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14-05-19 Apple-Samsung Joint Submission on ADR

14-05-19 Apple-Samsung Joint Submission on ADR

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JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

[COUNSEL LISTED ON SIGNATURE PAGE]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

APPLE INC., a California corporation,

Plaintiff,
v.

SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation, SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation, and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Defendants.


Civil Action No. 12-CV-00630-LHK

JOINT SUBMISSION IN
RESPONSE TO THE COURT’S
REQUEST REGARDING ADR

Case5:12-cv-00630-LHK Document1894 Filed05/19/14 Page1 of 7
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1
JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

Pursuant to the Court’s May 5, 2014 request, Apple and Samsung submit this Joint Statement
Regarding Alternative Dispute Resolution (“ADR”). (See Trial Tr. 3425:1-17.)
Apple’s Statement
Apple has always been committed to a resolution with Samsung, preferably without the need
for litigation, that recognizes and protects Apple’s intellectual property. As the Court knows from
trial, Apple met with Samsung multiple times before being forced to file the present lawsuits. After
litigation began, the most senior officials of Apple have devoted days’ worth of their time to various
ADR processes, as well as having countless discussions with Samsung outside formal mediation.
Accordingly, when the Court inquired on May 5 whether Samsung and Apple were willing to engage
in further ADR, and counsel for Samsung stated they “were always willing to participate if there is
an interest in doing so” (Trial Tr. 3424:14-15), Apple also communicated its willingness to engage
in further discussions. (Id. at 3424:18-25.)
However, immediately after that exchange Samsung’s lead counsel made a number of
statements suggesting that Samsung has no interest in stopping its use of Apple’s patents or
compensating Apple for past infringement. For example, Mr. Quinn was quoted as saying: “I’m
more confident than in any case I’ve ever been in that this [jury verdict in the 630 matter] is
unsupported [by the evidence]. It will go to zero. They’re not going to see any of this money. This
won’t stand.” Samsung Atty Quinn Calls iPhone IP War ‘Apple’s Vietnam’, Law360.com,
http://www.law360.com/articles/534842/samsung-atty-quinn-calls-iphone-ip-war-apple-s-vietnam
(last visited May 19, 2014). Mr. Quinn reportedly dismissed the earlier verdicts against Samsung by
saying: “Apple hasn’t collected a penny—or succeeded in taking any products off the market.” Id.
“This is Apple’s Vietnam, and people are sick of it.” Id. And, in what hardly presages a fruitful
return to mediation, Mr. Quinn remarked: “It’s kind of hard to talk settlement with a jihadist.” Key
Samsung Lawyer Sees Patent War Ending Soon – With Apple Getting Nothing, Cnet.com,
http://www.cnet.com/news/samsung-attorney-quinn-says-patent-war-will-be-over-soon-and-apples-
not-getting-our-money/ (last visited May 19, 2014).
Apple remains concerned that despite protestations to the contrary, Samsung has adopted a
business model that prohibits early or even timely resolution of any dispute involving intellectual
Case5:12-cv-00630-LHK Document1894 Filed05/19/14 Page2 of 7
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2
JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

property infringement. See, e.g., Kurt Eichenwald, Apple’s Victory Over Samsung Isn’t As Big As It
Seems, VanityFair, http://www.vanityfair.com/online/daily/2014/05/apple-samsung-lawsuit-winner
(last visited May 19, 2014). Accordingly, Apple sent the letter attached as Exhibit A, inquiring
whether Samsung was genuinely interested in pursuing ADR. Apple further requested assurances
that Samsung would not, as it had done in the past, argue in the context of a request by Apple for an
injunction or the establishment of a future royalty, that Apple’s willingness to pursue ADR reflected
a willingness to license Samsung to Apple’s patents. Samsung responded in the letter attached as
Exhibit B. Samsung’s refusal even to agree that it will not argue that Apple’s participation in the
ADR process can be used in future injunction or royalty proceedings makes clear that Samsung has
no interest in entering into a meaningful ADR procedure or ceasing use of Apple’s intellectual
property. Absent such assurance, it would be impossible for Apple to participate in ADR. However,
upon the receipt of assurances that Samsung will not use in any of the worldwide litigations Apple’s
participation in ADR to resist an injunction or reduce a royalty, and that Samsung is genuinely
interested in reaching a resolution of these issues, Apple will engage in further ADR proceedings to
resolve the present lawsuits and avoid future litigation
Samsung’s Statement
On May 5, the Court requested that the parties jointly report on the status of ADR by May
19. Having heard nothing from Apple, Samsung’s counsel reached out to Apple on May 7 to inquire
about further ADR. Apple responded with its May 13th letter, posturing about Apple’s purported
trial victories and demanding that Samsung agree to various conditions precedent to further ADR.
Despite its rhetoric, Apple has not been the only party engaged in efforts to settle this case.
Rather, for each of the prior ADR meetings cited by Apple, Samsung’s most senior executives also
attended – traveling from Korea to San Francisco or Los Angeles to do so – and Samsung dedicated
at least as much, if not more, time and effort to those prior ADR meetings than that noted by Apple
in its May 13th letter. See, e.g., Joint Submission dated February 21, 2014 (Dkt. No. 1310).
Apple seeks to condition further ADR on Samsung’s agreement that “Samsung will not use
Apple’s participation in ADR to resist an injunction or reduce a royalty.” Importantly, if Apple
were truly interested in global resolution of all cases between the parties, this condition precedent to
Case5:12-cv-00630-LHK Document1894 Filed05/19/14 Page3 of 7
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3
JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

ADR would be a non-issue. Regardless, Apple’s condition is improper. The case law and Federal
Rules of Evidence define the boundaries of what Samsung may and may not argue – not Apple.
Apple’s willingness to license its patents is relevant to multiple Georgia Pacific factors and, to the
extent relevant, Samsung should be permitted to make such arguments without Apple attempting to
extort an improper concession from Samsung, as it now is. By contrast, Samsung does not condition
its willingness to participate in ADR on anything even though Apple has repeatedly used its pre-
litigation meetings with Samsung during trial to support its arguments (See, e.g., PX-132; 630 Trial
Tr. at 340:1-9; 2472:11-2473:1; 1846 Trial Tr. at 1290:7-16; 1951:1-1964:10; 1846 Retrial Tr. at
613:1-9; PX3038).
Finally, Apple cites to a series of statements attributable to Samsung’s lead trial counsel as
“suggesting that Samsung has no interest in stopping its use of Apple’s patents or compensating
Apple for past infringement.” Yet the statements quoted by Apple relate to the fact that Samsung
does not believe portions of the juries’ verdicts will withstand appeal. Such statements have little, if
anything, to do with Samsung’s willingness to discuss settlement. Simply put, though both parties
contend that they are committed to resolution, only Apple seeks to impose an obstacle to this
resolution through a unilateral condition precedent to further ADR. Samsung remains amenable to
discussing settlement of these cases without seeking to impose any comparable conditions upon
Apple.
Case5:12-cv-00630-LHK Document1894 Filed05/19/14 Page4 of 7
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JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

Dated: May 19, 2014
By: /s/ Mark D. Selwyn By: /s/ Michael L. Fazio
Attorney for Plaintiff and Counterclaim-
Defendant
APPLE INC.
Attorney for Defendants and Counterclaim-
Plaintiffs
SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA,
INC., AND SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC
HAROLD J. McELHINNY (CA SBN 66781)
hmcelhinny@mofo.com
JACK W. LONDEN (CA SBN 85776)
jlonden@mofo.com
RACHEL KREVANS (CA SBN 116421)
rkrevans@mofo.com
RUTH N. BORENSTEIN (CA SBN 133797)
rborenstein@mofo.com
ERIK J. OLSON (CA SBN 175815)
ejolson@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522

JOSH A. KREVITT (CA SBN 208552)
jkrevitt@gibsondunn.com
H. MARK LYON (CA SBN 162061)
mlyon@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1881 Page Mill Road
Palo Alto, CA 94304-1211
Telephone: (650) 849-5300
Facsimile: (650) 849-5333

WILLIAM F. LEE (pro hac vice)
William.lee@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, Massachusetts 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000




CHARLES K. VERHOEVEN
(Bar No. 170151)
charlesverhoeven@quinnemanuel.com
KEVIN A. SMITH (Bar No. 250814)
kevinsmith@quinnemanuel.com
QUINN EMANUEL URQUHART &
SULLIVAN LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700

KEVIN P.B. JOHNSON (Bar No. 177129
(CA); 2542082 (NY))
kevinjohnson@quinnemanuel.com
VICTORIA F. MAROULIS (Bar No. 202603)
victoriamaroulis@quinnemanuel.com
QUINN EMANUEL URQUHART &
SULLIVAN LLP
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, California 94065
Telephone: (650) 801-5000
Facsimile: (650) 801-5100

WILLIAM C. PRICE (Bar No. 108542)
williamprice@quinnemanuel.com
QUINN EMANUEL URQUHART &
SULLIVAN LLP
865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
Telephone: (213) 443-3000
Facsimile: (213) 443-3100

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5
JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

MARK D. SELWYN (CA SBN 244180)
mark.selwyn@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, CA 94304
Telephone: (650) 858-6000
Facsimile: (650) 858-6100



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6
JOINT SUBMISSION IN RESPONSE TO THE COURT’S REQUEST REGARDING ADR
CASE NO. 12-CV-00630 (LHK)

ATTESTATION
I, Michael L. Fazio, am the ECF User whose ID and password are being used to file this Joint
Submission. In compliance with Local Rule 5-1(i)(3), I hereby attest that Mark D. Selwyn has
concurred in this filing.


Dated: May 19, 2014


/s/ Michael L. Fazio
Michael L. Fazio

Case5:12-cv-00630-LHK Document1894 Filed05/19/14 Page7 of 7








EXHIBIT A
Case5:12-cv-00630-LHK Document1894-1 Filed05/19/14 Page1 of 3
Case5:12-cv-00630-LHK Document1894-1 Filed05/19/14 Page2 of 3
Case5:12-cv-00630-LHK Document1894-1 Filed05/19/14 Page3 of 3








EXHIBIT B
Case5:12-cv-00630-LHK Document1894-2 Filed05/19/14 Page1 of 4
quinn emanuel trial lawyers | los angeles
865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL (213) 443-3000 FAX (213) 443-3100
WRITER'S DIRECT DIAL NO.
(650)801-5022
WRITER'S INTERNET ADDRESS
victoriamaroulis@quinnemanuel.com
quinn emanuel urquhart & sullivan, llp
NEW YORK | SAN FRANCISCO | SILICON VALLEY | CHICAGO | WASHINGTON, DC | LONDON | TOKYO | MANNHEIM | MOSCOW | HAMBURG | PARIS
May 15, 2014
VIA E-MAIL
William F. Lee
WilmerHale
60 State Street
Boston, Massachusetts 02109
Re: Apple v. Samsung Elecs. Co., Ltd., Case No. 12-cv-00630-LHK (N.D. Cal.)
Dear Bill:
I write to respond to Apple’s letter dated May 13, 2014. Samsung is, and always has been,
agreeable to engage in ADR to successfully resolve these cases. Apple’s letter seems to imply
that Apple has been the only party meaningfully participating in ADR in these cases, to include
the various sessions before Judge Spero prior to the first trial and subsequent efforts with Mr.
Piazza. Yet these ADR efforts are a two-sided process and Samsung participated in those prior
efforts with the prospect of a successful conclusion. Like Apple, Samsung’s most senior
executives also attended these prior ADR meetings and Samsung dedicated at least as much, if
not more, time and effort to those prior ADR meetings than that noted by Apple in its May 13th
letter. See, e.g., Joint Submission dated February 21, 2014 (Dkt. No. 1310). Indeed, Samsung’s
executives traveled from Korea to Los Angeles and San Francisco (a 10 plus hour flight) on
numerous occasions to participate in the prior ADR meetings.
Apple’s letter contradicts itself – on the one hand, Apple contends that “it has always been
willing to participate in any ADR” while, on the other, Apple creates various obstacles to the
parties engaging in further ADR. For example, Apple asserts that its purported “willingness” to
engage in prior ADR “was used by Samsung to advance the counterfactual proposition that
Apple was willing to license the asserted patents to clone Apple products.” (emphasis added).
Yet Samsung never represented to the Court that Apple was willing to license the asserted
patents to “clone” Apple products. Rather, Samsung stated throughout the parties’ negotiations
that Apple was willing to license the asserted patents for a sum of money. Further, Apple’s
willingness to license its patents is relevant to multiple Georgia Pacific factors, and Apple’s
attempt to condition further ADR on a prohibition against Samsung making future arguments of
this type is improper.
Case5:12-cv-00630-LHK Document1894-2 Filed05/19/14 Page2 of 4
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Apple further contends that “a resolution must include compensation to Apple for Samsung’s use
of Apple’s IP.” However, and as Apple knows well, Apple has been found to have infringed
Samsung’s patents throughout the world, including twice in the U.S. – once in the ITC and again
most recently in the 630 case. Nor have Apple’s positions faired nearly as well before the
Federal Circuit as Samsung’s. In any event, Apple’s insistence that a condition precedent to
further ADR be that it is the only party to be compensated runs contrary to its purported
“commit[ment] to a resolution of this matter.”
Apple also seeks to condition additional ADR upon Samsung providing “assurance … that
Samsung is prepared to engage in a realistic attempt to resolve this matter.” Samsung has filed
numerous papers with the Court undertaking the duties and obligations of ADR, and it has
represented in open court that Samsung is committed to resolving these matters. It is thus
unclear to Samsung what further assurances Apple seeks.
Notably, Samsung’s May 7th email to Apple regarding ADR was prompted by the Court’s
request that the parties jointly report on the status of settlement by May 19. That was the
purpose of our communication – not to posture or attempt to impose improper conditions upon
further ADR, as Apple now seeks to do. Indeed, most of the statements in Apple’s May 13th
letter – including the various quotes attributable to Samsung’s counsel – relate to the fact that
Samsung does not believe portions of the juries’ verdicts will withstand appeal. Such statements
have little, if anything, to do with Samsung’s willingness to discuss settlement.
Further, though Apple asserts that “Samsung has now lost three jury trials and an ITC
proceeding,” Apple’s letter ignores several salient facts, to include: (1) the jury’s finding of
Apple’s own infringement of Samsung’s counterclaim patent and award of 100% of the amount
Samsung sought for Apple’s infringement; (2) that each verdict was far less than the amounts
sought by Apple; and (3) that many commentators agree with Samsung that Apple, in fact,
resoundingly lost the latest trial. See, e.g., Kevin Lee, Quinn’s Play Pays Off for Samsung,
DAILY JOURNAL, May 6, 2014 at 1 (“There is no other way to characterize this [than] as a
stunning defeat for Apple”); Chris O’Brien, Samsung, in Symbolic Win, Ordered to Pay $119.6
Million, L.A. TIMES, May 2, 2014 (“By ordering Samsung to pay only a small fraction of
damages that Apple had requested in the company’s latest patent trial, a jury awarded a symbolic
victory to the South Korean smartphone maker”). Nor has Apple collected any amount from the
prior verdicts and, as Samsung has repeatedly stated, we do not anticipate that Apple will.
Simply put, Apple has nothing to show for its years of litigation and hundreds of millions of
dollars spent on attorneys’ fees.
Accordingly, Samsung reiterates its request that brought the parties to this latest letter exchange
which is, as I requested in my May 7th email, that Apple please advise Samsung as to its position
regarding the joint submission requested by the Court. Samsung believes that what the Court
envisions for the May 19th submission is a short joint statement indicating whether either or both
parties are willing to discuss ADR and details, if any, that the parties are able to provide as to
their plans to engage in ADR. We look forward to your response.
Case5:12-cv-00630-LHK Document1894-2 Filed05/19/14 Page3 of 4
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Very truly yours,
/s/ Victoria F. Maroulis
Victoria F. Maroulis
Case5:12-cv-00630-LHK Document1894-2 Filed05/19/14 Page4 of 4

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