The beat goes on in the Apple v. Samsung post-verdict maneuvers. Apple and Samsung have both filed lists of attachments to post-trial motions, as the judge had ordered them to do the other day. And Samsung is asking the court to let it supplement the record with an expert declaration, and of course Apple strongly opposes [PDF]:
Less than 17 hours before the scheduled hearing on Apple?s motion for a permanent injunction, Samsung seeks leave to file a supplemental expert declaration to respond to a reply declaration filed on November 9, 2012 ? almost a month ago. The Court should deny Samsung?s motion for leave not only because the requested relief is untimely and irrelevant, but because it is nothing more than ?a vehicle for circumventing the Court?s page limits? and an attempt to cure Samsung?s failure of proof in its prior declaration. (Dkt. No. 2181 at 1.)Apple claims Samsung is trying to correct a mistake, and there is a long song and dance about how horrible Samsung is acting, trying to fix the error. The judge may well agree, but on the other hand, Apple is asking to ban Samsung products from the US entirely, and that's a serious matter for Samsung, so one might argue that it surely doesn't hurt to get it right and have all the evidence on the table to make a correct decision.
Here's the docket, so you can decide for yourself:
And here's the supplemental declaration [PDF] that Apple is so hot and bothered about, and the request [PDF] for leave to file it.12/06/2012 - 2187 - Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Proposed Order, #2 APPLES OPPOSITION TO SAMSUNGS ADMINISTRATIVE MOTION FOR LEAVE TO FILE A SUPPLEMENTAL DECLARATION OF STEPHEN GRAY IN SUPPORT OF SAMSUNGS OPPOSITION TO PERMANENT INJUNCTION MOTION, # 3 Declaration DECLARATION OF DEOK KEUN MATTHEW AHN IN SUPPORT OF APPLES OPPOSITION TO SAMSUNGS ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION OF STEPHEN GRAY, # 4 Exhibit 1, # 5 Proposed Order)(Jacobs, Michael) (Filed on 12/6/2012) (Entered: 12/06/2012)
12/07/2012 - 2188 - RESPONSE to re 2181 Order Apples Lists Of Supporting Documentation Submitted With Post-Trial Motions by Apple Inc.. (Jacobs, Michael) (Filed on 12/7/2012) (Entered: 12/07/2012)
12/07/2012 - 2189 - RESPONSE to re 2181 Order Samsung's Response to the Court's December 4, 2012 Order to File Lists of Supporting Documentation by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 12/7/2012) (Entered: 12/07/2012)
Here's Apple's Opposition to Samsung's Administrative Motion for Leave to File a Supplemental Declaration of Stephen Gray in Support of Samsung's Opposition to Permanent Injunction Motion, as text:
APPLE?S OPPOSITION TOHigh crimes indeed. The nerve of Samsung, to try to show the court that it has done work arounds and so should not be banned from the US market.
SAMSUNG?S ADMINISTRATIVE
MOTION FOR LEAVE TO FILE A
SUPPLEMENTAL DECLARATION
OF STEPHEN GRAY IN SUPPORT
OF SAMSUNG?S OPPOSITION TO
PERMANENT INJUNCTION
MOTIONI. FACTUAL BACKGROUND
Less than 17 hours before the scheduled hearing on Apple?s motion for a permanent injunction, Samsung seeks leave to file a supplemental expert declaration to respond to a reply declaration filed on November 9, 2012 ? almost a month ago. The Court should deny Samsung?s motion for leave not only because the requested relief is untimely and irrelevant, but because it is nothing more than ?a vehicle for circumventing the Court?s page limits? and an attempt to cure Samsung?s failure of proof in its prior declaration. (Dkt. No. 2181 at 1.)
I. FACTUAL BACKGROUND
On October 19, 2012, Samsung filed its opposition to Apple's motion for a permanent injunction. In 35 pages of briefing, Samsung devoted a grand total of 1 sentence and 1 footnote to the opinions of its expert, Stephen Gray, on an alleged design-around. (Dkt. No. 2054 at 14 n.11.) In violation of the Court?s page limits, that single sentence in Samsung?s brief referenced 45 substantive paragraphs from Mr. Gray?s declaration spanning 10 pages of text. (Dkt. No. 2054-2.) Moreover, rather than including or even describing specific lines of Samsung?s allegedly modified, non-infringing source code and how they differ from the code that was found to infringe at trial, Mr. Gray?s declaration and Samsung?s opposition brief simply made broad assertions that ?Samsung has implemented non-infringing design-arounds.? (Dkt. No. 2054 at 14.)
Judge Grewal agreed that Mr. Gray?s declaration covered a ?new subject area[]? and granted Apple?s motion to compel his deposition. (Dkt. No. 2105 at 2, 4.) At this deposition, Apple was provided with the basic information about the alleged code modifications that should have been in Mr. Gray?s declaration. Apple then was able to respond to these assertions in its reply brief and through Karan Singh?s November 9, 2012 declaration (Dkt. No. 2127-3).
Despite having the full basis for Dr. Singh?s opinions in his reply declaration ? including specific citations to Samsung?s source code, Samsung then insisted on deposing Dr. Singh. Samsung did so knowing full well that Dr. Singh was on sabbatical in India. When Judge Grewal agreed that Dr. Singh?s deposition should proceed, Apple immediately offered early dates for a video conference deposition from India. After Samsung rejected that offer, Apple then offered early dates for an in person deposition in Singapore in light of Dr. Singh?s travel commitments. Only at Samsung?s insistence was the deposition relocated to Hong Kong and deferred until
1
December 3. At no time prior to last night did Samsung ever request permission from the Court to have Mr. Gray opine on the source code identified by Dr. Singh on November 9, 2012.II. SAMSUNG HAS FAILED TO JUSTIFY ANOTHER EXPERT DECLARATION
The Court has consistently emphasized that the briefing page limits for the parties? post-trial motions would be ?strictly enforced.? (Dkt. No. 1945 at 3.) Accordingly, the Court should deny Samsung?s motion for leave to file a supplemental declaration from Mr. Gray ? particularly in light of the Court?s stated intention to strike materials ?submitted in violation of the Court?s Order.? (Dkt. No. 2181 at 1.) Whatever its contents, one thing is certain: they are not discussed in Samsung?s brief.
FROM STEPHEN GRAYMoreover, the alleged ?design around? for the ?915 patent that is the subject of Mr. Gray?s original and supplemental declarations is irrelevant to whether an injunction should issue. Through Mr. Gray?s declarations, Samsung has improperly attempted to conflate a contempt proceeding with the underlying motion for an injunction, which the Federal Circuit has made clear must maintain precedence. See Int?l Rectifier Corp. v. IXYS Corp., 383 F.3d 1312, 1317-18 (Fed. Cir. 2004), (affirming district court?s denial of infringer?s request to ?exclude[] from the scope of the injunction devices made according to [its] modified design,? since ?[i]t would have been improper for the district court to address that issue until or unless it was properly before the court? in later contempt proceeding); see also TiVo Inc. v. EchoStar Corp., 646 F.3d 869, 881-883 (Fed. Cir. 2011) (en banc) (noting that the court?s duty in a contempt proceeding is to ?make an inquiry into whether that modification is significant? when ?one or more of those elements previously found to infringe has been modified . . .?); MercExchange, L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 575 n.16 (E.D. Va. 2007) (noting after remand, ?the court places no weight on eBay?s purported design-around because . . . the complexity of the issue requires analysis that cannot be faithfully completed based upon a few pages of written argument and appended declarations, and because the court agrees with MercExchange that it should not be required to prove infringement twice in order to obtain an injunction?).
Because infringement by modified or different Samsung products is properly the subject of
2
a contempt proceeding after issuance of an injunction, the Court need not decide now whether modified Samsung products are not more than colorably different from the products that the jury already concluded did infringe the ?915 patent. Therefore, no further declaration from Mr. Gray on this issue is necessary for the Court to decide Apple?s motion for a permanent injunction.But even if Mr. Gray?s opinions were somehow relevant to the permanent injunction motion pending before the Court, Samsung should not be allowed to submit a belated ?do over? declaration from Mr. Gray that provides a more detailed discussion of Samsung?s own source code, misleadingly and incompletely cites to Dr. Singh?s deposition testimony, and raises new issues withheld from Mr. Gray?s original declaration to deprive Apple of a fair opportunity to respond. Samsung made a tactical decision not to cite to its own code even once in its opposition to Apple?s motion or in the ten pages of sweeping and unfounded assertions in Mr. Gray?s original declaration. Samsung should not be permitted to change course and to submit a more detailed argument on the evening before the hearing.
Mr. Gray?s purposely vague and misleading original declaration failed to cite a single line of Samsung?s modified code, instead relying on broad assertions that the modified code employs an unexplained ?fundamentally different technique.? (Dkt. No. 2054-2 ? 37.) Even a cursory examination of Mr. Gray?s supplemental declaration reveals that the primary substantive difference between his two declarations is that the more recent one actually cites to Samsung?s source code. (See generally Dkt. No. 2183-2.)
In view of the lack of detail and absence of citations to modified source code in Mr. Gray?s original declaration, Dr. Singh identified the specific code omitted from Mr. Gray?s original declaration and explained its functionality. Dr. Singh further explained that this functionality was fundamentally unchanged from the infringing source code analyzed at trial. Far from offering a ?brand new theory of infringement for . . . the ?915 patent? (Dkt. No. 2183-1 at 1), Dr. Singh made clear in his declaration that Samsung?s ?new? code still infringed, which was proper rebuttal limited to exposing the fiction in Mr. Gray?s original declaration that dressing up infringing code in different clothing somehow rendered it non-infringing.
Despite having had its own source code since its creation, and Dr. Singh?s analysis of that
3
code for almost a month, Samsung waited until the last minute to request permission to file Mr. Gray?s supplemental declaration regarding that same code. Samsung?s contention that it somehow required Dr. Singh?s deposition to understand his opinions on Samsung?s own source code lacks merit. Indeed, Samsung admits in its motion that Mr. Gray did not require Dr. Singh?s deposition testimony to formulate his opinion, and only ?relie[d] on Dr. Singh?s admissions to confirm his opinion.? (Dkt. No. 2183-1 at 1 (emphasis added).)Finally, the Court should deny Samsung?s motion because the Supplemental Gray Declaration violates the rule of completeness by selectively citing and mischaracterizing Dr. Singh?s testimony. As just one example, in paragraph 8 of his new declaration, Mr. Gray cites in the same sentence two lines from Dr. Singh?s testimony on one page and another two lines from 19 pages later in the transcript (?401:16-18 and 419:8-9?). (Dkt. No. 2183-2 ? 8.) To understand the context of the excerpted testimony, one would need to, at a minimum, review pages 401:1-25, 13 404:24-406:25, 417:20-25, and 419:6-9. (See Declaration of Deok Keun Matthew Ahn in Support 14 of Apple?s Opposition to Samsung?s Administrative Motion, filed herewith, Ex. 1 at 401-419.) Because Apple will be prejudiced by not being afforded a full and fair opportunity to respond to Mr. Gray?s belated opinions or to even have Dr. Singh?s deposition testimony understood in context, the Court should deny Samsung?s motion.
CONCLUSION
Because the source code identified in Dr. Singh?s declaration (and notably absent from Mr. Gray?s original declaration) does what it does regardless of Samsung?s attempts to characterize it during Dr. Singh?s deposition, Samsung never needed Dr. Singh?s deposition to explain its functionality. Having elected not to timely explain its own code in any meaningful fashion in Mr. Gray?s original declaration, Samsung should not be allowed to undo its ?hide the ball? litigation strategy now.Dated: December 6, 2012
MORRISON & FOERSTER LLP
By: /s/ Michael A. Jacobs
Michael A. JacobsAttorneys for Plaintiff
APPLE INC.4
You can find the Gray declaration and various exhibits mentioned on Samsung's list of attachments (#2189) on page 12 of the filing. And you can find the declaration itself listed on our Apple v. Samsung Timeline, page 2. It's attached to docket number 2054 [PDF], Samsung's opposition to Apple's motion for judgment as a matter of law. Unfortunately, the Gray motion was filed manually, so we can't read it unless someone stops by the courthouse and picks it up. But here's how Samsung's footnote reads that Apple highlights as being inadequate:
The new source code no longer contains ?instructions for, in response to detecting the second gesture, translating the structured electronic document so that the second box is substantially centered on the touch screen display? as required by claim 50 of the ?163 patent. Gray Decl. ??51-55. Now the product either does nothing (single tap) or zooms out (double tap) in response to the second gesture. Id. ?52. Likewise, the new code no longer performs the ?quintessential test? of ?distinguishing between a single input point . . . that is interpreted as the scroll operation and two or more input points . . . that are interpreted as the gesture operation? as required by claim 8 of the ?915 patent. Id. ??31-44; RT 1822:22-1826:22 (Singh testimony).I can't tell you how much it bothers me that anyone would have to work around patents like these. Apple wants to make it impossible for competing devices to work as one would expect a device to work. That way it gets to be perceived as the best in the world, thank to a patent system run amok.
Patents on gestures, on tapping a screen twice.
Source: http://www.groklaw.net/article.php?story=20121208100325707
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