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

Filing 97

Declaration of Erik Olson in Support of #96 Opposition/Response to Motion, (Samsung's Opposition to Apple's Motion to Shorten Time) filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit A)(Related document(s) #96 ) (Maroulis, Victoria) (Filed on 7/5/2011)

EXHIBIT A

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., A CALIFORNIA
CORPORATION,

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PLAINTIFF,

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VS.
SAMSUNG ELECTRONICS CO.,
LTD., A KOREAN BUSINESS
ENTITY; SAMSUNG
ELECTRONICS AMERICA,
INC., A NEW YORK
CORPORATION; SAMSUNG
TELECOMMUNICATIONS
AMERICA, LLC, A DELAWARE
LIMITED LIABILITY
COMPANY,
DEFENDANTS.

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C-11-01846 LHK
SAN JOSE, CALIFORNIA
MAY 12, 2011
PAGES 1-52

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
UNITED STATES DISTRICT JUDGE

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APPEARANCES ON NEXT PAGE

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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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CAN YOU SAY THAT IN YOUR CASE?

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MR. MCELHINNY:

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THE COURT:

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I CAN SAY --

WHEN'S THE FIRST TIME THAT

YOU REQUESTED THIS TYPE OF DISCOVERY FROM SAMSUNG?
MR. MCELHINNY:

WHAT I CAN SAY -- I CAN

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SAY THAT THE ISSUES OF COPYING AND THE ALLEGATIONS

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IN THE COMPLAINT AND THE NATURE OF WHAT THE CLAIMS

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ARE HAS BEEN THE SUBJECT OF DISCUSSIONS.

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I CANNOT SAY THAT THERE HAVE BEEN

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SPECIFIC REQUESTS TO GIVE US A SAMPLE OF A

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COMPLETED TOOL.

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ANNOUNCEMENTS THAT THESE SPECIFIC ITEMS ARE ABOUT

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TO ENTER THE MARKETPLACE AND THAT THEY HAVE

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ANTICIPATED RELEASE DATES.

THAT HAS BEEN TRIGGERED BY THE

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THE COURT:

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MR. MCELHINNY:

OKAY.
SO WHAT I WOULD SAY, IN

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RESPONSE TO -- WHAT I WOULD SAY IN RESPONSE TO

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JUDGE CHEN IS THE ISSUES --

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THE COURT:

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MR. MCELHINNY:

NO.

IT SOUNDS LIKE NO.
NO.

ACTUALLY, WHAT I

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WOULD SAY TO HIM IS THAT THE ISSUES HAVE BEEN

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SPECIFICALLY ADDRESSED, THEY'VE BEEN SPECIFICALLY

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IDENTIFIED, THE NATURE OF THE CLAIMS, AND THE FACT

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THAT THERE IS AN ONGOING DESIGN EFFORT OF THIS NEW

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GENERATION HAS BEEN DISCUSSED WITH THE HOPE THAT
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SAMSUNG WOULD AGREE NOT TO COPY, AND THAT WHEN WE

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SAW THE FIRST PICTURES OF THESE THINGS RELEASED TO

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THE PUBLIC, WE FOUND OUT THAT WASN'T GOING TO BE

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THE COURSE THAT SAMSUNG TOOK.

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THE COURT:

OKAY.

LET ME ASK -- MY NEXT

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QUESTION IS THE EVIDENCE OF COPYING, OR DESIGN

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AROUND, SEEMS TO GO MORE TOWARDS DAMAGES, TOWARDS

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INTENT.

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WHY WOULD YOU NEED THAT NOW?
MR. MCELHINNY:

I -- I -- I WOULD DIVIDE

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SOME OF THE -- I WOULD DIVIDE SOME OF THE -- I

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WOULD DIVIDE SOME OF THE ISSUES IN THE SENSE THAT

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WE DO BELIEVE THAT OUR BEST CASE, IF WE'RE GOING TO

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MAKE A MOTION FOR PRELIMINARY INJUNCTION, IS TO

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ACTUALLY SHOW YOU PHYSICAL OBJECTS WILL -- AS

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OPPOSED TO PICTURES -- WILL MAKE IT MORE EASY FOR

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THE COURT IN ORDER TO COMPARE THEM TO THE DESIGN

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PATENTS, TO LOOK AT THE TRADEMARKS, TO LOOK AT THE

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TRADE DRESS.

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AND SO THE REQUEST FOR SPECIFIC PHYSICAL

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OBJECTS IS NOT, I WOULD SAY, RELATED TO INTENT.

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IT'S RELATED TO DEMONSTRATING THE COPYING THAT IS

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APPARENTLY GOING TO GO ON HERE.

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25

THE DOCUMENTS THAT WE'RE ASKING FOR DO
TWO THINGS.

ONE, THEY DO, IN FACT, GO -- THEY DO,
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IN FACT, GO TO INTENT.

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BUT INTENT IS NOT COMPLETELY LIMITED TO

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DAMAGES.

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TRADEMARK THAT GOES TO THE STRENGTHS OF THE

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TRADEMARK.

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DRESS.

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INTENT IS, IS LIMITED -- IS PART OF THE

IT GOES TO THE STRENGTH OF THE TRADE

THE COURT:

BUT IS -- AREN'T THESE MORE

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THE LOOK AND FEEL OF ORDINARY OBSERVER TESTS?

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WHETHER THEY COPIED OR NOT JUST DOESN'T SEEM TO

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PLAY INTO THE LOOK AND FEEL OF THE ORDINARY

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OBSERVER TEST FOR EITHER THE TRADE DRESS, THE

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TRADEMARK, OR THE DESIGN PATENT INFRINGEMENT CLAIM.

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MR. MCELHINNY:

YOUR HONOR HAS A LOT OF

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EXPERIENCE IN THIS AREA, AND SO I'M -- I KNOW YOU

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KNOW WHAT YOU'RE TALKING ABOUT.

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BUT ALSO, IN ADDITION, WHAT WE'RE TALKING

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ABOUT IN TERMS OF THE -- IN SOME CASES YOUR HONOR

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IS GOING TO BE CALLED UPON TO MAKE A DETERMINATION

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IN TERMS OF THE STRENGTH OF THE TRADEMARK, OR THE

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STRENGTH OF THE TRADE DRESS, AND THE

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DISTINCTIVENESS OF IT.

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AND TO THE EXTENT THAT WE CAN PRODUCE

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DOCUMENTS WHICH WE, YOU KNOW, WHICH WE FEEL EXIST,

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WHICH IS EASY FOR ME TO SAY, BUT TO THE EXTENT THAT

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YOU FIND DOCUMENTS IN WHICH -- WE GAVE YOU THE ONE
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EXAMPLE WHERE THE KOREAN DISTRIBUTOR SAYS, YOU

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KNOW, WE HAD A PRODUCT PLANNED AND NOW WE SEE THE

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IPAD 2 AND SO WE'RE BACK TO THE DRAWING BOARD.

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AND THEN WE SEE THE PICTURE OF THE NEW

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PRODUCT WHICH COMES OUT LOOKING EXACTLY LIKE THE

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IPAD 2.

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THAT, WE BELIEVE, IS STRONG EVIDENCE THAT

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WILL CONVINCE YOUR HONOR ABOUT THE STRENGTH OF OUR

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MARK AND WHY IT IS THAT SAMSUNG IS UNWILLING TO

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COME UP WITH A UNIQUE DESIGN, OR UNABLE.

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THE COURT:
MR. VERHOEVEN.

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ALL RIGHT.

LET ME GO TO

DID I PRONOUNCE THAT CORRECTLY?

MR. VERHOEVEN:

THAT'S CORRECT, YOUR

HONOR.

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THE COURT:

DO YOU CONCEDE THAT WHAT

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APPLE HAS REQUESTED, YOU WOULD HAVE TO PRODUCE IN

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THE NORMAL COURSE OF DISCOVERY?

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NOW, I'M NOT TALKING ABOUT THE TIMING,

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BUT ONCE THERE WAS AN OPENING OF DISCOVERY PER RULE

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26, YOU WOULD HAVE TO PRODUCE THIS STUFF; CORRECT?

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MR. VERHOEVEN:

NOT ALL OF IT, YOUR

HONOR.
I MEAN, FIRST OF ALL, IT'S IMPOSSIBLE TO

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PRODUCE SOMETHING THAT DOESN'T EXIST, AND THEY'RE

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ASKING FOR, AS YOUR HONOR KNOWS, PRODUCTS THAT
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IN OUR CASE.

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THE COURT:

OKAY.

LET ME ASK

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MR. MCELHINNY, ARE YOU PREPARED FOR MUTUAL ASSURED

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DESTRUCTION?

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GRANT IT IN HIS CASE AND BOTH OF YOU WILL BE DOING

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A FIRE DRILL NOW WHEN YOU WOULD OTHERWISE HAVE THE

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NORMAL 90, 120 DAYS TO ACTUALLY GET PREPARED FOR

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DISCOVERY.

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IF I GRANT IT IN YOUR CASE, I MAY

MR. MCELHINNY:

MAY I OBJECT TO YOUR

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QUESTION ON THE BASIS THAT IT ASSUMES FACTS NOT IN

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EVIDENCE YET?

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THE COURT:

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MR. MCELHINNY:

OKAY.
I JUST WANTED TO INFORM

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THE COURT, IN CASE YOU'RE NOT AWARE,

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MORRISON & FOERSTER WILL NOT BE REPRESENTING APPLE

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IN THE CASE THAT'S BEEN FILED.

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THE COURT:

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THAT'S RIGHT.

WILMER HALE

IS.
MR. MCELHINNY:

AND I'VE BEEN TOLD THAT

THERE WILL BE A TIMELY OPPOSITION FILED TO THE -THE COURT:

OKAY.

THAT WAS ONE OF THE

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QUESTIONS I WAS GOING TO ASK YOU.

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OPPOSITION IS DUE ON MONDAY.

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MR. MCELHINNY:
QUESTION IS YES.

I THINK THE

BUT THE ANSWER TO YOUR

YES, WE ARE PREPARED TO LIVE BY
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EQUAL RULES.

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MAY I MAKE THREE POINTS, PLEASE?

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ON THE DELAY ISSUE, JUST EVEN ON THEIR

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GRAPH, YOUR HONOR, I'D POINT OUT TO YOU THAT THERE

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IS NO TABLET PICTURED HERE.

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PRODUCT PICTURED IN THIS.

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THERE IS NO TABLET

AND IT IS NOT THE LAW THAT IF YOU ISSUE

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ONE PRODUCT AND YOU DON'T GET SUED, THAT THAT

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ALLOWS YOU THEN, FOREVER AND EVER, A FREE PASS ON

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THE COPYRIGHT AND TRADEMARK CLAUSE IN THE

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UNITED STATES.

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THAT'S WHAT I WOULD LIKE TO SAY ABOUT

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DELAY.

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HEAR THE PRELIMINARY INJUNCTION AND YOU WILL BE

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ABLE TO DECIDE IT.

YOU WILL HEAR THAT ISSUE WHEN AND IF YOU

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ON THE TRADE SECRET ISSUE, I WOULD LIKE

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TO CALL TO THE COURT'S ATTENTION A FACT THAT

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ACTUALLY OCCURRED SINCE THE PLEADING WAS DONE IN

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THIS CASE.

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AND IF I MAY APPROACH, WE WERE --

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THE COURT:

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WELL, SHOW IT TO

MR. VERHOEVEN.

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DO YOU HAVE ANY OBJECTION?

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MR. VERHOEVEN:

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THE COURT:

NO, YOUR HONOR.

OKAY.
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MR. MCELHINNY:

WE FOUND A BLOG THAT WAS

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DATED MAY 10TH, 2011 THAT SAYS THAT SAMSUNG HANDED

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OUT 5,000 SAMPLES OF THE TABLET 10.1 WHICH THEY

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HAVE TOLD YOU UNDER OATH IS NOT AVAILABLE FOR

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PRODUCTION.

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SAN FRANCISCO AT THE GOOGLE I/O CONFERENCE.

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BUT THEY HANDED OUT 5,000 IN

AND, THIRD, I'D JUST LIKE TO MAKE SORT OF
AN OVERALL FAIRNESS ISSUE.

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OBVIOUSLY YOUR HONOR IS AWARE OF THE

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SIGNIFICANCE OF THIS CASE AND YOU HAVE TALKED ABOUT

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A GLOBAL WAR.

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BUT WHAT APPLE CHOSE TO DO, AS A MATTER

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OF QUITE CLEAR STRATEGY, WAS TO BRING THIS CRITICAL

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ISSUE -- APPLE'S BRAND IS NUMBER ONE IN THE

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WORLD -- WE BROUGHT THIS ISSUE TO THIS COURT SO

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THAT WE COULD GET AN IMMEDIATE, CLEAR, RULING ON

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THESE ISSUES.

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SAMSUNG HAS REACTED TO THAT BY MAKING

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THIS A WORLDWIDE BATTLE.

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COUNTRIES.

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OTHER COUNTRIES.

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THEY HAVE SUED US IN FIVE

THEY ARE SEEKING EXPEDITED RELIEF IN

IF WE CAN'T GET THAT SAME KIND OF QUICK

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ADJUDICATION IN THIS COURT, WE ARE AT A TREMENDOUS

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DISADVANTAGE.

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THANK YOU.
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WITHOUT INTERFERENCE WITH OUR BIGGEST COMPETITOR,

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AND WHAT'S THE JUSTIFICATION FOR THAT, YOUR HONOR?

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YOU KNOW, THE -- OH, A RECTANGLE.
THAT'S --

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THE COURT:

I HAVE TO SAY THE PRODUCTS

LOOK AWFULLY SIMILAR, MR. VERHOEVEN.

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MR. MCELHINNY:

YOUR HONOR, ON THE SAMPLE

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ISSUE, ALL I'M SAYING IS IF THEY HAD 5,000 TO GIVE

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AWAY IN SAN FRANCISCO LAST WEEK, THEY CAN GIVE US

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ONE.

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THE COURT:

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MR. MCELHINNY:

WHY DIDN'T YOU GET ONE?
BECAUSE WE NEED ONE

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THAT'S PRODUCED FROM THEM SO THEY CAN AUTHENTICATE

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IT SO WE CAN SUBMIT IT INTO EVIDENCE, SO THAT WE

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CAN SUBMIT IT.

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THEY GAVE AWAY 500 -- ACTUALLY, THAT'S

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NOT TRUE.

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THEY FLEW PEOPLE FROM THE UNITED STATES TO

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BARCELONA AND GAVE AWAY 5,000 OF THE PHONES.

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THEY GAVE AWAY 5,000 OF THE PHONES.

THE COURT:

ALL RIGHT.

WELL, LET'S -- I

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WILL CONSIDER THIS FURTHER, BUT I'M STILL INCLINED

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TO GRANT VERY LIMITED DISCOVERY TO BE PRODUCED

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WITHIN 30 DAYS, A SAMPLE OF THE PRODUCTS THAT HAVE

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BEEN REQUESTED, THE PACKAGE OR THE BOX -- AND I

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JUST MEAN CURRENT ITERATIONS.

I DON'T THINK YOU
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NEED EVERY ITERATION SINCE THE BEGINNING, JUST

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CURRENT -- THE PACKAGE INSERT, AND I STILL DON'T

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KNOW WHAT YOU MEAN BY MARKETING DIRECTIONS TO AD

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AGENCIES.

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WHAT DO YOU EXPECT TO FIND THERE?

THAT

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THEY'RE GOING TO SAY -- WHAT DO YOU EXPECT TO FIND

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THERE?

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MR. MCELHINNY:
MIMIC THE APPLE ADS.

I EXPECT TO FIND ADS THAT

THAT'S WHAT I EXPECT TO FIND,

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THAT THE PRESENTATION MIMICS THE WAY THAT APPLE HAS

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BEEN PRESENTING ITS PRODUCTS.

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TO FIND.

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THE COURT:

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AND WHAT DOES THAT GO TO?

THE TRADE DRESS?

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THAT'S WHAT I EXPECT

MR. MCELHINNY:

IT GOES TO -- THANK YOU

FOR THAT.
WITH MY STAFF -- WITH MY HELPERS HERE, I

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WAS POINTED OUT THAT IN THE NINTH CIRCUIT, YOUR

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HONOR, IN AMF INC. VERSUS SLEEKCRAFT, WHICH IS ONE

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OF THE KEY CASES, LISTS THE EIGHT ELEMENTS THAT GO

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TO CONFUSION, AND NUMBER SEVEN IS DEFENDANT'S

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INTENT IN SELECTING THE MARK.

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WE INTEND TO PROVE TO YOUR HONOR -- I

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MEAN, MR. VERHOEVEN IS FREE TO ARGUE TO YOUR HONOR,

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HE'S FREE TO ARGUE TO THE WORLD THAT APPLE'S MARKS
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ARE NOT DISTINCT, AND WE'LL WORRY ABOUT WHETHER OR

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NOT HE WILL SUCCEED ON THAT.

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BUT WE INTEND TO DEMONSTRATE TO YOUR

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HONOR THAT UNLIKE EVERY -- UNLIKE THE PHONE

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MANUFACTURERS AND TABLET MANUFACTURERS WHO ARE

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COMPETING FAIRLY, SAMSUNG IS INTENTIONALLY

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ATTEMPTING TO MIMIC AND COPY APPLE IN ORDER TO, A,

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TAKE ADVANTAGE OF OUR MARKET POSITION; AND, B, IN

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ORDER TO DILUTE OUR TRADEMARK.

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THE COURT:

LET ME ASK -- LET ME ASK,

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MR. VERHOEVEN, IS THERE -- I GUESS ARE THERE -- I

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DON'T KNOW WHAT WOULD BE THE TERM FOR MARKETING

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MATERIAL FOR A SMART PHONE.

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MR. MCELHINNY:

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THE COURT:

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MR. MCELHINNY:

MAY I PROPOSE THAT --

WHAT WOULD THAT BE CALLED?
MAY I PROPOSE TO YOUR

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HONOR THAT WHAT I WOULD LIKE TO DO IS GET -- I CAN

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GET YOU BETTER LANGUAGE FROM SOMEONE WHO'S ACTUALLY

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INVOLVED IN THIS MARKETING AND I CAN FAX IT TO YOU

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AND TO MR. VERHOEVEN LATER THIS AFTERNOON.

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OR -- I'LL TELL YOU THIS.

IF YOUR

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HONOR -- EVEN IF YOU PUT YOUR -- I MEAN, IF YOU

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JUST SAY MARKETING MATERIALS THAT DEMONSTRATE THE

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NATURE OF THE MARKETING --

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THE COURT:

THAT'S TOO BROAD.

THAT'S TOO
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VAGUE.

I WON'T ADOPT THAT.

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I MEAN, NORMALLY MR. VERHOEVEN WOULD HAVE

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90 TO 120 DAYS TO GET ALL THIS ORGANIZED.

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ASKING HIM TO DO IT IN 30.

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REASONABLE.

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MR. MCELHINNY:

YOU'RE

IT'S GOT TO BE

WHAT I WANT -- WHAT I

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WANT IS THE PACKAGE OF MATERIALS THAT IS PREPARED

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THAT IS UNIQUE TO THIS PRODUCT, WHICH IS ALREADY --

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THEY WOULD HAVE IT TOGETHER IN ONE PLACE, THEY DO

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HAVE IT TOGETHER IN ONE PLACE, THAT DESCRIBES HOW

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THE PRODUCT IS TO BE MARKETED.

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THE COURT:

PACKAGE OF MATERIALS UNIQUE

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TO PRODUCT THAT DESCRIBES HOW PRODUCT IS TO BE

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MARKETED?

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THAT JUST SOUNDS TOO BROAD TO ME.
MR. VERHOEVEN:

I DON'T HAVE ANY IDEA

WHAT THAT MEANS.

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THE COURT:

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MR. VERHOEVEN:

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THE COURT:

I REALLY DON'T EITHER.
YOUR HONOR --

ANYWAY, I'M REALLY SORRY, I

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HAVE TWO OTHER CASES THAT HAVE BEEN PATIENTLY

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WAITING.

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MR. MCELHINNY:

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THE COURT:

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MR. VERHOEVEN:

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I KNOW.

WE NEED TO MOVE ON WITH THIS.
YOUR HONOR, MAY I SAY ONE

THING VERY BRIEFLY?
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MR. MCELHINNY:

IT'S PARTIALLY FOR

INTENT.
ALSO, YOUR HONOR SAW IN THE BRIEF THE

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SEMANTIC POSITION TAKEN ABOUT WHETHER DESIGNS WERE

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FINAL, AND YOUR HONOR CLEARLY REACTED TO THAT AND

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THAT'S WHY YOU ORDERED THE CURRENT PRODUCT.

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BUT UNLESS WE HAVE SOMEBODY WHO SAYS THIS

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IS WHAT'S GOING TO THE MARKET, THEN WE RUN THE RISK

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THAT WE'RE DOING SOMETHING AND WHEN WE GET IN FRONT

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OF YOUR HONOR, IT TURNS OUT THAT IT'S NOT AND WE'VE

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WASTED YOUR HONOR'S TIME AND OUR TIME AND ALL THE

12

REST OF THIS.

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THE COURT:

I'M SAYING PRODUCE THE LATEST

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ITERATION, CURRENT VERSION.

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AN OFFICER OF THE COURT.

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THAT HE SAYS IS THE LATEST ITERATION, CURRENT

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VERSION, I'M ASSUMING THAT'S THE CASE.

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19
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I'M ASSUMING -- HE'S

IF HE PRODUCES SOMETHING

WHY DO YOU NEED A WITNESS TO TESTIFY THAT
THAT IS THE LATEST VERSION?
MR. MCELHINNY:

WELL, IF YOUR HONOR IS --

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IF YOUR HONOR -- IF YOUR HONOR IS GOING TO TAKE A

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SUBMISSION IN RESPONSE TO YOUR ORDER AS AN

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EVIDENTIARY ADMISSION, THEN I DON'T NEED SOMEBODY

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TO SAY THAT IT'S FINAL.

25

BUT THAT'S NOT WHAT HAPPENED IN THESE
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1
2

PAPERS.

BUT THAT'S -- THE POINT IS THAT -THE COURT:

WELL, I THINK THEY'RE GOING

3

TO SAY IT'S NOT THE FINAL BECAUSE SOME OF THE DATES

4

ARE NOT COMING FOR SOME TIME.

5

SO -- ANYWAY, IF THE BEST YOU CAN GIVE ME

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FOR WHY YOU NEED AN INDIVIDUAL DEPOSITION IS TO SAY

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THAT THESE ARE THE FINAL PRODUCTS, THEN IT'S DENIED

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UNLESS YOU CAN GIVE ME SOMETHING ELSE WHY YOU NEED

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A PERSON AND WHY YOU CAN'T JUST LOOK AT IT FROM THE

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11

SAMPLE OF THE BOX -MR. MCELHINNY:

I'M SORRY.

WE WANT TO

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KNOW IF THEY ATTEMPTED TO DESIGN AROUND OUR DESIGN;

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WE WANT TO KNOW WHETHER OR NOT THEY PAID ANY

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ATTENTION AT ALL TO THE TRADEMARK LAWS; IF THEY

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LOOKED AT OUR DESIGNS; IF THEY TOOK THEM INTO

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CONSIDERATION; IF THEY ARE MAKING ANY ATTEMPT AT

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ALL TO COMPLY WITH THE LAWS IN THIS COUNTRY.

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AND THAT IS COMPLETELY RELEVANT EVIDENCE

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AS TO WHAT'S GOING ON WITH THE ATTEMPT TO USE OUR

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TRADEMARKS.

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MR. VERHOEVEN:

YOUR HONOR, I DON'T KNOW

22

HOW TO BEGIN TO EVEN THINK ABOUT WHO WE'RE GOING TO

23

PUT UP TO SAY, "DID YOU COMPLY WITH THE LAWS OF

24

THIS COUNTRY?"

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I MEAN, THAT'S COMPLETELY VAGUE.

THEY'VE GOT -- IF YOUR HONOR GIVES THEM
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3
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5
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THE PRODUCT, THEY'VE GOT THE PRODUCT.
THEIR ONLY CLAIM ON THIS MOTION THAT I'VE
READ IS ORNAMENTAL DESIGN PATENTS AND TRADE DRESS.
THAT'S WHAT IT LOOKS LIKE.
IT FUNCTIONS.

IT'S NOT HOW

IT'S WHAT IT LOOKS LIKE.

AND SO THERE'S NO REASON FOR THEM TO NEED

7

TO GO UNDER THE GUTS OF THIS AND START TALKING TO

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TECHNICAL PEOPLE ON AN EXPEDITED BASIS WITH VERY

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COMPLICATED PRODUCTS.

10

AND LET'S NOT FORGET, THESE ARE MOST

11

LIKELY GOING TO BE FOLKS THAT RESIDE IN KOREA THAT

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PROBABLY WILL NEED TO HAVE TRANSLATORS, AND IF

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THEY'RE ASKING TO HAVE THEM SHIPPED UP IN FIVE DAYS

14

TO THE UNITED STATES SO THEY CAN DEPOSE THEM, IT'S

15

RIDICULOUS.

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MR. MCELHINNY:

JUST IN TERMS OF OUR GOOD

17

FAITH TO NARROW THIS, YOUR HONOR, THIS IS WHY --

18

THIS IS EXACTLY HOW WE ENDED UP AT A 30(B)(6),

19

BECAUSE IF YOU WALK AWAY FROM A 30(B)(6), THEN YOU

20

GET THE ARGUMENT THAT THERE IS NO INDIVIDUAL AND

21

THE ONE THAT YOU TRIED TO PICK IS THE WRONG ONE, ET

22

CETERA, ET CETERA.

23

BUT JUST TO GO BACK TO THE EVIDENCE

24

THAT'S BEFORE YOU, THERE IS EVIDENCE IN THIS RECORD

25

THAT SAMSUNG ENGAGED IN AN EXPLICIT REDESIGN OF A
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1

PRODUCT AS A RESULT OF THE RELEASE OF THE IPAD 2.

2

THAT EVIDENCE OF WHAT THEY DID,

3

PARTICULARLY IF IT SHOWS THAT THEY MADE CHANGES IN

4

ORDER TO GET CLOSER TO THE TRADEMARK OF THE IPAD 2,

5

IS DIRECT EVIDENCE OF INTENT.

6

THE COURT:

SO THEN WHY DO YOU NEED MORE

7

EVIDENCE OF COPYING AND INTENT?

8

HAVE IT, THEN WHY DO YOU NEED AN INDIVIDUAL

9

DEPOSITION TO GET MORE EVIDENCE OF INTENT TO COPY?

10

MR. MCELHINNY:

IF YOU ALREADY

BECAUSE THEY HAVE ARGUED

11

IN THEIR PAPERS THAT WHAT -- THAT THE CHANGES WENT

12

TO PRICE, THEY WENT TO THINNESS, THAT THEY DID NOT

13

GO TO GRAPHICAL USER INTERFACES.

14
15
16

THEY ARE NOT ADMITTING THAT THEY COPIED
OUR TRADEMARKS.
THE COURT:

AND DO YOU THINK ANY

17

INDIVIDUAL THAT THEY HAVE PREPPED FOR DEPOSITION IS

18

GOING TO ADMIT THAT?

19
20
21
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23
24
25

MR. MCELHINNY:

I BELIEVE IF WE GET THE

DOCUMENTS -THE COURT:

I MEAN, COME ON.

HE'S GOING

TO PREP THEM NOT TO ADMIT THAT.
MR. MCELHINNY:

YOUR HONOR, THERE'S A

COUPLE OF THINGS THAT'LL HAPPEN.
ONE, IF WE GET THE DOCUMENTS, WE'LL HAVE
41

1

THE QUESTIONS TO ASK, AND IN ANY EVENT, WE'LL BE

2

ABLE TO ASK THE QUESTIONS.

3

AND IF HE DENIES IT UNDER OATH AND THEN

4

IN THE NORMAL COURSE WE GET THE DOCUMENTS, THEN

5

THERE WILL BE REPERCUSSIONS FROM YOUR HONOR AND

6

THAT'S A PERFECTLY LEGITIMATE -- I MEAN, HE'S GOING

7

TO HAVE TO SAY SOMETHING, AND WHAT HE SAYS UNDER

8

OATH IS GOING TO BE VERY VALUABLE AND I ASSUME HE

9

WILL TELL THE TRUTH UNDER OATH.

10
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12

THE COURT:

LET ME GO TO A COUPLE OTHER

QUESTIONS.
FIRST OF ALL, I GRANTED SAMSUNG'S MOTION

13

TO FILE UNDER SEAL, BUT IT DOESN'T LOOK LIKE YOU'VE

14

ACTUALLY FILED THE DOCUMENTS UNDER SEAL OR FILED

15

THE REDACTED VERSION OF YOUR OPPOSITION BRIEF.

16

YOU PLANNING TO DO THAT?

17
18

MR. OLSON:

ARE

WE'LL DO THAT THIS AFTERNOON,

YOUR HONOR.

19

THE COURT:

20

THE MOTION FOR RELATED CASE WAS FILED TWO

21

ALL RIGHT.

THANK YOU.

WEEKS AFTER THE COMPLAINT WAS FILED.

22

NOW, I KNOW YOU ASKED FOR A STIPULATION

23

FROM THE OTHER SIDE, I GUESS FROM WILMER, HALE ON

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MAY 6TH, BUT WHY WAS THERE THE DELAY?

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INITIALLY NOT THINK THESE CASES WERE RELATED?

DID YOU
OR
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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

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CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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/S/
_____________________________
LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595

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