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