBUTIONS AS WELL AS THE VALUE OF THE CONTRIBUTION OF
SERVICES OF THE CO-OWNER OF THE PATENT IN DISPUTE, WITHOUT MAKING
THAT AWARD DEFINITIVE.

* DEFINITIVE RULING – SCOPE – EARLIER DECISION HELD AS ASSESSMENT
ELEMENT. * ARBITRATION – AWARD – SCOPE – AWARD USED AS ASSESSMENT
ELEMENT.

Texts applied:
· Civil Code 1351
· LAW 1844-07-05 ART. 20