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

Filing 285

OPPOSITION to ( #269 MOTION for leave to Amend Its Disclosure of Asserted Claims and Infringement Contentions ) filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co., Ltd.(a Korean corporation), Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Declaration of Michael Fazio ISO Samsung's Opposition, #2 Exhibit A-J to Fazio Declaration)(Fazio, Michael) (Filed on 10/19/2012) Modified text on 10/22/2012 (dhmS, COURT STAFF).

1 QUINN EMANUEL URQUHART &
SULLIVAN, LLP
2 Charles K. Verhoeven (Bar No. 170151)
[e-mail]
3 Kevin A. Smith (Bar No. 250814)
[e-mail]
4 50 California Street, 22nd Floor
San Francisco, California 94111
5 Telephone: [phone]
Facsimile: [phone]
6
Kevin P.B. Johnson (Bar No. 177129 (CA);
7 2542082 (NY))
[e-mail]
8 Victoria F. Maroulis (Bar No. 202603)
[e-mail]
9 555 Twin Dolphin Drive, 5th Floor
Redwood Shores, California 94065
10 Telephone: [phone]
Facsimile: [phone]
11
William C. Price (Bar No. 108542)
12 [e-mail]
865 South Figueroa Street, 10th Floor
13 Los Angeles, California 90017-2543
Telephone: [phone]
14 Facsimile: [phone]

STEPTOE & JOHNSON, LLP
John Caracappa (pro hac vice)
[e-mail]
1330 Connecticut Avenue, NW
Washington, D.C. 20036
Telephone: [phone]
Facsimile: [phone]

15 Attorneys for SAMSUNG ELECTRONICS
CO., LTD., SAMSUNG ELECTRONICS
16 AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
17
18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

20 APPLE INC., a California corporation,

CASE NO. 12-CV-00630-LHK (PSG)

21

DECLARATION OF MICHAEL L. FAZIO
IN SUPPORT OF SAMSUNG'S
OPPOSITION TO APPLE INC.’S
MOTION FOR LEAVE TO AMEND ITS
DISCLOSURE OF ASSERTED CLAIMS
& INFRINGEMENT CONTENTIONS

22

Plaintiff,
vs.

23 SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG
24 ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
25 TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
26
Defendants.
27

Date:
Time:
Place:
Judge:

November 6, 2012
10:00 a.m.
Courtroom 5
Honorable Paul S. Grewal

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Case No. 12-CV-00630-LHK (PSG)
FAZIO DECL. ISO SAMSUNG'S OPP.
TO APPLE'S MOT. FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS

1

DECLARATION OF MICHAEL L. FAZIO

2

I, Michael L. Fazio, declare as follows:

3

1.

I am a member of the bar of the State of California, admitted to practice before this

4 Court, and a partner with Quinn Emanuel Urquhart & Sullivan, LLP, attorneys for defendants
5 Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
6 Telecommunications America, LLC (collectively, “Samsung”) in this action. I make this
7 declaration of personal, firsthand knowledge, and if called and sworn as a witness, I could and
8 would testify as set forth below.
9

2.

On June 15, 2012, Apple served its infringement contentions via email and FTP.

10 The exhibits to Apple’s infringement contentions had several duplicate charts: Exhibits 69 and 81
11 both corresponded to ’604 patent claim charts against the Admire; Exhibits 71 and 83 both
12 corresponded to ’604 patent claim charts against the Galaxy S II – AT&T; Exhibits 70 and 82 both
13 corresponded to ’604 patent claim charts against the Galaxy S II Skyrocket; Exhibits 136 and 137
14 both corresponded to ’647 patent claim charts against the Galaxy Tab 7.0 Plus; Exhibits 129 and
15 135 both corresponded to ’647 patent claim charts against the Galaxy Tab 8.9. Attached hereto as
16 Exhibit A is a true and correct copy of the cover pages for Exhibits 69, 81, 70, 82, 71, and 83,
17 respectively, as originally provided by Apple. Eight charts were also missing from Apple’s
18 production: ’604 patent claim charts against the Conquer 4G, Dart, Exhibit II 4G, and Galaxy Tab
19 7.0 Plus; ’647 patent claim charts against the Galaxy Player 4.0 and Galaxy Player 5.0; and ’959
20 patent claim charts against the Galaxy Nexus and Galaxy Tab 7.0 Plus.
21

3.

On June 19, 2012, I received an email from Apple indicating that it had made

22 changes to the exhibits to its infringement contentions on its FTP site. According to the email,
23 Apple had “inadvertently uploaded to the FTP two versions of the ’647 patent claim charts for
24 each of the Galaxy Tab 8.9 and the Galaxy Tab 7.0 and therefore did not upload the ’647 patent
25 claim charts for the Galaxy Player 4.0 and the Galaxy Player 5.0.” Apple also “inadvertently
26 uploaded incorrect versions of the ’721 patent claim charts for the Samsung Illusion (Exhibit 98)
27 and the Samsung Stratosphere (Exhibit 99).” Apple stated it had “posted corrected versions of
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Case No. 12-CV-00630-LHK (PSG)
FAZIO DECL. ISO SAMSUNG'S OPP.
TO APPLE'S MOT. FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS

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1 the charts to the FTP.” Attached hereto as Exhibit B is a true and correct copy of an email from
2 Angela Wilkins, received June 19, 2012, which informed Samsung of these errors.
3

4.

On August 7, 2012, I received a letter from Apple detailing additional errors with

4 the infringement contentions that Apple had uploaded to its FTP site on June 15. According to
5 this letter, Apple had “inadvertently left off [the] ftp site during delivery” “Exhibits 87, 141 and
6 142.” However, Apple had included an Exhibit 87 on its FTP. Original Exhibit 87 was a ’959
7 patent claim chart against the Galaxy Tab 8.9. Attached hereto as Exhibit C is a true and correct
8 copy of the letter from Apple’s counsel, Emily L. Fedman, without enclosures, addressed to
9 Patrick Shields, received August 7, 2012.
10

5.

On October 1, 2012, Apple notified Samsung via email that it had placed proposed

11 amended infringement contentions on its FTP site. Attached hereto as Exhibit D is a true and
12 correct copy of this email from Apple’s counsel, Jennifer Rho, received October 1, 2012. The
13 proposed amended contentions included, for the first time, claim charts for the ’604 patent against
14 the Conquer 4G, Dart, and Exhibit II 4G.
15

6.

Attached hereto as Exhibit E is a true and correct copy of an article by PR

16 Newswire titled “Samsung GALAXY Note 10.1 Has Arrived: Game-Changing Device Hits U.S.
17 Store Shelves Tomorrow” dated August 15, 2012, and downloaded from
18 http://www.prnewswire.com/news-releases/samsung-galaxy-note-101-has-arrived19 166257736.html on October 16, 2012.
20

7.

Attached hereto as Exhibit F is a true and correct copy of a Samsung

21 Telecommunications America press release titled “SAMSUNG Mobile Unveils Premium
22 Accessory Suite for Galaxy Tab™ 10.1,” dated June 21, 2011, and downloaded from
23 http://www.samsung.com/us/news/newsRead.do?news_seq=19881&gltype on October 16, 2012.
24

8.

Attached hereto as Exhibit G is a true and correct copy of reviews of the Galaxy

25 Tab™ Conductive Stylus titled “Reviews & Ratings – Galaxy Tab Accessories ET-S100CBEG”
26 with one review dated March 1, 2011, downloaded from
27 http://www.samsung.com/us/mobile/galaxy-tab-accessories/ET-S100CBEGSTA-reviews on
28 October 16, 2012.
Case No. 12-CV-00630-LHK (PSG)
FAZIO DECL. ISO SAMSUNG'S OPP.
TO APPLE'S MOT. FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS

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1

9.

Attached hereto as Exhibit H is a true and correct copy of an entry on the Google+

2 social network titled “The rollout of Android 4.1, Jelly Bean, begins today…” dated July 11, 2012,
3 and downloaded from https://plus.google.com/+Nexus/posts/QLETQNekJ6D on October 16,
4 2012.
5

10.

Attached hereto as Exhibit I is a true and correct copy of an entry on the Google

6 Groups message board titled “4.1.2 in AOSP” dated October 9, 2012, and downloaded from
7 https://groups.google.com/forum/#!msg/android-building/2rkEoKMnhzU/3s-GgaU_NT0J on
8 October 18, 2012.
9

11.

Attached hereto as Exhibit J is a true and correct copy of a website on the Android

10 Open Source Project titled “Philosophy and Goals”, downloaded from
11 http://source.android.com/about/philosophy.html on October 18, 2012.
12
13

I declare under penalty of perjury under the laws of the United States of America that the

14 foregoing is true and correct.
15

Executed on October 19, 2012.

16
17

/s/ Michael L. Fazio
Michael L. Fazio

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Case No. 12-CV-00630-LHK (PSG)
FAZIO DECL. ISO SAMSUNG'S OPP.
TO APPLE'S MOT. FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS

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