Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
1596
ORDER on 1587 Apple's Objections and 1585 Samsung's Objections Re: Winer, Poret, Van Liere, and Balakrishnan Examination Exhibits. Signed by Judge Lucy H. Koh on 8/6/12. (lhklc3S, COURT STAFF) (Filed on 8/6/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the 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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v.
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SAMSUNG ELECTRONICS CO., LTD., A
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
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Defendants.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS RE: WINER,
PORET, VAN LIERE, AND
BALAKRISHNAN EXAMINATION
EXHIBITS
(re: dkt. #1585, 1587)
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Both parties have filed objections to the exhibits and materials to be used for the direct and
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cross-examinations of: (1) Russell Winer; (2) Hal Poret; (3) Kent Van Liere; and (4) Ravin
Balakrishnan. See ECF Nos. 1585, 1587. After reviewing the parties’ briefing, considering the
record in this case, and balancing the considerations set forth in Federal Rule of Evidence 403
(“FRE 403”), the Court rules on the parties’ objections as follows:
1.
RUSSELL WINER
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR WINER,
PORET, VAN LIERE, AND BALAKRISHNAN
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United States District Court
For the Northern District of California
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AND
EXHIBIT NO.
Winer:
Sustained. FRE 703 permits an expert to base his or her opinion on “facts or
PDX28.25
data” that the expert has been made aware of or has personally observed.
However, under FRE 703, “Facts or data that are otherwise inadmissible shall not
be disclosed to the jury by the proponent of the opinion or inference unless the
court determines that their probative value substantially outweighs their
prejudicial effect.” In this case, allowing Winer to testify regarding a survey
conducted by Dr. Van Liere is not permitted by the Federal Rules. See In re
Imperial Credit Indus., Inc. Sec. Litig., 252 F. Supp. 2d 1005, 1012 (C.D. Cal.
2003). Indeed, Apple has not shown that the probative value of the survey
evidence it seeks to introduce substantially outweighs the prejudicial effect of
effectively shielding Dr. Van Liere from cross-examination. Apple has adduced
no good reason why Dr. Van Liere himself cannot testify regarding his survey
methodology and his survey results.
Winer:
Sustained. FRCP 26(a) & 26(e)(1) requires that a party must timely supplement
PDX28.27
an interrogatory response when the party learns of additional information. A
party may not use untimely disclosed evidence at trial except upon a showing
that “the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). Samsung’s Interrogatory No. 71 required Apple to “state fully and in
detail on a trade dress-by-trade dress and trademark-by-trademark basis all facts
that support YOUR contention that the SAMSUNG product or product
packaging is likely to cause confusion, cause mistake, or deceive consumers as to
the affiliation, connection, or association of SAMSUNG
with APPLE, or as to origin, sponsorship, or approval by APPLE of
SAMSUNG’S goods, services or commercial activities.” Apple failed to
disclose its intent to rely on the testimony of Mr. Lee to support its argument of
consumer confusion. Apple has not shown that this failure to amend is
substantially justified or harmless.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Winer:
Overruled. The demonstrative is not unduly misleading. The demonstrative
SDX3917.104 depicts the registration.
Winer:
Sustained. This issue was raised and resolved in Court on August 6, 2012.
SDX3917.119 Samsung may demonstrate the actual home screen and the applications screen of
the Droid Charge to the jury. Samsung’s home screen is relevant to Apple’s
trade dress claim. However, the D’305 Patent is only being asserted against the
application screen, so the parties should be clear that when discussing the D’305
Patent, the relevant comparison is the application screen.
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2.
HAL PORET
A. Samsung’s Objections
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR WINER,
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WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Poret: PX23,
Overruled. Apple’s expert Dr. Poret surveyed respondents who had purchased
PDX30.2-30.5 mobile phones in the past 12 months or were likely to purchase a mobile phone
in the next 12 months, to determine whether these consumers recognized Apple
as the source of the iPhone and iPad designs. Dr. Poret will testify that his
recognition survey shows that Apple’s iPhone and iPad designs have acquired
secondary meaning. PX23 contains the images used in Dr. Poret’s recognition
survey and PDX 30.2-30.5 summarize the recognition survey results.
Samsung argues that PX23 and PDX 30.2-30.5 are misleading because these
exhibits use the term “recognition” in their titles. “Recognition,” Samsung
argues, is only relevant to whether a trade dress is famous. See ECF No. 1585 at
6. In contrast, Samsung argues that “recognition” is irrelevant to whether a
design has acquired secondary meaning and become a protectable trade dress
under the Lanham Act. See id. Accordingly, Samsung argues that use of the
term “recognition” will confuse the jury. However, Samsung itself explains that
the primary distinction between secondary meaning and fame is the size of the
consumer audience. See id. (“Whereas secondary meaning is measured among
plaintiff’s purchasers and likely purchasers . . . fame is measured among the
general consuming public of the United States”) (internal citations and quotations
omitted). Whether mobile phone consumers recognize the iPhone and iPad
designs as indicating an Apple product is highly relevant to the jury in
determining whether these designs have acquired secondary meaning.
Accordingly, PX23 and PDX30.2-30.5 are admissible under FRE 401, 403, and
703.
Apple argues that the jury should also be allowed to consider the Poret survey as
evidence of fame. However, the survey did not sample the opinions of the
general population, and Dr. Poret is not giving expert testimony as to the
relevance of his survey to trade dress fame. Accordingly, the jury may not apply
the Poret survey findings to the issue of fame, The Court will issue a limiting
instruction that the jury may consider the Poret survey as evidence that the Apple
designs have acquired secondary meaning, but the jury may not consider the
Poret survey as evidence that the Apple designs are famous.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Poret: DX628
Sustained. Samsung has not established that it disclosed DX628 in a timely
manner. See ECF No. 1519 at 2 (excluding DX628 from cross-examination).
Accordingly, the Court has previously excluded DX628 as cross-examination
evidence. See id. The Court’s prior ruling applies here.
Poret:
Reserved. Apple objects that SDX3705.109 includes percentages not included in
SDX3705.109 Dr. Poret’s expert report. Apple reasons that these percentages must have been
calculated by Samsung attorneys by unknown methods. Accordingly, Apple
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR WINER,
PORET, VAN LIERE, AND BALAKRISHNAN
argues that Samsung therefore cannot establish foundation for any testimony Dr.
Poret might give on these percentages.
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Samsung asserts that these percentages were calculated in Dr. Jacoby’s rebuttal
expert report, which re-analyzed Dr. Poret’s survey data. Furthermore, Samsung
asserts that Dr. Poret testified in deposition that he reviewed Dr. Jacoby’s
rebuttal report, and that Dr. Poret then re-examined his own data for 6-10 hours.
Samsung has not provided the Court with all of its expert reports. Samsung must
file by 8:00 a.m. on Tuesday, August 7, 2012, the portions of Dr. Jacoby’s
rebuttal report and the passages of Dr. Poret’s deposition testimony discussing
Dr. Jacoby’s percentages.
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3.
KENT VAN LIERE
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Van Liere:
Overruled. Samsung objects to Apple’s references to “dilution” in the slides
PDX31
relating to Dr. Van Liere’s post-sale confusion survey on the ground that this is a
“new theory regarding trade dress dilution” not previously disclosed. Samsung
does not, however, suggest that the surveys themselves were untimely disclosed.
Evidence of post-sale consumer confusion is relevant to Apple’s trade dress
dilution claims as a matter of law, and therefore Apple is free to argue that Dr.
Van Liere’s expert testimony (including his consumer confusion survey
evidence) is relevant to Apple’s trade dress dilution claims. For the same reason,
the titles of the slides are not misleading or improperly argumentative under FRE
403. Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168, 178 (2d
Cir. 2000), on which Samsung relies, does not hold to the contrary. Federal
Express in fact confirms that “[w]hile neither actual confusion nor likelihood of
confusion is necessary to sustain an action for dilution, it does not follow that
actual confusion cannot be highly probative of dilution. Confusion lessens
distinction. When consumers confuse the junior mark with the senior, blurring
has occurred.” 201 F.3d at 176 (internal quotation marks and citation omitted).
The Second Circuit later noted that the absence of any evidence of actual or
likely confusion “is relevant” not to the court’s determination of dilution, but
rather “to the court’s determination of whether an injunction is needed before the
merits are decided,” because the absence of confusion is relevant to “the likely
pace” of any erosion of trade dress distinctiveness. Id. at 178 (emphasis added).
Thus, to the extent Samsung is effectively seeking reconsideration of the Court’s
earlier Daubert ruling on George Mantis’ consumer confusion survey evidence,
such request is denied. It bears noting that while evidence of an absence of
consumer confusion is not probative of a dilution claim, Samsung of course
remains free to introduce evidence of lack of consumer association between
Apple’s and Samsung’s marks.
B. Apple’s Objections
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR WINER,
PORET, VAN LIERE, AND BALAKRISHNAN
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WITNESS
AND
EXHIBIT NO.
Van Liere:
SDX3900.112,
SDX3900.129
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COURT’S RULING ON OBJECTION
Overruled. Apple objects that these demonstratives depict tablets and phones
made by companies other than the parties, and that Samsung will be unable to lay
a proper foundation for testimony about these products. Samsung may be able to
lay a proper foundation. Moreover, in examining Dr. Van Liere about his
consumer confusion surveys, Apple will open the door on cross to rebuttal of Dr.
Van Liere’s survey design, including Dr. Van Liere’s process for selecting
control products (which were also products made by third-party companies).
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4.
RAVIN BALAKRISHNAN
A. Samsung’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Balakrishnan:
Overruled. PX46 (“Behold3 Usability Evaluation Results”) is an internal
PX46
Samsung document comparing features of a Samsung Behold3 phone and an
Apple iPhone, and suggesting possible improvements to the Behold3. Dr.
Balakrishnan discussed this document in ¶ 52 of his infringement expert report
on the ’381 Patent. Patel Decl., Ex. A at ¶ 52. Dr. Balakrishnan examined
Samsung phones and concluded that Samsung had implemented the
recommended improvement to “[p]rovide a fun visual effect when dragging a
webpage,” by implementing an embodiment of the ’381 Patent. Id. at ¶¶ 51-52.
Dr. Balakrishnan is qualified to give expert testimony on: (1) references to
embodiments of ’381 Patent’s bounce back feature in PX46; (2) absence of the
bounce back feature in the Behold3; and (3) existence of the bounce back feature
in later Samsung phones. This expert testimony is relevant to whether Samsung
copied the ’381 Patent’s bounce back feature, and copying in turn is relevant to
whether Samsung willfully infringed the ’381 Patent. Accordingly, PX46 is
admissible. However, the ultimate determination of copying based on the PX46
evidence is a question for the jury and is not a proper subject for expert
testimony. See Abaxis Inc., v. Cepheid, C.A. No. 10-CV-02840, 2012 U.S. Dist.
LEXIS 100530 (N.D. Cal. July 19, 2012) (holding that an expert could testify
regarding underlying technical issues relevant to copying but could not offer an
opinion on the ultimate legal question of copying). Accordingly, although PX46
is admissible, Dr. Balakrishnan may not opine on the ultimate question of
copying.
Balakrishnan:
Overruled. Samsung objects to this demonstrative because it shows Samsung
PDX27
phones that allegedly infringe the ’381 Patent without specifying which version
of Android the phones are using. Samsung untimely disclosed source code
designing around the ’381 Patent. Judge Grewal excluded this evidence. ECF
No. 898. This Court affirmed Judge Grewal’s exclusion. ECF No. 1545. Thus,
if design arounds are not at issue, which Android source code version is on each
accused device appears irrelevant. The jurors will have each actual device to
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR WINER,
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inspect themselves for alleged infringement. Samsung’s objection is overruled
per FRE 403.
B. Apple’s Objections
WITNESS
COURT’S RULING ON OBJECTION
AND
EXHIBIT NO.
Balakrishnan:
Sustained. Samsung seeks to introduce this Android source code because “Dr.
DX2556
Balakrishnan only relies on four versions of Android source code, but is accusing
21 products.” See ECF No. 1585 at 8. However, Samsung has not informed
Apple or the Court which source code is included in DX2556. See ECF No.
1585 at 8-9; ECF No. 1857 at 2-3. Nor has Samsung indicated that the DX2556
source code was timely disclosed during discovery. See ECF No. 1585 at 8-9.
Judge Grewal sanctioned Samsung for failing to timely disclose Android source
code, and ordered that that Samsung may not rely on Android source code that
was not timely produced or that is relevant to Samsung design arounds. See ECF
No. 898 at 5, 9. By 8:00 a.m. on Tuesday, August 7, 2012, Samsung must file a
statement identifying what version of Android source code is in DX2556 and
documentation that Samsung timely produced this source code.
Balakrishnan:
Sustained. Samsung seeks to introduce this document “to establish that Dr.
DX2552
Balakrishnan provided expert testimony on behalf of Apple in [the parallel ITC
proceeding] 337-TA-797.” ECF No. 1585 at 8. DX2552 includes discussions of
alternative claim constructions (“electronic document” and other terms, DX2552
at 13-15) and excluded evidence (the “Glimpse” reference, DX2552 at 19-20).
Furthermore, the Court granted Samsung’s motion in limine to exclude the
findings of parallel proceedings as confusing to the jury. See ECF No. 1269 ¶
14. Accordingly, the Court sustains Apple’s objection because the risk of
confusing the jury and of introducing excluded evidence outweighs the probative
value of DX2552 under FRE 403.
IT IS SO ORDERED.
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Dated: August 6, 2012
_________________________________
LUCY H. KOH
United States District Judge
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR WINER,
PORET, VAN LIERE, AND BALAKRISHNAN
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