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

Filing 939

Administrative Motion to File Under Seal Apple's Administrative Motion to File Documents Under Seal filed by Apple Inc.. (Attachments: #1 Apple's Motion to Strike Portions of Samsung's Expert Reports, #2 Decl. of C. Wheeler, #3 Decl. of E. Tierney, #4 Decl. of M. Pernick, #5 Ex. 1, #6 Ex. 14, #7 Ex. 15, #8 Ex. 32, #9 Ex. 33, #10 Ex. 36, #11 Ex. 37, #12 Proposed Oder Granting Apple's Motion to Strike, #13 Proposed Order Granting Apple's Admin Motion)(Tucher, Alison) (Filed on 5/17/2012) Modified on 5/21/2012 attachment #2 and #3 sealed pursuant to General Order No. 62 (dhm, COURT STAFF).

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Exhibit 37 l7ãY-Ø9-2Ø12 L3t23 TFFICE ÛF THE ÊLJ 2Ø22Ø51452 P.Ø3/!Ø CONTAINS CONFIDENTIAL BUSINESS I¡IFORMATION UNITED ST"A,TES I}TTERNATIONAL TRADE COMMISSION Washington, D,C. In the Mâtter of CERTAIN ELECTRONIC DIGTTAL MEDIA DEYICES AND COMPO}TENTS TIIEREOF ORDDR No. 1Br Inv, No. 337-TA-796 (1) DE¡IYrNG sAMsuNc's MoTIoN ['oR LEAVE To FILE A¡{ AMENDED NoTIcE oT, PRTOR ART; AND (2) GRA¡TTING-IN-PART AND DE¡IYING.IN-PART APPLE,S MOTI_ON TO STRIKE PORTIONS Or. S,4,MSTING;S iXPrNr REPORTSTTIATREFERENCEPRIORANTXOTñiS'C_I,õSEDIN THENOTICE O¡,PRIORART (li.ay 9,2012) On Ma¡oh l.6,2012, respoadents Samsung Electronics Co., Ltd. (SEC), Samsuag Eleotonics America, Inc. (SEA), and Samsurg |elsçommrurications Arnerica, LLC (STA) (colleotively, "samsung') submitted a motion seeking leave to arnend their Cor¡ected Notice of Prior Art (prwiously ñled on November I 1, 201 l) to add prior art reforences allegedly u¡ravailabre ro samsung at rhe time of th¿r firing. (Motion Docket No. 796-016) on March 2g, 2012, oomplainaat Apple, Inc. ('Appte,) ûled an opposition. On April 2,2¡t2,Samsung filed a motion, which is hereby DENIED, for leave to file a reply in support of its motíon ro amend its Notice of Prio¡ Art. (Motion Docker No.796_024) Posifion of the parties sâmsurlg seeks to amend its notica ofprior art with the forrowing classes of doc'ments: a. Sanfo¡d A¡ohive _ These are documents Apple donated to Sanford University, Samsung claims it,tecently', leamed of these documents and that Apple did not YtñY-Ø9-?Ø72 f3!23 2Ø22Ø5IA52 P.Ø4/IØ OFFICE OF THE ALJ CONTAINS CONFIDENTIAL BUSINESS IMORMATION disclose these documents. Samsung alleges it could not aocess thæe documents until Apple authorized ir to do so. sams'ng alleges these documents were known only to Apple and contolled by Apple and thus good oause eústs for amending the prior art notice with these doouments. Samsqng alleges a laok of prejudice to Apple ând that Apple knew of the dooumeÈts. Apple denies it had any control ovcr the sanford Doouments or that only it had knowledge of them, pointing out the a¡chive is publio and tlrat samsung knew of them by at lea$t JâBuary of 2012, but failed to take proactive steps to obtain these door¡ments, b. Bloor4þe¡s Tablet . a$d Bezel-Less Electronio Displav- These a¡e documents Samsung alleges it reserved by a placeholder answer in its original Notice ofprìor A¡t. samsung alleges Apple will not be harmed by adding these referenoes because thesè ¡eferenoes were already disclosed. Apple asserts samsung provided no justification for its originar failure to supplement its Notioe ¡elated to the Broomberg Tablet and Bezel-Less Erectronic dispray, beyond arguing the references are related to previously disclosed items. However, Apple argues the placeholder argument is not prior ar! but inste¿d au admissio4 þy Sams¡¡g that it kr¡ew it shodd look for any prior art rerated to these references (which were not obscure) and henoe its delay or failure to do so is inexcusable. c- ojher Desis.n Þatent prior ,Art References r47) sea¡ch for and - samsung claims it continued to identiff additional prior art tbrough discovery and the work of its experts' As suc\ samsung argues ít should be pemritted to fire amended notices where such rcfe¡ences were identified tluough additional discovery. Sams¡¡1g ¿s5"n. nâY-Ø9-2Ø!2 !3t23 2Ø22Ø5Ie52 P.Ø5/!Ø OFFICE OF THE ÊLJ CONTÁ,INS CONFTDENTIAL BUSINE,SS INF,ORMATION its argument is strengthened by the fact that these additional references were eifhe¡ speoifically identified or referenced in production ranges disclosed in its responses to Apple's oontention inte'ogatories and that both Appre and the sraft know ofits intent to rely upon them during the heariug. Thus, thero is no su¡prise or prejudice in the inolusion ofthis p¡ior a¡t. Apple asserts even if Samsung had attempted to make a requisite showing of good cause it would fail, for a the items in this category consist ofpublic info¡mation tha¡ samsung could and shoutd have discove¡ed before firing its originat Notioe - and well befo¡e flre date of its motion. d. Nokia Fineemrint Phone Design 2004 _ Samsung alleges this infomration should be permitted because it is not a new reference, but instead, additional details on a prèviously identified reference' samsung alreges it leaned more details through investigation. Moreover, because this a¡nendment of data ,,merely provides additioual details regarding p¡eviously specified prior art previously specified,,, Samsung argues Apple is not prejudiced. Apple alleges Samsung knew gfthese references no later than Janu ary 6,2012 or even e¿¡lie¡ in December of 201 l, but did nothing until now, a delay of two months. Apple also alleges samsung made no attempt to establish good cause for its delay in seeking to amend its Notice. Apple also argues there is a difference between the Nokia ID and Nokia Fingerprin! with rhe ID being a 20r 0 design and nor a 2004 desigrr, and hence the e¿rlie¡ ref.erence cited by Samsung is not the same, e' samsuns Yeoo prior A', - samsung clams its Amended Notice arso identifies one additional prior art devioe for the '697 paænr"'he Samsu*g yp-K5, that samsung l"tãY-Ø9-2ØL2 I3t24 2Ø22Ø5Ie52 P.Ø6/!Ø ÛFFICE OF THE ÊLJ CONTAINS CONT'IDENTIAL BUSINESS INFORMATTON identified after extensive seaf,ching of its archives and questioning of its ongineers. Sarnsung alleges rhe K3. yp-K5 is a very similar predecessor ofthe already incruded yp- samsung alleges this amendment should be permitted because it rcrafes to the same subjeot matter as previously notice material a¡d bccause Apple is not prejudiced beoause it knew sams'ng wourd rery upon these referenoes wifh the sarre subjeot mâtter. Apple asserls Sarusung provided no explanation fo¡ its failure to discovsr ths tspp YP-I(S earlier and notes this is Samsung's own product. Apple also a¡gues Samsung does not explain how Appre's amendment to the infringing dovicc rist, which was by agreement of lhe parties and at the same time as ameudmeflts by Samsung to its own intenogatory responses, ¡elates to good oause for Samsung,s failure to discove¡ its own product months ago. f Academic Paue¡ Produoed by oracle com. - samsung's amended Notice arso identified one other priot art refe¡ence to the .g22 p^fetú,an academic paper conceming Sua Miotosystoms NeWS system \ryïitten by W.T. Roberts (the Roberts NeV/S paper), Samsung informed Apple of its intetrt to use this docurrent in its initial invatidity contentions on February 15, 2012. The Roberts NeWS paper wæ produced by a thitd party subpoena and finally delivered to Samsung on March 10, 2012. Apple opposes and âsserts Samsung actually had this paper, which was produced to it by Oracle in December of 201 l. Hence, Samsung,s choioe to amend its Notice after a delay oftwo months is too late and does not constitute good cause. -4- YAY-Ø9-2ØI2 I3t24 2Ø22ø5!E52 P.Ø?/rØ EFFICE OF THE ÊLJ CONTAINS CONFIDENTIÂL BUSIhIESS INTORMATION An¡lysls Samsung's arguments are singularly unpersuasive. As Apple accurately reiterates tlroughout its opposition, Samsung failed to establish good cause for amending its notice of prior art for any of fle prio¡ art documents it seeks to add through amendment. Rather, samsrug seeks to argue that since Äpple has aclded infringing devices (creating be able to add more prior art or that Apple has not been harmed - a a moving target), it should point Apple immediately and plausibly denies' I arso note that samsung argues, in some cases, That Apple wæ aware of the doouments in questions. None ofthese tlue€ arguments, however, are sufEcient to establish good cause. As stated in Ground Rule ]. 10.1, but is equally relevant here, ..lack ofprejudioe does not equate to good cause." I ftnd Samsung failed to show how its various requests to amend its Notice ofprior A¡t are supported by good cause, specificany, Samsung hæ failed to persuasively show that it oould not have discovered the prior art before the deadlíne. Instead, samsuug discusses some ofthe applicable law in the front end ofits motion, generally alleges a lack ofprejudice under eaoh category of documents, and moves on without establislung a primafacie showing of good çause. Moreover, in mmy insta'ces where samsung alreges that it did not ream of the prior art'ntil afer the deadline (e'g.,the sanford, Nokia Fingerprint phone Design a¡d the Robert News prior art referenoes) samsung arso fails to show that it dirigently acted upon that knowredge in fìling its present motion to amend its notice of prior art. Such unreasonable delay also precludes a finding of good oause. Order Samsung'5 ![6¡ion is DENIED. -5- nãY-Ø9-2Øt2 t3124 2Ø22Ø51452 P.Ø8/!Ø OFFICE OF THE ÊLJ CONTAINS CONT'IDENTIAL BUSINESS I¡TFORMATION Aople's Motiou to StriBe Po4ions of Sausuns's Exnert Reoorts on ,4.pri1 13, 2012, Apple filed a motion to strike portions of samsung's expert reporrs tåat referenoe prior art not disolosed in the notice ofprior art. (Motion Docket No. 296-02g) on April 25, 2012, Samsung filed an op,position. I have herein denied Samsung's motion to amend its Notioe of prior Art. Therefore, samsuug is precluded from relying on those references it sought to add via its motion to establish irvalidity ofthe asserted claims ofthe asserted patents in this investigation. Thus, with regard to invalidity, references to those prior art referenoes and mguments based on thoso ¡efe¡e¡ces are hereby sfrioken from samsung's expert reports. samsung is free, however, to rery on those prior art referenc€s for purposes other than invalidity (l'. e. , non-infringement) and need not strike in their expert reports references drereto that pertain to issues other than validity. To the extent that Apple âlso sought to strike prior art references beyond that which was at issue in sams'ng's motion to amend its Notíce of prior Art, Apple's papers a¡e not clea¡ on that point. Thus, I am hereby GRANTING Apple's motion to strike as indicated above, but DENYING any additional relief sougbt by Apple. IfAppte did in fact seek to bave addirional prior art referenoes struok from Samsuag's expert reÞorts, Apple may raise those issues as a motions in limine. Order Apple's motion ro srrike is hereby GR aNTED-IN-pART and DENIED-IN_pART as indioated above. Within seven days of the date of this document, each party shall submit to the the Administr¿tive Law Judges a stâtemetrt as to whether or not -6- it Seeks to have any Office of portion of YtñY-Ø9-zØrZ 13t24 2Ø22Ø51A52 oFFICE OF THE ÊLJ P.Ø9/1,Ø CONTAINS CONF'IDENTIAL BUSINESS INFORMATION this document deleted from tho pubric version. The parties' submission may be made by facsimile a¡rd,/or hard oopy by the aforementioned date. Ary party seeking 1o have any portion of this door¡ment deleted f¡om the public version thereof must submit to this office a oopy of this docr¡ment with red b¡ackets indicating any portion asserted to contain confidential business information. The parties' submissions concerning the public version of this document need not be filed with the Commission Secretarv. SOORDERED / ¿Lr*&-K,U ffi ^N/, Administrative Law Jud ge t1ñY-Ø9-2Ør2 13124 2ø22ø5!P52 TFFICE OF THE ÊLJ IN THE MATTER OF'CERTAIN ELECTRONIC DIGITAL DEVICES AND CO}IPONENTS THEREOT' MEÐIA P, !Ø/!Ø 337-TA-796 C-ERTTFICATE OF SERVTCE I, Lisa R. Barlon, hereby certífy that the artached CONFIDENTIAL ORDER No. t8 has been served upon, Reginald D. Luces, Esq., commission Investigative Attomoy, and the following parties via frst class mail and air mail where necessa¡y on .2012. Lisa R. Barton, Acting Secretary U.S. International Trade Commission 500 E Street, S.W., Room 112.A Wæhington, DC 20436 FoR COMPLAINANT APPLE INC.I Alexærder J. Hadjis, Esq. MORRISON&FOERSTERLLP 2000 Pennsylvania Avenue, NW, Suite 6000 Washington, DC 20006 ( )Via Hand Delivery ( )Via Ovemight Mail ( )Via First Class Mail ( )Other: FOR RESPONDENTS' SAMSUNG ELDCTRONICS, CO, LTD¡ SAMSUNG ELECTRONICS AIVIERICA, INC,; S.q,MSI]NG TELECOMMIIÑICATIONS A]VIERICÄ, LLC: Alex Lasher, Esq. QUINN EMANUEL URQUIIART S. SULLIVAN,LLP 1299 Pennsylvania Avenue N.IV. Washington, DC 20004 & )Via lland Delivery )Via Ovemight Mail )Via First Class Mail )Other:- TOIÊL P. 1Ø

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