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

Filing 986

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 Declaration of Marc J. Pernick in Support of Apple's Opposition to Samsung's Motion for Clarification Regarding the Court's May 4, 2012 Order, #3 Exhibit A (under seal), #4 Exhibit B, #5 Exhibit C, #6 Exhibit D)(Jacobs, Michael) (Filed on 5/29/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 6 7 APPLE, INC, PLAINTIFF, VS. 8 SAMSUNG ELECTRONICS, CO. LTD., ET AL, 9 DEFENDANT. ) ) ) ) ) ) ) ) ) ) CV-11-1846-LHK SAN JOSE, CALIFORNIA APRIL 24, 2012 PAGES 1-51 10 11 12 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE PAUL S. GREWAL UNITED STATES DISTRICT JUDGE 13 14 A P P E A R A N C E S: 15 16 FOR THE PLAINTIFF: MORRISON & FOERSTER, LLP BY: ALISON TUCHER RICHARD HUNG MARC PERNICK 425 MARKET STREET SAN FRANCISCO, CA 94105 FOR THE DEFENDANT: QUINN EMANUEL BY: KEVIN JOHNSON MELISSA CHAN 555 TWIN DOLPHIN DRIVE, STE 560 REDWOOD SHORES, CA 94065 17 18 19 20 21 22 23 24 25 OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR CERTIFICATE NUMBER 13185 1 1 SAN JOSE, CALIFORNIA 2 P R O C E E D I N G S 3 4 (WHEREUPON, COURT CONVENED AND THE FOLLOWING PROCEEDINGS WERE HELD:) 5 6 APRIL 24, 2012 THE COURT: MR. RIVERA, WOULD YOU CALL THE NEXT MATTER ON THIS MORNING'S CALENDAR. 7 THE CLERK: 8 CALLING APPLE, INC. VERSUS SAMSUNG 9 ELECTRONICS COMPANY, ET AL. 10 11 CASE CV-11-1846. COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES. 14 MR. JOHNSON: 15 KEVIN JOHNSON. 16 GOOD MORNING, YOUR HONOR. AND WITH ME IS MELISSA CHAN FROM QUINN EMANUEL ON BEHALF OF SAMSUNG. 17 18 MATTER ON FOR PLAINTIFF'S RULE 37 (B)(2) MOTION. 12 13 YES, YOUR HONOR. THE COURT: MR. JOHNSON, GOOD MORNING SIR. 19 MS. TUCHER: GOOD MORNING, YOUR HONOR. 20 ALLISON TUCHER FROM MORRISON & FOERSTER. 21 WITH ME TODAY ARE MY PARTNERS RICH HUNG AND 22 MARC PERNICK. 23 24 25 THE COURT: MS. TUCHER, GOOD MORNING TO YOU AS WELL. ALL RIGHT. THE LATEST IN THE SERIES OF 2 1 2 MOTIONS FOR SANCTIONS. I TAKE IT YOU ALL SAW MY ORDER THAT I 3 ISSUED LAST EVENING. 4 GROUND, BUT I HOPE THAT GIVES YOU AT LEAST SOME 5 SENSE OF WHERE I'M AT GENERALLY IN THIS CASE 6 REGARDING COMPLIANCE WITH MY ORDERS. 7 8 9 10 I DON'T WANT TO RE PLOW OLD THIS IS APPLE'S MOTION SO I WILL START WITH YOU MS. TUCHER. MS. TUCHER: THANK YOU, YOUR HONOR. APPLE HAS ALLEGED CONTINUING INFRINGEMENT 11 IN THIS CASE. 12 THAT SAMSUNG INFRINGES OUR PATENTS ON THE DAY THAT 13 IT RELEASES A NEW PRODUCT, BUT ALSO THAT IT 14 CONTINUES TO INFRINGE OUR PATENTS AS IT UPDATES THE 15 SOFTWARE OVER THE WEEKS AND MONTHS THE PRODUCTS 16 REMAIN ON THE MARKET. 17 THAT MEANS WE HAVE TO PROVE NOT ONLY BECAUSE WE NEED THAT SOFTWARE WE ISSUED 18 REQUEST FOR PRODUCTION AND THEN WE GOT AN ORDER 19 FROM THIS COURT IN DECEMBER OF LAST YEAR REQUIRING 20 SAMSUNG TO PRODUCE ALL VERSIONS OF SOURCE CODE ON 21 ALL OF THE ACCUSED PRODUCTS, AT LEAST -- 22 THE COURT: 23 MS. TUCHER: 24 WHAT YOU SAID WAS THAT SAMSUNG WAS 25 DID I SAY ALL VERSIONS? NO. REQUIRED TO PRODUCE THE SOURCE CODE THAT APPLE 3 1 2 HAD -- LET ME GIVE YOU THE EXACT LANGUAGE. SAMSUNG SHALL PRODUCE THE SOURCE CODE 3 REQUESTED BY APPLE'S MOTION, WITH AN EXCEPTION, AND 4 THE EXCEPTION WENT TO -- SORRY, IT WAS SOURCE CODE 5 AND TECHNICAL DOCUMENTS. 6 THAT WENT TO TECHNICAL DOCUMENTS AS TO WHICH THERE 7 HAD BEEN NO MEET AND CONFER. 8 9 10 THEN IT WAS AN EXCEPTION BY TECHNICAL DOCUMENTS, SOME OF THESE HAVE RELATION TO SOURCE CODE. SO FOR EXAMPLE, WE ASKED FOR VERSION LOGS 11 THAT WOULD ENABLE US TO TELL WHEN DIFFERENT 12 VERSIONS OF SOURCE CODE WERE IMPLEMENTED. 13 BUT YOUR HONOR'S ORDER WAS QUITE CLEAR 14 INCLUDING IN A FOOTNOTE BY REQUEST NUMBER, THE 15 REQUESTS THAT WERE EXEMPTED BECAUSE THEY DIDN'T 16 INVOLVE MEET AND CONFER, IT LOOKS TO US AS THOUGH 17 YOU TOOK THAT LIST STRAIGHT FROM A SAMSUNG 18 DECLARATION PROVIDED BY MR. CHAN. 19 AND IN THAT DECLARATION, PARAGRAPH 21 OF 20 THE DECLARATION WHERE MR. CHAN LISTS EXACTLY THAT 21 SAME LIST OF REQUESTS FOR PRODUCTION THAT APPEAR IN 22 THE FOOTNOTE OF YOUR ORDER, HE REFERS TO THESE 23 REQUESTS AS NON SOURCE CODE DOCUMENTS. 24 25 INDEED, THEY ARE, AND THAT'S WHY NOTHING IN THE EXEMPTION WITH THE EXCEPTION OF YOUR 4 1 DECEMBER ORDER APPLIES TO THE SOURCE CODE. 2 HAVING SECURED THE ORDER, WE THEN GOT 3 FROM SAMSUNG A SINGLE VERSION OF SOFTWARE FOR 4 ALMOST EVERY ONE OF THE PHONES THAT HAD BEEN 5 RELEASED. 6 THERE'S A COMPLICATION WITH REGARD TO THE S2. AND I SAY ALMOST EVERY ONE ONLY BECAUSE 7 YOU WILL REMEMBER -- 8 THE COURT: 9 MS. TUCHER: EXPLAIN THAT TO ME. YOU WILL REMEMBER THAT WE 10 ACCUSED THE S2 OF INFRINGING OUR UTILITY PATENTS 11 AND THAT SAMSUNG RELEASED THE S2 IN MANY DIFFERENT 12 VARIANTS OR MANY DIFFERENT VERSIONS. 13 IT RELEASED IN SEPTEMBER OF 2011 A 14 VERSION TO -- SORRY, SEPTEMBER WAS THE S2 EPIC 4G 15 TOUCH, WHICH IS A SPRINT PHONE. 16 OCTOBER IT RELEASED THE AT&T VERSION OF THE GALAXY 17 S2. 18 AND THEN IN AND THE T-MOBILE VERSION OF THE GALAXY S2. THEN IT WENT ON LATER IN THE FALL TO 19 RELEASE FURTHER VERSIONS THROUGH OTHER CARRIERS AND 20 A SECOND AT&T VERSION. 21 SO THE REASON THIS IS IMPORTANT IS THAT 22 IF SAMSUNG HAD DONE WHAT IT SAID IT WAS DOING IN 23 PRODUCING ONE, IN PRODUCING THE FIRST VERSION OF 24 SOFTWARE FOR EACH OF THE PHONES, YOU WOULD EXPECT 25 THAT THEY EITHER HAD GIVEN US THE GALAXY S2 EPIC 4G 5 1 TOUCH AND EXPECTED US TO VIEW THAT AS SOFTWARE 2 REPRESENTATIVE OF ALL THE S2'S OR THAT THEY HAVE 3 GIVEN US SOFTWARE FOR EACH OF THE DIFFERENT 4 VARIANTS OF EACH OF THE DIFFERENT CARRIERS SO THAT 5 WE COULD ANALYZE EACH OF THOSE. 6 7 THE COURT: I TAKE IT YOUR POINT IS THEY DID NOT. 8 MS. TUCHER: THEY DIDN'T. 9 INSTEAD, THEY THOSE THE T-MOBILE VERSION 10 OF THE S2 AND THEY GAVE US A SINGLE VERSION OF THAT 11 ONLY. 12 SO THE REASON THAT MATTERS IS THAT WHEN 13 WE GET TO THE APPROPRIATE SANCTION FOR THEIR 14 VIOLATION OF YOUR ORDER, THE QUESTION IS HOW DO WE 15 FILL IN THE GAPS? 16 AND FIRST, I WANT TO JUST ESTABLISH THE 17 IMPORTANCE OF FILLING IN THE GAPS. 18 HYPOTHETICAL THAT SOMEHOW SAMSUNG IS GOING TO 19 ATTACK APPLE'S PROOF ON THE GROUNDS THAT WE CAN 20 ONLY PROVE INFRINGEMENT BASED ON A SINGLE PHONE, SO 21 HOW CAN APPLE MAINTAIN CONTINUING INFRINGEMENT. 22 IT'S NOT JUST ON THE RUBBER BANDING PATENT WE HAVE AN 23 EXPERT BY THE NAME OF ROBERT BALAKRISHNAN. HE WAS 24 CROSS-EXAMINED, ONE OF THE EXPERT DEPOSITIONS THAT 25 TOOK PLACE JUST LAST FRIDAY. 6 1 I KNOW THAT'S THE ONE DR. BALAKRISHNAN FOCUSED ON 2 WHEN HE REGARDED HIS TESTIMONY ABOUT HOW THE 3 GINGERBREAD OPERATES WITH REGARD TO THE BALANCE 4 FUNCTIONALITY. 5 THE COURT: 6 MS. TUCHER: 7 QUESTIONS, THANK YOU. 8 THE COURT: 9 ANYTHING ELSE ON YOUR LIST? NOT UNLESS YOU HAVE MR. JOHNSON? 10 11 THANK YOU. SO DID MY ORDER PERMIT SAMSUNG TO CHERRY PICK CERTAIN VERSIONS OR WAS IT FAIRLY EXPLICIT? 12 13 ALL RIGHT. MR. JOHNSON: THERE WASN'T ANY CHERRY PICKING OF VERSIONS. 14 WITH RESPECT TO THE S2, THIS IS THE FIRST 15 TIME HEARING OF THE ISSUE WITH RESPECT TO THE S2 IN 16 PARTICULAR. 17 SO THIS SORT OF GOES BACK TO 18 YOUR HONOR'S, I THINK, POINT AT THE LAST HEARING AS 19 WELL WHICH WAS THE MEET AND CONFER PROCESS ON THE 20 FUNCTIONALITY OF THE SOURCE CODE DIDN'T START IN 21 MARCH, DIDN'T START IN FEBRUARY. 22 THIS STARTED IN THE FALL. AND THEY 23 SERVED DISCOVERY ON OCTOBER ON DESIGN AROUNDS THEN 24 THEY SERVED AN INTERROGATORY IN JANUARY ON DESIGN 25 AROUNDS. AND WE RESPONDED FEBRUARY 3RD, AND WE 15 1 ARTICULATED WHAT THE DESIGN AROUNDS WERE. 2 WITH RESPECT TO THE BLUE GLOW 3 APPLICATION, THEY'VE KNOWN ABOUT THE BLUE GLOW FOR 4 A WHILE AND THEIR EXPERTS, INCLUDING 5 DR. BALAKRISHNAN, HAS SAID HE DOESN'T NEED SOURCE 6 CODE TO DETERMINE WHETHER THAT'S INFRINGEMENT OR 7 NOT. 8 9 SO THIS IS A LITTLE BIT OF, I AGREE THAT WE WERE BOUND TO PRODUCE SOURCE CODE AND WE 10 PRODUCED SOURCE CODE. 11 THERE'S INFRINGEMENT, YOU LOOK AT THE DEVICE AND 12 YOU SEE IF IT OPERATES ACCORDING TO THE CLAIMS IN 13 THE PATENT. 14 BUT TO DETERMINE WHETHER AND I DID DEPOSE DR. BALAKRISHNAN ON 15 FRIDAY AND I ASKED HIM ABOUT THE PRODUCTS BECAUSE I 16 COULDN'T TELL FROM HIS REPORT WHAT PHONE HE HAD. 17 HE DIDN'T BRING ANY OF THE PHONES TO HIS 18 DEPOSITION. 19 AND I ASKED HIM WHAT VERSION OF GALLERY 20 HE WAS LOOKING AT BECAUSE THERE ARE LOTS OF 21 DIFFERENT ITERATIONS WITHIN THE GALLERY APPLICATION 22 THAT THEY CLAIM ARE INFRINGING. 23 AND SOME OF THOSE WHEN YOU MOVE A PHOTO 24 FROM ONE PHOTO TO THE NEXT, THAT'S A DIFFERENT 25 INFRINGEMENT READING THAN WHEN YOU ZOOM IN ON A 16 1 PHOTOGRAPH AND YOU MOVE THE PHOTOGRAPH AROUND BY 2 ITSELF. 3 THE GALLERY. 4 THERE ARE DIFFERENT THEORYS EVEN WITHIN SO WHEN I WAS ASKING HIM ABOUT WHAT ARE 5 THE DIFFERENT VERSIONS HE WAS LOOKING AT BECAUSE IT 6 WASN'T IN HIS REPORT AND I WAS TRYING TO UNDERSTAND 7 WHAT CAPTIVATE PHONE HE HAD LOOKED AT AND I DIDN'T 8 HAVE ANY PROOF OF THAT. 9 SO TO GO BACK, WE WERE ORDERED TO PRODUCE 10 SOURCE CODE, AND I DO THINK THERE'S AN IMPORTANT 11 EXCEPTION IN YOUR HONOR'S DECEMBER 22ND ORDER THAT 12 SAID PRODUCE THE SOURCE CODE BY DECEMBER 31ST. 13 WE PRODUCED THE AS RELEASED SOURCE CODE 14 FOR ALL OF THE PRODUCTS THAT WERE ACCUSED. 15 DR. BALAKRISHNAN, WHEN I DID DEPOSE HIM, I DON'T 16 HAVE THE BENEFIT OF HAVING THE OTHER PARTS OF THE 17 TRANSCRIPT HERE, BUT HE SAID THE AS RELEASED CODE 18 IS WHAT'S IMPORTANT, IT'S WHAT HE'S CONSIDERED. 19 THEY'VE HAD A PERSON, THEY HAD CODE REVIEWERS IN 20 OUR OFFICE SINCE DECEMBER EVERY DAY, SATURDAYS AND 21 SUNDAYS INCLUDING THIS PAST WEEKEND LOOKING AT THE 22 SOURCE CODE. 23 24 25 WE PRODUCED SOMETHING ON THE ORDER OF 50 MILLION PAGES OF CODE AS BACK IN DECEMBER 31ST. THERE WAS A SUBSEQUENT ORDER, YOUR HONOR, 17 1 WHERE APPLE MOVED TO COMPEL DOCUMENTS RELATED TO 2 THE EVOLUTION, THE FEATURES AND THE UPDATES OF THE 3 SOFTWARE. 4 AND PRODUCED THE INFORMATION THAT RELATES TO THE 5 VERSION CHANGES. 6 AND WE THEN COLLECTED THAT INFORMATION AND IN -- YOUR HONOR, FROM JANUARY 27TH 7 YOU ASKED, YOU PROVIDED BASICALLY AN ALTERNATIVE 8 AND YOU SAID IN ORDER TO AVOID SOME OF THE BURDEN 9 ASSOCIATED WITH IT, PARTIES CAN AGREE TO REACH SOME 10 11 12 SORT OF STIPULATION. AND WE SAW THAT AS A REAL RESPONSIBILITY. WE STARTED NEGOTIATING WITH THEM RIGHT AWAY. 13 THEY DID REQUIRE FROM THE VERY BEGINNING, 14 YOUR HONOR, THAT SAMSUNG STIPULATE TO THE FACT THAT 15 SOMEHOW SAMSUNG HAD VIOLATED THE COURT'S 16 DECEMBER 22ND ORDER IN THE INITIAL STIP THAT THEY 17 SENT TO US. 18 AND EVEN IN THE LETTER THAT'S ATTACHED TO 19 EXHIBIT -- IT'S EXHIBIT 2 TO THE BRIGGS DECLARATION 20 FROM MR. PERNICK, HE SAYS IN PARAGRAPH 2: 21 "SAMSUNG CANNOT MOOT THIS ASPECT OF APPLE'S MOTION 22 UNLESS IT FORMALLY AGREES TO THIS IN A STIPULATION. 23 24 25 WE UNDERSTAND THAT SAMSUNG DOES AGREE THAT IT HAS VIOLATED THE ORDER AND THEREFORE 18 1 SUGGEST ADDING THIS TO THE STIPULATION UNDER THE 2 DISCUSSION WITHOUT SUCH A PROVISION, APPLE'S MOTION 3 COULD NEVER BE MOOT." 4 AND HE GOES ON TO SAY, "THAT AS A GENERAL 5 MATTER, APPLE'S PROPOSED STIPULATION WAS NEVER 6 INTENDED TO RESOLVE ALL OF THE DISPUTES. 7 8 THE COURT: " AND WHEN WAS THAT COMMUNICATION SENT? 9 MR. JOHNSON: 10 MARCH 16TH. THIS IS HARDLY NEGOTIATING IN GOOD FAITH 11 WITH RESPECT TO THE STIPULATION. 12 NOT BAD FAITH ON SAMSUNG'S PART. 13 THE COURT: IT'S CERTAINLY SO IF YOU HAD A PROBLEM 14 NEGOTIATING THE STIPULATION WHY DIDN'T YOU FOLLOW 15 MY GUIDANCE IN FOOTNOTE 25 TO SEEK RELIEF? 16 IN OTHER WORDS, I THOUGHT IN MY 17 JANUARY 27TH ORDER I WAS PRETTY EXPLICIT THAT THE 18 STIPULATION WAS PROVIDED AS AN ALTERNATIVE TO 19 MITIGATE THE BURDEN IN COMPLYING WITH MY ORDER AND 20 IF THERE WAS A PROBLEM WITH APPLE'S GOOD FAITH IN 21 REACHING THE STIPULATION, YOU SHOULD SEEK GUIDANCE 22 FROM THE COURT. 23 24 25 TO MY KNOWLEDGE, SAMSUNG DIDN'T DO THAT; WHY NOT? MR. JOHNSON: YOUR HONOR, THEY HAD FILED 19 1 A MOTION FOR SANCTIONS ALREADY. 2 MOTION FOR SANCTIONS ON MARCH 9TH WITHOUT EVER 3 MEETING AND CONFERRING. 4 THEY FILED A WE THOUGHT WE WERE STILL NEGOTIATING WITH 5 THEM. THEY DON'T MEET AND CONFER. 6 WE KNOW THEY FILE A MOTION FOR SANCTIONS. 7 DISCUSS INTERNALLY, CONTINUE TO DISCUSS INTERNALLY 8 THE REPRESENTATIVE PRODUCTS OR FUNCTIONALITY 9 ISSUES. 10 THE NEXT THING WE WE CALL THEM BACK UP AND THIS IS THE 11 LETTER WE GET BACK SAYING THERE'S NO WAY WE ARE 12 GOING TO AGREE TO IT UNLESS YOU -- UNLESS YOU 13 STIPULATE TO THE FACT THAT WE'VE, THAT SAMSUNG HAS 14 VIOLATED THE DECEMBER 22ND ORDER. 15 AT THAT POINT WE WERE, FROM MY 16 STANDPOINT, WE WERE IN BETWEEN. 17 THEN BRING THIS TO YOUR HONOR'S ATTENTION? 18 THE COURT: HOW WERE WE TO I MEAN, YOU ALL HAVE SHOWN A 19 FAIRLY EXPANSIVE CREATIVITY IN COMING UP WITH 20 MOTIONS AND PLEADINGS TO GET MY ATTENTION AT ALL 21 DAYS AND HOURS OF THE WEEK. 22 23 HERE'S WHAT I'M STRUGGLING WITH MR. JOHNSON, LET'S GO BACK TO DECEMBER 22ND. 24 25 I THOUGHT THIS WAS A PRETTY SPARTAN COMMAND. PRODUCE THE SOURCE CODE AND TECHNICAL 20 1 DOCUMENTS REQUESTED BY APPLE'S MOTION WITH ONE 2 EXCEPTION. 3 VERSIONS, SO HOW AM I TO READ SAMSUNG'S PRODUCTION 4 AS OF DECEMBER 31ST, 2011, AS ANYTHING OTHER THAN A 5 VIOLATION OF THAT SPECIFIC COMMAND? 6 THE EXCEPTION DOESN'T APPLY TO MR. JOHNSON: BECAUSE WE PRODUCED, WE 7 PRODUCED THE SOURCE CODE IN THE TECHNICAL DOCUMENTS 8 REQUESTED BY APPLE'S MOTION. 9 10 THE COURT: BY THE 31ST. 11 MR. JOHNSON: 12 THE COURT: 13 14 SO EVERY VERSION WAS PRODUCED NOT -- LET'S BACK UP. BECAUSE THEIR MOTION WAS NOT LIMITED TO PARTICULAR VERSIONS, WAS IT? MR. JOHNSON: NO, I THINK IT WAS. 15 THEIR MOTION, WHEN YOU GO BACK AND YOU LOOK AT WHAT 16 THEY WERE ASKING FOR -- AND BY THE WAY, IT'S ALSO 17 WHEN YOU LOOK AT WHAT THEY ARE ASKING FOR IN THEIR 18 JANUARY MOTION WHERE THEY SPECIFICALLY, AS 19 YOUR HONOR POINTS OUT IN YOUR JANUARY ORDER TO LOOK 20 AT THE 14 CATEGORIES OF DOCUMENTS IN THEIR PROPOSED 21 ORDER, THEY SPECIFICALLY ASK FOR THE PROPOSED ORDER 22 WHICH IS DOCKET NUMBER 616. 23 DESIGN AROUND DOCUMENTATION AND THEY ASK FOR THE 24 VERSIONS OF THE CODE. 25 THEY ASK FOR THE WHEN YOU LOOK AT CATEGORIES, FOR EXAMPLE 21 1 A THROUGH R, THEY'RE SPECIFICALLY ASKING FOR THE 2 FEATURES, YOU KNOW, CHANGES MADE TO EACH VERSION OF 3 THE SOFTWARE FIRM WEAR PROGRAM OR OTHER SYSTEMS. 4 5 THE COURT: SUBMITTED IN CONNECTION WITH THE -- 6 7 MR. JOHNSON: WITH THE JANUARY MOTION TO COMPEL. 8 9 WAS THIS A PROPOSED ORDER THE COURT: OKAY. SO LET'S GO BACK TO DECEMBER. 10 APPLE FILES A MOTION IN ADVANCE OF 11 DECEMBER, I SHOULD SAY ORDER. 12 PRESUMABLY THEY INCLUDE A PROPOSED ORDER. 13 PROPOSED ORDER INDICATE THAT THE ASK WAS FOR LESS 14 THAN ALL VARIATIONS? 15 MR. JOHNSON: THEY INCLUDE A -DID THAT THEY SENT A NARROW SCOPE, 16 THE MOTION POINTS OUT THE NARROWED SCOPE OF 17 REQUESTED CATEGORIES ON DECEMBER 6TH. 18 SCOPE DOESN'T ASK FOR EACH AND EVERY VERSION OF THE 19 SOFTWARE. 20 THEIR NARROW IN FACT, YOU KNOW, SAMSUNG OPERATES 21 DIFFERENTLY THAN APPLE DOES IN THE SENSE THAT THERE 22 ARE LITERALLY HUNDREDS AND HUNDREDS OF VERSIONS OF 23 THE CODE THAT WITH RESPECT TO EACH CARRIER 24 SOMETIMES THEY UPDATE THE CODE, 2, 3 TIMES A DAY 25 AND IT'S DELIVERED OVER THE AIR. 22 1 SO WITH RESPECT TO THE FUNCTIONALITY OF 2 THE ACCUSED PRODUCTS OF THE ACCUSED FEATURES IN THE 3 PATENTS, WE PROVIDED THE CODE AS IT WAS CONTAINED 4 ON THE 27 PRODUCTS THAT WAS IN EXISTENCE. 5 WE PRODUCED IT ON DECEMBER 31ST. AND WE 6 WERE WILLING TO STIPULATE THAT THE FUNCTIONALITY, 7 THE ACCUSED FEATURES WAS BASICALLY THE SAME FOR 8 EVERYTHING ELSE EXCEPT FOR THE THREE DESIGN AROUNDS 9 FOR THE '381 PATENT THE '891 AND THE '163 PATENT. 10 AND THOSE WERE PRODUCED. THE '381 DESIGN 11 AROUND CODE WAS PRODUCED JANUARY 23RD. 12 IT SOUNDS LIKE IT MAY HAVE EVEN BEEN PRODUCED WHEN 13 COUNSEL WAS REFERRING TO THE S2, T-MOBILE VERSION 14 HAVING BLUE GLOW, IT SOUNDS LIKE THEY HAD THAT BY 15 DECEMBER 31ST, SO MAYBE THEY EVEN HAD THE BLUE GLOW 16 DESIGN AROUND BY DECEMBER 31ST FOR THE SOURCE CODE. 17 AND THEY -- THE OTHER TWO SOURCE CODE VERSIONS WERE 18 PRODUCED AT THE END OF DISCOVERY RIGHT AFTER, JUST 19 AS APPLE PRODUCED 250,000 PAGES OF DOCUMENTS AFTER 20 THE CLOSE OF DISCOVERY. 21 22 THERE WAS A BIG RUSH TO PRODUCE A LOT OF DOCUMENTS AT THE END OF DISCOVERY. 23 AND WHAT THEY -- 24 THE COURT: 25 SO JUST ON THOSE POINTS THEN, IS IT ACCURATE FOR ME TO UNDERSTAND THAT AT LEAST 23 1 AS TO THOSE TWO VERSIONS, THOSE VERSIONS WERE NOT 2 PRODUCED BY THE 31ST? 3 4 5 MR. JOHNSON: RIGHT. THEY WERE NOT PRODUCED BY THE 31ST. AND YOUR HONOR -- THEY WERE IN A PRODUCT 6 THAT WASN'T RELEASED. 7 CODE FOR THOSE TWO VERSIONS, THE DESIGN AROUNDS FOR 8 THE '891 AND THE '163. 9 DECEMBER 31ST. 10 THE COURT: 11 MR. JOHNSON: WE DIDN'T HAVE THE SOURCE WE DIDN'T HAVE THEM BY AND WHY IS THAT? BECAUSE AS BEST AS WE WERE 12 ABLE TO TELL, IT WASN'T RELEASED UNTIL THE EARLIEST 13 WE CAN SEE IS DECEMBER 23RD. 14 IT UNTIL AFTER DECEMBER 31ST. 15 16 17 WE DIDN'T KNOW ABOUT AND SO WE DIDN'T HAVE THAT THE UNTIL SOME TIME AFTER DECEMBER 31ST. THE COURT: WHEN YOU SAY "WE" DO YOU MEAN 18 YOU AS OUTSIDE COUNSEL AS OPPOSED TO YOUR CLIENT? 19 YOUR CLIENT OBVIOUSLY HAD THE CODE WELL IN ADVANCE 20 OF THE 31ST. 21 MR. JOHNSON: I DON'T THINK THEY HAD IT 22 WELL IN ADVANCE OF DECEMBER 31ST. 23 SPECIFICALLY. 24 25 I DON'T KNOW ALL I KNOW IS THAT IT WAS RELEASED. THERE WAS A PRODUCT THAT HAD A RELEASED VERSION OF 24 1 THE '891 AND '163 DESIGN AROUND CODE. 2 WAS RELEASED DECEMBER 23RD. 3 THAT PRODUCT I DON'T KNOW WHICH ENTITY HAD IT. 4 OF THIS IS DONE OUTSIDE OF THE UNITED STATES. 5 DONE OUTSIDE OF KOREA AS WELL. 6 THE COURT: 7 SO -- I WANT TO MAKE SURE. A LOT IT'S OKAY. I'M 8 STRUGGLING, AS YOU CAN TELL, TO UNDERSTAND WHAT THE 9 FACTS ARE LET ALONE THE IMPLICATIONS OF THOSE 10 11 FACTS. AM I ACCURATE IN UNDERSTANDING THAT AT 12 LEAST AS OF DECEMBER 31ST, 2011, WHICH IS MY 13 DEADLINE, THERE WERE TWO VERSIONS OF PRODUCTS AT 14 LEAST TWO VERSIONS OF PRODUCT IN THE MARKETPLACE 15 FOR WHICH NO SOURCE CODE WAS PRODUCED, WHETHER IT'S 16 JUSTIFIED, WHETHER IT'S PERFECTLY REASONABLE, 17 WHETHER YOU TRIED AS HARD AS YOU COULD, IS THAT AN 18 ACCURATE UNDERSTANDING? 19 MR. JOHNSON: I THINK THAT'S ACCURATE. 20 THE COURT: 21 SO AS TO ANY OTHER VERSIONS IN COMMERCIAL OKAY. 22 RELEASE AS OF THE 31ST WERE THERE ANY OTHER 23 VERSIONS OF CODE FOR WHICH NO SOURCE WAS PRODUCED 24 TO APPLE BY MY DEADLINE. 25 MR. JOHNSON: I'M SORRY, COULD YOU REPEAT 25 1 THAT. 2 THE COURT: SURE. 3 I WANT TO UNDERSTAND WHETHER THERE ARE 4 ANY OTHER VERSIONS OF THE CODE WHICH WERE IN 5 COMMERCIAL RELEASE AS OF THE 31ST FOR WHICH NO COPY 6 WAS PRODUCED TO APPLE. 7 MR. JOHNSON: 8 9 WELL, THEIR VERSIONS. THAT'S WHAT I'M SAYING THERE ARE VERSIONS OF CODE THAT WERE DELIVERED AFTER DECEMBER 31ST. THEY 10 MAY CHANGE A COLOR OF A PARTICULAR WIDGET HERE, IT 11 HAS NOTHING TO DO WITH THE FUNCTIONALITY. 12 ARE HUNDREDS OF THESE VERSIONS. 13 THE COURT: SO THERE SO THERE ARE HUNDREDS OF 14 VERSIONS OF THE CODE THAT WERE IN COMMERCIAL 15 RELEASE AS OF THE 31ST FOR WHICH NO COPY WAS 16 PRODUCED TO APPLE. 17 MR. JOHNSON: WE GAVE THEM A LOG 18 DESCRIBING ALL THE CHANGES THAT WERE MADE TO THE 19 CODE. 20 THE COURT: RIGHT. BUT WAS A COPY OF 21 THAT CODE PRODUCED BY THE 31ST? 22 MR. JOHNSON: 23 WASN'T IN EXISTENCE AT THE 31ST. 24 25 THE COURT: WELL, SOME OF THAT CODE LET'S TALK ABOUT THE CODE THAT WAS IN EXISTENCE. 26 1 YOU AGREED WITH ME THERE ARE AT LEAST TWO 2 VERSIONS OF CODE WHICH WERE IN COMMERCIAL RELEASE 3 AS OF THE 31ST FOR WHICH NO COPY WAS PRODUCED TO 4 APPLE. 5 WHAT I'M TRYING TO UNDERSTAND IS WHAT IS 6 THE UNIVERSE OF ADDITIONAL VERSIONS OF CODE IN 7 COMMERCIAL RELEASE OF THE 31ST FOR WHICH NO COPY 8 WAS PRODUCED BY THAT DATE. 9 10 11 MR. JOHNSON: HUNDREDS? DOZENS? I DON'T KNOW THE ANSWER TO THAT FOR SURE. NOW, WITH RESPECT TO THE ACCUSED 12 FUNCTIONALITY OF THOSE FEATURES, FOR THE VERSIONS 13 OF THE CODE, THEY OPERATED THE SAME WAY. 14 THAT'S WHAT WE TOLD APPLE AND THAT'S WHAT APPLE'S 15 EXPERT BELIEVES AND THAT'S WHAT SAMSUNG BELIEVES. 16 AND SO WITH RESPECT TO -- THE ONLY CHANGE 17 WITH RESPECT TO THE EIGHT PATENTS THE UTILITY 18 PATENTS THAT HAVE BEEN ACCUSED THE ONLY CHANGE THAT 19 IS HAVE OCCURRED WITH RESPECT TO THE DESIGN AROUND 20 FOR THE '381 WHICH THEY HAVE KNOWN ABOUT, THEIR 21 EXPERT HAS KNOWN ABOUT, IT'S IN THE EXPERT REPORT, 22 HE TESTIFIED ABOUT IT, THERE'S NO PREJUDICE WITH 23 RESPECT TO THAT. 24 25 THE COURT: SO WE WILL GET TO PREJUDICE IN A MOMENT. 27 1 AND THAT'S JUST SIMPLY NOT THE CASE AND 2 IT'S PARTICULARLY WITH RESPECT TO THE THREE DESIGN 3 AROUNDS. 4 THEY ESSENTIALLY WANT THE COURT TO FIND 5 THAT THE PRODUCT THAT IS HAVE THE DESIGN AROUNDS IN 6 THEM OPERATE THE SAME DAY THE PRODUCTS THAT DON'T 7 HAVE THE DESIGN AROUNDS IN THEM. 8 PREJUDICIAL AND SIMPLY NOT FAIR AT THIS POINT. 9 AND THAT'S WE PRODUCED THE SOURCE CODE FOR THE 10 PHONES WITH RESPECT TO THE DESIGN AROUNDS IN 11 ADVANCE OF WHEN THEY HAD THEIR EXPERT REPORTS DUE. 12 AND BEFORE THE CLOSE OF DISCOVERY, WITH 13 RESPECT TO THE '381, AND RIGHT AT THE CLOSE OF 14 DISCOVERY WITH THE OTHER TWO PATENTS. 15 THE COURT: WERE ANY OF THE THREE DESIGN 16 AROUNDS THAT YOU ARE REFERRING TO, WERE ANY OF THEM 17 IN COMMERCIAL RELEASE BEFORE DECEMBER 23RD? 18 MR. JOHNSON: 19 THE COURT: 20 AND WAS THE BLUE GLOW CODE PRODUCED BY 21 24 25 THE BLUE GLOW. OKAY. THE 31ST? 22 23 YES. MR. JOHNSON: THAT. I DON'T KNOW THE ANSWER TO I'M HEARING COUNSEL'S -THE COURT: WELL, ISN'T THAT KIND OF THE OPERATIVE QUESTION HERE? 32 1 MR. JOHNSON: HEARING COUNSEL'S 2 REPRESENTATION TODAY THAT WE PRODUCED CODE FOR THE 3 S2 T-MOBILE TELLS ME, THAT WAS DONE BY 4 DECEMBER 31ST TELLS ME IT WAS PRODUCED BY 5 DECEMBER 31ST. 6 NOW I DON'T KNOW THE ANSWER WITH RESPECT 7 TO THE SPECIFIC QUESTION. 8 THINKING THAT THE FIRST SOURCE CODE PRODUCED FOR 9 THE BLUE GLOW WAS PRODUCED ON JANUARY 23RD. 10 11 12 THE COURT: I WAS COMING HERE TODAY IF THAT'S THE CASE, WOULD YOU AGREE THAT WOULD BE A VIOLATION OF MY ORDER? MR. JOHNSON: NO, YOUR HONOR, BECAUSE 13 WITH RESPECT TO THE ORDER, I GO BACK TO YOUR ORDER, 14 YOUR ORDER SAYS, PRODUCE SOURCE CODE AND TECHNICAL 15 DOCUMENTS REQUESTED BY APPLE'S MOTION. 16 THE DOCUMENTS REQUESTED BY APPLE'S MOTION 17 WERE NOT ALL VERSIONS OF THE SOURCE CODE. AND IN 18 FACT THE -- WHAT HAPPENED AFTER THAT WITH RESPECT 19 TO THE MOTION TO COMPEL THAT APPLE BROUGHT IN 20 JANUARY AND THE SUBSEQUENT MEET AND CONFERS 21 ASSOCIATED WITH THAT THROUGH THE LEAD COUNSEL 22 ARRANGEMENTS, AND THE SUBSEQUENT DISCOVERY THAT 23 THEY SERVED WITH RESPECT TO DESIGN AROUNDS IN 24 JANUARY, ALL ESTABLISH THAT THEY KNEW ABOUT THE 25 BLUE GLOW, WE KNEW ABOUT THE BLUE GLOW BUT THAT 33 1 ITSELF, NOT TO MENTION THAT COUNSEL HAS NO 2 DOCUMENTARY EVIDENCE TO SUPPORT HIS ALLEGATION THAT 3 WE SOMEHOW GAVE UP A BIG PART OF WHAT WE HAD ASKED 4 FOR. 5 THANK YOU, YOUR HONOR 6 THE COURT: 7 THE MATTER IS SUBMITTED. 8 9 10 11 THANK YOU VERY MUCH. YOU WILL HAVE AN ORDER FROM ME SHORTLY. HAVE A GOOD DAY. (WHEREUPON, THE PROCEEDINGS IN THIS MATTER WERE CONCLUDED.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 1 2 3 4 CERTIFICATE OF REPORTER 5 6 7 8 9 I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED STATES DISTRICT COURT FOR 10 THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH 11 FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 12 CERTIFY: 13 THAT THE FOREGOING TRANSCRIPT, 14 CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND 15 CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS 16 SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS 17 HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED 18 TRANSCRIPTION TO THE BEST OF MY ABILITY. 19 20 21 22 23 __________________________ SUMMER A. FISHER, CSR, CRR CERTIFICATE NUMBER 13185 24 25 51

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