Case 3:14-cv-02235-DMS-BLM Document 458 Filed 07/25/18 PageID.22156 Page 1 of 5
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`JOHN ALLCOCK (Bar No. 98895)
`john.allcock@dlapiper.com
`SEAN C. CUNNINGHAM (Bar No. 174931)
`sean.cunningham@dlapiper.com
`ERIN GIBSON (Bar No. 229305)
`erin.gibson@dlapiper.com
`ROBERT WILLIAMS (Bar No. 246990)
`robert.williams@dlapiper.com
`TIFFANY MILLER (Bar No. 246987)
`tiffany.miller@dlapiper.com
`JACOB ANDERSON (Bar No. 265768)
`jacob.anderson@dlapiper.com
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, California 92101-4297
`Tel: 619.699.2700
`Fax: 619.699.2701
`
`ROBERT BUERGI (Bar No. 242910)
`robert.buergi@dlapiper.com
`AMY WALTERS (Bar No. 286022)
`amy.walters@dlapiper.com
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303-2215
`Tel: 650.833.2000
`Fax: 650.833.2001
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`Attorneys for
`APPLE INC.
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`WI-LAN, INC.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`AND RELATED
`COUNTERCLAIMS
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`DLA PIPER LLP (US)
`S A N D I E G O
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`WEST\282528566.1
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`CASE NO. 3:14-cv-1507-DMS-BLM
`(consolidated);
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`CASE NO. 3:14-cv-02235-DMS-BLM
`(lead case)
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`APPLE INC.’S BENCH BRIEF
`REGARDING WI-LAN’S VIOLATION
`OF JULY 22, 2018 STIPULATION
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`Dept.: 13A
`Judge: Hon. Dana M. Sabraw
`Magistrate Judge: Hon. Barbara L. Major
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`TRIAL BRIEF RE STIPULATION VIOLATION
`3:14-CV-001507-DMS-BLM
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`Case 3:14-cv-02235-DMS-BLM Document 458 Filed 07/25/18 PageID.22157 Page 2 of 5
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`On the night before trial began (July 22, 2018), at Wi-LAN’s urging, the
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`parties entered into a stipulation, which states in relevant part: “Wi-LAN will not
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`state or argue that Apple is the only or the rare mobile device manufacturer/
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`company which has not entered into a license agreement with Wi-LAN.” Dkt. No.
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`449. It also states that “Wi-LAN will not argue that litigation with Wi-LAN
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`justifies an upward adjustment of any license or that litigation between the Parties
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`justifies an upward adjustment.” Id. In exchange, Apple agreed it would not raise
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`the prior litigation history between the parties: “[t]he Parties will not argue or offer
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`evidence regarding the prior litigation history between Apple and Wi-LAN.” Id.
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`During the testimony of Wi-LAN’s CEO Jim Skippen, Wi-LAN repeatedly
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`violated the terms of the July 22 Stipulation:
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`The discount rate was the rate that we could go to very
`quickly if we were negotiating just for a company that
`was cooperative and working in good faith. And
`respecting intellectual property, particularly ours. And
`was willing to take a license. … And some of the
`factors that would go into discounting the rate would be
`things like, you know, how cooperative and reasonable
`and fair the company was that we were talking to. If they
`respected intellectual property and clearly were working
`in good faith with us we would immediately consider
`discounts.
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`Ex. 1, Skippen Tr. at 13:7-19 (emphasis added).
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`Now, if a company just refused to talk to us or just
`wouldn’t – didn’t show any respect for intellectual
`property, or ours at least, these rates would not
`necessarily apply.
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`Id. at 15:15-17 (emphasis added).
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`Well, I mean, all of those companies [Nokia, Blackberry,
`LG, Samsung, HTC, Motorola, ZTE, Panasonic, Sanyo,
`Vertu, Argos, Doro, NEC Mobile] have taken a license,
`that is all I meant by that, that they take a license. And it
`is very rare that companies don’t take a license.
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`DLA PIPER LLP (US)
`S A N D I E G O
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`WEST\282528566.1
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`TRIAL BRIEF RE STIPULATION VIOLATION
`3:14-CV-001507-DMS-BLM
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`Case 3:14-cv-02235-DMS-BLM Document 458 Filed 07/25/18 PageID.22158 Page 3 of 5
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`Id. at 17:10-13 (emphasis added); see also 8:15-20.
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`The vast majority of our licenses are arrived at just
`through good faith discussion. You know, we are patent
`experts, we have very strong technical and legal people,
`they look at them. We do not assert patents unless we are
`very sure they are being used. And usually there are
`professionals on the other side, and we are able to just
`discuss it and reach an agreement. And occasionally, like
`I said, if someone presents good arguments, we will
`withdraw the patents. We have I done that a number of
`times. It is very rare that we just –
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`Id. at 17:14-23 (emphasis added). At that point, Apple’s counsel was forced to
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`object.
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`There is no question this testimony violated both the letter and the spirit of
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`the July 22 Stipulation, because the clear implication of this testimony is that Apple
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`did not negotiate in “good faith” with Wi-LAN, and that Apple is the “rare”
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`company that has not taken a license to Wi-LAN’s patents.
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`This testimony opens the door to Apple inquiring with Mr. Skippen and other
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`witnesses about the fact of and results of the prior lawsuits between Wi-LAN and
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`Apple. Otherwise, the jury will be left with precisely the impression that the
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`stipulation sought to eliminate—that Apple is an unwilling “holdout” to Wi-LAN’s
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`licensing approaches, that Apple has not acted in “good faith,” and that it should
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`pay more as a consequence. Permitting Apple to inquire about the prior litigation
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`history is the only fair way to put Apple back on equal footing in the eyes of the
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`jury, and to provide the true facts about why Apple has not taken a license.
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`Apple will be prepared to address this issue with the Court tomorrow.
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`TRIAL BRIEF RE STIPULATION VIOLATION
`3:14-CV-001507-DMS-BLM
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`Case 3:14-cv-02235-DMS-BLM Document 458 Filed 07/25/18 PageID.22159 Page 4 of 5
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`Dated: July 25, 2018
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`DLA PIPER LLP (US)
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`By /s/ Sean C. Cunningham
`JOHN ALLCOCK
`SEAN C. CUNNINGHAM
`ERIN GIBSON
`ROBERT BUERGI
`ROBERT WILLIAMS
`TIFFANY MILLER
`JACOB ANDERSON
`AMY WALTERS
`Attorneys for
`APPLE INC.
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`TRIAL BRIEF RE STIPULATION VIOLATION
`3:14-CV-001507-DMS-BLM
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`Case 3:14-cv-02235-DMS-BLM Document 458 Filed 07/25/18 PageID.22160 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 25, 2018, I electronically transmitted the
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`attached document to the Clerk’s Office using the CM/ECF System for filing and
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`transmittal of a Notice of Electronic Filing to the CM/ECF registrants.
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`
` /s/ Sean C. Cunningham
`Sean C. Cunningham
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`DLA PIPER LLP (US)
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`TRIAL BRIEF RE STIPULATION VIOLATION
`3:14-CV-001507-DMS-BLM
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