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

Filing 977

*** ATTACHMENTS 2 and 3 FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. *** Administrative Motion to File Under Seal 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 Proposed Order Granting Administrative Motion to File Under Seal, #2 Declaration of Hankil Kang in Support of Administrative Motion to File Under Seal, #3 Samsung's Opposition to Apple's Rule 62(C) Motion, #4 Declaration of Paul Chapple in Support of Samsung's Opposition, #5 Declaration of Travis Merrill in Support of Samsung's Opposition, #6 Declaration of Carl Anderson in Support of Samsung's Opposition, #7 Exhibit 1 to the Declaration of Carl Anderson, #8 Exhibit 2 to the Declaration of Carl Anderson, #9 Exhibit 3 to the Declaration of Carl Anderson, #10 Exhibit 4 to the Declaration of Carl Anderson, #11 Proposed Order Denying Apple's Rule 62(C) Motion)(Maroulis, Victoria) (Filed on 5/25/2012) Modified on 5/29/2012 Attachment #2 Sealed pursuant to General Order No. 62 (dhm, COURT STAFF). Modified on 6/5/2012 (fff, COURT STAFF).

EXHIBIT 3

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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
OCTOBER 13, 2011
PAGES 1-104

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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A P P E A R A N C E S:

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FOR PLAINTIFF
APPLE:

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MORRISON & FOERSTER
BY: HAROLD J. MCELHINNY,
MICHAEL A. JACOBS, AND
RICHARD S.J. HUNG
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105

FOR COUNTERCLAIMANT WILMER, CUTLER, PICKERING,
APPLE:
HALE AND DORR
BY: WILLIAM F. LEE
60 STATE STREET
BOSTON, MASSACHUSETTS 02109

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QUINN, EMANUEL, URQUHART,
OLIVER & HEDGES
BY: KATHLEEN M. SULLIVAN
51 MADISON AVENUE, 22ND FLOOR
NEW YORK, NEW YORK 10010

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BY:

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FOR THE DEFENDANT:

VICTORIA F. MAROULIS,
KEVIN P.B. JOHNSON AND
ANNA T. NEILL
555 TWIN DOLPHIN DRIVE
SUITE 560
REDWOOD SHORES, CALIFORNIA 94065
BY: MICHAEL T. ZELLER
865 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90017

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THE COURT:

OKAY.

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MR. MCELHINNY:

WHAT I AM SAYING IS IF,

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FOR VARIOUS REASONS, YOU MAKE A DECISION NOT TO

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CHALLENGE A PARTICULAR PRODUCT, THAT DOES NOT GIVE

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THE INFRINGER A FOREGOING -- A FREE PASS TO

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CONTINUE TO BRING OUT NEW PRODUCTS THAT DO

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INFRINGE.

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AND THAT QUESTION HAS ARISEN TWICE BEFORE
DISTRICT COURTS, AND WE CITED THEM TO YOU, THE

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LATRIM CASE AND THE WHISTLER VERSUS DYNASCAN CASE,

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AND IN BOTH CASES THEY SAID "WE'RE NOT GOING TO

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ENJOIN YOUR OLDER PRODUCTS BECAUSE YOU WAITED TOO

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LONG FOR THOSE, BUT THE NEW PRODUCTS ARE NEW AND WE

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ARE GOING TO ENJOIN THOSE PRODUCTS."

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AND THAT TIES IN AGAIN TO THIS IDEA OF

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HOW QUICKLY THE PRODUCTS MOVE IN CYCLES THROUGH

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THIS WORLD.

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THE COURT:

BUT DOESN'T THAT SORT OF

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UNDERMINE YOUR IRREPARABLE HARM ARGUMENT?

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THE CABBAGE THING ACTUALLY UNDERMINES IT BECAUSE

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CONSUMERS ARE FICKLE, ESPECIALLY IN ELECTRONICS.

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THIS MAY BE BIG TODAY.

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I THINK

WHO KNOWS, IN A YEAR, WHAT'S GOING TO BE
THE NEXT BIG THING.
MR. MCELHINNY:

WELL, SEE, I -86

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THE COURT:

DON'T YOU THINK THAT SORT OF

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TEMPORAL LIMITATION ACTUALLY UNDERMINES YOUR

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IRREPARABLE HARM ARGUMENT?

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MR. MCELHINNY:
THIS.

I DON'T.

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THE COURT:

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MR. MCELHINNY:

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WELL, YOU GET TO DECIDE

UM-HUM.
BUT I DON'T SEE IT THAT

WAY.
THE COURT:

OKAY.

MR. MCELHINNY:

I SEE IT AS THE SUPREME

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COURT'S LINE OF ACTIVITY THAT'S CAPABLE OF

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REPETITION, BUT AVOIDS REVIEW.

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IT'S TAKEN US FOUR AND A HALF MONTHS TO
GET TO THIS HEARING.

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THEY ALREADY ARE ANNOUNCING NEW PRODUCTS.

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WHEN THOSE PRODUCTS COME OUT, WE WILL SEE

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THEM FOR THE FIRST TIME AND WE'LL DECIDE WHETHER OR

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NOT WE HAVE TO BRING ACTIONS ABOUT THEM.

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BUT IN THE MEANTIME, AS MR. MUSIKA AND AS

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MR. WAGNER POINTED OUT, IN THE MEANTIME, THESE

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PRODUCTS ARE INJURING US.

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AND, AS YOUR HONOR DEMONSTRATED PRETTY
CLEARLY, THEY ARE INFRINGING THE PATENTS.
BUT FOR THE FACT THAT I -- YOU KNOW, YOU
NEED -- I HOPE YOU WILL LOOK MORE CAREFULLY AT THIS
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