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HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com RACHEL KREVANS (CA SBN 116421) rkrevans@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC.

WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

APPLE INC., a California corporation, Plaintiff, v. SAMSUNG ELECTRONICS CO., LTD., a Korean business entity; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, Defendants.

Case No. 11-cv-01846-LHK (PSG) APPLE INC.S MOTION FOR JUDGMENT AS A MATTER OF LAW (RENEWED), NEW TRIAL, AND AMENDED JUDGMENT [FRCP 50, 59] [CORRECTED NOTICE OF MOTION]

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 6, 2012, at 1:30 p.m., or as soon thereafter as counsel may be heard before the Honorable Lucy Koh in Courtroom 8 of the above-entitled Court, located at 280 South 1st Street, San Jose, California, Plaintiff Apple will move, and hereby does move, for judgment as a matter of law (renewed), a new trial, and amended judgment against Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, Inc. as follows: Judgment as a matter of law that Apples unregistered iPad/iPad 2 Trade Dress is protectable and famous, or in the alternative, a new trial; Judgment as a matter of law that Samsungs Galaxy Tab 10.1 (WiFi and 4G LTE model) infringes and dilutes Apples unregistered iPad/iPad 2 Trade Dress, or in the alternative, a new trial; Judgment as a matter of law that Samsungs Galaxy Tab 10.1 (WiFi and 4G LTE model) infringes U.S. Design Patent No. 504,889 (D889 patent), or in the alternative, a new trial; Judgment as a matter of law that the Samsung Galaxy Ace phone infringes U.S. Design Patent No. 618,677 (D677 patent), or in the alternative, if there is a new trial involving the D667 it should include the Galaxy Ace phone; Judgment as a matter of law that the Samsung Galaxy S II (i9100, AT&T, Epic 4G Touch, and Skyrocket) and Infuse 4G phones infringe U.S. Design Patent No. 593,087 (D087 patent), or in the alternative, if there is a new trial involving the D087 it should include the Galaxy S II and Infuse 4G phones; Judgment as a matter of law that the Samsung Captivate, Continuum, Droid Charge, Epic 4G, Galaxy Prevail, Galaxy S II (i9100, AT&T, T-Mobile, Epic 4G Touch, and Skyrocket), and Infuse 4G phones dilute Apples registered iPhone Trade Dress (U.S. Trademark Registration No. 3,470,983), or in the alternative, if there is a new trial involving the registered iPhone Trade Dress it should include the Captivate, Continuum, Droid Charge, Epic 4G, Galaxy Prevail, Galaxy S II (i9100, AT&T, T-Mobile, Epic 4G Touch, and Skyrocket), and Infuse 4G phones;
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Judgment as a matter of law that the Samsung Captivate, Continuum, Droid Charge, Epic 4G, Galaxy Prevail, Galaxy S II (i9100, AT&T, T-Mobile, Epic 4G Touch, and Skyrocket), and Infuse 4G phones dilute Apples unregistered iPhone 3G Trade Dress, or in the alternative, if there is a new trial involving the unregistered iPhone 3G Trade Dress it should include the Captivate, Continuum, Droid Charge, Epic 4G, Galaxy Prevail, Galaxy S II (i9100, AT&T, T-Mobile, Epic 4G Touch, and Skyrocket), and Infuse 4G phones;

Judgment as a matter of law that Apples unregistered combination iPhone Trade Dress is protectable and famous, and that each accused Samsung smartphone product dilutes Apples unregistered combination iPhone Trade Dress, or in the alternative, a new trial;

Judgment as a matter of law that the Samsung Intercept, Replenish, and Galaxy Ace phones infringe claim 8 of U.S. Patent No. 7,844,915 (915 patent), or in the alternative, if there is a new trial involving the 915 patent it should include the Intercept, Replenish, and Galaxy Ace phones;

Judgment as a matter of law that the Samsung Captivate, Continuum, Gem, Indulge, Intercept, Nexus S 4G, Transform, and Vibrant phones infringe claim 50 of U.S. Patent No. 7,864,163 (163 patent), or in the alternative, if there is a new trial involving the 163 patent it should include the Captivate, Continuum, Gem, Indulge, Intercept, Nexus S 4G, Transform, and Vibrant phones;

Judgment as a matter of law that Samsungs infringement of the D889 and D087 patents and of Apples unregistered iPad/iPad 2 Trade Dress was willful, or in the alternative, if there is to be a new trial on any of Apples infringement claims, the new trial should include Apples willfulness claims where the jury made no finding or found no willfulness;

Judgment as a matter of law that Samsungs dilution of Apples unregistered combination iPhone Trade Dress and of unregistered iPad/iPad 2 Trade Dress was willful, or in the alternative, if there is to be a new trial on any of Apples dilution claims, the new trial

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should include Apples dilution claims where the jury made no finding or found no willfulness; If the Court decides to review the damages award on a product-by-product basis, judgment as a matter of law increasing damages for some products to offset any reduction in other portions of the jurys unitary award; Judgment as a matter of law that Samsung Electronics Co. took action with respect to the Samsung Intercept and Replenish phones that it knew or should have known would induce Samsung Electronics America, Inc. or Samsung Telecommunications America, LLC to infringe the 915 patent, or in the alternative, if there is to be a new trial on the915 patent, the new trial should include these inducement claims; Judgment as a matter of law that Samsung Electronics Co. took action with respect to the Samsung Captivate, Continuum, Gem, Indulge, Intercept, Nexus S 4G, Transform, and Vibrant phones that it knew or should have known would induce Samsung Electronics America, Inc. or Samsung Telecommunications America, LLC to infringe the 163 patent, or in the alternative, if there is to be a new trial on the163 patent, the new trial should include these inducement claims; Judgment as a matter of law that Samsung Electronics Co. took action with respect to the Samsung Galaxy S II (AT&T, Epic 4G Touch, and Skyrocket), and Infuse 4G phones that it knew or should have known would induce Samsung Electronics America, Inc. or Samsung Telecommunications America, LLC to infringe the D087 patent, or in the alternative, if there is to be a new trial on the D087 patent, the new trial should include these inducement claims; Judgment as a matter of law that Samsung Electronics Co. took action with respect to the Samsung Galaxy Tab 10.1 (WiFi) and Galaxy Tab 10.1 (4G LTE) that it knew or should have known would induce Samsung Electronics America, Inc. or Samsung Telecommunications America, LLC to infringe the D889 patent, or in the alternative, if there is to be a new trial on the D889 patent, the new trial should include these inducement claims; iii
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Judgment as a matter of law that claim 10 of Samsungs U.S. Patent No. 7,456,893 (893 patent), claim 9 of Samsungs U.S. Patent No. 7,698,711 (711 patent), claim 1 of Samsungs U.S. Patent No. 7,577,460 (460 patent), claims 15 and 16 of Samsungs U.S. Patent No. 7,447,516 (516 patent), and claims 10 and 15 of Samsungs U.S. Patent No. 7,675,941 (941 patent) are invalid, or in the alternative, if there is to be a new trial on infringement for any of Samsungs patents, the trial should also include the validity of those patents;

Judgment as a matter of law that Samsung breached its contractual obligations to timely disclose its patents as required by the ETSI IPR policy and to license its declared-essential patents on FRAND terms, or in the alternative, if there is to be a new trial on infringement for Samsungs 516 or 941 patent the trial should include Apples contract claims;

Judgment as a matter of law that Samsung violated Section 2 of the Sherman Act, or in the alternative, if there is to be a new trial on infringement for Samsungs 516 or 941 patent the trial should include Apples antitrust counterclaims;

Judgment as a matter of law that Samsung owes damages of $1,095,000 collectively on Apples breach of contract and antitrust counterclaims, or in the alternative, if there is to be a new trial on infringement for Samsungs 516 or 941 patent; the trial should include a new trial on damages for Apples contract and antitrust counterclaims;

Supplemental damages of $121,098,389 through December 31, 2012, with an additional $516,197 in supplemental damages for each additional day prior to entry of judgment; prejudgment interest of $49,868,289 through December 31, 2012, with an additional $108,658 in prejudgment interest for each additional day prior to entry of judgment.

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Dated: September 21, 2012

MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC.

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TABLE OF CONTENTS Page Table of Authorities ..................................................................................................................... viii INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARDS................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL ON ITS CLAIM THAT SAMSUNG INFRINGED AND DILUTED THE IPAD TRADE DRESS............................................................................. 2 A. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That The iPad Trade Dress Is Protectable ...................................................... 2 B. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsungs Galaxy Tab 10.1 Infringes The iPad Trade Dress........................................................................................................................ 4 C. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsungs Galaxy Tab 10.1 Dilutes The iPad Trade Dress........................................................................................................................ 6 II. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL ON ITS CLAIM THAT SAMSUNG INFRINGED THE D889 PATENT .................................................................................................................. 7 A. The Evidence Permits No Reasonable Conclusion Other Than Infringement ............................................................................................................ 7 B. Judgment As A Matter Of Law Is Also Warranted Under An Alternative, And Correct, Claim Construction ..................................................... 10 C. At A Minimum, The Court Should Grant Apple A New Trial On Infringement Of The D889 Patent ....................................................................... 11 III. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON ALL ITS REMAINING CLAIMS .................................................................................... 13 A. All Accused Samsung Smartphones Infringe The D677 And D087 Patents ................................................................................................................... 13 B. All Accused Samsung Smartphones Dilute Apples Registered iPhone And Unregistered iPhone 3G Trade Dresses ............................................ 14 All Accused Samsung Smartphones Dilute Apples Protectable And Famous Unregistered Combination iPhone Trade Dress ...................................... 15 All Accused Samsung Smartphones Infringe The 163 And 915 Patents ................................................................................................................... 16 Samsung Willfully Infringed Apples Patents And Willfully Diluted Apples Trade Dresses And SEC Induced Its Subsidiaries Infringement And Dilution.................................................................................... 17 If The Court Chooses To Disaggregate The Damages Award And Adjust It Based On Product-Specific Amounts, Then Apple Is Entitled To Additional Sums As A Matter Of Law .............................................. 18

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IV.

APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT SAMSUNGS PATENTS ARE INVALID ........................................................... 19 V. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON ITS BREACH OF CONTRACT AND ANTITRUST COUNTERCLAIMS ................... 22 A. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsung Breached Its Contractual Obligation To Timely Disclose Its Patents As Required By The ETSI IPR Policy ................................. 22 B. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsung Breached Its Contractual Obligations To License Its Declared-Essential Patents On FRAND Terms .................................. 23 C. Apple Is Entitled To Judgment As A Matter Of Law That Samsung Violated Section 2 Of The Sherman Act .............................................................. 24 VI. APPLE IS ENTITLED TO SUPPLEMENTAL DAMAGES AND PREJUDGMENT INTEREST .......................................................................................... 26 A. Apple Is Entitled To A Supplemental Damage Award For Samsungs Sales Between July 1 And The Resolution Of District Court Proceedings ................................................................................................. 27 B. Apple Is Entitled To Prejudgment Interest Of $49,868,289 Through December 31, 2012 ............................................................................................... 29 CONCLUSION ............................................................................................................................. 30

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TABLE OF AUTHORITIES Page(s) Allstate Ins. Co. v. Herron, 634 F.3d 1101 (9th Cir. 2011)................................................................................................... 2 Am. Honda Motor Co. v. Two Wheel Corp., 918 F.2d 1060 (2d Cir. 1990) .................................................................................................. 29 AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979)................................................................................................. 4, 5 Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314 (Fed. Cir. 2012) ............................................................................................. 8, 9 Atmel Corp. v. Silicon Storage Tech., Inc., 202 F. Supp. 2d 1096 (N.D. Cal. 2002) .................................................................................. 29 Bio-Rad Labs., Inc. v. Nicolet Instrument Corp., 807 F.2d 964 (Fed. Cir. 1986) ................................................................................................. 29 Braun, Inc. v. Dynamics Corp., 975 F.2d 815 (Fed. Cir. 1992) ................................................................................................. 12 Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007) .................................................................................................... 25 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) ................................................................................................................ 24 Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 381 F.3d 1371 (Fed. Cir. 2004) ............................................................................................... 12 City Solutions, Inc. v. Clear Channel Commcns, 365 F.3d 835 (9th Cir. 2004)..................................................................................................... 1 Clamp Mfg. Co, Inc.. v. Enco Mfg. Co., Inc., 870 F.2d 512 (9th Cir. 1989)............................................................................................... 4, 15 Dwyer Instruments, Inc. v. Sensocon, Inc., No. 3:09-CV-10-TLS, 2012 U.S. Dist. LEXIS 78491 (N.D. Ind. June 5, 2012) .................... 18 Ecolab, Inc. v. Paraclipse, Inc., 285 F.3d 1362 (Fed. Cir. 2002) ............................................................................................... 12 Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc) ............................................................................. 7, 13
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Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010) ........................................................................................... 2, 27 Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277 (3rd Cir. 1991) .................................................................................................... 2 Fresenius Med. Care Holdings v. Baxter Intl, Inc., No. C 03-1431, 2008 WL 928535 (N.D. Cal. 2008)............................................................... 29 Gen. Motors Corp. v. Devex Corp., 461 U.S. 648 (1983) ................................................................................................................ 28 Global-Tech Appliances, Inc., v. SEB S.A., 131 S. Ct. 2060 (2011) ............................................................................................................ 17 Gorenstein Enters., Inc. v. Quality CareUSA, Inc., 874 F.2d 431 (7th Cir. 1989) ................... 29 Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549 (Fed. Cir. 1984) ................................................................................................. 27 Hynix Semiconductor Inc. v. Rambus Inc., 609 F. Supp. 2d 951 (N.D. Cal. 2009) .................................................................................... 27 Hynix Semiconductor Inc. v. Rambus Inc., No. CV-00-20905, 2008 WL 73689 (N.D. Cal. Jan. 5, 2008) ................................................ 25 In re Hayes Microcomputer Prods. Bus., 766 F. Supp. 818 (N.D. Cal. 1991) ......................................................................................... 29 In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc) ............................................................................... 17 Informatica v. Bus. Objects Data Integration, 489 F. Supp. 2d. 1075 (N.D. Cal. 2007) ................................................................................. 29 Intl Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233 (Fed. Cir. 2009) ............................................................................................... 10 Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628 (9th Cir. 2008)............................................................................................... 7, 14 Junker v. HDC Corp., No. C-07-05094, 2008 WL 3385819 (N.D. Cal. 2008) .......................................................... 29 L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117 (Fed. Cir. 1993) ......................................................................................... 12, 17 Lummus Indus., Inc. v. D.M. & E. Corp., 862 F.2d 267 (Fed. Cir. 1988) ................................................................................................. 29
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Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc) ............................................................................. 10, 11 Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007)............................................................................................... 1, 12 Monsanto Co. v. McFarling, 488 F.3d 973 (Fed. Cir. 2007) ................................................................................................. 18 O2 Micro Intl Ltd. v. Monolithic Power Sys, Inc., 420 F. Supp. 2d 1070 (N.D. Cal. 2006) .................................................................................. 29 Ostad v. Oregon Health Scis. Univ., 327 F.3d 876 (9th Cir. 2003)......................................................................................... 1, 14, 16 Payless Shoesource, Inc. v. Reebok Intl, Ltd., 998 F.2d 985 (Fed. Cir. 1993) ................................................................................................. 10 Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) ............................................................................... 11 Presidio Components, Inc. v. Am. Technical Ceramics Corp., No. 08-CV-3335-IEG, 2010 U.S. Dist. LEXIS 79039 (S.D. Cal. Aug. 5, 2010) ................... 27 Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008) ............................................................................................... 23 SEB S.A. v. Montgomery Ward & Co., 594 F.3d 1360 (Fed. Cir. 2010), affd, Global-Tech. Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) ................................................................................................................... 17 Stryker Corp. v. Davol Inc., 234 F.3d 1252 (Fed. Cir. 2000) ............................................................................................... 27 Taylor v. Green, 868 F.2d 162 (5th Cir.1989).................................................................................................... 19 Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008)................................................................................................... 1 Traffix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23 (2001) .................................................................................................................. 15 Unette Corp. v. Unit Pack Co., 785 F.2d 1026 (Fed. Cir. 1986) ............................................................................................... 12 Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011) ............................................................................................... 23

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Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540 (Fed. Cir. 1991) ............................................................................................... 29 Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512 (Fed. Cir. 1995) ................................................................................................... 18 United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) .................................................................................................. 25 Verizon Commcns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) ................................................................................................................ 24 Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000) ............................................................................................................ 3, 15 STATUTES 15 U.S.C. 15 .......................................................................................................................................... 26 1125(a)(3)......................................................................................................................... 3, 15 1125(c)(2)(A) ................................................................................................................... 6, 15 1125(c)(2)(B) ............................................................................................................. 6, 14, 15 35 U.S.C. 284 .................................................................................................................................... 2, 28 OTHER AUTHORITIES Fed. R. Civ. P. Rule 50 ...................................................................................................................................... 1 Rule 50(b) ............................................................................................................................. 1, 2 Rule 59(a) .............................................................................................................................. 1, 2 Rule 59(e) ........................................................................................................................ 1, 2, 26

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INTRODUCTION Pursuant to Federal Rule of Civil Procedure 50(b), Apple renews its motion for judgment as a matter of law that Samsungs Galaxy Tab 10.1 infringes and dilutes Apples protectable iPad Trade Dress; that the Tab 10.1 infringes the D889 patent; and that Samsungs accused smartphones dilute Apples combination iPhone Trade Dress. In the alternative, Apple requests a new trial pursuant to Rule 59(a) on these claims. Further, Apple renews its motion for judgment as a matter of law that all of Samsungs accused smartphones willfully infringe Apples D677, D087, 163, and 915 patents and dilute Apples registered iPhone Trade Dress and unregistered iPhone 3G Trade Dress; that Samsungs patents are invalid; and that Samsung has breached its contracts and violated the antitrust laws. Pursuant to Federal Rule of Civil Procedure 59(e) and Section 284 of the Patent Act, Apple also moves to amend the August 24 Judgment to include (a) supplemental damages for Samsungs infringing and diluting sales between July 1, 2012 and the resolution of district court proceedings and (b) pre-judgment interest. LEGAL STANDARDS Under Rule 50, Judgment as a matter of law is proper when the evidence permits only one reasonable conclusion and the conclusion is contrary to that reached by the jury. Ostad v. Oregon Health Scis. Univ., 327 F.3d 876, 881 (9th Cir. 2003) (citation omitted); see also Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (same). Under Rule 59(a), a trial court may grant a new trial where the verdict is contrary to the clear weight of the evidence or to prevent a miscarriage of justice. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal quotation marks omitted). [T]he district court has the duty to weigh the evidence as the court saw it, and to set aside the verdict of the jury, even though supported by substantial evidence, where, in the courts conscientious opinion, the verdict is contrary to the clear weight of the evidence. Id. (internal quotation marks and alterations omitted). Whether to grant a new trial is a matter of the trial courts discretion. City Solutions, Inc. v. Clear Channel Commcns, 365 F.3d 835, 843 (9th Cir. 2004). Amendment of the judgment pursuant to Federal Rule of Civil Procedure 59(e) lies within
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the discretion of the Court in light of new information not available at trial. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). Rule 59(e) provides an appropriate avenue to incorporate supplemental damages based on Samsungs sales after July 1, 2012 (which were not available at trial) and prejudgment interest pursuant to 35 U.S.C. 284. See Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1212-13 (Fed. Cir. 2010) (ordering supplemental damages to compensate patentee for uncompensated sales). ARGUMENT I. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL ON ITS CLAIM THAT SAMSUNG INFRINGED AND DILUTED THE IPAD TRADE DRESS Pursuant to Rule 50(b), Apple is entitled to judgment as a matter of law that its unregistered iPad Trade Dress is protectable and that Samsungs Galaxy Tab 10.1 infringes and dilutes that Trade Dress. The evidence permits no other reasonable conclusion. At trial, the jury stumbled over the first issue, failing to find that Apples unregistered iPad Trade Dress is protectable. As a result, the jury never had the opportunity to decide whether the Galaxy Tab 10.1 infringes or dilutes the iPad Trade Dress. (Dkt. No. 1931, at 14, 15.) In a case where Samsungs own counsel labored to distinguish between the iPad 2 and the Galaxy Tab 10.1, there is obviously a likelihood of confusion between the accused product and the iPad Trade Dress. (10/13/2011 Hrg Tr. 48:12-18.) At a minimum, it is against the clear weight of the evidence to conclude that Apples iPad Trade Dress is not protectable, when that Trade Dress is so well known that even Samsung admitted, several months before introducing the Galaxy Tab 10.1, that The iPad is by far still the most recognized product on the market. (PX56.30.) Thus, the Court should, at least, exercise its discretion pursuant to Rule 59(a) to grant Apple a new trial on its iPad Trade Dress claims. See Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 298, 301 (3rd Cir. 1991) (vacating district courts denial of motion for new trial because plaintiff proved secondary meaning and likelihood of confusion on two trademark claims). A. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That The iPad Trade Dress Is Protectable

The only reasonable conclusion to be drawn from the evidence is that the iPad Trade
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Dress is protectable because it is not functional and has acquired secondary meaning. 15 U.S.C. 1125(a)(3); Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 216 (2000). A trade dress is functional if it is essential to the use or purpose of the device or when it affects the cost or quality of the device. The Ninth Circuit looks to four factors in applying this test: (1) whether advertising touts the utilitarian advantages of the design; (2) whether the particular design results from a comparatively simple or inexpensive method of manufacture; (3) whether the design yields a utilitarian advantage and (4) whether alternative designs are available. (Dkt. No. 1159 (Order Denying Motion for Summary Judgment) at 4 (citing Traffix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 33 (2001)).) Significantly, [t]he fact that individual elements of the trade dress may be functional does not necessarily mean that the trade dress as a whole is functional; rather, functional elements that are separately unprotectable can be protected together as part of the trade dress. (Id. at 5 (citing Adidas-Solomon AG v. Target Corp., 228 F. Supp. 2d 1192, 1195 (D. Or. 2002)).) Apple established each of these factors. First, Apples iPad advertising does not tout the utilitarian advantages of the products design. (PX11 (examples of iPad print and outdoor ads); PX128 (iPad Is Iconic television ad).) Second, the iPad 2 design was absolutely not, Chris Stringer explained, driven in any way to make [the devices] cheaper or easier to manufacture. (Tr. 505:18-21.) Third, Mr. Stringer testified that Apple wanted to make a breathtakingly simple, beautiful device with the iPad, and it did not select the final design because it thought it would work better as a tab. (Tr. 499:5-6, 504:1-3; see also Tr. 1094:19-1095:9 (Bressler) (opining that industrial design elements of iPad Trade Dress were not functional).) Fourth, there are multiple alternative tablet designs on the market that can perform the same functions as the iPad. (Tr. 1095:10-1096:22 (Bressler) (discussing alternative industrial designs); Tr. 1399:241401:1, Tr. 1403:16-1405:12 (Kare) (discussing alternative GUI designs); PX10 (depicting alternative tablet designs).) As for secondary meaning, courts consider various factors including: (1) whether actual purchasers of the product associate the configuration with the plaintiff; (2) the degree and manner of plaintiffs advertising; (3) the length and manner of plaintiffs use of the configuration; and
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(4) whether plaintiffs use of the configuration has been exclusive. Clamp Mfg. Co, Inc.. v. Enco Mfg. Co., Inc., 870 F.2d 512, 517 (9th Cir. 1989). The iPad Trade Dress had acquired secondary meaning as of June 2011, when Samsung first sold the Galaxy Tab 10.1 in the U.S. Apple invests heavily in promoting the iPad through a focused, product-as-hero advertising strategy showcas[ing] th[at] product[] as predominantly as we can. (Tr. 639:13-15, 639:22 (Schiller).) Apple spends substantial sums advertising the iPad in the U.S., and these ads often prominently feature the elements of the asserted iPad Trade Dress. (Tr. 649:2-18 (Schiller) (identifying types of ads), 656:4-15 & PX16 ($379.5M spent on U.S. iPad ads as of June 2011); PX11; PX128.) Apple promotes the iPad through product placement in television programs and movies. (Tr. 650:16-19 (Schiller).) The iPad was also the subject of huge [public media] coverage. (Tr. 618:24-619:1 (Schiller); PX138-141 (coverage of the iPads release).) Apples impressive sales for the iPad products translate into significant recognition for the iPad. (Tr. 1504:20-1505:10 (Winer); PX15 (Apple sold 7.86M iPads by the end of March 2011).) Hal Porets survey results further indicate a high level of association between the iPad Trade Dress and Apple. Over 57% of respondents associated the iPad Trade Dress with Apple; after subtracting the control results, the net recognition rate was 40.3%. (Tr. 1585:22-1589:1; Tr. 1589:8-16.) More than 75% of respondents associated the angled view of the iPad Trade Dress with Apple; after subtracting the control results, the net recognition rate was 64.4%. (Tr. 1589:2-5; Tr. 1589:8-16.) Because this evidence permits only one reasonable conclusionthat the iPad Trade Dress had acquired secondary meaning by June 2011the Court should grant judgment as a matter of law that the iPad Trade Dress is protectable, but, at a minimum, it should grant a new trial because the jurys contrary findings are against the clear weight of evidence. B. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsungs Galaxy Tab 10.1 Infringes The iPad Trade Dress

Trade dress infringement exists where confusion between goods is likely. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979). The Sleekcraft factors guide the likelihood 27 of confusion analysis, though the presence or absence of any particular factor is not dispositive. 28
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These factors are: (i) the strength or weakness of Apples trade dress; (ii) the proximity of the goods; (iii) the similarity of Apples and Samsungs trade dress; (iv) actual confusion; (v) Samsungs intent; (vi) overlap in channels of trade; and (vii) consumers degree of care in purchasing the accused tablets. Id. at 348-53. Under these factors, Samsungs Galaxy Tab 10.1 is likely to cause confusion with and therefore infringes the iPad Trade Dress. Id. at 348. First, the iPad Trade Dress is strong and distinctive for all the reasons discussed above, and Samsung itself has even recognized the distinctiveness of the iPad. (PX56.30 (The iPad is by far still the most recognized product on the market.).) Second, Apple and Samsungs tablet products compete directly (Tr. 1510:6-11 (Winer) ([T]he products compete and compete heavily in the marketplace.).) Third, the press commented that the Galaxy Tab 10.1 and iPad are very similar, and the products themselves confirm their similar appearance. (Tr. 1510:13-18 (Winer); JX1004 (iPad), JX1005 (iPad 2), JX1006 (iPad 3G), JX1037 (Galaxy Tab 10.1 WiFi), JX1038 (Galaxy Tab 10.1 4G LTE).) Samsungs internal documents show that consumers purchased Galaxy Tab 10.1 devices thinking they were iPad products. (Tr. 1567:12-18 (Winer) (Some individuals bought a Samsung Galaxy Tab mistakenly thinking it was an iPad.); PX59 (Greatest number of customer return type were those who purchased thinking it was an Apple iPad 2.).) Kent Van Lieres post-sale confusion survey similarly showed that approximately 30% of respondents identified a branded Galaxy Tab 10.1 as an iPad or Apple product, 43% identified an unbranded Galaxy Tab 10.1 as an iPad or Apple product, and 24% identified the control product as an iPad or Apple product, generating a net confusion rate between 6% and 19%. (Tr. 1700:10-16, 1701:5-11.) Fourth, Samsungs internal documents further indicate that Samsung viewed the iPad as a target. (Tr. 1518:14-19 (Winer).) Finally, there can be a number of reasons why a consumer doesnt spend as much time as you would expect making what looks to be an expensive decision. (Tr. 1518:310 (Winer).) In response to Apples evidence, Samsung presented designer Jin Soo Kim, who testified that Samsung began working on the Galaxy Tab 10.1 project in October 2009, before Apple announced its first-generation iPad in January 2010. (Tr. 2802:25-2803:8.) But Mr. Kim
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admitted that Samsung decided in February 2011 to change the design of the Galaxy Tab 10.1. (Id. 2813:8-9, 25 (So we decided that we should redesign.).) Samsung thus did not present any credible evidence that Samsung did not copy either the iPad or iPad 2 designs. In light of all the evidence, the only reasonable conclusion is that there is a likelihood of confusion between the Galaxy Tab 10.1 and Apples iPad Trade Dress. At a minimum, the Court should grant a new trial because the jury never reached the issue of likelihood of confusion. C. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsungs Galaxy Tab 10.1 Dilutes The iPad Trade Dress

When assessing whether a trade dress is famous among the general consuming public, courts look to the following non-exhaustive list of factors: (i) the duration, extent, and geographic 10 reach of advertising and publicity; (ii) the amount, volume, and geographic extent of sales of 11 goods offered under the trade dress; (iii) the extent of actual recognition; and (iv) whether the 12 trade dress is registered. 15 U.S.C. 1125(c)(2)(A). In light of the evidence discussed above 13 regarding secondary meaning, the only reasonable conclusion is that Apples iPad Trade Dress 14 was famous as of June 2011. (See discussion supra II.C.1.; see also Tr. 1507:11-18 (Winer) 15 (noting that the secondary meaning and fame factors are mostly the same).) 16 In determining whether the appearance of the Galaxy Tab 10.1 products is likely to dilute 17 the iPad Trade Dress, all relevant factors may be considered, including (i) the degree of similarity 18 between the Samsung products and Apples trade dress; (ii) the degree of acquired distinctiveness 19 of Apples trade dress; (iii) the extent to which Apple is engaging in substantially exclusive use of 20 its trade dress; (iv) the degree of recognition of Apples trade dress; (v) whether Samsung 21 intended to create an association with Apples trade dress; and (vi) any actual association between 22 Samsungs products and Apples trade dress. 15 U.S.C. 1125(c)(2)(B). 23 Under these factors, Samsungs Galaxy Tab 10.1 dilutes the iPad Trade Dress. As 24 discussed above, Apple presented ample evidence of the similarity of the Galaxy Tab 10.1 and the 25 iPad Trade Dress, the distinctiveness of the iPad Trade Dress, Samsungs intent to copy the iPad 26 Trade Dress, and the degree of actual recognition for the iPad Trade Dress. (See discussion supra 27 Sections I.A. & I.B.) Apples evidence of actual confusion also constitutes evidence of actual 28
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association between the Galaxy Tab 10.1 and the iPad Trade Dress. See Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 636 (9th Cir. 2008) (identifying surveys showing consumer confusion as to source as evidence of actual association). (See discussion supra Section I.B.) Apples expert Dr. Winer opined that the distinctiveness of the Apple trade dress is going to be blurred by competitors that emulate and copy that trade dress, thus supporting the finding that the Galaxy Tab 10.1 is likely to dilute Apples iPad Trade Dress. (Tr. 1519:19-24.) At a minimum, the Court should grant a new trial on iPad Trade Dress dilution because the jury never considered whether there was a likelihood of dilution. II. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL ON ITS CLAIM THAT SAMSUNG INFRINGED THE D889 PATENT The evidence permits only one reasonable conclusion: Samsungs Galaxy Tab 10.1 infringes the D889 patent. The Court should so rule or, at least, grant a new trial on that issue.

12 13 14 familiar with the prior art and giving such attention as a purchaser usually gives, the designs of 15 the Galaxy Tab 10.1 and the D889 are substantially the same. See Egyptian Goddess, Inc. v. 16 Swisa, Inc., 543 F.3d 665, 677-78 (Fed. Cir. 2008) (en banc). The prior art serves to focus on 17 those aspects of a design which render the design different from prior art designs. Id. at 677 18 (internal quotation marks omitted). If the accused design has copied a particular feature of the 19 claimed design that departs conspicuously from the prior art, the accused design is naturally more 20 likely to be regarded as deceptively similar to the claimed design, and thus infringing. Id. 21 Applying this test, the design of the Galaxy Tab 10.1 (both WiFi and LTE models) is 22 substantially the same as the D889 design. 23 The visual similarity between the D889 design and the Galaxy Tab 10.1 is self-evident 24 when the patent figures are compared with the accused Samsung products. (See PX7 (Galaxy 25 Tab 10.1); JX1029 (Galaxy Tab 10.1 WiFi); JX1037 (Galaxy Tab 10.1 LTE); JX1040 (D889 26 patent); PDX26.14 (demonstrative comparing D889 patent figures and Galaxy Tab 10.1).) When 27 faced with the same visual evidence in deciding Apples motion for preliminary injunction, this 28
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The Evidence Permits No Reasonable Conclusion Other Than Infringement

The test for design patent infringement is whether, in the eye of an ordinary observer

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Court found substantial similarities in design and held that Apple had established likely success on infringement. (Dkt. No. 452 at 45-48.) On appeal, Samsung argued that Apple failed to demonstrate likely success in proving that the Galaxy Tab 10.1 infringes the D889 patent. (Kim Decl. Ex. A at 61.) The Federal Circuit considered this argument so insubstantial that it did not specifically address it in concluding that Apple was likely to succeed on the merits. Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314, 1329 (Fed. Cir. 2012); see also id.at 1323 (opinion focuses on issues that present close questions and does not address findings not subject to serious challenge). The evidence at trial confirms this conclusion as a matter of law. Apples design expert Peter Bressler explained that both the Galaxy Tab 10.1 products and the D889 design include the overall impression that an ordinary observer would hold of a continuous, flat, clear glass front surface which, in my analysis, is a major departure from the prior art. (Tr. 1066:21-1067:20.) Mr. Bressler testified further that ordinary observers would also notice that the Galaxy Tab 10.1 is rectangular in form, closely resembling the 889 figures with curved cornersflat on the back with curving sides up toward the front edge [and] an equilateral band visible through the transparency, equally all the way around the display. (Tr. 1066:21-1067:20.) Mr. Bressler testified that the continuous flat, clear, edge-to-edge glass front surface, which also appears in the Galaxy Tab 10.1, is such a design departure that it is the major driver of the overall impression of the D889 patent. (Tr. 1349:1-11.) Accordingly, the other views, including the back view, assume less importance in ones mind when ones viewing that product. (Tr. 1349:8-11.) The distance between the patented design and the prior art also supports a finding of infringement. Mr. Bressler testified that the Galaxy 10.1 was substantially more similar to the 889 patent than to any of the prior art. (Tr. 1068:13-23.) Mr. Bressler (and the visual record) confirmed that the visual impressions of the Fidler tablet and TC1000 designs were far afield from the D889. (Tr. 3602:9-3604:14 (the [Fidler Tablets] transparent front surface does not go edge to edge all the way across the front to meet a narrow rimthis has a raised frame around the display that is not of equal border, because its wider at the bottom); Tr. 3604:19-3605:13 (the
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TC1000 does not havea transparent surface that runs totally edge to edge all the way across the face to a narrow rim; has multiple bands around the display that are not equal; there is a radius or curved frame around the edge that is different than the 889 patent); JX1078 (Fidler tablet replica); JX1074 (TC1000).) See also Apple, 678 F.3d at 1331 (finding significant differences in visual impression between Fidler tablet, TC1000, and D889 patent). A timeline of tablet designs before and after the iPad also illustrates how Samsung departed from the prior art (including its own) to copy the iPad. (PX4.) Apple also presented evidence that others thought the designs were substantially similar. When Samsung released the Galaxy Tab 10.1, the press remarked that the Tab 10.1 achieved perhaps the best design compliment an Android tablet could hope foroften being mistaken by passers-by (including Apple iPad users) for an iPad 2. The confusion is understandable when you see and hold the Galaxy Tab 10.1 for the first time. (PX173.2.) Samsungs partner Google similarly found Samsungs proposed tablet design too similar to Apple. (PX42.1; see also PX43.2 (Google is demanding distinguishable design vis--vis the iPad for the P3.).) Samsungs design was so similar that actual consumers mistakenly purchased Galaxy Tab 10.1s thinking they were iPad 2s, and returned them for that reason. (Tr. 1086:2-11, 1089:23-1090:8 (Bressler) ([The] greatest number of customer return type were those who purchased thinking it was an Apple iPad 2.); PX59.19.) In response, Samsung elicited testimony regarding the inspiration of Apples inventors and minor differences between the D889 design and the Galaxy Tab 10.1, but neither supports a reasonable conclusion of no infringement. Samsung primarily focused on the Galaxy Tab 10.1s two-part back, which is not present in the D889 or in Chris Stringers inspiration for it. (See, e.g., Tr. 1127:24-1228:19 (Bressler) (confirming that theres at least two pieces on back of Galaxy Tab 10.1 and no seam in back housing of of D889 design); (Tr. 522:24-523:15 (Stringer) (inspiration for D889 was a single, seamless vessel for rear housing) ). But the inventors personal views about design inspiration cannot limit a patents scope, and minor differences in appearance are not relevant to the infringement analysis because the test concerns the overall appearancewhether the effect of the whole design [is] substantially the same.
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Under this test, minor differences between a patent design and an accused articles design cannot, and shall not, prevent a finding of infringement. Payless Shoesource, Inc. v. Reebok Intl, Ltd., 998 F.2d 985, 991 (Fed. Cir. 1993) (internal quotation marks omitted); see also Intl Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1243 (Fed. Cir. 2009) ([T]he mandated overall comparison is a comparison taking into account significant differences between the two designs, not minor or trivial differences.). In any event, as Mr. Bressler noted, the seam along the back of the Galaxy Tab 10.1 is an absolutely flush seamthat makes it appear to be a continuous surface, like the back of D889. (Tr. 1228:20-22.) On this record, the only reasonable conclusion is that the accused Samsung tablets infringe the D889 patent. Accordingly, Apple is entitled to judgment as a matter of law. B. Judgment As A Matter Of Law Is Also Warranted Under An Alternative, And Correct, Claim Construction

An infringement analysis properly rests on the meaning and scope of the patent claims asserted to be infringed. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 14 1995) (en banc). Here, the Court correctly construed the D889 patent, with one exception: the 15 Courts determination that oblique line shading in [Figure 2] depicts a transparent, translucent, 16 or highly polished or reflective surface fromthe bottom perspective view of the claimed 17 design. (Dkt. No. 1447 at 2-3.) As Apple argued in its claim construction briefing, the lines on 18 the back of the device in Figure 2 are better interpreted as shading lines indicating a flat surface. 19 (Dkt. No. 1177 (Apple reply claim construction brief) at 4-5.) Under this construction, the only 20 reasonable conclusion is, again, that the accused Samsung tablets infringe the D889 patent. 21 While the oblique lines in the front perspective view of Figure 1 and front elevation view 22 of Figure 3 are clearly used to indicate a transparent, glass-like front surface (through which the 23 dotted-line rectangular element can be seen), the three sets of lines shown on the back of the 24 device in Figure 2 are used for a different purpose. Consistent with MPEP Section 1503.02, the 25 lines in the back perspective are shading that shows the flat contour of the back surface. See 26 MPEP 1503.02 (While surface shading is not requiredit may be necessary in particular cases 27 to shade the figures to show clearly the character and contour of all surfaces of any 3-dimensional 28
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aspects of the design.). Were the lines in Figure 2 meant to denote a transparent, translucent, or reflective back surface, they would be required to appear in every drawing depicting the back surface, including Figure 4, the elevation view of the back, and Figures 5-8, side views where a portion of the back is visible. See id. (Oblique line shading must be used to show transparent, translucent and highly polished or reflective surfaces, such as a mirror. (emphasis added)). But Figures 4-8 do not show any lines on the back surface. Accordingly, Apples interpretation most naturally aligns with the disclosure of the patent figures. See Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (The construction thatmost naturally aligns with the patents description of the invention will be, in the end, the correct construction.). The extrinsic evidence also supports Apples interpretation. Jonathan Iveinventor and Apples lead industrial designertestified: [M]y thought as a designer interpreting this drawing would be that in Figure 2, those three sets of lines make it clear that the back surface is flat. (Dkt. No. 1177-2, Bartlett Decl., Ive deposition (12-1-11) at 185:7-186:4.) Mr. Bressler also held this view. (Dkt. No. 1177-3, Bartlett Decl., Bressler deposition (4-24-12) at 50:23-51:12 (I believe that the diagonal lines included in figure 2 are used to help identify the topography of figure 4 to illustrate that it is flat.).) Their testimony further confirms that Apples interpretation of the figures is correct. Applying this construction of the claims, the only reasonable conclusion supported by the evidence is that Samsungs tablets infringe the D889 patent. The analysis is the same as in Section II.A. above, but even more compelling because under the proper claim construction the jury need not consider Samsungs argument that the Galaxy Tab 10.1 does not infringe because it has a matte back, an argument Samsung pressed at closing. (See Tr. 4163:8-4164:22 (You can see it with your own eyes. This is not a shiny surface. This is matte surface.).) C. At A Minimum, The Court Should Grant Apple A New Trial On Infringement Of The D889 Patent

If the Court declines to grant judgment as a matter of law, it should at a minimum exercise its discretion to grant a new trial on infringement of the D889 patent. Here, the jury verdict of 27 non-infringement is against the clear weight of evidence for the reasons discussed above; the 28
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evidence shows that the Galaxy Tab 10.1 has substantially the same overall appearance as the D889. See Molski, 481 F.3d at 729. A new trial is warranted on the additional ground that the jury was incorrectly instructed on design patent infringement. Where, as here, an incorrect claim constructionremoves from the jury a basis on which the jury could reasonably have reached a different verdict, the verdict should not stand. Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 381 F.3d 1371, 1383 (Fed. Cir. 2004). The jury was erroneously instructed that the back of the device shown in Figure 2 was a transparent, translucent, or highly polished or reflective surface. (Dkt. No. 1903 at 59.) This construction prejudiced Apple because it gave Samsung a non-infringement argumentthat the back of the Galaxy Tab 10.1 has a matte surface. (Tr. 4163:8-4164:22.) As the record clearly reflects sufficient evidence to support a jury verdict of infringement under the correct construction, see supra Section II.B., this claim construction error warrants a new trial. Ecolab, Inc. v. Paraclipse, Inc., 285 F.3d 1362, 1376 (Fed. Cir. 2002). Furthermore, jury instruction No. 46 charged: [t]wo designs are substantially the same if, in the eyes of an ordinary observerthe resemblance between the two designs is such as to deceive such an observer, inducing him to purchase one supposing it to be the other. (Dkt. No. 1903 at 63.) This was error. The law is clear that deception of the consumer in his purchasing decisionwhether likely or actualis not required to prove design patent infringement. In L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117 (Fed. Cir. 1993), the Federal Circuit affirmed the district courts holding of design patent infringement because the accused shoe designs were substantially similar to the patented designs, id. at 1126, yet held that the district court clearly erred in holding that purchasers of [the accused] shoes would be likely to be confused or deceived or mistakenly think that they were buying the L.A. Gear athletic shoes, despite the substantial similarity of overall design, id. at 1134. Those two holdings make clear that design patent infringement does not depend on deception in purchasing. See also Unette Corp. v. Unit Pack Co., 785 F.2d 1026, 1029 (Fed. Cir. 1986) (likelihood of confusion as to source of goods is not factor); Braun, Inc. v. Dynamics Corp., 975 F.2d 815, 821 (Fed. Cir. 1992) (rejecting argument that absence of evidence of deception precludes jury from finding infringement).
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This error, too, prejudiced Apple because it goes to the core of the design patent infringement test and removed grounds on which the jury could reasonably have found infringement. Moreover, Samsung heavily relied on this erroneous instruction in its closing. (Tr. 4135:6-13 (This is the test, its jury instruction number 46. And Ill just read it. Two designs are substantially the same if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, the resemblance between the two designs is such as to deceive such an observer, inducing him to purchase one supposing it to be the other.).) Although instruction No. 46 included the additional charge that [y]ou do not needto find that any purchasers actually were deceived or confused, the erroneous initial instruction allowed Samsung to argue otherwise to the jury. (Id.; see Tr. 4135:6-4136:25 (Now, youd think that if Apple was going to come in here and ask for over $2 billion in damagesThat they would have an expert to come in and say, I did a study in evaluating whether people were deceived or confused.But you dont.).) Thus, the prejudice introduced by the initial instruction could not effectively be undone by the second, contradictory charge. Under the correct instruction, the jury would not have considered deception or confusion of the ordinary observer in determining infringement. Accordingly, at a minimum, Apple is entitled to a new trial on infringement of the D889 patent. III. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON ALL ITS REMAINING CLAIMS A. All Accused Samsung Smartphones Infringe The D677 And D087 Patents

Apple is entitled to judgment as a matter of law on each of its claims for infringement of the D677 and D087 patents because the only reasonable conclusion from the evidence is that 21 Samsungs product designs accused of infringing those patents are substantially the same as the 22 patented designs to an ordinary observer familiar with the prior art. See Egyptian Goddess, 23 543 F.3d at 670, 678. The jury correctly found infringement with respect to all but one Samsung 24 smartphone accused of infringing the D677 and as to many of the smartphones accused of 25 infringing the D089, but incorrectly found that the Samsung Galaxy Ace phone did not infringe 26 the D677 and that the Samsung Galaxy S II (AT&T; i9100; Epic 4G Touch; and Skyrocket) and 27 Infuse 4G phones did not infringe the D087. (Dkt. No. 1931 at 6.) The evidence cannot support 28
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the findings of non-infringement. (See, e.g., Tr. 1056:20-1057:9 (Bressler) (the ordinary observer would consider the design or appearance of [phones including the Galaxy Ace] to be substantially the same as that of the 677); Tr. 1060:18-22, 1062:12-1064:11 (Bressler) (the overall impression an ordinary observer would have of [the relevant] phones would be the same as their impression of the design representing the 087 patent).) Accordingly, Apple is entitled to judgment as a matter of law on its claims that the Samsung Galaxy Ace infringes Apples D677 patent and that the Galaxy S II and Infuse 4G phones infringe the D087 patent. See Ostad, 327 F.3d at 881. Alternatively, if there is to be a new trial regarding the D677 or D087 patent (which there should not be), any trial involving the D677 should include the Galaxy Ace and any trial involving the D087 should include the Galaxy S II and Infuse 4G phones because the jurys findings on those products are against the clear weight of evidence. B. All Accused Samsung Smartphones Dilute Apples Registered iPhone And Unregistered iPhone 3G Trade Dresses

Apple is entitled to judgment as a matter of law on each of its claims for dilution of Apples registered iPhone and unregistered iPhone 3G Trade Dresses because the only reasonable 15 conclusion from the evidence is that all Samsungs smartphones accused of diluting these Trade 16 Dresses are likely to dilute them. In determining trade dress dilution, a court may consider all 17 relevant factors, including those set forth in 11 U.S.C. 1125(c)(2)(B). See Section II supra; 18 Jada Toys, 518 F.3d at 635-36. The evidence permits no reasonable conclusion other than that 19 dilution was likely as to each of the accused Samsung smartphone productsincluding those the 20 jury found not likely to dilute Apples trade dresses. (See, e.g., Tr. 1528:17-21 (Winer) 21 (confirming that the sale of Samsungs [accused smartphone products] is likely to dilute the 22 distinctiveness of Apples iPhone trade dresses); Tr. 1695:23-1696:2 (Van Liere) (recounting 23 results of study showing that it is likely that consumers will associate the look and design of the 24 Samsung [accused smartphone products] with Apple or with the iPhone, and that would be 25 evidence suggestive of dilution).) Accordingly, Apple is entitled to judgment as a matter of law 26 that each accused Samsung smartphone dilutes Apples registered iPhone and unregistered iPhone 27 3G Trade Dresses. See Jada Toys, 518 F.3d at 635-36. Alternatively, if there is to be a new trial 28
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regarding the registered iPhone Trade Dress (which there should not be), it should include the Samsung i9100, Captivate, Continuum, Droid Charge, Epic 4G, Galaxy Prevail, Galaxy S II (AT&T, T-Mobile, Epic 4G Touch, and Skyrocket), and Infuse 4G phones, and if there is to be a new trial regarding the unregistered iPhone 3G trade dress (which there should not be), the new trial should include the Samsung i9100, Captivate, Continuum, Droid Charge, Epic 4G, Galaxy Prevail, Galaxy S II (AT&T, T-Mobile, Epic 4G Touch, and Skyrocket), and Infuse 4G phones. In each case the jurys findings on those products are against the clear weight of evidence. C. All Accused Samsung Smartphones Dilute Apples Protectable And Famous Unregistered Combination iPhone Trade Dress

Apple is entitled to judgment as a matter of law on each of its claims for the unregistered combination iPhone Trade Dress because the only reasonable conclusion from the evidence is that 11 the combination iPhone Trade Dress is both protectable and famous and each accused Samsung 12 smartphone product dilutes that Trade Dress. First, Apples combination iPhone Trade Dress is 13 protectable because it is not functional and has acquired distinctiveness. 15 U.S.C. 1125(a)(3); 14 Wal-Mart Stores, 529 U.S. at 216. The trade dress is not functional under the four-factor inquiry 15 in Traffix. See Traffix Devices, 532 U.S. at 33. (See, e.g., Tr. 1094:14-18 (Bressler) (Its my 16 opinion that [all] aspects of the iPhone trade dress are not functional.).) By July 2010, the 17 unregistered combination iPhone Trade Dress also had acquired distinctiveness (secondary 18 meaning) as set forth in Clamp. See Clamp, 870 F.2d at 517 (identifying test and likely factors in 19 assessing secondary meaning). Expert witness Dr. Winer offered unrebutted testimony, 20 concluding that Apple trade dresses are among the most distinctive in the world, and particularly 21 in the U.S., and have a very high degree of recognition. (Tr. 1507:7-9.) 22 Second, the evidence further requires the conclusion that, no later than July 2010, Apples 23 combination iPhone Trade Dress was famous, as required by 15 U.S.C. 1125(c)(2)(A). For 24 example, Dr. Winer, testified that [t]heres no question in my mind that [Apples asserted iPhone 25 trade dresses are] famous among the general consuming public. (Tr. 1508:6-7.) This evidence 26 was unrebutted. 27 Finally, Apple proved that, as a matter of law, each of the accused Samsung smartphone 28
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products dilutes the unregistered combination iPhone Trade Dress, considering all relevant factors including those set forth in 15 U.S.C. 1125(c)(2)(B). (See, e.g., Tr. 1528:17-21 (Winer) (confirming that the sale of Samsungs [accused smartphone products] is likely to dilute the distinctiveness of Apples iPhone trade dresses); Tr. 1695:23-1696:2 (Van Liere) (recounting results of study showing that it is likely that consumers will associate the look and design of the Samsung [accused smartphone products] with Apple or with the iPhone, and that would be evidence suggestive of dilution).) In sum, the evidence permits only one reasonable conclusionApples unregistered combination iPhone Trade Dress is protectable, famous, and diluted by the accused Samsung smartphonesand accordingly, Apple is entitled to judgment as a matter of law on those claims. Alternatively, because the jurys finding as to the protectability of the combination iPhone Trade Dress is contrary to the clear weight of evidence, Apple is entitled to a new trial on its claim that the accused Samsung smartphones dilute the combination iPhone Trade Dress. D. All Accused Samsung Smartphones Infringe The 163 And 915 Patents

The evidence permits only one reasonable conclusionthat each of Samsungs accused smartphone products infringes Apples 163 and 915 utility patents. The jury incorrectly found that the Samsung Captivate, Continuum, Gem, Indulge, Intercept, Nexus S 4G, Transform, and Vibrant phones did not infringe claim 50 of the 163 patent. (Dkt. No. 1931 at 4.) The jury also incorrectly found that the Samsung Galaxy Ace, Intercept, and Replenish phones did not infringe claim 8 of the 915 patent. (Dkt. No. 1931 at 3.) The findings of non-infringement cannot be reconciled with the evidence. Apples expert, Dr. Singh, testified that all of these products infringed, and Samsung offered no evidence to the contrary. (See, e.g., Tr. 1819:2-1830:21 (I concluded that [the accused Samsung smartphone products] infringe claim 8 of the 915 patent.); Tr. 1833:21-1842:6 (reviewing claim 50 of the 163 patent and confirming that the elements of that claim are present in the accused Samsung smartphone products).) Accordingly, Apple is entitled to judgment as a matter of law on its claims that all Samsung smartphones infringe the 163 and 915 patents. See Ostad, 327 F.3d at 881. Alternatively, if there is to be a new trial regarding the 163 patent (which there should not be), the new trial should include the Samsung
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Captivate, Continuum, Gem, Indulge, Intercept, Nexus S 4G, Transform, and Vibrant phones, and if there is to be a new trial regarding the 915 patent (which there should not be), the new trial should include the Samsung Galaxy Ace, Intercept, and Replenish phones. E. Samsung Willfully Infringed Apples Patents And Willfully Diluted Apples Trade Dresses And SEC Induced Its Subsidiaries Infringement And Dilution

Apple is entitled to judgment as a matter of law that Samsung acted willfully in those instances where the jury declined to find or did not reach willfulness. Specifically, Apple proved 7 willful infringement of the D087 and D889 design patents for all accused Samsung products, 8 willful dilution of Apples unregistered combination iPhone Trade Dress, and willful 9 infringement and dilution of Apples unregistered iPad/iPad 2 Trade Dress. The evidence 10 requires the conclusion that Samsung willfully infringed and diluted each of these Apple patents 11 and trade dresses. 12 Samsungs conduct was objectively unreasonable, and it knew or should have known that 13 its smartphone and tablet products infringe Apples asserted patents. See In re Seagate Tech., 14 LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007) (en banc). Beginning in February 2010, Samsung 15 systematically copied the iPhone design. (See, e.g., PX3 (images of Samsung phones pre- and 16 post-iPhone introduction).) Samsung persisted in its copying even after Apple showed Samsung 17 in side-by-side comparisons how the design of the Galaxy phone imitated the iPhone and walked 18 Samsung through how the product infringed various Apple patents. (PX52.) And after learning 19 that its original Galaxy Tab looked confusingly like an iPad, Samsung designed the Galaxy Tab 20 10.1 to look even more like an iPad 2. (PX56.7 (Samsung internal report stating that [o]ver half 21 of consumers thought the Samsung ad for the original Galaxy Tab was for Apple).) This is 22 paradigmatic willful infringement and willful dilution. Deliberate copying is strong evidence 23 of willful infringement. L.A. Gear, 988 F.2d at 1127. The evidence thus permits only one 24 reasonable conclusionthat Samsungs infringement and dilution of each of Apples asserted 25 patents and trade dresses was willful. 26 The evidence of Samsungs intentional copying also requires a judgment that Samsung 27 Electronics Co., Ltd. (SEC) induced infringement. Apple conclusively demonstrated that SEC 28
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infringed Apples patents both directly and by inducing its subsidiaries to infringe. SECs infringement was direct, as it sold phones and tablets directly into the United States. (See, e.g., Tr. 2068-2071 (Musika) (SEC sells the product to[Samsung Telecommunications America, LLC], and the phones move across the Pacific and land in the United States.).) See SEB S.A. v. Montgomery Ward & Co., 594 F.3d 1360, 1375 (Fed. Cir. 2010) (affirming direct infringement where product sold directly into United States), affd, Global-Tech. Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011). And SEC induced its subsidiaries to infringe because SEC knew or was willfully blind to the fact that their sales infringed Apples patents. See Global-Tech Appliances, Inc., v. SEB S.A., 131 S. Ct. 2060, 2069 (2011). Alternatively, if there is to be a new trial on any of Apples infringement or dilution claims, the new trial should include Apples willfulness and inducement claims where the jury either made no finding or found no willfulness or inducement, as this is against the clear weight of evidence. F. If The Court Chooses To Disaggregate The Damages Award And Adjust It Based On Product-Specific Amounts, Then Apple Is Entitled To Additional Sums As A Matter Of Law

In reviewing damages awards, the Federal Circuit give[s] broad deference to the conclusions reached by the finder of fact. Monsanto Co. v. McFarling, 488 F.3d 973, 981 (Fed. Cir. 2007). The amount chosen by the jury need only be within the range encompassed by the record as a whole. Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 519 (Fed. Cir. 1995). Recognizing this broad deference, Apple does not challenge the jurys damages award, except conditionally. Samsung has stated it will likely file a motion for remittitur challenging aspects of the jurys damages award, such as damages attributed to the Prevail. (Dkt. No. 1941 at 5.) If in response the Court decides to review the damages award on a product-by-product basis, then Apple urges as to certain products that it is entitled to higher damages amounts as a matter of law, at a minimum to offset any reductions that might result from parsing of the jurys unitary award. Specifically, Apple is entitled to an additional $155,841,889 in damages as a matter of law based on five infringing products for which the jury awarded less than the minimum, undisputed amount calculated by Samsungs own damages expert. Three of those productsthe Fascinate,
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Galaxy S 4G, and Mesmerizediluted Apples unregistered iPhone 3G trade dress, for which damages are calculated from the date of first sale. See, e.g., Dwyer Instruments, Inc. v. Sensocon, Inc., No. 3:09-CV-10-TLS, 2012 U.S. Dist. LEXIS 78491, at *29 (N.D. Ind. June 5, 2012) ([T]he notice language of 1111 only applies to registered marks and to claims for infringement of such registered marks.). The jury awarded $270,007,459 for those three products combined (Dkt. No. 1931 at 16), although Samsungs expert calculated minimum damages of $351,295,561, even including Samsungs additional claimed overhead expenses. (DX781.003.) Similarly, the jury awarded $145,119,962 for the Galaxy S II (Epic 4G Touch) and Infuse 4G (Dkt. No. 1931 at 16), when Samsung calculated $219,673,839 as the minimum damages based on the shortest alleged notice dates, and including all cost deductions. (DX781.001.) Should the Court decide to examine the award at a product-specific level (and it should not), damages should therefore be increased by $155,841,889 as a matter of law. (($351,295,561 $270,007,459) + ($219,673,839 $145,119,962) = $155,841,889.) See, e.g., Taylor v. Green, 868 F.2d 162, 165 (5th Cir. 1989) ([W]hen the amount of damages is not disputed and a party is entitled to damages under the verdict as a matter of lawit would be a mere formality to order a partial new trial limited to the issue of damages when the court could immediately thereafter grant summary judgment for the undisputed amount. (internal quotation marks omitted)). IV. APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT SAMSUNGS PATENTS ARE INVALID Based on the evidence presented at trial, the only reasonable conclusion is that the asserted claims of Samsungs patents are invalid as anticipated or obvious in view of the prior art.

21 Alternatively, if there is to be a new trial on infringement for any of Samsungs patents (which 22 there should not be), the trial should also include the validity of those patents because the jurys 23 not-invalid findings are against the clear weight of evidence. 24 893 Patent. Apple proved that claim 10 is invalid as anticipated or obvious in view of 25 Korean Patent No. 10-2004-0013792 (PX112), an LG patent published in February 2004 (Tr. 26 3206:5-11). Dr. Dourish explained how the LG patent disclosed every limitation of claim 10 (Tr. 27 3207:4-3216:25), including a photographing mode (Tr. 3213:19-3214:6), a stored-image 28
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display mode (Tr. 3214:7-16), a mode-switching operation (Tr. 3214:17-3215:12), and displaying the most recently displayed image (Tr. 3215:13-3216:3) irrespective of a duration under Dr. Yangs interpretation (Tr. 3216:4-21). Dr. Dourish provided unrebutted testimony that the LG patent renders claim 10 obvious and that secondary considerations support that opinion. (Tr. 3217:1-3219:1.) In rebuttal, Dr. Yang provided only conclusory testimony that the LG patent did not disclose the mode-switching limitation. (Tr. 3666:6-19.) Dr. Yangs testimony is insufficient to overcome Apples proof of invalidity. 711 Patent. Apple proved that claim 9 is invalid as obvious over the Sony K700i device (PX125) and Wong (PX91), a U.S. patent published in October 2002 (Tr. 3246:2-15). Apple provided unrebutted evidence that the K700i is prior art because it was on sale and publicly available in 2004. (PX113; PX116; PX117; Tr. 3234:21-3238:2.) Dr. Givargis testified that the K700i included a music background play object (Tr. 3241:18-3242:15) and all claim elements other than the applet limitation. (Tr. 3238:23-3244:19.) He then explained that the claimed invention of the 711 patent would have been obvious because applets were well known in the art, Wong taught the use of applets for cell phones, and secondary considerations supported his opinion of obviousness. (Tr. 3244:20-3248:14.) In rebuttal, Dr. Yang provided only conclusory testimony that is insufficient to rebut Apples proof of invalidity. (Tr. 3666:20-3667:25.) 460 Patent. The Patent Office stated during prosecution that the three core functions claimed in the 460 patentemailing with text, sending an email with a picture, and looking at stored imageshad been done by others before. (Tr. 2467:16-20 (Yang).) Against this backdrop, Apple proved that claim 1 is invalid as obvious over the combination of three camera phone patents in the prior art: Suso (PX119), Harris (PX118), and Yoshida (PX120). Dr. Srivastava explained how those references disclosed all the limitations found in claim 1 (Tr. 3310:14-3315:24), including that Yoshida taught a second e-mail transmission sub-mode (Tr. 3313:9-3315:24). He also testified that a person skilled in the art would have been motivated to combine those references (Tr. 3309:15-3310:8), and that secondary considerations support his obviousness opinion (Tr. 3315:25-3316:22). Dr. Yang summarily stated on rebuttal that Yoshida did not teach a second email transmission sub-mode (Tr. 3669:2-17), but no reasonable
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factfinder could have accepted that testimony since it is inconsistent with Yoshidas disclosure of attaching a displayed image to an email (PX120 at 6:38-44, 17:60-67, 20:29-37 & Fig. 10). 516 Patent. Apple proved that claims 15 and 16 are invalid as obvious in view of the admitted prior art (APA) described in the 516 patent (JX1073) and Hatta (PX100), a Japanese patent application published in July 2002 (Tr. 3425:24-3426:4). Dr. Kim testified that the APA disclosed a system with HARQ and non-HARQ channels that reduced power by equally scaling power on different channels. (Tr. 3423:6-3424:19; JX1073 at Figs. 4-5.) He then explained that Hatta taught the alleged solution of the 516 patent by unequally scaling down power on different types of channels and that it would have been obvious to combine this teaching with the APA to arrive at the claimed invention of the 516 patent. (Tr. 3424:20-3427:20; PX100 at Fig. 5.) Dr. Kim showed how the APA combined with Hatta teaches every limitation of claims 15 and 16 of the 516 patent and renders them obvious (Tr. 3427:21-3430:12), and further testified that secondary considerations support his analysis (Tr. 3430:13-3431:6). In rebuttal, Dr. Williams offered only conclusory statements and did not contradict any of Dr. Kims invalidity opinions. (Tr. 3657:3-3658:17.) His testimony is insufficient to rebut Apples proof of invalidity. 941 Patent. Apple proved that claims 10 and 15 are invalid as anticipated by Agarwal (PX97), a U.S. patent filed in July 1998 (Tr. 3454:7-11). Dr. Knightly explained that Agarwal disclosed a header format for minimizing overhead during segmentation and reassembly of data packets in satellite and wireless networks. (Tr. 3454:17-3455:9, 3457:22-3458:5.) He also explained how Agarwal taught every limitation in claims 10 and 15 (Tr. 3457:16-3460:5), including that the third bit in Agarwals header is a one-bit field (Tr. 3455:23-3456:3, 3456:223457:15, 3458:18-3459:2), that Agarwals Total Length and F/L fields are a length indicator with a predefined value (Tr. 3456:4-16, 3459:3-6), and that Agarwals PKTSQNU is a sequence number (Tr. 3456:17-21, 3458:18-22). In rebuttal, Dr. Williams summarily stated that Agarwal did not disclose a mobile communication system, a one-bit field, a serial number, or a length indicator, but failed to provide any explanation or respond to Dr. Knightlys identification of elements in Agarwal that taught these limitations. (Tr. 3658:183659:17.) Thus, a reasonable juror could only conclude that claims 10 and 15 are invalid.
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V.

APPLE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON ITS BREACH OF CONTRACT AND ANTITRUST COUNTERCLAIMS A. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsung Breached Its Contractual Obligation To Timely Disclose Its Patents As Required By The ETSI IPR Policy

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Clause 4.1 of the ETSI IPR Policy requires that: Each MEMBER shall use its reasonable endeavours to timely inform ETSI of ESSENTIAL IPRs it becomes aware of. In particular, a MEMBER submitting a technical proposal for a STANDARD shall, on a bona fide basis, draw the attention of ETSI to any of that MEMBERs IPR which might be ESSENTIAL if that proposal is adopted. (PX74.2.) Samsung is a member of ETSI (Tr. 3483:4-5) and is therefore contractually bound by this provision. As Dr. Walker explained, when a member of ETSI submits a technical proposal, it must disclose any patent that might be essential (Tr. 3495:12-13) and should do so prior to adoption [of the standard] actually happening (Tr. 3495:16-18). Apple proved that Samsung was required to, but did not, disclose the 516 and 941 patent families to ETSI before the adoption of its technical proposals. The undisputed evidence showed that: (1) Samsung filed Korean patent applications to which the 516 and 941 patents claim priority in June 2004 and May 2005, respectively (JX1073.1; Tr. 3513:6-24 (Walker); JX1070.1; Tr. 3498:3-3499:23 (Walker)); (2) Samsung subsequently submitted technical proposals relating to the 516 technology (Tr. 3510:10-3511:23 (Walker); PX193; JX1084) and the 941 technology (Tr. 3498:25-3500:3 (Walker); JX1085; PX101) at 3GPP meetings attended by the named inventors (Tr. 3512:1-4; PX70.42 (516 inventors Kwak, Lee, Cho, and Heo attended); Tr. 3502:10-3503:5 (Walker); PX72.15 (941 inventor van der Velde attended)); and (3) Samsung did not disclose its Korean patent applications or any IPR from the 516 and 941 patent families until after the relevant proposals were adopted (Tr. 3513:6-24, 3506:7-3507:1 (Walker)). Samsung accordingly breached Clause 4.1. Apple also proved that Samsungs breach harmed Apple, as an implementer of the UMTS standard. As Dr. Ordover testified, Samsungs conduct distorted the decision making process at ETSI. [T]hat distortion has led to a choice of technology that may not have been chosen but for its conduct. (Tr. 3579:2-6.) Moreover, the adoption of Samsungs technical proposals into the
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3GPP standard was the basis for Samsungs infringement claims against Apple. (Tr. 2743:10-15 (Williams) (infringement opinion based on compliance with 3GPP release 6).) Apple incurred significant costs in defending against those claims, including fees paid to its technical experts. (Tr. 3439:14-19 (Knightly) ($140,000); Tr. 3326:11-18 (Kim) (500 hours at $450/hour).) Samsung did not dispute that it disclosed its IPR relating to the 516 and 941 patents only after the relevant technical proposals were adopted. (Tr. 3655:11-16 (Teece) (no reason to disagree with timeline).) Instead, Samsungs Dr. Teece arguedwithout identifying any specific examples resembling Samsungs conduct here (Tr. 3653:23-3655:1)that late disclosure is common (Tr. 3645:8-3646:12). That is irrelevant; purported breaches by others cannot excuse Samsungs breach. See, e.g., Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004, 1012 (Fed. Cir. 2008) (participants understanding of disclosure obligations is relevant only to the extent the written JVT IPR policies are ambiguous). The meaning of Clause 4.1 is not ambiguous, and the unrebutted testimony of Dr. Walker is that disclosure should be made prior to adoption [of the standard] actually happening (Tr. 3495:16-18). Samsung has also suggested that it did not need to disclose its patent applications because they were confidential, but Samsung disclosed their subject matter publicly when it submitted technical proposals without requesting confidential treatment under ETSIs rules (Tr. 3528:5-3529:14 (Walker)). B. Apple Is Entitled To Judgment As A Matter Of Law Or A New Trial That Samsung Breached Its Contractual Obligations To License Its DeclaredEssential Patents On FRAND Terms

For each declared-essential patent, Samsung promised that it was prepared to grant irrevocable licenses under the IPRs on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy, in respect of the STANDARD, to the extent that the IPRs remain ESSENTIAL. (PX122.41; PX122.24; see PX122.1 (general declaration).) Samsung was bound by these commitments prior to the jurys non-infringement verdict (and remains bound to offer FRAND licenses to IPR it claims to be essential). However, Samsungs firstand only licensing offer to its declared-essential portfolio was made after this litigation began, and sought 2.4% of the entire selling price of each accused product. (Tr. 3145:1-3146:23 (Teece); PX80.1.) Samsung did not cure the breach that arose from its failure to offer any license terms prior
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to suit, and Apple proved that Samsungs post-suit demand breached its FRAND commitments in two ways. First, Samsungs proposed royalty basethe entire price of each licensed product was not FRAND because it included many, many other features beyond those claimed in the patents and sought royalties on value completely unrelated to [Samsungs] patent[s]. (Tr. 3537:12-3538:6, 3539:6-20 (Donaldson).) See Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1318 (Fed. Cir. 2011) ([T]he patenteemust in every case give evidence tending to separate or apportiondamages between the patented feature and the unpatented features.) (internal quotations marks omitted). Second, Apple proved that Samsungs proposed 2.4% rate was not FRAND because if other companies choose the same approach as Samsungthen the total amount of royalty on something like an iPhone would be about 50 percent. And from a business perspectivethis would be totally unreasonable. (Tr. 3544:17-3545:6 (Donaldson).) Dr. Teece stated that 2.4% was in the range of rates that Ive observed from other companies (Tr. 3646:17-23), but that is irrelevant because other companies rates have nothing to do with the appropriate rate for Samsungs portfolio. Apple also proved that Samsungs breach harmed Apple. If Samsung had made a FRAND offer to Apple for its declared-essential patent portfolios, Apple would have accepted that offer and there would have been no need for this litigation. Apples costs in defending against Samsungs claims for the 516 and 941 patents, including $365,000 fees that Apple paid to technical experts (Tr. 3439:14-19 (Knightly) ($140,000); Tr. 3326:11-18 (Kim) (500 hours at $450/hour)), are harms directly caused by Samsungs breach of its FRAND commitments. The Court should grant judgment as a matter of law that Samsung breached its contractual obligations and award Apple $365,000 in damages. Alternatively, if there is to be a new trial on infringement for Samsungs 516 or 941 patent (which there should not be), the Court should grant a new trial on Apples contract claims because the jurys findings are against the clear weight of evidence. C. Apple Is Entitled To Judgment As A Matter Of Law That Samsung Violated Section 2 Of The Sherman Act

Apple established all elements to show that Samsung violated the antitrust laws. See, e.g., Verizon Commcns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) 28
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(monopoly); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (injury). First, Apple proved the relevant antitrust markets. Dr. Ordover testified that the relevant technology markets center[] on the technologies that Samsung sponsored into the standard, and all the other technologies that could have performed the features on which those technologies read. (Tr. 3581:25-3582:8.) He identified the technologies that compete in those markets based on Dr. Kims and Dr. Knightlys testimony about alternatives to the 516 and 941 patents. (Tr. 3582:3-8; Tr. 3432:2-13 (Kim) (516 alternatives); Tr. 3460:15-25 (Knightly) (941 alternatives).) Dr. Ordover also explained that the relevant markets are worldwide. (Tr. 3583:1-3584:8.) Samsung offered no evidence suggesting an alternative market. Instead, Dr. Teece criticized Dr. Ordovers methodology for failing to look at cost data for the substitutes identified. (Tr. 3648:5-3649:24.) But no such analysis is required in these technology markets. See, e.g., Hynix Semiconductor Inc. v. Rambus Inc., No. CV-00-20905, 2008 WL 73689, at *3 (N.D. Cal. Jan. 5, 2008) ([A] technology market can still be defined by determining what other technologies a buyer could switch to if necessary.). Also, the alleged incorporation of a patent into a standardmakes the scope of the relevant market congruent with that of the patent. Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 315 (3rd Cir. 2007). Second, Apple proved that Samsung had monopoly power in the relevant markets. Dr. Ordover explained that, regardless of whether the 941 and 516 patents are actually essential, the mere presence in the standard create[s] itself a very potent effect on how people act and how they perceive the firms ability to control price and overcharge for the technology. (Tr. 3586:216; see also Tr. 3579:12-19 ([B]ecause [Samsungs patented technologies] are now standard, they have acquired what I call the holdup power, the patent owner holdup power, and that is the risk that the standard setting creates.).) Moreover, the fact that [Samsung]can charge, or attempt to charge the non-FRAND rates to [Apple] is what economists call a direct proof of market or monopoly power, and in this particular caseMr. Donaldson concluded that what they are asking for is totally way out of line with FRAND. (Tr. 3587:8-14; see also Tr. 3586:8-16.) Third, Apple proved that Samsung willfully acquired its monopoly power in the relevant markets through anticompetitive activity including its failure to timely disclose its IPR, and its
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failure to offer to license its declared-essential patents on FRAND terms. As Dr. Ordover explained, the economic effect of such conduct was to distort the decision making process at ETSI (Tr. 3578:23-3579:3), which is clear evidence of anticompetitive conduct. See Broadcom, 501 F.3d at 314 (Deception in a consensus-driven private standard-setting environment harms the competitive process by obscuring the costs of including proprietary technology in a standard and increasing the likelihood that patent rights will confer monopoly power on the patent holder.). Dr. Ordover also established that Samsungs anticompetitive conduct led to its acquisition of monopoly power. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 78-80 (D.C. Cir. 2001). Fourth, there was no dispute that Samsungs conduct affected interstate commerce. (Dkt. No. 1883 at 103 (Final Jury Instruction No. 70).) Finally, Apple demonstrated that it was harmed by Samsungs anticompetitive conduct. The adoption of Samsungs proposals was accomplished by Samsung and its inventors, who deliberately failed to disclose their patent applications (Tr. 3579:7-11 (Ordover)), and was the basis for Samsungs infringement claims against Apple. (Tr. 2743:10-15 (Williams) (infringement opinion based on products compliance with standard).) As Dr. Ordover explained, Apple has to spend money defendingitself in courts on these patent issues. (Tr. 3587:19-22; see also Tr. 3439:14-19 (Knightly) ($140,000); Tr. 3326:11-18 (Kim) (500 hours at $450/hour).) Accordingly, the Court should grant judgment as a matter of law that Samsung violated Section 2 of the Sherman Act and award Apple $1,095,000 in damages (for Dr. Kims and Dr. Knightlys fees, trebled per 15 U.S.C. 15.) Alternatively, if there is to be a new trial on infringement for Samsungs 516 or 941 patent (which there should not be), the trial should also include Apples antitrust counterclaim because the jurys finding is against the clear weight of evidence. VI. APPLE IS ENTITLED TO SUPPLEMENTAL DAMAGES AND PREJUDGMENT INTEREST Pursuant to Rule 59(e), Apple requests that the Court amend the judgment to award supplemental damages and prejudgment interest through the date a final judgment is entered

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resolving proceedings before this Court. The precise amount of supplemental damages will depend on the date the amended judgment is entered. If judgment enters on December 31, 2012, Apple is entitled to supplemental damages totaling $121,098,389 and prejudgment interest of $48,969,088 on the jury award and $899,201 on the supplemental damages. Apple provides a formula by which the Court can adjust the amount of supplemental damages and prejudgment interest to conform to the actual date an amended judgment is entered. Under that formula per diem damages as of December 2012 are $516,197, while per diem interest is $108,658. Pursuant to this motion and Apples motion for enhancement of damages in the amount of $535 million also filed today, Apple requests amendment of the judgment to add to the existing verdict and judgment a total of $707,061,678 through December 31, 2012. A. Apple Is Entitled To A Supplemental Damage Award For Samsungs Sales Between July 1 And The Resolution Of District Court Proceedings

The jury awarded Apple $1,049,349,540 in damages for Samsungs infringing sales of 24 product models. (Dkt. No. 1931.) This award accounts for Samsungs infringing and diluting 14 sales only through June 30, 2012. (See JX1500 (reflecting sales through Q2 2012); Dkt. No. 1554 15 at 3 (Apple and Samsung by agreement exchanged documents reflecting financial results 16 updated for periods between April and June 2012.).) Apple is also entitled to monetary relief 17 supplemental damages and prejudgment interestfor Samsungs sales between July 1, 2012, and 18 the date a final judgment is entered resolving proceedings before this Court. See Finjan, 626 F.3d 19 at 1212-13 (ordering supplemental damages to compensate patentee for uncompensated sales). 20 The Court has discretion in determining how to calculate post-verdict damages, and any 21 uncertainty regarding that calculation should be resolved against the infringer. Stryker Corp. v. 22 Davol Inc., 234 F.3d 1252, 1260 (Fed. Cir. 2000) (district court has discretion in assessing 23 damages); Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 554-55 (Fed. Cir. 1984) 24 (doubts regarding amount of damages should be resolved against infringer). In awarding 25 supplemental damages, the Court should apply the jurys existing verdict without revisiting or 26 reevaluating the jurys methods or conclusions. See Hynix Semiconductor Inc. v. Rambus Inc., 27 609 F. Supp. 2d 951, 964-65 (N.D. Cal. 2009); Presidio Components, Inc. v. Am. Technical 28
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Ceramics Corp., No. 08-CV-3335-IEG, 2010 U.S. Dist. LEXIS 79039, at *4-6 (S.D. Cal. Aug. 5, 2010). This simple approach best meets the purpose of supplemental damages, which is to ensure that damages are adequate to compensate for the infringement without requiring additional litigation [that] would be inefficient and unhelpful, serving only to delay the patentees right to recover. Hynix, 609 F. Supp. 2d at 961 (quoting 35 U.S.C. 284). Any approach to supplemental damages requiring additional discovery would only delay Apples right to recover. Accordingly, Apple requests that the Court calculate supplemental damages based on the jurys award of $1.05 billion and the undisputed information of actual past unit sales of infringing models. As set forth in the attached declaration, Apples damages consultant Marylee P. Robinson first divided the jury award of $1.05 billion by the total number of Samsungs infringing and diluting sales (20,820,168), yielding an average damages amount of $50.40 per sale. (Robinson Decl. 9.) The total number of sales reflects all sales of Samsungs smartphones found to have diluted Apples unregistered iPhone 3G trade dress and all sales after August 4, 2010 of phones found to have infringed a patent. (Id.) This total is consistent with Mr. Musikas trial testimony and is a conservative estimate, in that it produces a lower average damage amount than if one assumes notice only as of the filing of Apples complaint. (Id. 10.) Next, to estimate the number of Samsungs infringing sales for the third and fourth quarters of 2012, Apples consultant evaluated eight infringing products that she could verify remain on sale1 and made a linear plot of the actual monthly sales of those models for the nine months between October 2011 (when all eight products were on sale in the marketplace) and June 2012 (the last month for which sales were available). (Id. 11.) Extending the overall downward trend of this line for the remainder of 2012 resulted in projected additional sales of 2.4 million units1,350,684 units in the third quarter and 1,052,046 units in the fourth quarter of 2012. (Id.) Multiplying those estimated sales by the average amount of damages per sale ($50.40) results in supplemental damages of $121,098,389 million. (Id. 12.) On a daily basis, the number of sales

The Droid Charge, Galaxy Prevail, Galaxy S 4G, Galaxy S II (AT&T Edition, 4G), Galaxy S II (Epic 4G Touch), Galaxy S II (Skyrocket), Galaxy S II (T-Mobile edition), and Galaxy S Showcase (i500) remain on sale. (Robinson Decl. 8.)
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forecast for December 2012 (317,500 units, equal to 10,242 units per day) yields $516,197 in supplemental damages per day. The Court may add (or subtract) this daily amount from the $121 million in supplemental damages as of December 31, 2012, to bring the supplemental damages figure current to the date of the amended judgment when entered. (Id. 13.) B. Apple Is Entitled To Prejudgment Interest Of $49,868,289 Through December 31, 2012

Under 35 U.S.C. 284, a prevailing patent holder is entitled to prejudgment interest on damages. Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 656, 657 (1983) ([P]rejudgment 8 interest should be awarded under 284 absent some justification for withholding such an 9 award.). Federal common law similarly authorizes awarding prejudgment interest for Lanham 10 Act violations. Gorenstein Enters., Inc. v. Quality CareUSA, Inc., 874 F.2d 431 (7th Cir. 11 1989); see also Am. Honda Motor Co. v. Two Wheel Corp., 918 F.2d 1060, 1064 (2d Cir. 1990). 12 The rate of prejudgment interest and whether it should be compounded or 13 uncompounded are matters left largely to the discretion of the district court, Bio-Rad Labs., 14 Inc. v. Nicolet Instrument Corp., 807 F.2d 964, 969 (Fed. Cir. 1986), which may award interest 15 at or above the prime rate, Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed. Cir. 16 1991). [W]hen the amount of the damages cannot be ascertained with precision, any doubts 17 regarding the amount must be resolved against the infringer. Lummus Indus., Inc. v. D.M. & E. 18 Corp., 862 F.2d 267, 274-75 (Fed. Cir. 1988) (internal quotation marks omitted). 19 This Court has repeatedly used the prime rate to calculate prejudgment interest in 20 intellectual property cases, and that is the appropriate rate for calculating prejudgment interest 21 here. See Atmel Corp. v. Silicon Storage Tech., Inc., 202 F. Supp. 2d 1096, 1101 (N.D. Cal. 22 2002); Junker v. HDC Corp., No. C-07-05094, 2008 WL 3385819, at *6 (N.D. Cal. 2008); 23 Fresenius Med. Care Holdings v. Baxter Intl, Inc., No. C 03-1431, 2008 WL 928535, at *3 (N.D. 24 Cal. 2008) (Numerous other courts have also held that the prime rate is appropriate for 25 calculating prejudgment interest in a patent case.). During the damages period, the prime rate 26 remained at 3.25%, which is not only historically low but also well below the interest rates this 27 Court has found appropriate in a variety of intellectual property cases. See, e.g., O2 Micro Intl 28
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Ltd. v. Monolithic Power Sys, Inc., 420 F. Supp. 2d 1070, 1076-77 (N.D. Cal. 2006) (7% rate); In re Hayes Microcomputer Prods. Bus., 766 F. Supp. 818, 824 (N.D. Cal. 1991) (7% rate); Informatica v. Bus. Objects Data Integration, 489 F. Supp. 2d. 1075, 1087 (N.D. Cal. 2007) (4.78% rate). Given the historically low prime rate during the damages period as well as the fairly short damages period, compounding the interest annually is warranted, and consistent with the many cases in which this Court has awarded compound interest. See, e.g., Atmel, 202 F. Supp. 2d at 1101 (compounding interest quarterly and monthly). Apples damages consultant calculated prejudgment interest on the jury award of $1.05 billion by first allocating the damages award to each quarter from June 2010 through July 2012, and then compounding at the prime rate annually. As discussed above, to allocate the jury award, she multiplied the number of actual sales in each quarter, per JX1500, by the per-unit average damages amount of $50.40. To calculate interest on these amounts, she compounded annually on January 1 of each year at the prime rate of 3.25%. (Robinson Decl. 15-18.) The resulting prejudgment interest totals $48,969,088 on the jury award through December 31, 2012. (Id. 19.) Using the same compounding methodology for sales forecasted for supplemental damages, Samsung owes an additional $899,201 in prejudgment interest on the supplemental damages requested above, as of December 31, 2012. (Id. 20.) Summing these two figures yields a total of $49,868,289 in prejudgment interest, assuming judgment is entered on December 31, 2012. (Id. 21.) By calculating daily interest at prime on this total, Apples consultant has also calculated $108,658 in prejudgment interest per day for the jury award and supplemental damages amount for periods before and after December 31, 2012 so that the Court may calculate the relevant interest amounts as necessary in connection with the entry of final judgment. (Id. 22.) CONCLUSION Apple respectfully requests that this Court award Apple judgment as a matter of law on the foregoing claims or in the alternative, as indicated, a new trial. Apple also requests that this Court award Apple supplemental damages and prejudgment interest.

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1 Dated: September 21, 2012 2 3 By: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MORRISON & FOERSTER LLP

/s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC.

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