15-10-15 oracle motion to disqualify damages expert
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MOTION TO DISQUALIFY
THE RULE 706 EXPERT
CV 10-03561 WHA
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ORRICK, HERRINGTON & SUTCLIFFE LLPKAREN G. JOHNSON-MCKEWAN (SBN 121570)[email protected] L. HURST (SBN 148738)[email protected] M. RAMSEY (SBN 209218)[email protected] Howard Street, San Francisco, CA 94105Tel: 1.415.773.5700 / Fax: 1.415.773.5759PETER A. BICKS ( pro hac vice)
[email protected] T. SIMPSON ( pro hac vice)[email protected] West 52nd Street, New York, NY 10019Tel: 1.212.506.5000 / Fax: 1.212.506.5151
BOIES, SCHILLER & FLEXNER LLPDAVID BOIES ( pro hac vice)[email protected]
333 Main Street, Armonk, NY 10504Tel: 1.914.749.8200 / Fax: 1.914.749.8300STEVEN C. HOLTZMAN (SBN 144177)[email protected] Harrison St., Ste. 900, Oakland, CA 94612Tel: 1.510.874.1000 / Fax: 1.510.874.1460
ORACLE CORPORATIONDORIAN DALEY (SBN 129049)[email protected] K. MILLER (SBN 95527)[email protected] M. SARBORARIA (SBN 211600)
[email protected] Oracle Parkway,Redwood City, CA 94065Tel: 650.506.5200 / Fax: 650.506.7117
ttorneys for Plaintiff ORACLE AMERICA, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.,Plaintiff,
v.
GOOGLE INC.,
Defendant.
Case No. CV 10-03561 WHANOTICE OF MOTION AND MOTIONTO DISQUALIFY THE RULE 706EXPERT
Date: November 19, 2015Time: 8:00 a.m.Dept.: Courtroom 8, 19th Floor Judge: Honorable William H. Alsup
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THE RULE 706 EXPERT
CV 10-03561 WHA
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NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE
THAT the following Motion to Disqualify the Rule 706 Expert will be heard on November 19,
2015 at 8:00 a.m., or as soon thereafter as counsel may be heard, in Courtroom 8, 19th Floor of
this Court, located at 450 Golden Gate Avenue, San Francisco, California, the Honorable William
H. Alsup presiding. Plaintiff Oracle America, Inc. will and hereby does move to disqualify the
Court’s Rule 706 expert on the grounds that it is no longer appropriate for Dr. Kearl to serve as a
neutral expert based on his work since the last trial, and that no other Rule 706 expert is needed in
light of the reduced scope of the case.
This motion is based on the Notice of Motion and Motion to Disqualify the Rule 706
Expert, the following Memorandum of Points and Authorities, the Declaration of Peter A Bicks,
the pleadings and papers on file in this action, and such other and further papers and argument
presented prior to or at the hearing on the Motion.
Dated: October 15, 2015
/s/ Peter A. BicksPETER A. BICKS
Attorney for Plaintiff ORACLE AMERICA, INC.
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THE RULE 706 EXPERT
CV 10-03561 WHA
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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
It is no longer appropriate for Dr. Kearl to serve as a neutral expert in this case. When he
was hired by Samsung in Apple v. Samsung , he sided with Google in a highly-publicized case
where the patents at issue involved technology that is part of Android. The case, still ongoing in
this district, was effectively Apple v. Google: Google agreed to indemnify Samsung, the very
same attorneys represented Google and Samsung, and Google had control and authority over
Samsung’s defense. And one of the issues in that case was whether, as Apple argued, Samsung
used Dr. Kearl’s analysis to give the jury a low damages number in an attempt to make all patents
appear to have little value. Or, as Apple asked the jury, why else would Samsung pay experts $5
million to pursue a $6 million claim if not to try to devalue patents? Having an expert wear the
hat of a neutral party in this case when he previously wore an Android hat is prejudicial to Oracle
and risks injecting complications into the case that should be avoided.
Nor should the Court replace Dr. Kearl because a Rule 706 expert is no longer necessary
in this case. The damages analysis will not have the same complexity now that the patent claims
are out of the case. The parties’ experts in the normal adversary process will sufficiently present
the issues to the Court and the jury. If the Court nevertheless concludes that an expert is
necessary to assist the Court in evaluating the reports of the parties’ experts, the parties should
jointly select a neutral expert who should not testify in front of the jury.
ARGUMENT
I. It Is Inappropriate For Dr. Kearl To Remain As A Neutral Expert.
Because a Rule 706 expert is appointed by the Court, he must remain neutral throughout
the proceedings. See Students of California Sch. for the Blind v. Honig , 736 F.2d 538, 549 (9th
Cir. 1984) (“Rule 706 allows the court to appoint a neutral expert on its own motion.”); vacated
on other grounds, 471 U.S. 148, 149-50 (1985); Gorton v. Todd, 793 F. Supp. 2d 1171, 1177
(E.D. Cal. 2011) (“The Rule only allows a court to appoint a neutral expert.”). This Court has
also recognized a Rule 706 expert’s neutrality, stating that the expert should provide a “neutral
explanation and viewpoint,” ECF 236 at 2, have “no conflicts,” ECF 610 at 4, and be
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“unimpeachable,” ECF 350 at 23.
Since Dr. Kearl testified in Apple v. Samsung —not as a neutral expert but, as we now
know, one hired by Samsung1 —it is no longer appropriate for him to serve in this neutral role.
Samsung is a leading Android device maker. And while Samsung was named as the defendant in
Apple v. Samsung , Samsung argued that the case was “really about Apple versus Google’s
Android.” Samsung Tr. 367.2 This was not an offhand remark, it was one of Samsung’s major,
oft-repeated themes: “It’s an attack on Android. It’s an attack, it’s an attack . . . It’s the truth.
It’s an attack on Android, and that’s what this case is.” Id. at 358-59; see also, e.g., id. at 372 (“A
holy war on Android.”); id. at 359 (Apple is “trying to limit consumer choice and to gain an
unfair advantage over its one major competitor, Google’s Android.”); id at 3267 (“[W]e have a
holy war with Google”). Samsung made this argument because the patents at issue dealt with
software features that are in Google’s Android, not hardware that is part of Samsung’s equipment.
Id. at 356-57. For example, one patent involved technology that allowed a user to run a search
both on the internet and locally on the phone. Id. at 1929. Even Apple’s counsel quoted an article
describing the search ability as “an awesome feature for Android.” Id. at 323.
On top of that, one of Samsung’s main defenses was that Google’s engineers are so
skilled, they would never copy. See, e.g., id. at 356 (“[The] accused features on [the Samsung]
phone were developed independently by . . . the software engineers at Google . . . .”); id. at 368
(Google’s engineers “don’t need to copy Apple.”); id at 370 (“the hard work and the ingenuity of
the engineers at Google”); id. at 356 (“most sophisticated and creative minds in the smartphone
industry”); id. at 368 (“they can do just about anything”); id. at 3258 (“brilliant engineers, [at]
Google, right up the street”); id. at 3265 (“these independent geniuses at Google”). That defense
made by the party who hired Dr. Kearl undermines his neutrality. In our case, it has already been
determined that Google did copy thousands of lines of Oracle’s code rather than create its
1See Declaration of Peter A. Bicks (“Bicks Decl.”) Ex. 5 (Dr. Kearl Apple v. Samsung Corrected
Expert Report) at 3.2 Citations to the trial transcript from Apple v. Samsung will be “Samsung Tr. __.” See BicksDecl. Ex. 1, 3-4. Citations to docket entries from that case will be “Samsung ECF __.” SeeBicks Decl. Ex. 3. The Apple v. Samsung docket number is 12-CV-00630-LHK (N.D. Cal.).
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libraries entirely from scratch.
Dr. Kearl argues that the Apple v. Samsung case’s emphasis on Android is not relevant
because Dr. Kearl was involved with Samsung’s counterclaims against Apple, which meant his
“analysis focused on the value of the asserted patents in the Apple products.” ECF 1313 at 4.
Accordingly, Dr. Kearl claims, “to the degree that a mobile operating system or platform was
relevant, that operating system would have been the Apple iOS operating system and not
Android.” ECF 1313 at 4. But that point fails to appreciate Oracle’s concerns with Dr. Kearl
serving as a neutral expert. The issue is not whether his analysis specifically dealt with Android.
A jury may well not appreciate that fine parsing of Dr. Kearl’s role. The issue is that Dr. Kearl
was on the Android/Google side of an extremely significant case, no matter whether he was on
offense, defense, or special teams.
Indeed, Google was involved in that case even more than being a focal point of the trial.
Google “agreed to indemnify Samsung,” as one Google lawyer testified in a 30(b)(6) deposition.
Samsung ECF 1920 at 13; Samsung Tr. 2785. As part of that indemnity, Google had the authority
to “control the litigation and defense.” Samsung ECF 1920 at 16; see also id. at 17 (noting that
Google has “control and authority over the defense” of at least two of the patents at issue).
The Google-Samsung connection was so strong that Google and Samsung were even
represented by the same attorneys in Apple v. Samsung . For some “third party” discovery issues,
Google itself filed briefs, rather than acting through Samsung. See, e.g., Samsung ECF 142. On
the Apple v. Samsung docket, all the attorneys representing Google are also attorneys representing
Samsung. See Samsung docket 12-CV-00630-LHK. There was effectively no difference
between Samsung and Google.
Dr. Kearl nevertheless contends that he was not part of any “strategy of defending
Android” because he was involved in Samsung’s counterclaims against Apple. ECF 1313 at 4.
This is at best a superficial approach. Apple laid bare the real strategy: that those counterclaims
were a key part of Samsung’s defense. Apple asked for over $2 billion in damages, Samsung Tr.
337. (It had just secured a $1 billion award against Samsung, see Apple Inc. v. Samsung
Electronics Co., 786 F.3d 983, 989 (Fed. Cir. 2015)). Samsung asserted patent counterclaims
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and, based on Dr. Kearl’s analysis, asked for only approximately $6 million. Samsung Tr. 3321.
Apple argued that Samsung was using Dr. Kearl to make all patents in the smartphone space seem
like they have a low value. Apple told the jury that it only made sense for Samsung to pay its
experts over $5 million to pursue a $6 million claim in one circumstance: “[I]f you’re trying to
devalue patents, all patents.” Id. at 3350-51; see also id. (“To devalue, to cheapen, to convince
you that patents are not worth that much.”); id. at 343 (“They want you to believe that patents are
not worth much.”).
Apple also suggested that Dr. Kearl artificially lowered his calculations, pointing to a part
of Dr. Kearl’s report where he stated that “[t]he value that . . . users placed on Facetime [an
allegedly infringing Apple feature] is likely higher, and likely many times higher, than the $.99
amount I used in my calculations.” Samsung Tr. 2673-74.
See Bicks Decl. Ex. 5 (Dr. Kearl Apple v.
Samsung Corrected Expert Report) at Tables 17a-f. Samsung, for its part, told the jury that
Apple’s “billion dollar numbers are completely unsupported,” and that it would “show [the jury]
how properly to calculate a royalty,” by demonstrating how “Dr. Kearl calculated these
damages.” Samsung Tr. at 412. In other words, Samsung’s lawyers directly offered Dr. Kearl’s
analysis as a rebuttal approach on the Android claims, not just as an affirmative calculation on
Samsung’s counterclaims.
Because Dr. Kearl was on the Android side of Apple v. Samsung , it is no longer proper for
him to serve as a neutral expert here. A Rule 706 expert is cloaked in the authority of the Court.
Cf. 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6302 (2015)
(“[B]ecause of the expert’s link to the court, a jury may fail to scrutinize his testimony to the
same extent it would the testimony of party experts. Thus, the testimony of a court-appointed
expert may undermine rather than promote accurate factfinding.”). Both Dr. Kearl and Samsung
appeared to recognize the power of a court endorsement. Of all the times that Dr. Kearl has
served as an expert witness, Samsung asked Dr. Kearl only about his role in this case during the
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Samsung trial. Dr. Kearl answered by highlighting that he was hired neither for a plaintiff nor for
a defendant, but for the Court in this case: “I’ve been an expert witness in a lot of cases, both for
plaintiffs and defendants. But a few years ago, I was hired by Judge William Alsup of the
Northern District of California to be a court expert, to be his expert.” Samsung Tr. 2657. During
closing statements, Samsung emphasized Dr. Kearl’s neutrality in our case as a reason for his
reliability: “[He] even was retained by the court to serve as a neutral expert for the court in
another case.” Samsung Tr. 3319.
Given Dr. Kearl’s participation in Samsung/Google’s defense, he should not remain as
this Court’s expert. Retaining him as a “neutral” expert is inviting real prejudice to Oracle and
confusion for the jury. As previously discussed, Dr. Kearl’s testimony at trial would force Oracle
to steer between Scylla and Charybdis. See ECF 1311 at 5. Normally, a party could cross-
examine an expert about his ties to the opposing side. But because Dr. Kearl is the Court’s
expert, that approach risks suggesting to the jury that the Court has in some way endorsed
Google’s side. And the jury may already be confused about why it’s hearing from a third expert
on the damages issue. The other option, not raising the Apple v. Samsung case at all, means not
being able to expose to the jury potential biases as would be possible with any other expert.
Dr. Kearl should no longer serve as a Rule 706 expert in this case.
II. A Rule 706 Expert Is No Longer Necessary.
The Court should not appoint any Rule 706 expert to replace Dr. Kearl because—as
Oracle previously explained, see ECF 1311 at 5-7—a Rule 706 expert is no longer necessary
(though Oracle acknowledges that the Court previously stated that it would reevaluate the need
for a Rule 706 expert after the parties submit their expert damages reports, July 30, 2015 Tr. at
48-50).
“Rule 706 should be invoked only in rare and compelling circumstances.” Monolithic
Power Sys., Inc. v. O2 Micro Int’l Ltd., 558 F.3d 1341, 1348 (Fed. Cir. 2009). That appointment
is generally reserved for “complex scientific, medical or technical matters,” Armstrong v. Brown,
768 F.3d 975, 987 (9th Cir. 2014); see, e.g., Walker v. Am. Home Shield Long Term Disability
Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (involving “contradictory evidence about an elusive
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disease of unknown cause”).
The damages calculations are not as complex as they were when the patent claims were
still in the case. In November 2011, the Court explained that an important reason why the
damages issue “was particularly involved” was that “[d]amages from patent infringement are
governed by different legal standards than damages from copyright infringement, [and] some
accused products and acts are relevant to both parts of the action.” ECF 610 at 2. This
complication no longer exists. Whatever may be said of the significantly more complex first trial
Oracle does not intend to assert “complicated damage theories” at the retrial. See ECF 1321 at
13. And the Court will be able to decide for itself once it has the opportunity to review the
parties’ expert reports.
III. A Rule 706 Expert Should Not Testify At Trial.
Even if the Court determines that it still requires a Rule 706 expert, the parties should
jointly select a neutral expert who should not testify in front of the jury. As Google previously
explained: “If the jury also hears testimony from a third, neutral expert, that will further
complicate the jury’s decision on damages. Moreover, if the jury is aware that the Court’s expert
was appointed by the Court and is not a representative of the parties, that expert will have a
powerful stamp of Court approval and objectivity that will lend a disproportionate weight to that
expert’s opinions and testimony.” ECF 235 at 3. Oracle agrees. Any Rule 706 expert should not
testify at the trial.
CONCLUSION
Dr. Kearl should no longer serve as a Rule 706 expert in this case, and the Court should
not appoint a new expert.
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Dated: October 15, 2015 KAREN G. JOHNSON-MCKEWANANNETTE L. HURSTGABRIEL M. RAMSEYPETER A. BICKSLISA T. SIMPSONOrrick, Herrington & Sutcliffe LLP
By: /s/ Peter A. BicksPETER A. BICKS
Attorneys for Plaintiff ORACLE AMERICA, INC.
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DECLARATION OF PETER A. BICKSCV 10-03561 WHA
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ORRICK, HERRINGTON & SUTCLIFFE LLPKAREN G. JOHNSON-MCKEWAN (SBN 121570)[email protected] L. HURST (SBN 148738)[email protected] M. RAMSEY (SBN 209218)[email protected] Howard Street, San Francisco, CA 94105Tel: 1.415.773.5700 / Fax: 1.415.773.5759PETER A. BICKS ( pro hac vice) [email protected] T. SIMPSON ( pro hac vice)[email protected] West 52
ndStreet, New York, NY 10019
Tel: 1.212.506.5000 / Fax: 1.212.506.5151
BOIES, SCHILLER & FLEXNER LLPDAVID BOIES ( pro hac vice)[email protected] Main Street, Armonk, NY 10504
Tel: 1.914.749.8200 / Fax: 1.914.749.8300STEVEN C. HOLTZMAN (SBN 144177)[email protected] Harrison St., Ste. 900, Oakland, CA 94612Tel: 1.510.874.1000 / Fax: 1.510.874.1460
ORACLE CORPORATIONDORIAN DALEY (SBN 129049)[email protected] K. MILLER (SBN 95527)[email protected] M. SARBORARIA (SBN 211600)[email protected]
500 Oracle Parkway,Redwood City, CA 94065
Tel: 650.506.5200 / Fax: 650.506.7117
Attorneys for Plaintiff ORACLE AMERICA, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.
Plaintiff,v.
GOOGLE INC.
Defendant.
Case No. CV 10-03561 WHA
DECLARATION OF PETER A. BICKSIN SUPPORT OF ORACLE’S MOTIONTO DISQUALIFY THE RULE 706EXPERT
Dept.: Courtroom 8, 19th Floor Judge: Honorable William H. Alsup
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I, Peter A. Bicks, declare and state as follows:
1. I am a partner with the law firm of Orrick, Herrington & Sutcliffe LLP (“Orrick”),
attorneys of record for plaintiff Oracle America, Inc. (“Oracle”). I am a member of the bar of the
State of New York and have been admitted pro hac vice in this action. I am familiar with the
events, pleadings and discovery in this action and, if called upon as a witness, I could and would
testify competently to the matters stated herein of my own personal knowledge.
2. I submit this declaration in support of Oracle’s Motion to Disqualify the Rule 706
Expert.
3. On September 10, 2015, Oracle submitted to this Court Dr. James Kearl’s trial
testimony in Apple v. Samsung , 12-CV-00630-LHK (N.D. Cal.) See ECF 1311-10, 1311-11.
4. Attached as Exhibit 1 is a true and correct copy of the April 1, 2014 trial transcript
from Apple v. Samsung . This transcript includes the opening statements from Apple and
Samsung.
5. Attached as Exhibit 2 is a true and correct copy of Exhibit 3010 in Apple v.
Samsung . It is ECF 1920 in that case. This exhibit includes a transcript of a video deposition of
James Maccoun.
6. Attached as Exhibit 3 is a true and correct copy of an excerpt of the April 22,
2014 trial transcript from Apple v. Samsung . This excerpt indicates when James Maccoun’s
videotaped deposition was played to the jury.
7. Attached as Exhibit 4 is a true and correct copy of the April 29, 2014 trial
transcript from Apple v. Samsung . This transcript includes the closing arguments from Apple and
Samsung.
8. Attached as Exhibit 5 is a true and correct copy of excerpts from the Corrected
Expert Report of Dr. James R. Kearl in Apple v. Samsung as produced by Quinn Emanuel.
///
///
///
///
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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 15th day of October, 2015, at New York, New York.
/s/ Peter A. BicksPeter A. Bicks
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EXHIBIT 1
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UNI TED STATES COURT REPORTERS
268
UNI TED STATES DI STRI CT COURT
NORTHERN DI STRI CT OF CALI FORNI A
SAN J OSE DI VI SI ON
APPLE I NC. , A CALI FORNI ACORPORATI ON,
PLAI NTI FF,
VS.
SAMSUNG ELECTRONI CS CO. , LTD. ,A KOREAN BUSI NESS ENTI TY;
SAMSUNG ELECTRONI CS AMERI CA,I NC. , A NEWYORK CORPORATI ON;SAMSUNG TELECOMMUNI CATI ONSAMERI CA, LLC, A DELAWARELI MI TED LI ABI LI TY COMPANY,
DEFENDANTS.
)))))))))
))))))))
C- 12- 00630 LHK
SAN J OSE, CALI FORNI A
APRI L 1, 2014
VOLUME 2
PAGES 268-497
TRANSCRI PT OF PROCEEDI NGSBEFORE THE HONORABLE LUCY H. KOH
UNI TED STATES DI STRI CT J UDGE
APPEARANCES ON NEXT PAGE
OFFI CI AL COURT REPORTERS: LEE- ANNE SHORTRI DGE, CSR, CRRCERTI FI CATE NUMBER 9595I RENE RODRI GUEZ, CSR, CRRCERTI FI CATE NUMBER 8074
PROCEEDI NGS RECORDED BY MECHANI CAL STENOGRAPHY TRANSCRI PT PRODUCED WI TH COMPUTER
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A P P E A R A N C E S:
FOR PLAI NTI FF MORRI SON & FOERSTERAPPLE: BY: HAROLD J . MCELHI NNY
RACHEL KREVANS
425 MARKET STREETSAN FRANCI SCO, CALI FORNI A 94105
WI LMER, CUTLER, PI CKERI NG,HALE AND DORRBY: WI LLI AM F. LEE60 STATE STREETBOSTON, MASSACHUSETTS 02109
BY: MARK D. SELWYN950 PAGE MI LL ROADPALO ALTO, CALI FORNI A 94304
FOR SAMSUNG: QUI NN, EMANUEL, URQUHART & SULLI VANBY: J OHN B. QUI NN WI LLI AM PRI CE865 S. FI GUEROA STREET, FLOOR 10LOS ANGELES, CALI FORNI A 90017
BY: VI CTORI A F. MAROULI S KEVI N B. J OHNSON555 TWI N DOLPHI N DRI VESUI TE 560REDWOOD SHORES, CALI FORNI A 94065
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I NDEX OF PROCEEDI NGS
OPENI NG STATEMENT BY MR. MCELHI NNY P. 298
OPENI NG STATEMENT BY MR. LEE P. 338
OPENI NG STATEMENT BY MR. QUI NN P. 351
I NDEX OF WI TNESSES
PLAI NTI FF' S
PHILIP SCHILLER
DI RECT EXAM BY MR. MCELHI NNY P. 417
CROSS- EXAM BY MR. PRI CE P. 475
I NDEX OF EXHI BI TS
MARKED ADMI TTED
PLAI NTI FF' S
118 428135A 429180 4321441 436113A 437127A 439133 440134 441143 445123 461
DEFENDANT' S
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SAN J OSE, CALI FORNI A APRI L 1, 2014
P R O C E E D I N G S
( J URY OUT AT 9:02 A. M. )
( J UROR ANDERSON PRESENT TELEPHONI CALLY. )
J UROR ANDERSON: THI S I S LAURA ANDERSON.
THE CLERK: HI , MS. ANDERSON. WE' RE CALLI NG FROM THE
COURTROOM.
J UROR ANDERSON: HELLO.
THE COURT: HI , MS. ANDERSON. TELL US WHAT I S
HAPPENI NG TODAY.
J UROR ANDERSON: I ' M NOT FEELI NG WELL. I WOKE UP
EARLY THI S MORNI NG WI TH VOMI TI NG AND DI ARRHEA, AND I T' S BEEN
GOI NG ON THROUGHOUT THE MORNI NG. I HAVE BEEN RI DI NG FROM
MONTEREY TO SAN J OSE. I ' VE HAD TO PULL OVER MULTI PLE TI MES.
THE COURT: OKAY. ALL RI GHT. THEN I - - I S THERE ANY
OBJ ECTI ON TO EXCUSI NG MS. LAURA ANDERSON FOR HARDSHI P?
MR. LEE: NONE FOR APPLE, YOUR HONOR.
MR. QUI NN: NOR FOR SAMSUNG.
THE COURT: ALL RI GHT. THEN, MS. ANDERSON, THANK YOU
VERY MUCH FOR YOUR SERVI CE. WE HOPE THAT YOU RECOVER QUI CKLY,
AND YOU HAVE FULFI LLED YOUR J URY DUTY.
J UROR ANDERSON: OKAY.
THE COURT: ALL RI GHT. THANK YOU.
J UROR ANDERSON: THANK YOU.
THE COURT: THANK YOU. FEEL BETTER.
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J UROR ANDERSON: THANK YOU.
THE COURT: OKAY. THEN LET' S BRI NG I N MS. GALONJ A,
NUMBER 7.
( J UROR GALONJ A PRESENT. )
THE COURT: MS. GALONJ A, WELCOME. TAKE A SEAT
ANYWHERE THAT' S COMFORTABLE FOR YOU. CAN YOU PLEASE TELL US
WHAT I SSUE YOU' RE HAVI NG?
J UROR GALONJ A: FI RST, I HAVE TO APOLOGI ZE, AND THEN
I HAVE TO TELL, I T' S AN HONOR FOR ME TO BE CHOSEN HERE.
BUT YESTERDAY WHEN I CAME HOME AND I LOOKED FOR ALL PROS
AND, YOU KNOW, AGAI NST THE DUTI ES, DUTY, I REALI ZED I HAVE SOME
I SSUE TO ASK YOU TO DI SMI SS ME BECAUSE YESTERDAY YOU ASKED I F
SOMEBODY HAD SOME HARDSHI P FOR THE, LI KE FI NANCI AL SI DE, AND
FI RST, I HAVE TO APOLOGI ZE. I ' M HERE 16 YEARS, BUT MY ENGLI SH
I S STI LL LI MI TED.
FI RST TI ME I RAI SED THE HAND AND THEN AFTER THAT, BECAUSE
I REALLY DI DN' T THI NK I WOULD BE CHOSEN 100 PERCENT.
AND THEN I SAI D, OKAY, I ' M NOT GOI NG TO TELL MY REASON
BECAUSE I T' S FI NANCI AL SI DE, HARD FOR ME.
BUT WHEN I CAME HOME AND I LOOK ON THAT, YOU KNOW, I ' M
WORKI NG TWO PART- TI ME J OBS, NOT WELL PAI D. MY HUSBAND DOESN' T
WORK FOR FOUR YEARS. WE HAVE SOME FI NANCI AL I SSUE.
AND I LOOK I N MY HANDBOOK, THE SCHOOL DI STRI CT WHERE I ' M
WORKI NG, THEY PAY ME, LI KE I WOULD BE PAI D $40 PER DAY.
TODAY I LEARNED SOMETHI NG MORE, AND I WI LL BE PAI D ONE
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MONTH LATER BECAUSE WE HAVE TO GI VE THE PROOF UNTI L THE 10TH OF
THE MONTH, AND THEN WE' LL BE PAI D, YOU KNOW, THE FOLLOWI NG
MONTH.
I T MEANS ONE MONTH I WI LL BE LATE, AND I LI VE PAY CHECK TO
PAY CHECK.
THE COURT: OKAY.
J UROR GALONJ A: THERE WI LL BE I SSUE FOR ME
FI NANCI ALLY.
AND THEN I ' M NOT DRI VI NG. MY HUSBAND GI VE ME RI DE RI GHT
NOW, AND HE WI LL PI CK ME UP.
THAT MEANS, YOU KNOW, I DON' T HAVE PROOF, I DON' T PARK THE
CAR, I DON' T HAVE MI LEAGE.
THE COURT: OH, WELL, YOUR HUSBAND WOULD STI LL GET
REI MBURSED FOR THE MI LEAGE, EVEN I F YOU' RE NOT DRI VI NG, WHOEVER
I S DRI VI NG WI LL GET REI MBURSED FOR THE MI LEAGE.
SO YOU WI LL GET REI MBURSED FOR THAT. I F THAT WOULD MAKE A
DI FFERENCE, YOU CAN LET ME KNOW.
J UROR GALONJ A: AND THEN THI S MORNI NG I CALL MY
J OB - - I WORK I N THE KI TCHEN I N THE SCHOOL. YOU KNOW, THEY
HAVE TO FI ND SUBSTI TUTE FOR ME. I T' S NOT EVERY TI ME EASY TO
FI ND, AND THEY TOLD ME THAT.
YOU KNOW, I TOLD MAYBE WHOLE MONTH AND MY SUPERVI SOR WAS,
LI KE, OH, YOU KNOW, HOWWE CAN FI ND FOR ONE- MONTH SUBSTI TUTE?
THE COURT: UM- HUM.
J UROR GALONJ A: AND I T' S ALSO I SSUE - -
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THE COURT: DO YOU THI NK THAT MI GHT PUT YOUR J OB AT
RI SK?
J UROR GALONJ A: YEAH, I THI NK SO.
THE COURT: ALL RI GHT. I S THERE ANY OBJ ECTI ON TO
EXCUSI NG MS. GALONJ A FOR HARDSHI P?
MR. LEE: NOT FOR APPLE, YOUR HONOR.
MR. QUI NN: NOT FOR SAMSUNG.
THE COURT: OKAY. MS. GALONJ A, I WANTED TO THANK YOU
SO MUCH FOR YOUR WI LLI NGNESS TO SERVE, AND I REALLY APPRECI ATE
THAT YOU TRI ED TO SERVE ON THI S J URY AND YOU' VE FULFI LLED YOUR
DUTY. SO THANK YOU.
J UROR GALONJ A: OKAY. I THANK YOU, EVERYBODY, FOR
UNDERSTANDI NG.
THE COURT: CAN YOU GO TO THE SECOND FLOOR TO THE
J URY ASSEMBLY ROOM, AND THEY CAN WORK OUT ALL OF YOUR
PAPERWORK.
J UROR GALONJ A: OKAY. THANK YOU.
THE COURT: THANK YOU.
THE CLERK: LET ME GO CHECK. I THI NK WE' RE STI LL
MI SSI NG ONE OR TWO.
THE COURT: WE' RE STI LL MI SSI NG A J UROR.
THE CLERK: WHEN SHE CAME OUT.
THE COURT: WE HAD BEEN MI SSI NG ONE OR TWO J URORS,
BUT LET' S SEE I F THEY' VE NOWARRI VED.
WAI T ONE SECOND.
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(PAUSE I N PROCEEDI NGS. )
THE COURT: OKAY. THE DOOR I S CLOSED.
I ASSUME YOU STOOD UP FOR AN I SSUE?
MR. MCELHI NNY: I DI D. J UST TWO, ACTUALLY NOT EVEN
I SSUES, WE' VE REACHED AGREEMENT ON SOMETHI NG.
THE COURT: OKAY. YOU' RE SETTLI NG?
(LAUGHTER. )
MR. MCELHI NNY: LET' S SEE. WHAT' S THE CALENDAR DATE?
MR. QUI NN AND I WOULD J OI NTLY MOVE THE COURT FOR AN ORDER
EXCLUDI NG PERCI PI ENT WI TNESSES FROM THI S COURTROOM AND THE
OVERFLOWCOURTROOM DURI NG THE TRI AL.
THE COURT: THAT' S GRANTED.
MR. MCELHI NNY: WI TH EACH SI DE TO POLI CE THEI R OWN
WI TNESSES.
THE COURT: THAT' S GRANTED. THAT MOTI ON I S GRANTED.
MR. MCELHI NNY: AND, SECONDLY, WI TH THE COURT' S
PERMI SSI ON, AS WE DI D I N THE FI RST TRI AL, MR. LEE AND I WOULD
LI KE TO SPLI T OUR OPENI NGS WI THI N THE TWO CASES WI THI N THE TI ME
LI MI T THAT YOUR HONOR HAS SET.
THE COURT: THAT' S FI NE.
(DI SCUSSI ON OFF THE RECORD BETWEEN THE COURT AND THE
CLERK. )
THE COURT: LET ME I NFORM THE PARTI ES THAT
MS. NGUYEN, WHO I S J UROR NUMBER 1, HAS J UST I NFORMED
MS. PARKER BROWN THAT SHE I S GOI NG ON VACATI ON AS OF THE
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EVENI NG OF WEDNESDAY, MARCH 7TH.
THE CLERK: MAY 7TH.
THE COURT: MAY 7TH. SO THAT WOULD BE, YOU KNOW,
SHOULD BE A FULL WEEK OF J URY DELI BERATI ONS.
I ' M HOPI NG THAT THE J URY MAY BEGI N DELI BERATI NG ON
TUESDAY, APRI L 29TH. CERTAI NLY BY APRI L 30TH, WEDNESDAY.
SO I DON' T PERCEI VE THAT TO BE A PROBLEM. DO YOU WANT TO
BE HEARD ON THAT? I ' M NOT ANXI OUS TO LOSE ANOTHER J UROR RI GHT
NOW.
MR. LEE: I ' M ACTUALLY PETRI FI ED ABOUT LOSI NG ANOTHER
J UROR.
BUT I DON' T THI NK I T' S A PROBLEM. WE SHOULD BE DONE BY
THEN.
THE COURT: OKAY. MR. QUI NN?
MR. QUI NN: I T DOESN' T SEEMTO BE A PROBLEM, YOUR
HONOR.
THE COURT: OKAY. SO WHEN SHE COMES OUT, I ' M J UST
GOI NG TO REASSURE HER THAT I ' VE CONSULTED WI TH YOU ALL, AND WE
DON' T PERCEI VE THAT TO BE A PROBLEM.
OKAY. THEN I THI NK WE HAVE EVERYONE NOW. I S THAT RI GHT,
MS. PARKER BROWN?
THE CLERK: WE DO.
THE COURT: ALL RI GHT. THEN LET' S START.
THE CLERK: I ' M GOI NG TO TAKE A SECOND AND TELL THEM
THAT THEY DON' T HAVE TO SPREAD ALL THE WAY, THEY CAN - -
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THE COURT: SURE, THAT' S FI NE.
I ' M SORRY. HAVE YOU ALREADY DI STRI BUTED THE J URY BI NDERS?
THE CLERK: NO.
(DI SCUSSI ON OFF THE RECORD BETWEEN THE COURT AND THE
CLERK. )
THE COURT: LET ME ASK THE PARTI ES, WOULD YOU LI KE
THEM TO GET THEI R J URY BI NDERS NOW? I THI NK I T MAKES SENSE
BECAUSE THE J URY I NSTRUCTI ONS ARE I N THERE.
AND I THI NK MR. SWARUUP CONFI RMED THAT THEY HAVE THE
LATEST VERSI ONS. OKAY. THANK YOU.
( J URY I N AT 9: 12 A. M. )
THE COURT: ALL RI GHT. WELCOME. PLEASE TAKE A SEAT.
WELCOME AND GOOD MORNI NG.
UNFORTUNATELY, MS. ANDERSON WAS VERY, VERY I LL, HAS HAD A
LOT OF VOMI TI NG. SO SHE HAD TO BE EXCUSED.
AND MS. GALONJ A AS WELL HAD SOME PRETTY SEVERE HARDSHI PS.
SO SHE HAD TO BE EXCUSED.
SO I HAVE EI GHT OF YOU LEFT AND YOU ARE EACH PRECI OUS, AND
I AM GOI NG TO BE PUTTI NG I MMUNE ENHANCI NG POWDERS AND VI TAMI N C
DRI NKS I N THE J URY ROOM. I ' M GOI NG TO ASK YOU TO EACH DRI NK
ONE OR TWO EVERY DAY. OKAY.
NO BUNGEE J UMPI NG, NOTHI NG CRAZY I N THE NEXT MONTH, REALLY
CAUTI OUS, BECAUSE I NEED TO HAVE ALL OF YOU REMAI N ON THE J URY.
OKAY?
ALL RI GHT.
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I ' M NOWGOI NG TO READ TO YOU THE PRELI MI NARY J URY
I NSTRUCTI ONS.
AND, MS. NGUYEN, I UNDERSTAND THAT YOU HAVE A VACATI ON
PLANNED THE EVENI NG OF MAY 7TH, WEDNESDAY. I THI NK THAT SHOULD
BE FI NE.
J UROR NGUYEN: OKAY.
THE COURT: WE DO HOPE THAT THE J URY WI LL BEGI N
DELI BERATI NG SOME TI ME ON EI THER TUESDAY, APRI L 29TH, OR
WEDNESDAY, APRI L 30TH. SO THAT SHOULD BE SUFFI CI ENT TI ME.
BUT I F I T' S NOT, THEN WE CAN ALWAYS DI SCUSS AT THAT POI NT
HOWTO PROCEED.
OKAY. YOU NOWHAVE J URY BI NDERS WHI CH YOU CAN LOOK
THROUGH THAT HAVE HELPFUL I NFORMATI ON ABOUT THE CASE.
I WANT TO POI NT YOU TO THE PRELI MI NARY J URY I NSTRUCTI ONS
WHI CH, EVEN THOUGH YOU HAVE A HARD COPY, I AM REQUI RED TO READ
THEM TO YOU.
SO I F YOU WOULD PLEASE TURN TO YOUR PRELI MI NARY J URY
I NSTRUCTI ONS I N YOUR BI NDERS. SO I T' S THE THI RD BI G TAB. I S
EVERYONE THERE? ALL RI GHT. THANK YOU.
ALL RI GHT. DUTY OF THE J URY.
LADI ES AND GENTLEMEN, YOU ARE NOWTHE J URY I N THI S CASE.
I T I S MY DUTY TO I NSTRUCT YOU ON THE LAW.
THESE I NSTRUCTI ONS ARE PRELI MI NARY I NSTRUCTI ONS TO HELP
YOU UNDERSTAND THE PRI NCI PLES THAT APPLY TO CI VI L TRI ALS AND TO
HELP YOU UNDERSTAND THE EVI DENCE AS YOU LI STEN TO I T.
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YOU WI LL BE ALLOWED TO KEEP THI S SET THROUGHOUT THE TRI AL
TO WHI CH TO REFER. THI S SET OF I NSTRUCTI ONS I S NOT TO BE TAKEN
HOME.
ACTUALLY, YOUR J URY BI NDERS ARE ALSO NOT TO BE TAKEN HOME.
PLEASE LEAVE THEM I N THE J URY ROOM DURI NG BREAKS AND I N THE
EVENI NGS. THANK YOU.
THI S SET OF I NSTRUCTI ONS MUST REMAI N I N THE J URY ROOM WHEN
YOU LEAVE I N THE EVENI NGS. AT THE END OF THE TRI AL, I WI LL
GI VE YOU A FI NAL SET OF I NSTRUCTI ONS. I T I S THE FI NAL SET OF
I NSTRUCTI ONS WHI CH WI LL GOVERN YOUR DELI BERATI ONS.
YOU MUST NOT I NFER FROM THESE I NSTRUCTI ONS OR FROM
ANYTHI NG I MAY SAY OR DO AS I NDI CATI NG THAT I HAVE AN OPI NI ON
REGARDI NG THE EVI DENCE OR WHAT YOUR VERDI CT SHOULD BE.
I T I S YOUR DUTY TO FI ND THE FACTS FROM ALL THE EVI DENCE I N
THE CASE. TO THOSE FACTS YOU WI LL APPLY THE LAWAS I GI VE I T
TO YOU.
YOU MUST FOLLOWTHE LAWAS I GI VE I T TO YOU WHETHER YOU
AGREE WI TH I T OR NOT.
DO NOT LET PERSONAL LI KES OR DI SLI KES, OPI NI ONS,
PREJ UDI CES, BI AS OR SYMPATHY I NFLUENCE YOUR DECI SI ON.
BI AS I NCLUDES BI AS FOR OR AGAI NST ANY PARTY OR ANY WI TNESS
BASED UPON NATI ONALI TY, RACE OR ETHNI CI TY.
THAT MEANS THAT YOU MUST DECI DE THE CASE SOLELY ON THE
EVI DENCE BEFORE YOU. YOU WI LL RECALL THAT YOU TOOK AN OATH TO
DO SO.
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I N FOLLOWI NG MY I NSTRUCTI ONS, YOU MUST FOLLOWALL OF THEM
AND NOT SI NGLE OUT SOME AND I GNORE OTHERS. THEY ARE ALL
I MPORTANT.
WHAT I S EVI DENCE?
THE EVI DENCE YOU ARE TO CONSI DER I N DECI DI NG WHAT THE
FACTS ARE CONSI STS OF:
1. THE SWORN TESTI MONY OF ANY WI TNESS;
2. THE EXHI BI TS WHI CH ARE RECEI VED I NTO EVI DENCE; AND,
3. ANY FACTS TO WHI CH THE LAWYERS HAVE AGREED.
WHAT I S NOT EVI DENCE?
I N REACHI NG YOUR VERDI CT, YOU MAY CONSI DER ONLY THE
TESTI MONY AND EVI DENCE RECEI VED I NTO EVI DENCE.
CERTAI N THI NGS ARE NOT EVI DENCE, AND YOU MAY NOT CONSI DER
THEM I N DECI DI NG WHAT THE FACTS ARE. I WI LL LI ST THEM FOR YOU.
NUMBER 1. ARGUMENTS AND STATEMENTS BY LAWYERS ARE NOT
EVI DENCE. THE LAWYERS ARE NOT WI TNESSES. WHAT THEY WI LL SAY
I N THEI R OPENI NG STATEMENTS, WI LL SAY I N THEI R CLOSI NG
ARGUMENTS, AND AT OTHER TI MES I S I NTENDED TO HELP YOU I NTERPRET
THE EVI DENCE, BUT I T I S NOT EVI DENCE.
I F THE FACTS AS YOU REMEMBER THEM DI FFER FROM THE WAY THE
LAWYERS HAVE STATED THEM, YOUR MEMORY OF THEM CONTROLS.
NUMBER 2. QUESTI ONS AND OBJ ECTI ONS BY LAWYERS ARE NOT
EVI DENCE. ATTORNEYS HAVE A DUTY TO THEI R CLI ENTS TO OBJ ECT
WHEN THEY BELI EVE A QUESTI ON I S I MPROPER UNDER THE RULES OF
EVI DENCE.
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YOU SHOULD NOT BE I NFLUENCED BY THE OBJ ECTI ON OR BY THE
COURT' S RULI NG ON I T.
NUMBER 3. TESTI MONY THAT HAS BEEN EXCLUDED OR STRI CKEN OR
THAT YOU HAVE BEEN I NSTRUCTED TO DI SREGARD I S NOT EVI DENCE AND
MUST NOT BY CONSI DERED.
I N ADDI TI ON, SOMETI MES TESTI MONY AND EXHI BI TS ARE RECEI VED
ONLY FOR A LI MI TED PURPOSE. WHEN I GI VE A LI MI TI NG
I NSTRUCTI ON, YOU MUST FOLLOWI T.
NUMBER 4. ANYTHI NG YOU MAY HAVE SEEN OR HEARD WHEN THE
COURT WAS NOT I N SESSI ON I S NOT EVI DENCE. YOU ARE TO DECI DE
THE CASE SOLELY ON THE EVI DENCE RECEI VED AT THE TRI AL.
EVI DENCE FOR A LI MI TED PURPOSE.
SOME EVI DENCE MAY BE ADMI TTED FOR A LI MI TED PURPOSE ONLY.
WHEN I I NSTRUCT YOU THAT AN I TEM OF EVI DENCE HAS BEEN
ADMI TTED FOR A LI MI TED PURPOSE, YOU MUST CONSI DER I T ONLY FOR
THAT LI MI TED PURPOSE AND FOR NO OTHER.
DI RECT OR CI RCUMSTANTI AL EVI DENCE.
EVI DENCE MAY BE DI RECT OR CI RCUMSTANTI AL. DI RECT EVI DENCE
I S DI RECT PROOF OF A FACT, SUCH AS TESTI MONY BY A WI TNESS ABOUT
WHAT THAT WI TNESS PERSONALLY SAWOR HEARD OR DI D.
CI RCUMSTANTI AL EVI DENCE I S PROOF OF ONE OR MORE FACTS FROM
WHI CH YOU COULD FI ND ANOTHER FACT.
YOU SHOULD CONSI DER BOTH KI NDS OF EVI DENCE. THE LAWMAKES
NO DI STI NCTI ON BETWEEN THE WEI GHT TO BE GI VEN TO EI THER DI RECT
OR CI RCUMSTANTI AL EVI DENCE. I T I S FOR YOU TO DECI DE HOWMUCH
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WEI GHT TO GI VE TO ANY EVI DENCE.
NUMBER 6. RULI NG ON OBJ ECTI ONS.
THERE ARE RULES OF EVI DENCE THAT CONTROL WHAT CAN BE
RECEI VED I NTO EVI DENCE. WHEN A LAWYER ASKS A QUESTI ON OR
OFFERS AN EXHI BI T I NTO EVI DENCE AND A LAWYER ON THE OTHER SI DE
THI NKS THAT I T I S NOT PERMI TTED BY THE RULES OF EVI DENCE, THAT
LAWYER MAY OBJ ECT.
I F I OVERRULE THE OBJ ECTI ON, THE QUESTI ON MAY BE ANSWERED
OR THE EXHI BI T RECEI VED.
I F I SUSTAI N THE OBJ ECTI ON, THE QUESTI ON CANNOT BE
ANSWERED AND THE EXHI BI T CANNOT BE RECEI VED.
WHENEVER I SUSTAI N AN OBJ ECTI ON TO A QUESTI ON, YOU MUST
I GNORE THE QUESTI ON AND MUST NOT GUESS WHAT THE ANSWER MI GHT
HAVE BEEN.
SOMETI MES I MAY ORDER THAT EVI DENCE BE STRI CKEN FROM THE
RECORD AND THAT YOU DI SREGARD OR I GNORE THE EVI DENCE. THAT
MEANS THAT WHEN YOU ARE DECI DI NG THE CASE, YOU MUST NOT
CONSI DER THE EVI DENCE THAT I TOLD YOU TO DI SREGARD.
CREDI BI LI TY OF WI TNESSES.
I N DECI DI NG THE FACTS I N THI S CASE, YOU MAY HAVE TO DECI DE
WHI CH TESTI MONY TO BELI EVE AND WHI CH TESTI MONY NOT TO BELI EVE.
YOU MAY BELI EVE EVERYTHI NG A WI TNESS SAYS, OR PART OF I T, OR
NONE OF I T.
PROOF OF A FACT DOES NOT NECESSARI LY DEPEND ON THE NUMBER
OF WI TNESSES WHO TESTI FY ABOUT I T.
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I N CONSI DERI NG THE TESTI MONY OF ANY WI TNESS, YOU MAY TAKE
I NTO ACCOUNT:
NUMBER 1. THE OPPORTUNI TY AND ABI LI TY OF THE WI TNESS TO
SEE OR HEAR OR KNOWTHE THI NGS TESTI FI ED TO;
NUMBER 2. THE WI TNESS' S MEMORY;
NUMBER 3. THE WI TNESS' S MANNER WHI LE TESTI FYI NG;
NUMBER 4. THE WI TNESS' S I NTEREST I N THE OUTCOME OF THE
CASE AND ANY BI AS OR PREJ UDI CE;
NUMBER 5. WHETHER OTHER EVI DENCE CONTRADI CTED THE
WI TNESS' S TESTI MONY;
NUMBER 6. THE REASONABLENESS OF THE WI TNESS' S TESTI MONY
I N LI GHT OF ALL THE EVI DENCE; AND,
NUMBER 7. ANY OTHER FACTORS THAT BEAR ON BELI EVABI LI TY.
THE WEI GHT OF THE EVI DENCE AS TO A FACT DOES NOT
NECESSARI LY DEPEND ON THE NUMBER OF WI TNESSES WHO TESTI FY ABOUT
I T.
I MPEACHMENT EVI DENCE - - WI TNESS.
THE EVI DENCE THAT A WI TNESS LI ED UNDER OATH OR GAVE
DI FFERENT TESTI MONY ON A PRI OR OCCASI ON MAY BE CONSI DERED,
ALONG WI TH ALL OTHER EVI DENCE, I N DECI DI NG WHETHER OR NOT TO
BELI EVE A WI TNESS AND HOWMUCH WEI GHT TO GI VE THE TESTI MONY OF
THE WI TNESS AND FOR NO OTHER PURPOSE.
NUMBER 9. CONDUCT OF THE J URY.
I WI LL NOWSAY A FEWWORDS ABOUT YOUR CONDUCT AS J URORS.
FI RST, KEEP AN OPEN MI ND THROUGHOUT THE TRI AL, AND DO NOT
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DECI DE WHAT THE VERDI CT SHOULD BE UNTI L YOU AND YOUR FELLOW
J URORS HAVE COMPLETED YOUR DELI BERATI ONS AT THE END OF THE
CASE.
SECOND, BECAUSE YOU MUST DECI DE THI S CASE BASED ONLY ON
THE EVI DENCE RECEI VED I N THE CASE AND ON MY I NSTRUCTI ONS AS TO
THE LAWTHAT APPLI ES, YOU MUST NOT BE EXPOSED TO ANY OTHER
I NFORMATI ON ABOUT THE CASE OR TO THE I SSUES I T I NVOLVES DURI NG
THE COURSE OF YOUR J URY DUTY.
THUS, UNTI L THE END OF THE CASE, OR UNLESS I TELL YOU
OTHERWI SE, DO NOT COMMUNI CATE WI TH ANYONE I N ANY WAY, AND DO
NOT LET ANYONE ELSE COMMUNI CATE WI TH YOU I N ANY WAY, ABOUT THE
MERI TS OF THE CASE OR ANYTHI NG TO DO WI TH I T.
THI S I NCLUDES DI SCUSSI NG THE CASE I N PERSON, I N WRI TI NG,
BY PHONE OR ELECTRONI C MEANS VI A E- MAI L, TEXT MESSAGI NG OR ANY
I NTERNET CHAT ROOM, BLOG, WEBSI TE OR ANY OTHER FEATURE.
THI S APPLI ES TO COMMUNI CATI NG WI TH YOUR FELLOWJ URORS
UNTI L I GI VE YOU THE CASE FOR DELI BERATI ON, AND I T APPLI ES TO
COMMUNI CATI NG WI TH EVERYONE ELSE, I NCLUDI NG YOUR FAMI LY
MEMBERS, YOUR EMPLOYER, AND THE PEOPLE I NVOLVED I N THE TRI AL,
ALTHOUGH YOU MAY NOTI FY YOUR FAMI LY AND YOUR EMPLOYER THAT YOU
HAVE BEEN SEATED AS A J UROR I N THI S CASE.
BUT I F YOU ARE ASKED OR APPROACHED I N ANY WAY ABOUT YOUR
J URY SERVI CE OR ANYTHI NG ABOUT THI S CASE, YOU MUST RESPOND THAT
YOU HAVE BEEN ORDERED NOT TO DI SCUSS THE MATTER AND TO REPORT
THE CONTACT TO THE COURT.
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BECAUSE YOU WI LL RECEI VE ALL OF THE EVI DENCE AND LEGAL
I NSTRUCTI ON YOU PROPERLY MAY CONSI DER TO RETURN A VERDI CT: DO
NOT READ, WATCH OR LI STEN TO ANY NEWS OR MEDI A ACCOUNTS OR
COMMENTARY ABOUT THE CASE OR ANYTHI NG TO DO WI TH I T; DO NOT DO
ANY RESEARCH, SUCH AS CONSULTI NG DI CTI ONARI ES, SEARCHI NG THE
I NTERNET OR USI NG OTHER REFERENCE MATERI ALS; AND DO NOT MAKE
ANY I NVESTI GATI ON OR I N ANY OTHER WAY TRY TO LEARN ABOUT THE
CASE ON YOUR OWN.
THE LAWREQUI RES THESE RESTRI CTI ONS TO ENSURE THE PARTI ES
HAVE A FAI R TRI AL BASED ON THE SAME EVI DENCE THAT EACH PARTY
HAS HAD AN OPPORTUNI TY TO ADDRESS. A J UROR WHO VI OLATES THESE
RESTRI CTI ONS J EOPARDI ZES THE FAI RNESS OF THESE PROCEEDI NGS AND
A MI STRI AL COULD RESULT THAT WOULD REQUI RE THE ENTI RE TRI AL
PROCESS TO START OVER.
I F ANY J UROR I S EXPOSED TO ANY OUTSI DE I NFORMATI ON, PLEASE
NOTI FY THE COURT I MMEDI ATELY.
NUMBER 10.
DURI NG DELI BERATI ONS YOU WI LL HAVE TO MAKE YOUR DECI SI ON
BASED ON WHAT YOU RECALL OF THE EVI DENCE. YOU WI LL NOT HAVE A
TRANSCRI PT OF THE TRI AL. I URGE YOU TO PAY CLOSE ATTENTI ON TO
THE TESTI MONY AS I T I S GI VEN.
I F AT ANY TI ME YOU CANNOT HEAR OR SEE THE TESTI MONY,
EVI DENCE, QUESTI ONS OR ARGUMENTS, LET ME KNOWSO THAT I CAN
CORRECT THE PROBLEM.
I F YOU WI SH, YOU MAY TAKE NOTES TO HELP YOU REMEMBER THE
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EVI DENCE. I F YOU DO TAKE NOTES, PLEASE KEEP THEM TO YOURSELF
UNTI L YOU AND YOUR FELLOWJ URORS GO TO THE J URY ROOM TO DECI DE
THE CASE.
DO NOT LET NOTE- TAKI NG DI STRACT YOU.
WHEN YOU LEAVE, YOUR NOTES SHOULD BE LEFT I N THE J URY
ROOM. NO ONE WI LL READ YOUR NOTES. THEY WI LL BE DESTROYED AT
THE CONCLUSI ON OF THE CASE.
WHETHER OR NOT YOU TAKE NOTES, YOU SHOULD RELY ON YOUR OWN
MEMORY OF THE EVI DENCE. NOTES ARE ONLY TO ASSI ST YOUR MEMORY.
YOU SHOULD NOT BE OVERLY I NFLUENCED BY YOUR NOTES OR THOSE OF
YOUR FELLOWJ URORS.
NUMBER 11.
THE PARTI ES HAVE AGREED TO CERTAI N FACTS THAT WI LL BE READ
TO YOU. YOU SHOULD THEREFORE TREAT THESE FACTS AS HAVI NG BEEN
PROVED.
NUMBER 12.
A DEPOSI TI ON I S THE SWORN TESTI MONY OF A WI TNESS TAKEN
BEFORE TRI AL. THE WI TNESS I S PLACED UNDER OATH TO TELL THE
TRUTH, AND LAWYERS FOR EACH PARTY MAY ASK QUESTI ONS. THE
QUESTI ONS AND ANSWERS ARE RECORDED.
YOU SHOULD CONSI DER DEPOSI TI ON TESTI MONY, PRESENTED TO YOU
I N COURT I N LI EU OF LI VE TESTI MONY, I NSOFAR AS POSSI BLE, I N THE
SAME WAY AS I F THE WI TNESS HAD BEEN PRESENT TO TESTI FY.
NUMBER 13.
EVI DENCE MAY BE PRESENTED TO YOU I N THE FORM OF ANSWERS OF
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ONE OF THE PARTI ES TO WRI TTEN I NTERROGATORI ES SUBMI TTED BY THE
OTHER SI DE. THESE ANSWERS WERE GI VEN I N WRI TI NG AND UNDER OATH
BEFORE THE ACTUAL TRI AL I N RESPONSE TO QUESTI ONS THAT WERE
SUBMI TTED I N WRI TI NG UNDER ESTABLI SHED COURT PROCEDURES.
YOU SHOULD CONSI DER THE ANSWERS, I NSOFAR AS POSSI BLE, I N
THE SAME WAY AS I F THEY WERE MADE FROM THE WI TNESS STAND.
14.
SOME WI TNESSES, BECAUSE OF EDUCATI ON OR EXPERI ENCE, ARE
PERMI TTED TO STATE OPI NI ONS AND THE REASONS FOR THOSE OPI NI ONS.
OPI NI ON TESTI MONY SHOULD BE J UDGED J UST LI KE ANY OTHER
TESTI MONY. YOU MAY ACCEPT I T OR REJ ECT, AND GI VE I T AS MUCH
WEI GHT AS YOU THI NK I T DESERVES, CONSI DERI NG THE WI TNESS' S
EDUCATI ON AND EXPERI ENCE, THE REASONS GI VEN FOR THE OPI NI ON,
AND ALL THE OTHER EVI DENCE I N THE CASE.
15.
LANGUAGES OTHER THAN ENGLI SH MAY BE USED DURI NG THI S
TRI AL.
WI TNESSES WHO DO NOT SPEAK ENGLI SH OR ARE MORE PROFI CI ENT
I N ANOTHER LANGUAGE TESTI FY THROUGH AN OFFI CI AL COURT
I NTERPRETER. ALTHOUGH SOME OF YOU MAY KNOWKOREAN, I T I S
I MPORTANT THAT ALL J URORS CONSI DER THE SAME EVI DENCE.
THEREFORE, YOU MUST ACCEPT THE I NTERPRETER' S TRANSLATI ON OF THE
WI TNESS' S TESTI MONY. YOU MUST DI SREGARD ANY DI FFERENT MEANI NG.
16.
YOU MUST NOT MAKE ANY ASSUMPTI ON ABOUT A WI TNESS OR A
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PARTY BASED SOLELY UPON THE USE OF AN I NTERPRETER TO ASSI ST
THAT WI TNESS OR PARTY.
17.
FROM TI ME TO TI ME DURI NG THE TRI AL, I T MAY BECOME
NECESSARY FOR ME TO TALK WI TH THE ATTORNEYS OUT OF THE HEARI NG
OF THE J URY, EI THER BY HAVI NG A CONFERENCE AT THE BENCH WHEN
THE J URY I S PRESENT I N THE COURTROOM, OR BY CALLI NG A RECESS.
PLEASE UNDERSTAND THAT WHI LE YOU ARE WAI TI NG, WE ARE
WORKI NG. THE PURPOSE OF THESE CONFERENCES I S NOT TO KEEP
RELEVANT I NFORMATI ON FROM YOU BUT TO DECI DE HOWCERTAI N
EVI DENCE I S TO BE TREATED UNDER THE RULES OF EVI DENCE AND TO
AVOI D CONFUSE AND ERROR.
OF COURSE, WE WI LL DO WHAT WE CAN TO KEEP THE NUMBER AND
LENGTH OF THESE CONFERENCES TO A MI NI MUM.
I MAY NOT ALWAYS GRANT AN ATTORNEY' S REQUEST FOR A
CONFERENCE. DO NOT CONSI DER MY GRANTI NG OR DENYI NG A REQUEST
FOR A CONFERENCE AS ANY I NDI CATI ON OF MY OPI NI ON OF THE CASE OR
OF WHAT YOUR VERDI CT SHOULD BE.
18.
THI S CASE I NVOLVES DI SPUTES RELATI NG TO UNI TED STATES
PATENTS. BEFORE SUMMARI ZI NG THE POSI TI ONS OF THE PARTI ES AND
THE LEGAL I SSUES I NVOLVED I N THE DI SPUTE, LET ME TAKE A MOMENT
TO EXPLAI N WHAT PATENTS ARE AND HOWTHEY ARE OBTAI NED.
PATENTS ARE GRANTED BY THE UNI TED STATES PATENT AND
TRADEMARK OFFI CE (SOMETI MES CALLED "THE PTO. ") I N GENERAL
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TERMS, A PATENT PROTECTS THE WAY AN ARTI CLE I S USED OR WORKS.
I T ALSO PROTECTS A METHOD OR PROCESS OF MAKI NG OR DOI NG
SOMETHI NG.
A VALI D UNI TED STATES PATENT GI VES THE PATENT OWNER THE
RI GHT TO PREVENT OTHERS FROM MAKI NG, USI NG, OFFERI NG TO SELL OR
SELLI NG THE PATENTED I NVENTI ON WI THI N THE UNI TED STATES, OR
FROM I MPORTI NG I T I NTO THE UNI TED STATES, DURI NG THE TERM OF
THE PATENT WI THOUT THE PATENT HOLDER' S PERMI SSI ON.
A VI OLATI ON OF THE PATENT OWNER' S RI GHTS I S CALLED
I NFRI NGEMENT. THE PATENT OWNER MAY TRY TO ENFORCE A PATENT
AGAI NST PERSONS BELI EVED TO BE I NFRI NGERS BY A LAWSUI T FI LED I N
FEDERAL COURT.
A PATENT I NCLUDES WHAT I S CALLED A "SPECI FI CATI ON. " THE
SPECI FI CATI ON MUST CONTAI N A WRI TTEN DESCRI PTI ON OF THE CLAI MED
I NVENTI ON TELLI NG WHAT THE I NVENTI ON I S, HOWI T WORKS, HOWTO
MAKE I T, AND HOWTO USE I T SO OTHERS SKI LLED I N THE FI ELD WI LL
KNOWHOWTO MAKE OR USE I T.
THE SPECI FI CATI ON CONCLUDES WI TH ONE OR MORE NUMBERED
SENTENCES. THESE ARE THE PATENT "CLAI MS . " WHEN THE PATENT I S
EVENTUALLY GRANTED BY THE PTO, THE CLAI MS DEFI NE THE BOUNDARI ES
OF I TS PROTECTI ON AND GI VE NOTI CE TO THE PUBLI C OF THOSE
BOUNDARI ES.
THE PROCESS OF OBTAI NI NG A PATENT I S CALLED PATENT
PROSECUTI ON. TO OBTAI N A PATENT, ONE MUST FI LE AN APPLI CATI ON
WI TH THE PTO. THE PTO I S AN AGENCY OF THE FEDERAL GOVERNMENT
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AND EMPLOYS TRAI NED EXAMI NERS WHO REVI EWAPPLI CATI ONS FOR
PATENTS.
AFTER THE APPLI CANT FI LES THE APPLI CATI ON, A PTO PATENT
EXAMI NER REVI EWS THE PATENT APPLI CATI ON TO DETERMI NE WHETHER
THE CLAI MS ARE PATENTABLE AND WHETHER THE SPECI FI CATI ON
ADEQUATELY DESCRI BES THE I NVENTI ON CLAI MED.
I N EXAMI NI NG A PATENT APPLI CATI ON, THE PATENT EXAMI NER
REVI EWS RECORDS AVAI LABLE TO THE PTO FOR WHAT I S REFERRED TO AS
"PRI OR ART. "
THE EXAMI NER ALSO WI LL REVI EWPRI OR ART I F I T I S SUBMI TTED
TO THE PTO BY AN APPLI CANT.
PRI OR ART I S DEFI NED BY LAWAND I WI LL GI VE YOU, AT A
LATER TI ME, SPECI FI C I NSTRUCTI ONS AS TO WHAT CONSTI TUTES PRI OR
ART.
HOWEVER, I N GENERAL, PRI OR ART I NCLUDES THI NGS THAT EXI STS
BEFORE THE CLAI MED I NVENTI ON, THAT WERE PUBLI CLY KNOWN OR USED
I N A PUBLI CLY ACCESSI BLE WAY I N THI S COUNTRY, OR THAT WERE
PATENTED OR DESCRI BED I N A PUBLI CATI ON I N ANY COUNTRY.
THE EXAMI NER CONSI DERS, AMONG OTHER THI NGS, WHETHER EACH
CLAI M DEFI NES AN I NVENTI ON THAT I S NEW, USEFUL, AND NOT OBVI OUS
I N VI EWOF THE PRI OR ART. A PATENT LI STS THE PRI OR ART THAT
THE EXAMI NER CONSI DERED; THI S LI ST I S CALLED THE "CI TED
PREFERENCES. "
AFTER THE PRI OR ART SEARCH AND EXAMI NATI ON OF THE
APPLI CATI ON, THE PATENT EXAMI NER THEN I NFORMS THE APPLI CANT I N
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WRI TI NG WHAT THE EXAMI NER HAS FOUND AND WHETHER ANY CLAI M I S
PATENTABLE, AND THUS WI LL BE "ALLOWED. "
THI S WRI TI NG FROM THE PATENT EXAMI NER I S CALLED AN "OFFI CE
ACTI ON. "
I F THE EXAMI NER REJ ECTS THE CLAI MS, THE APPLI CANT THEN
RESPONDS AND SOMETI MES CHANGES THE CLAI MS OR SUBMI TS NEW
CLAI MS.
THI S PROCESS, WHI CH TAKES PLACE ONLY BETWEEN THE EXAMI NER
AND THE PATENT APPLI CANT, MAY GO BACK AND FORTH FOR SOME TI ME
UNTI L THE EXAMI NER I S SATI SFI ED THAT THE APPLI CATI ON AND CLAI MS
MEET THE REQUI REMENTS FOR A PATENT.
THE PAPERS GENERATED DURI NG THI S TI ME OF COMMUNI CATI NG
BACK AND FORTH BETWEEN THE PATENT EXAMI NER AND THE APPLI CANT
MAKE UP WHAT I S CALLED THE "PROSECUTI ON HI STORY. " ALL OF THI S
MATERI AL BECOMES AVAI LABLE TO THE PUBLI C NO LATER THAN THE DATE
WHEN THE PATENT I SSUES.
THE FACT THAT THE PTO GRANTS A PATENT DOES NOT NECESSARI LY
MEAN THAT ANY I NVENTI ON CLAI MED I N THE PATENT, I N FACT,
DESERVES THE PROTECTI ON OF A PATENT. FOR EXAMPLE, THE PTO MAY
NOT HAVE HAD AVAI LABLE TO I T ALL THE I NFORMATI ON THAT WI LL BE
PRESENTED TO YOU.
A PERSON ACCUSED OF I NFRI NGEMENT HAS THE RI GHT TO ARGUE
HERE I N FEDERAL COURT THAT A CLAI MED I NVENTI ON I N THE PATENT I S
I NVALI D BECAUSE I T DOES NOT MEET THE REQUI REMENTS FOR A PATENT.
19.
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THERE ARE SEVEN PATENTS ASSERTED I N THI S CASE.
APPLE ACCUSES SAMSUNG OF I NFRI NGI NG UNI TED STATES PATENT
NUMBERS 5, 946, 647; 6, 847, 959; 7, 761, 414; 8, 046, 172.
PATENTS ARE OFTEN REFERRED TO BY THEI R LAST THREE DI GI TS,
SO APPLE' S PATENTS MAY BE REFERRED TO I N SHORTHAND AS THE ' 647,
' 959, ' 414, ' 721, AND ' 172 PATENTS.
SAMSUNG ACCUSES APPLE OF I NFRI NGI NG UNI TED STATES PATENT
NUMBERS 6, 226, 445 AND 5, 579, 239.
SAMSUNG' S PATENTS MAY BE REFERRED TO I N SHORT HAPPENED AS
THE 449 AND 239 PATENTS.
TO HELP YOU FOLLOWTHE EVI DENCE, I WI LL NOWGI VE YOU A
SUMMARY OF THE POSI TI ONS OF THE PARTI ES WI TH RESPECT TO THE
PATENT CLAI MS.
THE PARTI ES I N THI S CASE ARE APPLE, I NCORPORATED, WHI CH WE
WI LL REFER TO AS "APPLE" AND SAMSUNG ELECTRONI CS COMPANY
LI MI TED, SAMSUNG ELECTRONI CS AMERI CA, I NCORPORATED, AND SAMSUNG
TELECOMMUNI CATI ONS AMERI CA LI MI TED LI ABI LI TY CORPORATI ON, WHI CH
I WI LL REFER TO COLLECTI VELY AS "SAMSUNG" UNLESS I THI NK I T I S
I MPORTANT TO DI STI NGUI SH BETWEEN THESE ENTI TI ES FOR THE
PURPOSES OF A SPECI FI C I NSTRUCTI ON.
YOU MUST DECI DE THE CASE AS TO SAMSUNG ELECTRONI CS
COMPANY, SAMSUNG ELECTRONI CS AMERI CA, AND SAMSUNG
TELECOMMUNI CATI ONS AMERI CA SEPARATELY REGARDLESS OF WHETHER I
REFER TO THEM COLLECTI VELY AS "SAMSUNG" OR I NDI VI DUALLY.
THE CASE I NVOLVES FI VE UNI TED STATES PATENTS OWNED BY
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APPLE AND TWO UNI TED STATES PATENTS OWNED BY SAMSUNG.
APPLE FI LED THI S LAWSUI T AGAI NST SAMSUNG SEEKI NG MONEY
DAMAGES FROM SAMSUNG FOR ALLEGEDLY I NFRI NGI NG THE ' 647, ' 959,
' 414, ' 721, AND ' 172 PATENTS BY MAKI NG, I MPORTI NG, USI NG,
SELLI NG, AND/ OR OFFERI NG FOR SALE THE TABLET AND SMARTPHONE
PRODUCTS THAT APPLE ARGUES ARE COVERED CLAI M 9 OF THE ' 647
PATENT, CLAI M 25 OF THE ' 959 PATENT, CLAI M 20 OF THE ' 414
PATENT, CLAI M 8 OF THE ' 721 PATENT, AND CLAI M 18 OF THE ' 172
PATENT.
APPLE ALSO ARGUES THAT SAMSUNG ELECTRONI CS COMPANY
ACTI VELY I NDUCED SAMSUNG ELECTRONI CS AMERI CA, I NC. AND SAMSUNG
TELECOMMUNI CATI ONS AMERI CA LLC TO I NFRI NGE.
APPLE CONTENDS THAT SAMSUNG' S I NFRI NGEMENT HAS BEEN
WI LLFUL.
SAMSUNG DENI ES THAT I T HAS I NFRI NGED THE ASSERTED CLAI MS
OF THE ' 647, ' 959, ' 414, AND ' 721 PATENTS AND ARGUES THAT, I N
ADDI TI ON, THE ASSERTED CLAI MS ARE I NVALI D. I NVALI DI TY I S A
DEFENSE TO I NFRI NGEMENT.
YOUR DUTY FOR APPLE' S ' 172 PATENT I S DI FFERENT FROM THE
OTHER PATENTS. THE COURT HAS ALREADY FOUND THAT THE ADMI RE,
GALAXY NEXUS, GALAXY NOTE ( EXCLUDI NG ONE RELEASE), GALAXY SI I
(EXCLUDI NG ONE RELEASE) , GALAXY SI I EPI C 4G TOUCH (EXCLUDI NG
ONE RELEASE) , GALAXY SI I SKYROCKET (EXCLUDI NG ONE RELEASE) , AND
STRATOSPHERE I NFRI NGE CLAI M 18 OF THE ' 172 PATENT. YOU NEED
ONLY DETERMI NE WHETHER CLAI M 18 I S I NVALI D.
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SAMSUNG HAS ALSO BROUGHT CLAI MS AGAI NST APPLE FOR PATENT
I NFRI NGEMENT. SAMSUNG SEEKS MONEY DAMAGES FROM APPLE FOR
ALLEGEDLY I NFRI NGI NG THE ' 449 AND ' 239 PATENTS BY MAKI NG,
I MPORTI NG, USI NG, SELLI NG AND/ OR OFFERI NG FOR SALE APPLE' S, 1,
CERTAI N I PHONE AND I POD TOUCH PRODUCTS THAT SAMSUNG ARGUES ARE
COVERED BY CLAI M 27 OF THE ' 449 PATENT; AND, NUMBER 2, CERTAI N
I PHONE AND I PAD PRODUCTS THAT SAMSUNG ARGUES ARE COVERED BY
CLAI M 15 OF THE ' 239 PATENT.
SAMSUNG ALSO CONTENDS THAT APPLE' S I NFRI NGEMENT HAS BEEN
WI LLFUL.
APPLE DENI ES THAT I T HAS I NFRI NGED THE CLAI MS ASSERTED BY
SAMSUNG. APPLE DOES NOT ARGUE THAT SAMSUNG' S PATENTS ARE
I NVALI D. THEREFORE, YOU NEED ONLY DETERMI NE WHETHER THE ' 449
AND THE ' 239 PATENTS ARE I NFRI NGED AND WHETHER THAT
I NFRI NGEMENT HAS BEEN WI LLFUL.
I N THI S CASE, APPLE DOES NOT CONTEND THAT I T PRACTI CES THE
' 414, ' 172 OR ' 959 PATENTS, AND SAMSUNG DOES NOT CONTEND THAT
I T PRACTI CES THE ' 449 PATENT.
FOR EACH PARTY' S PATENT I NFRI NGEMENT CLAI MS AGAI NST THE
OTHER, THE FI RST I SSUE YOU WI LL BE ASKED TO DECI DE I S WHETHER
THE ALLEGED I NFRI NGER HAS I NFRI NGED THE CLAI MS OF THE PATENT
HOLDER' S PATENTS. FOR APPLE' S PATENTS, YOU WI LL ALSO BE ASKED
TO DECI DE WHETHER THOSE PATENTS ARE VALI D.
I F YOU DECI DE THAT ANY CLAI M OF EI THER PARTY' S PATENTS HAS
BEEN I NFRI NGED AND, FOR APPLE' S PATENTS, I S NOT I NVALI D, YOU
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WI LL THEN NEED TO DECI DE ANY MONEY DAMAGES TO BE AWARDED TO THE
PATENT HOLDER TO COMPENSATE I T FOR THE I NFRI NGEMENT.
YOU WI LL ALSO NEED TO MAKE A FI NDI NG AS TO WHETHER THE
I NFRI NGEMENT WAS WI LLFUL.
I F YOU DECI DE THAT ANY I NFRI NGEMENT WAS WI LLFUL, THAT
DECI SI ON SHOULD NOT AFFECT ANY DAMAGE AWARD YOU GI VE. I WI LL
TAKE WI LLFULNESS I NTO ACCOUNT LATER.
BEFORE YOU DECI DE WHETHER EI THER PARTY HAS I NFRI NGED THE
OTHER' S PATENTS, OR WHETHER APPLE' S PATENTS ARE I NVALI D, YOU
WI LL NEED TO UNDERSTAND THE PATENT CLAI MS. AS I MENTI ONED, THE
PATENT CLAI MS ARE NUMBERED SENTENCES AT THE END OF THE PATENT
THAT DESCRI BE THE BOUNDARI ES OF THE PATENT' S PROTECTI ON.
I T I S MY J OB AS J UDGE TO EXPLAI N TO YOU THE MEANI NG OF ANY
LANGUAGE I N THE CLAI MS THAT NEEDS I NTERPRETER.
I HAVE ALREADY DETERMI NED THE MEANI NG OF CERTAI N TERMS OF
THE CLAI MS OF SOME OF THE PATENTS AT I SSUE. YOU WI LL BE ASKED
TO APPLY MY DEFI NI TI ONS OF THESE TERMS I N THI S CASE.
HOWEVER, MY I NTERPRETATI ON OF THE LANGUAGE OF THE CLAI MS
SHOULD NOT BE TAKEN AS AN I NDI CATI ON THAT I HAVE A VI EW
REGARDI NG I SSUES, SUCH AS I NFRI NGEMENT (EXCEPT FOR APPLE' S ' 172
PATENT) AND I NVALI DI TY. THOSE I SSUES ARE YOURS TO DECI DE.
I WI LL PROVI DE YOU WI TH MORE DETAI LED I NSTRUCTI ONS ON THE
MEANI NG OF THE CLAI MS BEFORE YOU RETI RE TO DELI BERATE YOUR
VERDI CT.
FI NAL I NSTRUCTI ON.
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THE TRI AL WI LL NOWBEGI N. FI RST, EACH SI DE MAY MAKE AN
OPENI NG STATEMENT. AN OPENI NG STATEMENT I S NOT EVI DENCE. I T
I S SI MPLY AN OUTLI NE TO HELP YOU UNDERSTAND WHAT THAT PARTY
EXPECTS THE EVI DENCE WI LL SHOW.
THE PRESENTATI ON OF EVI DENCE WI LL THEN BEGI N. WI TNESSES
WI LL TAKE THE WI TNESS STAND AND THE DOCUMENTS WI LL BE OFFERED
AND ADMI TTED I NTO EVI DENCE.
THERE ARE TWO STANDARDS OF PROOF THAT YOU WI LL APPLY TO
THE EVI DENCE, DEPENDI NG ON THE I SSUE YOU ARE DECI DI NG. ON SOME
I SSUES, YOU MUST DECI DE WHETHER SOMETHI NG I S MORE LI KELY TRUE
THAN NOT. ON OTHER I SSUES, YOU MUST USE A HI GHER STANDARD AND
DECI DE WHETHER I T I S HI GHLY PROBABLE THAT SOMETHI NG I S TRUE.
APPLE WI LL START BY PRESENTI NG I TS EVI DENCE ON I TS
CONTENTI ONS THAT SAMSUNG HAS I NFRI NGED APPLE' S PATENTS. APPLE
WI LL ALSO PRESENT I TS EVI DENCE THAT SAMSUNG' S I NFRI NGEMENT HAS
BEEN WI LLFUL.
THESE WI TNESSES WI LL BE QUESTI ONED BY APPLE' S COUNSEL I N
WHAT I S CALLED DI RECT EXAMI NATI ON.
AFTER THE DI RECT EXAMI NATI ON OF A WI TNESS I S COMPLETED,
SAMSUNG HAS AN OPPORTUNI TY TO CROSS- EXAMI NE THE WI TNESS.
TO PROVE I NFRI NGEMENT OF ANY CLAI M, APPLE MUST PERSUADE
YOU THAT I T I S MORE LI KELY THAN NOT THAT SAMSUNG HAS I NFRI NGED
APPLE' S PATENTS.
AFTER APPLE HAS PRESENTED I TS WI TNESSES, SAMSUNG WI LL CALL
I TS WI TNESSES, WHO WI LL ALSO BE EXAMI NED AND CROSS- EXAMI NED.
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UNI TED STATES COURT REPORTERS
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SAMSUNG WI LL PRESENT I TS EVI DENCE ON I TS CONTENTI ONS THAT APPLE
HAS I NFRI NGED SAMSUNG' S PATENTS.
SAMSUNG WI LL ALSO PRESENT I TS EVI DENCE THAT APPLE' S
I NFRI NGEMENT HAS BEEN WI LLFUL.
TO PROVE I NFRI NGEMENT OF ANY CLAI M, SAMSUNG MUST PERSUADE
YOU THAT I T I S MORE LI KELY THAN NOT THAT APPLE HAS I NFRI NGED
SAMSUNG' S PATENTS.
SAMSUNG WI LL ALSO PRESENT I TS EVI DENCE THAT ASSERTED
CLAI MS OF APPLE' S PATENTS ARE NOT I NFRI NGED AND ARE I NVALI D.
TO PROVE I NVALI DI TY OF ANY CLAI M, SAMSUNG MUST PERSUADE YOU
THAT I T I S HI GHLY PROBABLE THAT THE CLAI M I S I NVALI D.
APPLE WI LL THEN RETURN AND WI LL PUT ON EVI DENCE RESPONDI NG
TO SAMSUNG' S CONTENTI ON THAT THE APPLE PATENTS ARE I NVALI D.
APPLE WI LL THEN PRESENT I TS EVI DENCE THAT ASSERTED CLAI MS OF
SAMSUNG' S PATENTS ARE NOT I NFRI NGED.
BECAUSE THE EVI DENCE I S I NTRODUCED PI ECEMEAL, YOU MAY NEED
TO KEEP AN OPEN MI ND AS THE EVI DENCE COMES I N AND WAI T FOR ALL
THE EVI DENCE BEFORE YOU MAKE ANY DECI SI ONS. I N OTHER WORDS,
YOU SHOULD KEEP AN OPEN MI ND THROUGHOUT THE ENTI RE TRI AL.
AFTER THE EVI DENCE HAS BEEN PRESENTED, I WI LL GI VE YOU
FI NAL I NSTRUCTI ONS ON THE LAWTHAT APPLI ES TO THE CASE, AND THE
ATTORNEYS WI LL MAKE CLOSI NG ARGUMENTS. CLOSI NG ARGUMENTS ARE
NOT EVI DENCE.
AFTER THE I NSTRUCTI ONS AND CLOSI NG ARGUMENTS, YOU WI LL
THEN DECI DE THE CASE.
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UNI TED STATES COURT REPORTERS
298
WOULD EVERYONE J UST LI KE A MI NUTE TO J UST STAND UP. WHY
DON' T WE ALL J UST TAKE A STAND UP MOMENT BEFORE THE LI GHTS GO
OFF FOR THE VI DEO.
THE COURT: WE' RE NOWGOI NG TO WATCH A VI DEO. I T' S
ABOUT 17 MI NUTES. I ' M GOI NG TO ASK MS. PARKER BROWN I F YOU
WOULD DI M THE LI GHTS, PLEASE.
(A VI DEOTAPE WAS PLAYED I N OPEN COURT OFF THE RECORD. )
THE COURT: ALL RI GHT. WE ARE NOWREADY FOR OPENI NG
STATEMENTS. EACH SI DE MAY MAKE ONE, BUT THEY' RE NOT REQUI RED
TO DO SO.
I REMI ND YOU THAT AN OPENI NG STATEMENT I S NOT EVI DENCE.
WE ARE GOI NG TO KEEP OUR REGULAR SCHEDULE OF TAKI NG A
BREAK AT 10: 30 FOR AT LEAST 15 MI NUTES. WE' LL STI LL TAKE OUR
LUNCH BREAK FROM NOON TO 1: 00 AND HAVE OUR REGULAR AFTERNOON
BREAKS. OKAY?
ALL RI GHT. GO AHEAD, PLEASE. TI ME I S NOW10: 00 O' CLOCK.
MR. MCELHI NNY: THANK YOU, YOUR HONOR.
(MR. MCELHINNY GAVE HIS OPENING STATEMENT ON BEHALF OF
PLAINTIFF.)
MR. MCELHI NNY: MAY I T PLEASE THE COURT.
GOOD MORNI NG.
J URORS: GOOD MORNI NG.
MR. MCELHI NNY: WHERE WERE YOU ON J ANUARY 9TH, 2007?
THERE ARE A LOT OF PROBLEMS WI TH LAWSUI TS, AND I THI NK BY
THE TI ME WE' RE DONE, YOU' LL HAVE YOUR OWN LI TTLE LI ST OF ALL
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PLAI NTI FF' S OPENI NG STATEMENT
UNI TED STATES COURT REPORTERS
299
THE PROBLEMS WI TH LAWSUI TS AND I MPORTANT TRI ALS.
BUT ONE OF THEM THAT I WANT TO I LLUSTRATE FOR YOU I S THAT
I T TAKES A WHI LE TO GET TO COURT. I T TAKES A WHI LE TO BRI NG A
DI SPUTE TO A J URY LI KE YOU, AND DURI NG THAT TI ME, TI ME PASSES
AND LI FE CHANGES AND THI NGS THAT WERE NEWBEFORE NOWSEEM
COMMON.
AND SO ONE OF THE TESTS HERE, ONE OF THE THI NGS THAT YOU
SORT OF HAVE TO DO I S PUT YOURSELF BACK I N TI ME WHEN THESE
EVENTS OCCURRED AND REMEMBER WHAT LI FE WAS LI KE THEN.
SO THAT' S WHY I STARTED WI TH THAT QUESTI ON. WHERE WERE
YOU ON J ANUARY 9TH, 2007?
WE KNOWTHAT ON THAT DATE HUNDREDS OF PEOPLE I N THE BAY
AREA WERE I N THE MOSCONE CONVENTI ON CENTER I N SAN FRANCI SCO AT
THE MACWORLD CONVENTI ON BECAUSE THAT I S THE DATE THAT THE
I PHONE WAS I NTRODUCED.
AND WE KNOWTHAT BECAUSE WE HAVE A VI DEOTAPE OF THAT
PRESENTATI ON WHI CH I WOULD LI KE TO SHOWYOU.
(A VI DEOTAPE WAS PLAYED I N OPEN COURT OFF THE RECORD. )
MR. MCELHI NNY: MY NAME I S HAROLD MCELHI NNY. YOU MET
MY GOOD FRI END, BI LL LEE, YESTERDAY. AND ALONG WI TH MARK
SELWYN AND MY PARTNER, RACHEL KREVANS, AND OTHER MEMBERS OF OUR
TEAM, I T I S OUR PRI VI LEGE AND HONOR TO BE REPRESENTI NG APPLE I N
THI S LI TI GATI ON AGAI NST SAMSUNG ELECTRONI CS AND I TS
SUBSI DI ARI ES.
I T I S OUR J OB TO BRI NG YOU THE EVI DENCE THAT YOU' RE GOI NG
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UNI TED STATES COURT REPORTERS
300
TO NEED I N ORDER TO DO YOUR J OB, WHI CH I S TO DECI DE THE I SSUES
THAT J UDGE KOH WI LL GI VE YOU AT THE END OF THI S CASE.
WHI LE I ' M MAKI NG I NTRODUCTI ONS, I WOULD LI KE TO I NTRODUCE
TWO OTHER PEOPLE TO YOU. I N THE AUDI ENCE WE HAVE BRUCE SEWELL,
WHO' S THE GENERAL COUNSEL OF APPLE, AND NOREEN KRALL, WHO' S THE
VI CE- PRESI DENT AND I N CHARGE OF LI TI GATI ON FOR APPLE. AND
NOREEN I S MY BOSS.
ON BEHALF OF ALL OF APPLE' S EMPLOYEES, WE WOULD LI KE TO
THANK YOU FOR SERVI NG ON THI S J URY.
ALMOST SEVEN YEARS AGO, THE I NTRODUCTI ON OF THE I PHONE
LI TERALLY CHANGED THE NATURE OF THE TELEPHONE. THE PEOPLE AT
APPLE I NVENTED A WAY TO PUT THE COMPUTI NG POWER OF A MAC
COMPUTER ON A HANDHELD COMMUNI CATI ONS DEVI CE.
THEY ALSO MOVED THE WORLD FROM A PHYSI CAL KEYBOARD TO
TAPPI NG ON AN I NTERACTI VE GLASS FACE.
THOSE WERE TWO DRAMATI C CHANGES THAT HAPPENED AT THAT
MOMENT, AND THAT' S WHY TODAY, WHEN EVERYBODY DOESN' T - -
SOMEBODY THE OTHER DAY J UST SAI D TO ME, DO YOU REMEMBER WHEN
PEOPLE USED TO TALK ON TELEPHONES? DO YOU REMEMBER WHEN THEY
USED TO HAVE THOSE BI G BACK TELEPHONES? DO YOU REMEMBER WHEN
THERE USED TO BE PAY TELEPHONE BOOTHS ON EVERY CORNER?
THAT WORLD I S GONE, AND I T CHANGED ON THAT DAY I N J ANUARY
OF 2007.
YOU DON' T NEED TO TAKE MY WORD FOR THE EFFECT THAT THE
I PHONE HAD. DURI NG THI S TRI AL, YOU' LL SEE A NUMBER OF
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UNI TED STATES COURT REPORTERS
301
CONTEMPORANEOUS ARTI CLES AND REVI EWS THAT WI LL REMI ND YOU OF
THOSE EFFECTS.
SO, FOR EXAMPLE, YOU WI LL SEE PLAI NTI FF' S EXHI BI T 135A.
WE WI LL USE SOME TERMI NOLOGY, PLAI NTI FF' S EXHI BI T, YOU CAN SEE
THAT THE LOWER