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

Filing 959

Statement Regarding the Impact of Samsung's Case Narrowing Motions by Samsung Electronics Co. Ltd.. (Maroulis, Victoria) (Filed on 5/21/2012)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
[e-mail]
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50 California Street, 22nd Floor
3 San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
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Kevin P.B. Johnson (Bar No. 177129)
[e-mail]
Victoria F. Maroulis (Bar No. 202603)
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[e-mail]
th
7 555 Twin Dolphin Drive, 5 Floor
Redwood Shores, California 94065-2139
8 Telephone: [phone]
Facsimile:
[phone]
9
10

Michael T. Zeller (Bar No. 196417)
[e-mail]
865 S. Figueroa St., 10th Floor
11
Los Angeles, California 90017
12 Telephone: [phone]
Facsimile: [phone]
13
14 Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
15 INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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20 APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK

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SAMSUNG'S STATEMENT REGARDING
THE IMPACT OF ITS CASE
NARROWING MOTIONS

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Plaintiff,
vs.

23 SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
24 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
25 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
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Defendant.
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Date: May 21, 2012

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Case No. 11-cv-01846-LHK
SAMSUNG'S STATEMENT REGARDING THE IMPACT OF ITS CASE NARROWING MOTIONS

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Pursuant to the Court’s May 10, 2012 Order, Samsung submits this statement identifying

2 the impact of its May 17, 2012 motions on the scope of trial. Favorable resolution of Samsung’s
3 motions will substantially narrow the issues presented to the jury, reduce the time needed for trial
4 significantly, and ensure that only proper evidence and testimony is presented during trial.
5 Samsung respectfully submits that, without substantial reduction as sought by Samsung’s motions,
6 trial of necessity will run longer than limits the Court has set, and a jury will be unable to fairly
7 adjudicate all issues. (See Dkt. 907.)
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Samsung’s Motion for Summary Judgment
All of Apple’s claims based on its trade dresses, design patents, and utility patents that

10 remain in this case fail as a matter of law based on the undisputed evidence in the record.
11 Samsung’s Motion for Summary Judgment seeks judgment in its favor reflecting these undisputed
12 facts. Samsung’s Motion also requests the Court grant summary judgment in its favor on Apple’s
13 claims for damages under the Sherman Act and Unfair Competition Laws.
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Apple’s Trade Dress Claims. The undisputed facts of this case show that Apple’s asserted

15 trade dresses—which it defines to include such elements as “a rectangular product with four
16 evenly rounded corners, a flat clear face covering the front of the product, a large display screen
17 under the clear surface, substantial black borders above and below the display screen and narrower
18 black borders on either side of the screen under the clear surface,” (but does not include the Apple
19 logo or the “home” button) are functional under binding Supreme Court precedent because they
20 affect the cost or quality of the products. As a matter of law, no amount of alternative products or
21 even superior designs can change the functional nature of elements that affect the cost or quality of
22 products. Additionally, Apple’s asserted trade dress is aesthetically functional: Apple asserts the
23 dress is appealing and demanded by customers aside from its identification of origin, which ends
24 the inquiry. Because Apple’s asserted trade dresses are invalid and unprotectable, Apple’s trade
25 dress infringement and dilution claims all fail.
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Apple’s dilution claims fail for the additional reason that it has no evidence to support a

27 finding that its asserted trade dresses satisfy the degree of fame required by the Ninth Circuit to
28 render trade dress protectable. Its own survey shows that it falls short as a matter of law.
Case No. 11-cv-01846-LHK
-1SAMSUNG'S STATEMENT REGARDING THE IMPACT OF ITS CASE NARROWING MOTIONS

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Apple’s Design Patents. The undisputed facts include abundant prior art references to

2 Apple’s design patents, the vast majority of which were not part of the preliminary injunction
3 record. When the proper legal standard is applied, these prior art references render all of Apple’s
4 remaining design patents invalid as obvious, anticipated, or invalidated by the on-sale bar.
5

Apple’s Utility Patents. The undisputed facts show that Samsung does not infringe

6 Apple’s ’915 patent. Additionally, each of Apple’s other three patents are invalid. Samsung’s
7 devices indisputably do not meet the “event object invokes” claim limitation in the ’915 patent.
8 The ’163 patent is anticipated by the LaunchTile System, developed years before the ’163. The
9 ’381 patent is anticipated by the MERL DiamondTouch Tablecloth program. And the ’607 patent,
10 already ruled invalid by the ITC, is rendered obvious by both the SmartSkin and Perski references.
11 Apple’s utility patent claims should be dismissed.
12

Antitrust Damages. Apple failed to produce any evidence of damages suffered as a result

13 of Samsung’s allegedly anticompetitive conduct. Lacking any evidence from which a jury could
14 estimate damages, Apple must not be allowed to proceed to trial with a damages claim.
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16

Samsung’s Motion to Exclude Testimony of Apple’s Experts
Samsung’s Motion to Preclude seeks to prevent eight of Apple’s experts from presenting

17 unreliable, unhelpful, or improper testimony at trial. Summary judgment on Apple’s claims is
18 appropriate, but if any are allowed to proceed to trial, a number of Apple’s experts offer improper
19 opinions. Of the eleven experts Samsung expects Apple will call in support of its affirmative
20 claims, six should be excluded. Additionally, of the four experts Samsung expects Apple will call
21 in support of its FRAND-related claims, one should be excluded, and testimony of another should
22 be limited. The effect of granting any and all of these Daubert challenges will ensure that only
23 proper expert testimony is presented to the jury, and consequently shorten the trial.
24

Apple’s damages expert, Terry Musika, performed improper lost profits and reasonable

25 royalty analysis. All of his analysis is poorly founded and designed to inflate the calculated
26 damages, ignoring price elasticity, and either ignores the actual intellectual properties at issue in
27 this case, or attributes the entire sales price premium of Apple’s iPhones and iPads to the small
28 subset Apple has asserted.
Case No. 11-cv-01846-LHK
-2SAMSUNG'S STATEMENT REGARDING THE IMPACT OF ITS CASE NARROWING MOTIONS

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The Court should also exclude the testimony of: (1) John Hauser, who conducted wholly

2 unreliable surveys and has not provided critical pre-test information; (2) Henry Urbach, who offers
3 only his say-so on the value of Apple’s design; (3) Susan Kare, who ignores all applicable legal
4 standards in her analysis of trade dress; (4) Russell Winer, who only offers summary argument;
5 (5) Dr. Sanjay Sood, who bases his design analysis on wholly unrelated products; (6) Michael
6 Walker, who has not performed any of the analysis he puts forward as critical to Samsung’s IPR
7 disclosure duty; and (7) Richard Donaldson, whose testimony should be limited to exclude legal
8 analysis that is the province of the Court alone. The proper exclusion of these experts will lessen
9 the burden on the jury significantly.
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Samsung’s Motion to Strike Testimony Based on Undisclosed Facts and Theories
Samsung’s final motion requests that the Court strike Apple’s experts’ opinions that rely

12 on theories and facts Apple deliberately and prejudicially withheld throughout discovery. In
13 particular, the Court should limit the testimony of: (1) Dr. Michel Maharbiz, who relies on reports
14 that Apple withheld and are critical to his analysis; (2) Peter Bressler, who relies on undisclosed
15 alternatives to Apple’s designs; (3) Dr. Tony Givargis, who relies on undisclosed documents for
16 his invalidity analysis; (4) Dr. Ravin Balakrishnan, who bases his opinions on devices that Apple
17 has refused to allow Samsung to inspect; and (5) Russell Winer, who advances undisclosed facts
18 and theories to support his dilution analysis.
19

Additionally, to the extent that they are not excluded entirely, the Court should limit the

20 testimony of: (1) Susan Kare, who relies on undisclosed alternatives to Apple’s alleged trade
21 dress; (2) Dr. Sanjay Sood, who has not provided his survey questionnaires; and (3) Terry Musika,
22 who relies on licensing data that Apple has repeatedly and improperly clawed back, materially
23 changed, and belatedly reproduced.
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The proper exclusion of this testimony will limit the number of theories the jury must

25 consider as to Apple’s affirmative case and Samsung’s ’711 patent.
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Case No. 11-cv-01846-LHK
-3SAMSUNG'S STATEMENT REGARDING THE IMPACT OF ITS CASE NARROWING MOTIONS

1 DATED: May 21, 2012

Respectfully submitted,

2

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By

/s/ Victoria F. Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

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Case No. 11-cv-01846-LHK
-4SAMSUNG'S STATEMENT REGARDING THE IMPACT OF ITS CASE NARROWING MOTIONS