Case 3:12-cv-00355-GPC-BLM Document 146 Filed 10/28/13 Page 1 of 21

Case 3:12-cv-00355-GPC-BLM Document 146 Filed 10/28/13 Page 1 of 21
CONFIDENTIAL: FILED UNDER SEAL WINSTON & STRAWN LLP Peter E. Perkowski (SBN: 199491) 2 E-mail: pperkowski@winston.com 333 S. Grand Avenue 3 Los Angeles, California 90071-1541 Tel: (213) 615-1819 4 Fax: (213) 615-1750
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WINSTON & STRAWN LLP Peter J. Chassman (pro hac vice) E-mail: pchassman@winston.com Gregory A. Duffey (pro hac vice) E-mail: gduffey@winston.com 1111 Louisiana, 25th Floor Houston, Texas 77002-5242 Tel: (713) 651-2623 Fax: (713) 651-2700 Attorneys for Motorola Mobility LLC ADDITIONAL COUNSEL LISTED ON FOLLOWING PAGE
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA APPLE, INC. and APPLE SALES Case No. 3:12-cv-00355-GPC-BLM INTERNATIONAL, Plaintiffs, MOTOROLA’S MEMORANDUM OF POINTS AND AUTHORITIES IN v. SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT MOTOROLA MOBILITY LLC, REGARDING MOTOROLA’S PATENTS Defendant. AS APPLIED TO CERTAIN TECHNOLOGY Complaint filed: February 10, 2012 (amended April 2, 2012) (amended August 3, 2012) February 7, 2014 1:30 p.m. Courtroom 2D Hon. Gonzalo P. Curiel Hon. Barbara Lynn Major Not Set
Hearing Date: Hearing Time: Location: Judge: Magistrate Judge: Trial Date:
CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S MEM. OF P. AND A. ISO MOT. FOR PSJ RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
CONFIDENTIAL: FILED UNDER SEAL
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ADDITIONAL COUNSEL OF RECORD WINSTON & STRAWN LLP James F. Hurst (pro hac vice) E-mail: jhurst@winston.com Michael L. Brody (pro hac vice) E-mail: mbrody@winston.com 35 W. Wacker Drive Chicago, Illinois 60601-9703 Tel: (312) 558-5600 Fax: (312) 558-5700 Attorneys for Motorola Mobility LLC
CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S MEM. OF P. AND A. ISO MOT. FOR PSJ RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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TABLE OF AUTHORITIES Cases Beck Park Apts. v. U.S. Dept. of Housing & Urban Dev., 695 F.2d 366 (9th Cir. 1982) .............................................................................. 10 GBTI, Inc. v. Ins. Co. of State of Penn., 2011 WL 1332165 (E.D. Cal. April 5, 2011) ..................................................... 10 Hickey v. A.E. Staley Mfg., 995 F.2d 1385 (9th Cir. 1993) ............................................................................ 10 Nat. Union Fire Ins. Co., of Pittsburgh, Penn. v. Argonaut Ins. Co., 701 F.2d 95 (9th Cir. 1983) ................................................................................ 10 Travelers Cas. & Sur. Co. v. Am. Int’l Surplus lines Ins. Co., 465 F. Supp. 2d 1005 (S.D. Cal. 2006) .............................................................. 10 United States v. Sacramento Mun. Util. Dist., 652 F.2d 1341 (9th Cir.1981) ............................................................................. 10 Rules Fed. R. Civ. P. 56 ............................................................................................................ 9
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I.
INTRODUCTION Defendant, Motorola Mobility LLC (“Motorola”) moves for partial summary
judgment that any injunction that may issue in this case cannot cover Motorola’s patents as applied to .
Apple alleges that it is a third party beneficiary under a Patent License Agreement between Qualcomm and Motorola entered in 1990 and subsequently amended (referred to, as amended, herein as the “PLA”). Apple seeks to have the Court enter a permanent injunction restraining Motorola from prosecuting future (and presently nonexistent) patent infringement lawsuits against Apple outside of this Court and outside of Germany based on Apple’s use of Qualcomm components purportedly in contravention of the PLA. Motorola strenuously disputes Apple’s position and the grant of any injunction. However, even if Apple were to prevail in establishing rights, and even if the Court were to decide to issue a permanent injunction, Motorola moves the Court for partial summary judgment that the scope of any injunction could not encompass a prohibition against Motorola’s future assertion of its patents as they apply to against Apple’s products due to their inclusion of Qualcomm components. When Apple filed its Original Complaint on February 10, 2012, Motorola moved to dismiss on March 7, 2012 based in part on the fact that Apple failed to plead facts or argument supporting its required relief. See ECF Document Doc. No. 17 at 22. Apple withdrew its original Complaint and filed its First Amended Complaint on April 2, 2012. Motorola again moved to dismiss on the bases that Apple’s breach of contract claim was not ripe (see ECF Document No. 37 at p. 10-11) and Apple’s Declaratory Judgment claims were not ripe because they were based on speculative fear of future harm. Motorola’s Motion to Dismiss Apple’s First Amended Complaint (id. 11-14). The Court granted Motorola’s Motion to Dismiss “as the breach of contract claim as presently pled is not ripe.” July 1 CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S MEM. OF P. AND A. ISO MOT. FOR PSJ RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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17, 2013 Order Granting Defendant’s Motion to Dismiss with Leave to Amend (ECF Document No. 65). Regarding the declaratory relief claims, the Court found “’[a]s presently pled, the declaratory relief claims are therefore too vague and broad to be justiciable.” Id. at 6. Apple then filed its Second Amended Complaint to add more particularity to its Counts. ECF Document No. 69. None of the counts in Apple’s Second Amended Complaint are Id. at 15-21 ¶¶ 59-86. However, Apple
failed to amend its prayer for relief, especially with regard to the injunctive relief that it seeks. Apple’s present Prayer includes a broad and vague prayer for an injunction: F. Permanent injunctive relief restraining Motorola and its subsidiaries, affiliates, officers, directors, agents, employees, servants, licensors, successors, assigns, and all those acting in concert with them, from prosecuting patent infringement proceedings against Apple based on Apple’s use of Qualcomm components licensed under Motorola patents in any forum outside of this Court and outside of the Federal Republic of Germany in violation of the Qualcomm-Motorola license agreement. Id. at p. 22. Motorola’s patents as they apply are unambiguously carved out from
any rights that Apple contentd it has under the PLA as a matter of law. Accordingly, Motorola sought a clarification from Apple of the specifics of the injunction that Apple seeks: INTERROGATORY NO. 18 Please state, with specificity, the full scope of the injunction that Apple seeks in this case, including whether and the extent to which Apple seeks to enjoin Motorola from enforcing Motorola’s patents, and state the factual and legal basis therefor, including an IDENTIFICATION of all evidence (including all Documents) supporting, refuting, or otherwise relating to the foregoing. Chassman Dec.,1 Ex. 1 (Apple’s August 15, 2012 Response to Motorola’s Interrogatory No. 18) at 3-4 [005-006]. In response, Apple sidestepped the question in All citations to exhibits are to the Declaration of Peter J. Chassman filed concurrently herewith. Page numbers appearing in [brackets] refer to the exhibit footer page numbers as required by the local rules. 2 CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S MEM. OF P. AND A. ISO MOT. FOR PSJ RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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Apple has made a veiled attempt to shoehorn a of technology into this case without merit.
separate category
Therefore, even if this Court were to issue an injunction in this case, as a matter of law, such an injunction could not preclude Motorola from asserting its patents as they apply Apple’s products due to their inclusion of Qualcomm components. Motorola’s motion is supported by this memorandum and the undisputed evidence submitted with this motion. Motorola moves the Court to issue summary 4 CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S MEM. OF P. AND A. ISO MOT. FOR PSJ RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY against
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judgment in favor of Motorola that no injunction in this case could preclude Motorola from asserting its patents as they apply inclusion of Qualcomm components. II. BACKGROUND A. against Apple’s products due to their
B.
Qualcomm-Motorola PLA
Qualcomm and Motorola entered a confidential Patent License Agreement in 1990 (“Original 1990 PLA”) and
See Chassman Dec., Ex. 7 (1990 PLA) [104]-[118];
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C.
Apple’s Present Suit
All Counts in Apple’s Second Amended Complaint relate in some way to the PLA. In Count 1, Apple alleges the Motorola breached the PLA. See Second
Amended Complaint (ECF No. 69) at ¶¶ 59-66. In Count 2, Apple seeks a 6 CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S MEM. OF P. AND A. ISO MOT. FOR PSJ RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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If contractual terms are unambiguous, contract interpretation is an issue of law and is properly resolved by the court by summary judgment. Nat. Union Fire Ins. Co., of Pittsburgh, Penn. v. Argonaut Ins. Co., 701 F.2d 95, 96–97 (9th Cir. 1983); Beck Park Apts. v. U.S. Dept. of Housing & Urban Dev., 695 F.2d 366, 369 (9th Cir. 1982). Further, the determination of whether a contractual term is ambiguous is also an issue of law for the court. United States v. Sacramento Mun. Util. Dist., 652 F.2d 1341, 1343–44 (9th Cir.1981); Beck Park Apts. V. U.S. Dept. of Housing & Urban Dev., 695 F.2d 366, 369 (9th Cir. 1982); see also Travelers Cas. & Sur. Co. v. Am. Int’l Surplus lines Ins. Co., 465 F. Supp. 2d 1005, 1012 (S.D. Cal. 2006) (“When a contract is not ambiguous, summary judgment may be entered based on the court’s interpretation of clear and unambiguous provisions which present only questions of law.”); GBTI, Inc. v. Ins. Co. of State of Penn., 2011 WL 1332165, at *4 (E.D. Cal. April 5, 2011) (“Interpretation of clear and unambiguous provisions in a contract is a question of law for the court, allowing summary judgment/ adjudication”). “[I]t is the lack of ambiguity within the express terms of the contract that forecloses any genuine issues of material fact.” Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1389 (9th Cir. 1993). IV. ARGUMENT A.
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IV.
CONCLUSION For the foregoing reasons, Motorola’s respectfully requests that the Court grant
summary judgment in favor of Motorola that, as a matter of law, no relief in this case can include an injunction or declaration of rights that includes Motorola’s patents as they apply
Dated: October 23, 2013
Respectfully submitted, WINSTON & STRAWN LLP By: /s/ Peter J. Chassman Peter J. Chassman (admitted pro hac vice) 1111 Louisiana, 25th Floor Houston, Texas 77002-5242 Tel: (713) 651-2623 Fax: (713) 651-2700 Peter E. Perkowski (SBN: 199491) 333 S. Grand Avenue Los Angeles, California 90071-1541 Tel: (213) 615-1819 Fax: (213) 615-1750 James F. Hurst (admitted pro hac vice) Michael L. Brody (admitted pro hac vice) 35 W. Wacker Drive Chicago, Illinois 60601-9703 Tel: (312) 558-5600 Fax: (312) 558-5700 Attorneys for Motorola Mobility LLC
Case 3:12-cv-00355-GPC-BLM Document 146-1 Filed 10/28/13 Page 1 of 8
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WINSTON & STRAWN LLP James F. Hurst (pro hac vice) E-mail: jhurst@winston.com Michael L. Brody (pro hac vice) E-mail: mbrody@winston.com 35 W. Wacker Drive Chicago, Illinois 60601-9703 Tel: (312) 558-5600 Fax: (312) 558-5700 WINSTON & STRAWN LLP Peter J. Chassman (pro hac vice) E-mail: pchassman@winston.com Gregory A. Duffey (pro hac vice) E-mail: gduffey@winston.com 1111 Louisiana, 25th Floor Houston, Texas 77002-5242 Tel: (713) 651-2623 Fax: (713) 651-2700 Attorneys for Motorola Mobility LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA APPLE, INC. and APPLE SALES INTERNATIONAL, Plaintiffs, v. MOTOROLA MOBILITY LLC, Defendant. Case No. 3:12-cv-00355-GPC-BLM MOTOROLA’S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY Complaint filed: February 10, 2012 (amended April 2, 2012) (amended August 3, 2012) Hearing Date: February 7, 2014 Hearing Time: 1:30 p.m. Location: Courtroom 2D Judge: Hon. Gonzalo P. Curiel Magistrate Judge: Hon. Barbara Lynn Major Trial Date: Not Set CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S STATEMENT OF UNDISPUTED MAT. FACTS ISO MOT. FOR PSJ RE PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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Defendant Motorola Mobility LLC (“Motorola”) files this Statement of Undisputed Material Facts in conjunction with its Motion for Partial Summary Judgment Regarding Motorola’s Patents as Applied to Certain Technology:1 1. All Counts in Apple’s Second Amended Complaint relate in some
way to the PLA. 2. In Count 1, Apple alleges the Motorola breached the PLA. See
Second Amended Complaint (ECF No. 69) at ¶¶ 59-66. 3. In Count 2, Apple seeks a Declaratory Judgment that Motorola
did not terminate Apple’s purported rights under the PLA. See id. at ¶¶ 67-71. 4. In Count 3, Apple seeks a Declaratory Judgment that the PLA
shields certain Apple products (iPhone 4S) from a Motorola lawsuit asserting the ’898 patent. See id. at ¶¶ 72-76. 5. In Count 4, Apple seeks a Declaratory Judgment that the PLA
shields Apple in any lawsuit by Motorola asserting certain Motorola patents (specifically id. at ¶¶ 77-81. 6. In Count 5, Apple alleges that because Qualcomm then Motorola’s patent rights are exhausted. See id. at ¶¶ 8286. 7. On June 21, 2013, Apple served the Expert Report of Michael C. ). See
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Keeley, Ph.D. (“Keeley Rept.” or “the Keeley Report”) regarding economic considerations involved in granting Apple’s requested permanent injunction and/or an order of specific performance, including whether Apple would suffer irreparable harm and whether certain potential remedies are inadequate to compensate Apple for its injury. See Chassman Dec., Ex. 3 (Keeley Rept. [2273]) at ¶ 10 [034]. The plaintiffs in this suit are Apple, Inc. and Apple Sales International and are referred to collectively as “Apple.” 1 CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S STATEMENT OF UNDISPUTED MAT. FACTS ISO MOT. FOR PSJ RE PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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11.
Qualcomm and Motorola entered a confidential Patent License
Agreement in 1990 (“Original 1990 PLA”)
See Chassman Dec., Ex. 7 (1990 PLA) [105-114] ;
14.
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Dated: October 23, 2013
Respectfully submitted, WINSTON & STRAWN LLP By: /s/ Peter J. Chassman Peter J. Chassman (admitted pro hac vice) 1111 Louisiana, 25th Floor Houston, Texas 77002-5242 Tel: (713) 651-2623 Fax: (713) 651-2700 Peter E. Perkowski (SBN: 199491) 333 S. Grand Avenue Los Angeles, California 90071-1541 Tel: (213) 615-1819 Fax: (213) 615-1750 James F. Hurst (admitted pro hac vice) Michael L. Brody (admitted pro hac vice) 35 W. Wacker Drive Chicago, Illinois 60601-9703 Tel: (312) 558-5600 Fax: (312) 558-5700 Attorneys for Motorola Mobility LLC
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7 CASE NO. 3:12-cv-00355-GPC-BLM MOTOROLA’S STATEMENT OF UNDISPUTED MAT. FACTS ISO MOT. FOR PSJ RE PATENTS AS APPLIED TO CERTAIN TECHNOLOGY
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WINSTON & STRAWN LLP Peter J. Chassman (pro hac vice) E-mail: pchassman@winston.com Gregory A. Duffey (pro hac vice) E-mail: gduffey@winston.com 1111 Louisiana, 25th Floor Houston, Texas 77002-5242 Tel: (713) 651-2623 Fax: (713) 651-2700 Attorneys for Motorola Mobility LLC ADDITIONAL COUNSEL LISTED ON FOLLOWING PAGE
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA APPLE INC. and APPLE SALES INTERNATIONAL, Plaintiffs, v. MOTOROLA MOBILITY LLC, Defendant. Case No. 3:12-cv-00355-GPC-BLM DECLARATION OF PETER J. CHASSMAN IN SUPPORT OF MOTOROLA’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECHNOLOGY Complaint filed: February 10, 2012 (amended April 2, 2012) (amended August 3, 2012) Hearing Date: Hearing Time: Location: Judge: Magistrate Judge: Trial Date: February 7, 2014 1:30 p.m. Courtroom 2D Hon. Gonzalo P. Curiel Hon. Barbara Lynn Major Not Set
CASE NO. 3:12-cv-00355-GPC-BLM DECL. OF P. CHASSMAN ISO MOTOROLA’S MOTION FOR PARTIAL SUM. JUDG. RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECH.
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ADDITIONAL COUNSEL OF RECORD WINSTON & STRAWN LLP James F. Hurst (pro hac vice) E-mail: jhurst@winston.com Michael L. Brody (pro hac vice) E-mail: mbrody@winston.com 35 W. Wacker Drive Chicago, Illinois 60601-9703 Tel: (312) 558-5600 Fax: (312) 558-5700 Attorneys for Motorola Mobility LLC
CASE NO. 3:12-cv-00355-GPC-BLM DECL. OF P. CHASSMAN ISO MOTOROLA’S MOTION FOR PARTIAL SUM. JUDG. RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECH.
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I, Peter J. Chassman, an attorney admitted to practice in the State of Texas, declare as follows: 1. I am a partner at Winston & Strawn LLP, counsel for Motorola Mobility
LLC (“Motorola”) in the present case pending in the United States District Court for the Southern District of California. 2. I am familiar with the facts set forth in this declaration from personal
knowledge and documents I have reviewed. 3. Attached as Exhibit 1 is a true and correct copy of confidential Apple’s
Objections and Responses to Motorola’s Third Set of Interrogatories (Nos. 17-18) in Case No. 3:12-cv-355-GPC-BLM. 4. Attached as Exhibit 2 is a true and correct copy of confidential Apple’s
First Supplemental Objections and Responses to Motorola’s Third Set of Interrogatories (Nos. 17-18) in Case No. 3:12-cv-355-GPC-BLM. 5. Attached as Exhibit 3 is a true and correct copy of excerpted pages from
the confidential Expert Report of Michael C. Keeley, Ph.D. prepared for Apple, Inc. in Case No. 3:12-cv-00355-GPC-BLM. 6. Attached as Exhibit 4 is a true and correct copy of excerpted pages from
the confidential transcript of the October 1, 2013 deposition of Michael C. Keeley, Ph.D. taken in the above-captioned case – Case No. 3:12-cv-00355-GPC-BLM. 7. Attached as Exhibit 5 is a true and correct copy of an article titled “LTE
Overview” from 3GPP’s website at http://www.3gpp.org/LTE. 8. Attached as Exhibit 6 is a true and correct copy of a press release dated
December 1, 2010 from Verizon Wireless’ website http://www.verizonwireless.com entitled “Verizon Wireless Launches the World’s Largest 4G LTE Wireless Network on December 5”. 9. Attached as Exhibit 7 is a true and correct copy of a confidential entitled
agreement between Motorola and Qualcomm dated
“Patent License Agreement,” produced by Motorola in this case and bearing bates 1 CASE NO. 3:12-cv-00355-GPC-BLM DECL. OF P. CHASSMAN ISO MOTOROLA’S MOTION FOR PARTIAL SUM. JUDG. RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECH.
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numbers MOTOAPLSDCA0017812-825. 10. Attached as Exhibit 8 is a true and correct copy of a confidential and entitled
agreement between Motorola and Qualcomm dated
produced by Motorola in this case and bearing bates numbers MOTOAPLSDCA0019092-104. 11. Attached as Exhibit 9 is a true and correct copy of a confidential
agreement between Motorola and Qualcomm entitled
produced
by
Motorola
in
this
case
and
bearing
bates
numbers
MOTOAPLSDCA0024991-93. 12. Attached as Exhibit 10 is a true and correct copy of excerpted pages from
the confidential transcript of the October 15, 2013 deposition of Qualcomm, Inc. (Fabian Gonell, designee) taken in the above-captioned case – Case No. 3:12-cv00355-GPC-BLM. 13. Attached as Exhibit 11 is a true and correct copy of a confidential
agreement between Motorola and Qualcomm entitled produced by Motorola in this case and bearing bates numbers
MOTOAPLSDCA0033227-246. 14. Attached as Exhibit 12 is a true and correct copy of a confidential
MOTOAPLSDCA0024485-512. 15. Attached as Exhibit 13 is a true and correct copy of a confidential
MOTOAPLSDCA0021524-528. Attached as Exhibit 14 is a true and correct copy of a confidential 2 CASE NO. 3:12-cv-00355-GPC-BLM DECL. OF P. CHASSMAN ISO MOTOROLA’S MOTION FOR PARTIAL SUM. JUDG. RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECH. 16.
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agreement between Motorola and Qualcomm entitled produced by Motorola in this case and bearing bates numbers MOTOAPLSDCA0033579-586. 17. I declare under the penalty of perjury under the laws of the United States
that the foregoing is true and correct. Executed this 23rd day of October 2013, in Houston, Texas.
/s/ Peter J. Chassman PETER J. CHASSMAN
3 CASE NO. 3:12-cv-00355-GPC-BLM DECL. OF P. CHASSMAN ISO MOTOROLA’S MOTION FOR PARTIAL SUM. JUDG. RE MOTOROLA’S PATENTS AS APPLIED TO CERTAIN TECH.

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