Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
922
Administrative Motion to File Under Seal Samsung's Motion for Clarification Regarding the COurt's May 4, 2012 Order filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Declaration of Joby Martin In Support of Samsung's Motion to File Documents Under Seal, #2 Exhibit Samsung's Motion For Clarification Regarding the Court's May 4, 2012 Order (Redacted), #3 Declaration of Mark TUng In Support of Samsung's Motion for Clarification (Redacted), #4 Exhibit 1 to the Tung Declaration, #5 Exhibit 2 to the Tung Declaration, #6 Exhibit 3 to the Tung Declaration, #7 Exhibit 4 to the Tung Declaration, #8 Exhibit 5 to the Tung Declaration, #9 Exhibit 6 to the Tung Declaration, #10 Exhibit 7 to the Tung Declaration, #11 Exhibit 8 to the Tung Declaration, #12 Exhibit 9 to the Tung Declaration, #13 Exhibit 10 to the Tung Declaration, #14 Exhibit 11 to the Tung Declaration, #15 Exhibit 12 to the Tung Declaration, #16 Exhibit 13 to the Tung Declaration, #17 Exhibit 14 to the Tung Declaration, #18 Exhibit 15 to the Tung Declaration, #19 Exhibit 16 to the Tung Declaration, #20 Exhibit 17 to the Tung Declaration, #21 Exhibit 18 to the Tung Declaration, #22 Proposed Order Granting Samsung's Administrative Motion to FIle Documents Under Seal)(Maroulis, Victoria) (Filed on 5/15/2012)
EXHIBIT 1
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
SAN JOSE DIVISION
4
APPLE,
INC,
5
PLAINTIFF,
6
7
9
CV-11-1846-LHK
SAN JOSE,
CALIFORNIA
APRIL 24,
2012
)
VS.
8
)
)
)
SAMSUNG ELECTRONICS,
LTD., ET AL,
CO.
DEFENDANT.
)
)
)
)
)
)
PAGES 1-51
10
11
12
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE PAUL S. GREWAL
UNITED STATES DISTRICT JUDGE
13
14
APPEARANCES:
15
16
17
18
FOR THE PLAINTIFF: MORRISON & FOERSTER, LLP
BY: ALISON TUCHER
RICHARD HUNG
MARC PERNICK
425 MARKET STREET
SAN FRANCISCO, CA 94105
19
20
21
22
FOR THE DEFENDANT: QUINN EMANUEL
BY: KEVIN JOHNSON
MELISSA CHAN
555 TWIN DOLPHIN DRIVE, STE 560
REDWOOD SHORES, CA 94065
23
24
25
OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
1
1
SAN JOSE, CALIFORNIA
2
PROCEEDINGS
3
4
APRIL 24, 2012
(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)
THE COURT: MR. RIVERA, WOULD YOU CALL
6
THE NEXT MATTER ON THIS MORNING'S CALENDAR.
7
THE CLERK: YES, YOUR HONOR.
8
CALLING APPLE, INC. VERSUS SAMSUNG
ELECTRONICS COMPANY, ET AL.
10
11
CASE CV-11-1846. MATTER ON FOR
PLAINTIFF'S RULE 37 (B)(2) MOTION.
12
13
COUNSEL, PLEASE COME FORWARD AND STATE
YOUR APPEARANCES.
14
MR. JOHNSON: GOOD MORNING, YOUR HONOR.
15
KEVIN JOHNSON. AND WITH ME IS MELISSA
16
CHAN FROM QUINN EMANUEL ON BEHALF OF SAMSUNG.
17
18
THE COURT: MR. JOHNSON, GOOD MORNING
SIR.
19
MS. TUCHER: GOOD MORNING, YOUR HONOR.
20
ALLISON TUCHER FROM MORRISON & FOERSTER.
21
WITH ME TODAY ARE MY PARTNERS RICH HUNG AND
22
MARC PERNICK.
23
24
25
THE COURT: MS. TUCHER, GOOD MORNING TO
YOU AS WELL.
ALL RIGHT. THE LATEST IN THE SERIES OF
2
1
2
MOTIONS FOR SANCTIONS.
I TAKE IT YOU ALL SAW MY ORDER THAT I
3
ISSUED LAST EVENING. I DON'T WANT TO RE PLOW OLD
4
GROUND, BUT I HOPE THAT GIVES YOU AT LEAST SOME
5
SENSE OF WHERE I'M AT GENERALLY IN THIS CASE
6
REGARDING COMPLIANCE WITH MY ORDERS.
7
8
9
THIS IS APPLE'S MOTION SO I WILL START
WITH YOU MS. TUCHER.
MS. TUCHER: THANK YOU, YOUR HONOR.
10
APPLE HAS ALLEGED CONTINUING INFRINGEMENT
11
IN THIS CASE. THAT MEANS WE HAVE TO PROVE NOT ONLY
12
THAT SAMSUNG INFRINGES OUR PATENTS ON THE DAY THAT
13
IT RELEASES A NEW PRODUCT, BUT ALSO THAT IT
14
CONTINUES TO INFRINGE OUR PATENTS AS IT UPDATES THE
15
SOFTWARE OVER THE WEEKS AND MONTHS THE PRODUCTS
16
REMAIN ON THE MARKET.
17
BECAUSE WE NEED THAT SOFTWARE WE ISSUED
18
REQUEST FOR PRODUCTION AND THEN WE GOT AN ORDER
19
FROM THIS COURT IN DECEMBER OF LAST YEAR REQUIRING
20
SAMSUNG TO PRODUCE ALL VERSIONS OF SOURCE CODE ON
21
ALL OF THE ACCUSED PRODUCTS, AT LEAST --
22
THE COURT: DID I SAY ALL VERSIONS?
23
MS. TUCHER: NO.
24
WHAT YOU SAID WAS THAT SAMSUNG WAS
25
REQUIRED TO PRODUCE THE SOURCE CODE THAT APPLE
3
1
2
HAD -- LET ME GIVE YOU THE EXACT LANGUAGE.
SAMSUNG SHALL PRODUCE THE SOURCE CODE
3
REQUESTED BY APPLE'S MOTION, WITH AN EXCEPTION, AND
4
THE EXCEPTION WENT TO -- SORRY, IT WAS SOURCE CODE
5
AND TECHNICAL DOCUMENTS. THEN IT WAS AN EXCEPTION
6
THAT WENT TO TECHNICAL DOCUMENTS AS TO WHICH THERE
7
HAD BEEN NO MEET AND CONFER.
8
9
10
BY TECHNICAL DOCUMENTS, SOME OF THESE
HAVE RELATION TO SOURCE CODE.
SO FOR EXAMPLE, WE ASKED FOR VERSION LOGS
11
THAT WOULD ENABLE US TO TELL WHEN DIFFERENT
12
VERSIONS OF SOURCE CODE WERE IMPLEMENTED.
13
BUT YOUR HONOR'S ORDER WAS QUITE CLEAR
14
INCLUDING IN A FOOTNOTE BY REQUEST NUMBER, THE
15
REQUESTS THAT WERE EXEMPTED BECAUSE THEY DIDN'T
16
INVOLVE MEET AND CONFER, IT LOOKS TO US AS THOUGH
17
YOU TOOK THAT LIST STRAIGHT FROM A SAMSUNG
18
DECLARATION PROVIDED BY MR. CHAN.
19
AND IN THAT DECLARATION, PARAGRAPH 21 OF
20
THE DECLARATION WHERE MR. CHAN LISTS EXACTLY THAT
21
SAME LIST OF REQUESTS FOR PRODUCTION THAT APPEAR IN
22
THE FOOTNOTE OF YOUR ORDER, HE REFERS TO THESE
23
REQUESTS AS NON SOURCE CODE DOCUMENTS.
24
25
INDEED, THEY ARE, AND THAT'S WHY NOTHING
IN THE EXEMPTION WITH THE EXCEPTION OF YOUR
4
1
2
DECEMBER ORDER APPLIES TO THE SOURCE CODE.
HAVING SECURED THE ORDER, WE THEN GOT
3
FROM SAMSUNG A SINGLE VERSION OF SOFTWARE FOR
4
ALMOST EVERY ONE OF THE PHONES THAT HAD BEEN
5
RELEASED. AND I SAY ALMOST EVERY ONE ONLY BECAUSE
6
THERE'S A COMPLICATION WITH REGARD TO THE S2.
7
YOU WILL REMEMBER --
8
THE COURT: EXPLAIN THAT TO ME.
9
MS. TUCHER: YOU WILL REMEMBER THAT WE
10
ACCUSED THE S2 OF INFRINGING OUR UTILITY PATENTS
11
AND THAT SAMSUNG RELEASED THE S2 IN MANY DIFFERENT
12
VARIANTS OR MANY DIFFERENT VERSIONS.
13
IT RELEASED IN SEPTEMBER OF 2011 A
14
VERSION TO -- SORRY, SEPTEMBER WAS THE S2 EPIC 4G
15
TOUCH, WHICH IS A SPRINT PHONE. AND THEN IN
16
OCTOBER IT RELEASED THE AT&T VERSION OF THE GALAXY
17
S2. AND THE T-MOBILE VERSION OF THE GALAXY S2.
18
THEN IT WENT ON LATER IN THE FALL TO
19
RELEASE FURTHER VERSIONS THROUGH OTHER CARRIERS AND
20
A SECOND AT&T VERSION.
21
SO THE REASON THIS IS IMPORTANT IS THAT
22
IF SAMSUNG HAD DONE WHAT IT SAID IT WAS DOING IN
23
PRODUCING ONE, IN PRODUCING THE FIRST VERSION OF
24
SOFTWARE FOR EACH OF THE PHONES, YOU WOULD EXPECT
25
THAT THEY EITHER HAD GIVEN US THE GALAXY S2 EPIC 4G
5
1
TOUCH AND EXPECTED US TO VIEW THAT AS SOFTWARE
2
REPRESENTATIVE OF ALL THE S2'S OR THAT THEY HAVE
3
GIVEN US SOFTWARE FOR EACH OF THE DIFFERENT
4
VARIANTS OF EACH OF THE DIFFERENT CARRIERS SO THAT
5
WE COULD ANALYZE EACH OF THOSE.
THE COURT: I TAKE IT YOUR POINT IS THEY
7
DID NOT.
8
MS. TUCHER: THEY DIDN'T.
9
INSTEAD, THEY THOSE THE T-MOBILE VERSION
10
OF THE S2 AND THEY GAVE US A SINGLE VERSION OF THAT
11
ONLY.
12
SO THE REASON THAT MATTERS IS THAT WHEN
13
WE GET TO THE APPROPRIATE SANCTION FOR THEIR
14
VIOLATION OF YOUR ORDER, THE QUESTION IS HOW DO WE
15
FILL IN THE GAPS?
16
AND FIRST, I WANT TO JUST ESTABLISH THE
17
IMPORTANCE OF FILLING IN THE GAPS. IT'S NOT JUST
18
HYPOTHETICAL THAT SOMEHOW SAMSUNG IS GOING TO
19
ATTACK APPLE'S PROOF ON THE GROUNDS THAT WE CAN
20
ONLY PROVE INFRINGEMENT BASED ON A SINGLE PHONE, SO
21
HOW CAN APPLE MAINTAIN CONTINUING INFRINGEMENT.
22
ON THE RUBBER BANDING PATENT WE HAVE AN
23
EXPERT BY THE NAME OF ROBERT BALAKRISHNAN. HE WAS
24
CROSS-EXAMINED, ONE OF THE EXPERT DEPOSITIONS THAT
25
TOOK PLACE JUST LAST FRIDAY.
6
1
2
3
4
5
6
7
AND IN THAT DEPOSITION FOR THREE PAGES OF
TRANSCRIPT THE QUESTIONS GO ON.
WELL, AS TO THE CAPTIVATE, HOW MANY DID
YOU LOOK AT?
I LOOKED AT JUST ONE. I LOOKED AT ONE, I
FOUND INFRINGEMENT. I LOOKED AT THE CODE.
WELL THEN, SO YOU CAN'T OPINE AS TO
8
WHETHER ANY OF THE OTHER MILLIONS OF CAPTIVATES WE
9
SOLD INFRINGE, CAN YOU?
10
11
IT GOES ON PAGE AFTER PAGE, AND I HAVE
THE TRANSCRIPT IF YOU WANT TO SEE IT.
12
THE COURT: I WOULD LIKE TO SEE IT.
13
MS. TUCHER: OKAY. I HAVE MULTIPLE
14
15
COPIES OF THIS. LET ME HAND UP ONE FOR YOUR HONOR.
AND I BELIEVE, YOUR HONOR, THE LAWYER WHO
16
TOOK THIS DEPOSITION IS IN THE COURTROOM, IT'S
17
MR. JOHNSON.
18
IF I COULD PASS ONE HERE.
19
THE COURT: SO IF YOU COULD DIRECT ME TO
20
THE PORTION OF THE TESTIMONY.
21
MS. TUCHER: YES.
22
STARTING ON PAGE 70 AT LINE 15.
23
YOU DO NOT HAVE AN OPINION THAT ALL
24
SAMSUNG CAPTIVATE PHONES USING THE GALLERY
25
APPLICATION INFRINGE THE '381 PATENT, RIGHT?
7
1
2
3
4
5
SO THE '381 PATENT IS THE RUBBER BAND
PATENT. AND IT GOES ON FOR SEVERAL PAGES.
THEN I WOULD DIRECT YOUR ATTENTION
SPECIFICALLY TO PAGE 72, LINE 16.
BUT IF THERE ARE, A CERTAIN NUMBER,
6
MILLIONS OF CAPTIVATES THAT HAVE A DIFFERENT
7
VERSION OF GALLERY ON IT, YOU ARE NOT ACCUSING
8
THOSE MILLIONS OF OTHER PRODUCTS OF INFRINGING
9
BECAUSE YOU HAVEN'T LOOKED AT THEM.
10
AND OF COURSE OUR EXPERT WAS HONEST IN
11
ANSWERING THE QUESTION THAT HE CAN'T SAY ABOUT THE
12
OTHER MILLIONS OF CAPTIVATES WHETHER THEY INFRINGE
13
THE WAY THE ONE HE EXAMINED DOES BECAUSE HE DOESN'T
14
HAVE THE CODE.
15
THE COURT: ALL RIGHT.
16
MS. TUCHER: SO, THE RELIEF THAT WE ARE
17
SEEKING HERE IS, FIRST OF ALL, A FINDING THAT THEY
18
VIOLATED YOUR HONOR'S ORDER BECAUSE WE BELIEVE IT'S
19
PART OF A PRACTICE OF SAMSUNG DECIDING UNILATERALLY
20
WHAT DISCOVERY APPLE IS ENTITLED TO, AND WE BELIEVE
21
THAT'S RELEVANT FOR OTHER ISSUES IN THIS CASE.
22
SECOND, WE WOULD ASK THE COURT TO PROVIDE
23
WHAT SAMSUNG SHOULD HAVE PROVIDED IN BY WAY OF A
24
STIPULATION, AND THAT IS TO DEEM REPRESENTATIVE THE
25
SOURCE CODE THAT THEY DID PROVIDE.
8
AND THE ONE PLACE WE HAVE TO MAKE MORE
1
2
COMPLICATED WHAT SHOULD BE SIMPLE AND
3
STRAIGHTFORWARD IS WITH REGARD TO THE S2. BECAUSE
4
THE S2 SOURCE CODE THAT THEY GAVE US ON THE
5
T-MOBILE IS NOT REPRESENTATIVE OF THE S2 SOURCE
6
CODE WITH REGARD TO THE RUBBER BANDING FUNCTION
7
ONLY BECAUSE THE T-MOBILE VERSION, WHEN IT WAS
8
RELEASED, HAD A DESIGN AROUND, A BLUE GLOW DESIGN
9
AROUND.
AND WE ARE NOT EVEN ACCUSING THE
10
11
T-MOBILE - THE COURT: AND IS THAT BECAUSE THE
12
13
T-MOBILE RELEASE OF THE PRODUCT CAME OUT AFTER THE
14
COMPLAINT WAS FILED?
MS. TUCHER: ALL OF THE VERSIONS OF THE
15
16
S2 CAME OUT AFTER THE COMPLAINT WERE FILED.
THEY CAME OUT IN SEPTEMBER, OCTOBER AND LATER
17
18
DATES IN 2011. AND OUR COMPLAINT DATES TO APRIL
19
AND THE INFRINGEMENT CONTENTIONS -THE COURT: SO AS TO THE S
20
I THINK I'M
21
FINALLY CATCHING UP TO WHERE YOU WERE EIGHT MINUTES
22
AGO.
23
YOU ARE TELLING ME, I THINK, THAT THE
24
T-MOBILE VERSION OF THE S2, IS THE ONLY VERSION FOR
25
WHICH CODE HAS BEEN PRODUCED.
9
1
AND AS BEST YOU CAN TELL, IT'S ACTUALLY A
2
VERSION WHICH DOESN'T PRACTICE THIS PARTICULAR
3
INVENTION BECAUSE OF DESIGN AROUND; IS THAT FAIR?
4
MS. TUCHER: THAT'S RIGHT.
5
IT IS REPRESENTATIVE OF OTHER ASPECTS OF
6
THE UNDERSTOOD CODE AND OUR OTHER PATENTS, BUT AS
7
TO THE RUBBER BANDING FUNCTIONALITY EITHER WE NEED
8
SAMSUNG TO PRODUCE THE FIRST S2 CODE, THE EPIC 4G
9
TOUCH S2 AS IT WAS RELEASED AND HAVE THAT DEEMED
10
REPRESENTATIVE OR WE NEED TO BE ABLE TO LOOK TO
11
OTHER PHONES THAT USE THE SAME SOURCE CODE.
12
SO FOR EXAMPLE, THE EPIC 4G S2 PHONE AND
13
THE AT&T S2 VERSION WERE RELEASED FROM ANDROID
14
GINGERBREAD 2.3.
15
AND WE HAVE GINGERBREAD PHONES THAT WE
16
HAVE LOOKED AT AND BALAKRISHNAN HAD TESTIFIED
17
ABOUT.
18
THE COURT: SO YOU HAPPILY TAKE THE
19
GINGERBREAD RELEASED AS REPRESENTATIVE OF THIS
20
PARTICULAR VERSION?
21
MS. TUCHER: THAT'S RIGHT.
22
SO FOR EXAMPLE, THE EXHIBIT 4G, IT MUST
23
HAVE BEEN A LAWYER WHO NAMED THAT PHONE BUT IT'S
24
ACTUALLY CALLED THE EXHIBIT 4G. SO THE EXHIBIT 4G
25
OR OTHER GINGERBREAD PHONE COULD BE DEEMED
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?