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

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE,

INC,

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PLAINTIFF,
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CV-11-1846-LHK
SAN JOSE,

CALIFORNIA

APRIL 24,

2012

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VS.

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SAMSUNG ELECTRONICS,
LTD., ET AL,

CO.

DEFENDANT.

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PAGES 1-51

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE PAUL S. GREWAL
UNITED STATES DISTRICT JUDGE

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APPEARANCES:

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FOR THE PLAINTIFF: MORRISON & FOERSTER, LLP
BY: ALISON TUCHER
RICHARD HUNG
MARC PERNICK
425 MARKET STREET
SAN FRANCISCO, CA 94105

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FOR THE DEFENDANT: QUINN EMANUEL
BY: KEVIN JOHNSON
MELISSA CHAN
555 TWIN DOLPHIN DRIVE, STE 560
REDWOOD SHORES, CA 94065

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OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185
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SAN JOSE, CALIFORNIA

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PROCEEDINGS

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APRIL 24, 2012

(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)
THE COURT: MR. RIVERA, WOULD YOU CALL

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THE NEXT MATTER ON THIS MORNING'S CALENDAR.

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THE CLERK: YES, YOUR HONOR.

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CALLING APPLE, INC. VERSUS SAMSUNG
ELECTRONICS COMPANY, ET AL.

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CASE CV-11-1846. MATTER ON FOR
PLAINTIFF'S RULE 37 (B)(2) MOTION.

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COUNSEL, PLEASE COME FORWARD AND STATE
YOUR APPEARANCES.

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MR. JOHNSON: GOOD MORNING, YOUR HONOR.

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KEVIN JOHNSON. AND WITH ME IS MELISSA

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CHAN FROM QUINN EMANUEL ON BEHALF OF SAMSUNG.

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THE COURT: MR. JOHNSON, GOOD MORNING
SIR.

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MS. TUCHER: GOOD MORNING, YOUR HONOR.

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ALLISON TUCHER FROM MORRISON & FOERSTER.

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WITH ME TODAY ARE MY PARTNERS RICH HUNG AND

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MARC PERNICK.

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THE COURT: MS. TUCHER, GOOD MORNING TO
YOU AS WELL.
ALL RIGHT. THE LATEST IN THE SERIES OF

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MOTIONS FOR SANCTIONS.
I TAKE IT YOU ALL SAW MY ORDER THAT I

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ISSUED LAST EVENING. I DON'T WANT TO RE PLOW OLD

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GROUND, BUT I HOPE THAT GIVES YOU AT LEAST SOME

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SENSE OF WHERE I'M AT GENERALLY IN THIS CASE

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REGARDING COMPLIANCE WITH MY ORDERS.

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THIS IS APPLE'S MOTION SO I WILL START
WITH YOU MS. TUCHER.
MS. TUCHER: THANK YOU, YOUR HONOR.

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APPLE HAS ALLEGED CONTINUING INFRINGEMENT

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IN THIS CASE. THAT MEANS WE HAVE TO PROVE NOT ONLY

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THAT SAMSUNG INFRINGES OUR PATENTS ON THE DAY THAT

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IT RELEASES A NEW PRODUCT, BUT ALSO THAT IT

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CONTINUES TO INFRINGE OUR PATENTS AS IT UPDATES THE

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SOFTWARE OVER THE WEEKS AND MONTHS THE PRODUCTS

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REMAIN ON THE MARKET.

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BECAUSE WE NEED THAT SOFTWARE WE ISSUED

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REQUEST FOR PRODUCTION AND THEN WE GOT AN ORDER

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FROM THIS COURT IN DECEMBER OF LAST YEAR REQUIRING

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SAMSUNG TO PRODUCE ALL VERSIONS OF SOURCE CODE ON

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ALL OF THE ACCUSED PRODUCTS, AT LEAST --

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THE COURT: DID I SAY ALL VERSIONS?

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MS. TUCHER: NO.

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WHAT YOU SAID WAS THAT SAMSUNG WAS

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REQUIRED TO PRODUCE THE SOURCE CODE THAT APPLE

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HAD -- LET ME GIVE YOU THE EXACT LANGUAGE.
SAMSUNG SHALL PRODUCE THE SOURCE CODE

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REQUESTED BY APPLE'S MOTION, WITH AN EXCEPTION, AND

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THE EXCEPTION WENT TO -- SORRY, IT WAS SOURCE CODE

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AND TECHNICAL DOCUMENTS. THEN IT WAS AN EXCEPTION

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THAT WENT TO TECHNICAL DOCUMENTS AS TO WHICH THERE

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HAD BEEN NO MEET AND CONFER.

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BY TECHNICAL DOCUMENTS, SOME OF THESE
HAVE RELATION TO SOURCE CODE.
SO FOR EXAMPLE, WE ASKED FOR VERSION LOGS

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THAT WOULD ENABLE US TO TELL WHEN DIFFERENT

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VERSIONS OF SOURCE CODE WERE IMPLEMENTED.

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BUT YOUR HONOR'S ORDER WAS QUITE CLEAR

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INCLUDING IN A FOOTNOTE BY REQUEST NUMBER, THE

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REQUESTS THAT WERE EXEMPTED BECAUSE THEY DIDN'T

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INVOLVE MEET AND CONFER, IT LOOKS TO US AS THOUGH

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YOU TOOK THAT LIST STRAIGHT FROM A SAMSUNG

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DECLARATION PROVIDED BY MR. CHAN.

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AND IN THAT DECLARATION, PARAGRAPH 21 OF

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THE DECLARATION WHERE MR. CHAN LISTS EXACTLY THAT

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SAME LIST OF REQUESTS FOR PRODUCTION THAT APPEAR IN

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THE FOOTNOTE OF YOUR ORDER, HE REFERS TO THESE

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REQUESTS AS NON SOURCE CODE DOCUMENTS.

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INDEED, THEY ARE, AND THAT'S WHY NOTHING
IN THE EXEMPTION WITH THE EXCEPTION OF YOUR
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DECEMBER ORDER APPLIES TO THE SOURCE CODE.
HAVING SECURED THE ORDER, WE THEN GOT

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FROM SAMSUNG A SINGLE VERSION OF SOFTWARE FOR

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ALMOST EVERY ONE OF THE PHONES THAT HAD BEEN

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RELEASED. AND I SAY ALMOST EVERY ONE ONLY BECAUSE

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THERE'S A COMPLICATION WITH REGARD TO THE S2.

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YOU WILL REMEMBER --

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THE COURT: EXPLAIN THAT TO ME.

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MS. TUCHER: YOU WILL REMEMBER THAT WE

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ACCUSED THE S2 OF INFRINGING OUR UTILITY PATENTS

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AND THAT SAMSUNG RELEASED THE S2 IN MANY DIFFERENT

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VARIANTS OR MANY DIFFERENT VERSIONS.

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IT RELEASED IN SEPTEMBER OF 2011 A

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VERSION TO -- SORRY, SEPTEMBER WAS THE S2 EPIC 4G

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TOUCH, WHICH IS A SPRINT PHONE. AND THEN IN

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OCTOBER IT RELEASED THE AT&T VERSION OF THE GALAXY

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S2. AND THE T-MOBILE VERSION OF THE GALAXY S2.

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THEN IT WENT ON LATER IN THE FALL TO

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RELEASE FURTHER VERSIONS THROUGH OTHER CARRIERS AND

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A SECOND AT&T VERSION.

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SO THE REASON THIS IS IMPORTANT IS THAT

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IF SAMSUNG HAD DONE WHAT IT SAID IT WAS DOING IN

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PRODUCING ONE, IN PRODUCING THE FIRST VERSION OF

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SOFTWARE FOR EACH OF THE PHONES, YOU WOULD EXPECT

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THAT THEY EITHER HAD GIVEN US THE GALAXY S2 EPIC 4G

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TOUCH AND EXPECTED US TO VIEW THAT AS SOFTWARE

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REPRESENTATIVE OF ALL THE S2'S OR THAT THEY HAVE

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GIVEN US SOFTWARE FOR EACH OF THE DIFFERENT

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VARIANTS OF EACH OF THE DIFFERENT CARRIERS SO THAT

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WE COULD ANALYZE EACH OF THOSE.
THE COURT: I TAKE IT YOUR POINT IS THEY

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DID NOT.

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MS. TUCHER: THEY DIDN'T.

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INSTEAD, THEY THOSE THE T-MOBILE VERSION

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OF THE S2 AND THEY GAVE US A SINGLE VERSION OF THAT

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ONLY.

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SO THE REASON THAT MATTERS IS THAT WHEN

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WE GET TO THE APPROPRIATE SANCTION FOR THEIR

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VIOLATION OF YOUR ORDER, THE QUESTION IS HOW DO WE

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FILL IN THE GAPS?

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AND FIRST, I WANT TO JUST ESTABLISH THE

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IMPORTANCE OF FILLING IN THE GAPS. IT'S NOT JUST

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HYPOTHETICAL THAT SOMEHOW SAMSUNG IS GOING TO

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ATTACK APPLE'S PROOF ON THE GROUNDS THAT WE CAN

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ONLY PROVE INFRINGEMENT BASED ON A SINGLE PHONE, SO

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HOW CAN APPLE MAINTAIN CONTINUING INFRINGEMENT.

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ON THE RUBBER BANDING PATENT WE HAVE AN

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EXPERT BY THE NAME OF ROBERT BALAKRISHNAN. HE WAS

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CROSS-EXAMINED, ONE OF THE EXPERT DEPOSITIONS THAT

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TOOK PLACE JUST LAST FRIDAY.

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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

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WHETHER ANY OF THE OTHER MILLIONS OF CAPTIVATES WE

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SOLD INFRINGE, CAN YOU?

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IT GOES ON PAGE AFTER PAGE, AND I HAVE
THE TRANSCRIPT IF YOU WANT TO SEE IT.

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THE COURT: I WOULD LIKE TO SEE IT.

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MS. TUCHER: OKAY. I HAVE MULTIPLE

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COPIES OF THIS. LET ME HAND UP ONE FOR YOUR HONOR.
AND I BELIEVE, YOUR HONOR, THE LAWYER WHO

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TOOK THIS DEPOSITION IS IN THE COURTROOM, IT'S

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MR. JOHNSON.

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IF I COULD PASS ONE HERE.

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THE COURT: SO IF YOU COULD DIRECT ME TO

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THE PORTION OF THE TESTIMONY.

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MS. TUCHER: YES.

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STARTING ON PAGE 70 AT LINE 15.

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YOU DO NOT HAVE AN OPINION THAT ALL

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SAMSUNG CAPTIVATE PHONES USING THE GALLERY

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APPLICATION INFRINGE THE '381 PATENT, RIGHT?

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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,

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MILLIONS OF CAPTIVATES THAT HAVE A DIFFERENT

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VERSION OF GALLERY ON IT, YOU ARE NOT ACCUSING

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THOSE MILLIONS OF OTHER PRODUCTS OF INFRINGING

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BECAUSE YOU HAVEN'T LOOKED AT THEM.

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AND OF COURSE OUR EXPERT WAS HONEST IN

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ANSWERING THE QUESTION THAT HE CAN'T SAY ABOUT THE

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OTHER MILLIONS OF CAPTIVATES WHETHER THEY INFRINGE

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THE WAY THE ONE HE EXAMINED DOES BECAUSE HE DOESN'T

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HAVE THE CODE.

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THE COURT: ALL RIGHT.

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MS. TUCHER: SO, THE RELIEF THAT WE ARE

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SEEKING HERE IS, FIRST OF ALL, A FINDING THAT THEY

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VIOLATED YOUR HONOR'S ORDER BECAUSE WE BELIEVE IT'S

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PART OF A PRACTICE OF SAMSUNG DECIDING UNILATERALLY

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WHAT DISCOVERY APPLE IS ENTITLED TO, AND WE BELIEVE

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THAT'S RELEVANT FOR OTHER ISSUES IN THIS CASE.

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SECOND, WE WOULD ASK THE COURT TO PROVIDE

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WHAT SAMSUNG SHOULD HAVE PROVIDED IN BY WAY OF A

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STIPULATION, AND THAT IS TO DEEM REPRESENTATIVE THE

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SOURCE CODE THAT THEY DID PROVIDE.
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AND THE ONE PLACE WE HAVE TO MAKE MORE

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COMPLICATED WHAT SHOULD BE SIMPLE AND

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STRAIGHTFORWARD IS WITH REGARD TO THE S2. BECAUSE

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THE S2 SOURCE CODE THAT THEY GAVE US ON THE

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T-MOBILE IS NOT REPRESENTATIVE OF THE S2 SOURCE

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CODE WITH REGARD TO THE RUBBER BANDING FUNCTION

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ONLY BECAUSE THE T-MOBILE VERSION, WHEN IT WAS

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RELEASED, HAD A DESIGN AROUND, A BLUE GLOW DESIGN

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AROUND.
AND WE ARE NOT EVEN ACCUSING THE

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T-MOBILE - THE COURT: AND IS THAT BECAUSE THE

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T-MOBILE RELEASE OF THE PRODUCT CAME OUT AFTER THE

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COMPLAINT WAS FILED?
MS. TUCHER: ALL OF THE VERSIONS OF THE

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S2 CAME OUT AFTER THE COMPLAINT WERE FILED.
THEY CAME OUT IN SEPTEMBER, OCTOBER AND LATER

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DATES IN 2011. AND OUR COMPLAINT DATES TO APRIL

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AND THE INFRINGEMENT CONTENTIONS -THE COURT: SO AS TO THE S

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I THINK I'M

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FINALLY CATCHING UP TO WHERE YOU WERE EIGHT MINUTES

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AGO.

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YOU ARE TELLING ME, I THINK, THAT THE

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T-MOBILE VERSION OF THE S2, IS THE ONLY VERSION FOR

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WHICH CODE HAS BEEN PRODUCED.
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AND AS BEST YOU CAN TELL, IT'S ACTUALLY A

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VERSION WHICH DOESN'T PRACTICE THIS PARTICULAR

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INVENTION BECAUSE OF DESIGN AROUND; IS THAT FAIR?

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MS. TUCHER: THAT'S RIGHT.

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IT IS REPRESENTATIVE OF OTHER ASPECTS OF

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THE UNDERSTOOD CODE AND OUR OTHER PATENTS, BUT AS

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TO THE RUBBER BANDING FUNCTIONALITY EITHER WE NEED

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SAMSUNG TO PRODUCE THE FIRST S2 CODE, THE EPIC 4G

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TOUCH S2 AS IT WAS RELEASED AND HAVE THAT DEEMED

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REPRESENTATIVE OR WE NEED TO BE ABLE TO LOOK TO

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OTHER PHONES THAT USE THE SAME SOURCE CODE.

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SO FOR EXAMPLE, THE EPIC 4G S2 PHONE AND

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THE AT&T S2 VERSION WERE RELEASED FROM ANDROID

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GINGERBREAD 2.3.

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AND WE HAVE GINGERBREAD PHONES THAT WE

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HAVE LOOKED AT AND BALAKRISHNAN HAD TESTIFIED

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ABOUT.

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THE COURT: SO YOU HAPPILY TAKE THE

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GINGERBREAD RELEASED AS REPRESENTATIVE OF THIS

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PARTICULAR VERSION?

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MS. TUCHER: THAT'S RIGHT.

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SO FOR EXAMPLE, THE EXHIBIT 4G, IT MUST

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HAVE BEEN A LAWYER WHO NAMED THAT PHONE BUT IT'S

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ACTUALLY CALLED THE EXHIBIT 4G. SO THE EXHIBIT 4G

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OR OTHER GINGERBREAD PHONE COULD BE DEEMED

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