`
`EXHIBIT 2
`
`DECLARATION OF TRENT D. TANNER
`IN SUPPORT OF
`NUVASIVE'S OPPOSITION TO
`DEFENDANTS' MOTIONS IN LIMINE NOS. 1-10
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`268
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`C-12-00630 LHK
`SAN JOSE, CALIFORNIA
`APRIL 1, 2014
`VOLUME 2
`PAGES 268-497
`
`)))))))))))))))))
`
`APPLE INC., A CALIFORNIA
`CORPORATION,
`
`PLAINTIFF,
`
`VS.
`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.
`
`TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE LUCY H. KOH
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES ON NEXT PAGE
`
`OFFICIAL COURT REPORTERS:
`
`LEE-ANNE SHORTRIDGE, CSR, CRR
`CERTIFICATE NUMBER 9595
`IRENE RODRIGUEZ, CSR, CRR
`CERTIFICATE NUMBER 8074
`
`PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY
`TRANSCRIPT PRODUCED WITH COMPUTER
`
`UNITED STATES COURT REPORTERS
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`EXHIBIT 2
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`269
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`A P P E A R A N C E S:
`FOR PLAINTIFF
`APPLE:
`
`MORRISON & FOERSTER
`BY: HAROLD J. MCELHINNY
` RACHEL KREVANS
`425 MARKET STREET
`SAN FRANCISCO, CALIFORNIA 94105
`
`FOR SAMSUNG:
`
`WILMER, CUTLER, PICKERING,
`HALE AND DORR
`BY: WILLIAM F. LEE
`60 STATE STREET
`BOSTON, MASSACHUSETTS 02109
`BY: MARK D. SELWYN
`950 PAGE MILL ROAD
`PALO ALTO, CALIFORNIA 94304
`
`QUINN, EMANUEL, URQUHART & SULLIVAN
`BY: JOHN B. QUINN
` WILLIAM PRICE
`865 S. FIGUEROA STREET, FLOOR 10
`LOS ANGELES, CALIFORNIA 90017
`BY: VICTORIA F. MAROULIS
` KEVIN B. JOHNSON
`555 TWIN DOLPHIN DRIVE
`SUITE 560
`REDWOOD SHORES, CALIFORNIA 94065
`
`UNITED STATES COURT REPORTERS
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`EXHIBIT 2
`Page 7
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`270
`
`INDEX OF PROCEEDINGS
`OPENING STATEMENT BY MR. MCELHINNY
`OPENING STATEMENT BY MR. LEE
`OPENING STATEMENT BY MR. QUINN
`
`P. 298
`P. 338
`P. 351
`
`INDEX OF WITNESSES
`
`PLAINTIFF'S
`PHILIP SCHILLER
`DIRECT EXAM BY MR. MCELHINNY
`CROSS-EXAM BY MR. PRICE
`
`P. 417
`P. 475
`
`INDEX OF EXHIBITS
`MARKED
`
`ADMITTED
`
`PLAINTIFF'S
`118
`135A
`180
`1441
`113A
`127A
`133
`134
`143
`123
`
`DEFENDANT'S
`
`428
`429
`432
`436
`437
`439
`440
`441
`445
`461
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`
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`UNITED STATES COURT REPORTERS
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`EXHIBIT 2
`Page 8
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`271
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`SAN JOSE, CALIFORNIA
`
`APRIL 1, 2014
`
`
`
`P R O C E E D I N G S
`(JURY OUT AT 9:02 A.M.)
`(JUROR ANDERSON PRESENT TELEPHONICALLY.)
`JUROR ANDERSON: THIS IS LAURA ANDERSON.
`THE CLERK: HI, MS. ANDERSON. WE'RE CALLING FROM THE
`COURTROOM.
`JUROR ANDERSON: HELLO.
`THE COURT: HI, MS. ANDERSON. TELL US WHAT IS
`HAPPENING TODAY.
`JUROR ANDERSON: I'M NOT FEELING WELL. I WOKE UP
`EARLY THIS MORNING WITH VOMITING AND DIARRHEA, AND IT'S BEEN
`GOING ON THROUGHOUT THE MORNING. I HAVE BEEN RIDING FROM
`MONTEREY TO SAN JOSE. I'VE HAD TO PULL OVER MULTIPLE TIMES.
`THE COURT: OKAY. ALL RIGHT. THEN I -- IS THERE ANY
`OBJECTION TO EXCUSING MS. LAURA ANDERSON FOR HARDSHIP?
`MR. LEE: NONE FOR APPLE, YOUR HONOR.
`MR. QUINN: NOR FOR SAMSUNG.
`THE COURT: ALL RIGHT. THEN, MS. ANDERSON, THANK YOU
`VERY MUCH FOR YOUR SERVICE. WE HOPE THAT YOU RECOVER QUICKLY,
`AND YOU HAVE FULFILLED YOUR JURY DUTY.
`JUROR ANDERSON: OKAY.
`THE COURT: ALL RIGHT. THANK YOU.
`JUROR ANDERSON: THANK YOU.
`THE COURT: THANK YOU. FEEL BETTER.
`
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`Page 9
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`290
`
`AND EMPLOYS TRAINED EXAMINERS WHO REVIEW APPLICATIONS FOR
`PATENTS.
`AFTER THE APPLICANT FILES THE APPLICATION, A PTO PATENT
`EXAMINER REVIEWS THE PATENT APPLICATION TO DETERMINE WHETHER
`THE CLAIMS ARE PATENTABLE AND WHETHER THE SPECIFICATION
`ADEQUATELY DESCRIBES THE INVENTION CLAIMED.
`IN EXAMINING A PATENT APPLICATION, THE PATENT EXAMINER
`REVIEWS RECORDS AVAILABLE TO THE PTO FOR WHAT IS REFERRED TO AS
`"PRIOR ART."
`THE EXAMINER ALSO WILL REVIEW PRIOR ART IF IT IS SUBMITTED
`TO THE PTO BY AN APPLICANT.
`PRIOR ART IS DEFINED BY LAW AND I WILL GIVE YOU, AT A
`LATER TIME, SPECIFIC INSTRUCTIONS AS TO WHAT CONSTITUTES PRIOR
`ART.
`
`HOWEVER, IN GENERAL, PRIOR ART INCLUDES THINGS THAT EXISTS
`BEFORE THE CLAIMED INVENTION, THAT WERE PUBLICLY KNOWN OR USED
`IN A PUBLICLY ACCESSIBLE WAY IN THIS COUNTRY, OR THAT WERE
`PATENTED OR DESCRIBED IN A PUBLICATION IN ANY COUNTRY.
`THE EXAMINER CONSIDERS, AMONG OTHER THINGS, WHETHER EACH
`CLAIM DEFINES AN INVENTION THAT IS NEW, USEFUL, AND NOT OBVIOUS
`IN VIEW OF THE PRIOR ART. A PATENT LISTS THE PRIOR ART THAT
`THE EXAMINER CONSIDERED; THIS LIST IS CALLED THE "CITED
`PREFERENCES."
`AFTER THE PRIOR ART SEARCH AND EXAMINATION OF THE
`APPLICATION, THE PATENT EXAMINER THEN INFORMS THE APPLICANT IN
`
`UNITED STATES COURT REPORTERS
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`WRITING WHAT THE EXAMINER HAS FOUND AND WHETHER ANY CLAIM IS
`PATENTABLE, AND THUS WILL BE "ALLOWED."
`THIS WRITING FROM THE PATENT EXAMINER IS CALLED AN "OFFICE
`ACTION."
`IF THE EXAMINER REJECTS THE CLAIMS, THE APPLICANT THEN
`RESPONDS AND SOMETIMES CHANGES THE CLAIMS OR SUBMITS NEW
`CLAIMS.
`THIS PROCESS, WHICH TAKES PLACE ONLY BETWEEN THE EXAMINER
`AND THE PATENT APPLICANT, MAY GO BACK AND FORTH FOR SOME TIME
`UNTIL THE EXAMINER IS SATISFIED THAT THE APPLICATION AND CLAIMS
`MEET THE REQUIREMENTS FOR A PATENT.
`THE PAPERS GENERATED DURING THIS TIME OF COMMUNICATING
`BACK AND FORTH BETWEEN THE PATENT EXAMINER AND THE APPLICANT
`MAKE UP WHAT IS CALLED THE "PROSECUTION HISTORY." ALL OF THIS
`MATERIAL BECOMES AVAILABLE TO THE PUBLIC NO LATER THAN THE DATE
`WHEN THE PATENT ISSUES.
`THE FACT THAT THE PTO GRANTS A PATENT DOES NOT NECESSARILY
`MEAN THAT ANY INVENTION CLAIMED IN THE PATENT, IN FACT,
`DESERVES THE PROTECTION OF A PATENT. FOR EXAMPLE, THE PTO MAY
`NOT HAVE HAD AVAILABLE TO IT ALL THE INFORMATION THAT WILL BE
`PRESENTED TO YOU.
`A PERSON ACCUSED OF INFRINGEMENT HAS THE RIGHT TO ARGUE
`HERE IN FEDERAL COURT THAT A CLAIMED INVENTION IN THE PATENT IS
`INVALID BECAUSE IT DOES NOT MEET THE REQUIREMENTS FOR A PATENT.
`19.
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`UNITED STATES COURT REPORTERS
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`292
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`THERE ARE SEVEN PATENTS ASSERTED IN THIS CASE.
`APPLE ACCUSES SAMSUNG OF INFRINGING UNITED STATES PATENT
`NUMBERS 5,946,647; 6,847,959; 7,761,414; 8,046,172.
`PATENTS ARE OFTEN REFERRED TO BY THEIR LAST THREE DIGITS,
`SO APPLE'S PATENTS MAY BE REFERRED TO IN SHORTHAND AS THE '647,
`'959, '414, '721, AND '172 PATENTS.
`SAMSUNG ACCUSES APPLE OF INFRINGING UNITED STATES PATENT
`NUMBERS 6,226,445 AND 5,579,239.
`SAMSUNG'S PATENTS MAY BE REFERRED TO IN SHORT HAPPENED AS
`THE 449 AND 239 PATENTS.
`TO HELP YOU FOLLOW THE EVIDENCE, I WILL NOW GIVE YOU A
`SUMMARY OF THE POSITIONS OF THE PARTIES WITH RESPECT TO THE
`PATENT CLAIMS.
`THE PARTIES IN THIS CASE ARE APPLE, INCORPORATED, WHICH WE
`WILL REFER TO AS "APPLE" AND SAMSUNG ELECTRONICS COMPANY
`LIMITED, SAMSUNG ELECTRONICS AMERICA, INCORPORATED, AND SAMSUNG
`TELECOMMUNICATIONS AMERICA LIMITED LIABILITY CORPORATION, WHICH
`I WILL REFER TO COLLECTIVELY AS "SAMSUNG" UNLESS I THINK IT IS
`IMPORTANT TO DISTINGUISH BETWEEN THESE ENTITIES FOR THE
`PURPOSES OF A SPECIFIC INSTRUCTION.
`YOU MUST DECIDE THE CASE AS TO SAMSUNG ELECTRONICS
`COMPANY, SAMSUNG ELECTRONICS AMERICA, AND SAMSUNG
`TELECOMMUNICATIONS AMERICA SEPARATELY REGARDLESS OF WHETHER I
`REFER TO THEM COLLECTIVELY AS "SAMSUNG" OR INDIVIDUALLY.
`THE CASE INVOLVES FIVE UNITED STATES PATENTS OWNED BY
`
`UNITED STATES COURT REPORTERS
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`Page 12
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`293
`
`APPLE AND TWO UNITED STATES PATENTS OWNED BY SAMSUNG.
`APPLE FILED THIS LAWSUIT AGAINST SAMSUNG SEEKING MONEY
`DAMAGES FROM SAMSUNG FOR ALLEGEDLY INFRINGING THE '647, '959,
`'414, '721, AND '172 PATENTS BY MAKING, IMPORTING, USING,
`SELLING, AND/OR OFFERING FOR SALE THE TABLET AND SMARTPHONE
`PRODUCTS THAT APPLE ARGUES ARE COVERED CLAIM 9 OF THE '647
`PATENT, CLAIM 25 OF THE '959 PATENT, CLAIM 20 OF THE '414
`PATENT, CLAIM 8 OF THE '721 PATENT, AND CLAIM 18 OF THE '172
`PATENT.
`APPLE ALSO ARGUES THAT SAMSUNG ELECTRONICS COMPANY
`ACTIVELY INDUCED SAMSUNG ELECTRONICS AMERICA, INC. AND SAMSUNG
`TELECOMMUNICATIONS AMERICA LLC TO INFRINGE.
`APPLE CONTENDS THAT SAMSUNG'S INFRINGEMENT HAS BEEN
`WILLFUL.
`SAMSUNG DENIES THAT IT HAS INFRINGED THE ASSERTED CLAIMS
`OF THE '647, '959, '414, AND '721 PATENTS AND ARGUES THAT, IN
`ADDITION, THE ASSERTED CLAIMS ARE INVALID. INVALIDITY IS A
`DEFENSE TO INFRINGEMENT.
`YOUR DUTY FOR APPLE'S '172 PATENT IS DIFFERENT FROM THE
`OTHER PATENTS. THE COURT HAS ALREADY FOUND THAT THE ADMIRE,
`GALAXY NEXUS, GALAXY NOTE (EXCLUDING ONE RELEASE), GALAXY SII
`(EXCLUDING ONE RELEASE), GALAXY SII EPIC 4G TOUCH (EXCLUDING
`ONE RELEASE), GALAXY SII SKYROCKET (EXCLUDING ONE RELEASE), AND
`STRATOSPHERE INFRINGE CLAIM 18 OF THE '172 PATENT. YOU NEED
`ONLY DETERMINE WHETHER CLAIM 18 IS INVALID.
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`SAMSUNG HAS ALSO BROUGHT CLAIMS AGAINST APPLE FOR PATENT
`INFRINGEMENT. SAMSUNG SEEKS MONEY DAMAGES FROM APPLE FOR
`ALLEGEDLY INFRINGING THE '449 AND '239 PATENTS BY MAKING,
`IMPORTING, USING, SELLING AND/OR OFFERING FOR SALE APPLE'S, 1,
`CERTAIN IPHONE AND IPOD TOUCH PRODUCTS THAT SAMSUNG ARGUES ARE
`COVERED BY CLAIM 27 OF THE '449 PATENT; AND, NUMBER 2, CERTAIN
`IPHONE AND IPAD PRODUCTS THAT SAMSUNG ARGUES ARE COVERED BY
`CLAIM 15 OF THE '239 PATENT.
`SAMSUNG ALSO CONTENDS THAT APPLE'S INFRINGEMENT HAS BEEN
`WILLFUL.
`APPLE DENIES THAT IT HAS INFRINGED THE CLAIMS ASSERTED BY
`SAMSUNG. APPLE DOES NOT ARGUE THAT SAMSUNG'S PATENTS ARE
`INVALID. THEREFORE, YOU NEED ONLY DETERMINE WHETHER THE '449
`AND THE '239 PATENTS ARE INFRINGED AND WHETHER THAT
`INFRINGEMENT HAS BEEN WILLFUL.
`IN THIS CASE, APPLE DOES NOT CONTEND THAT IT PRACTICES THE
`'414, '172 OR '959 PATENTS, AND SAMSUNG DOES NOT CONTEND THAT
`IT PRACTICES THE '449 PATENT.
`FOR EACH PARTY'S PATENT INFRINGEMENT CLAIMS AGAINST THE
`OTHER, THE FIRST ISSUE YOU WILL BE ASKED TO DECIDE IS WHETHER
`THE ALLEGED INFRINGER HAS INFRINGED THE CLAIMS OF THE PATENT
`HOLDER'S PATENTS. FOR APPLE'S PATENTS, YOU WILL ALSO BE ASKED
`TO DECIDE WHETHER THOSE PATENTS ARE VALID.
`IF YOU DECIDE THAT ANY CLAIM OF EITHER PARTY'S PATENTS HAS
`BEEN INFRINGED AND, FOR APPLE'S PATENTS, IS NOT INVALID, YOU
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`UNITED STATES COURT REPORTERS
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`1 2 3 4 5 6 7 8 9
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`Page 14
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`WILL THEN NEED TO DECIDE ANY MONEY DAMAGES TO BE AWARDED TO THE
`PATENT HOLDER TO COMPENSATE IT FOR THE INFRINGEMENT.
`YOU WILL ALSO NEED TO MAKE A FINDING AS TO WHETHER THE
`INFRINGEMENT WAS WILLFUL.
`IF YOU DECIDE THAT ANY INFRINGEMENT WAS WILLFUL, THAT
`DECISION SHOULD NOT AFFECT ANY DAMAGE AWARD YOU GIVE. I WILL
`TAKE WILLFULNESS INTO ACCOUNT LATER.
`BEFORE YOU DECIDE WHETHER EITHER PARTY HAS INFRINGED THE
`OTHER'S PATENTS, OR WHETHER APPLE'S PATENTS ARE INVALID, YOU
`WILL NEED TO UNDERSTAND THE PATENT CLAIMS. AS I MENTIONED, THE
`PATENT CLAIMS ARE NUMBERED SENTENCES AT THE END OF THE PATENT
`THAT DESCRIBE THE BOUNDARIES OF THE PATENT'S PROTECTION.
`IT IS MY JOB AS JUDGE TO EXPLAIN TO YOU THE MEANING OF ANY
`LANGUAGE IN THE CLAIMS THAT NEEDS INTERPRETER.
`I HAVE ALREADY DETERMINED THE MEANING OF CERTAIN TERMS OF
`THE CLAIMS OF SOME OF THE PATENTS AT ISSUE. YOU WILL BE ASKED
`TO APPLY MY DEFINITIONS OF THESE TERMS IN THIS CASE.
`HOWEVER, MY INTERPRETATION OF THE LANGUAGE OF THE CLAIMS
`SHOULD NOT BE TAKEN AS AN INDICATION THAT I HAVE A VIEW
`REGARDING ISSUES, SUCH AS INFRINGEMENT (EXCEPT FOR APPLE'S '172
`PATENT) AND INVALIDITY. THOSE ISSUES ARE YOURS TO DECIDE.
`I WILL PROVIDE YOU WITH MORE DETAILED INSTRUCTIONS ON THE
`MEANING OF THE CLAIMS BEFORE YOU RETIRE TO DELIBERATE YOUR
`VERDICT.
`FINAL INSTRUCTION.
`
`UNITED STATES COURT REPORTERS
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`CROSS SCHILLER
`
`497
`
`CHAPERONE.
`MR. MCELHINNY: ALL RIGHT.
`(PAUSE IN PROCEEDINGS.)
`MR. MCELHINNY: YOUR HONOR, THIS IS MR. CHRISTIE.
`HE'LL BE OUR NEXT WITNESS.
`THE COURT: OKAY.
`MR. MCELHINNY: YOU'LL HAVE WATER, YOU'LL HAVE YOUR
`OWN SET OF BINDERS. BE CAREFUL, DON'T ROLL OFF.
`(DISCUSSION OFF THE RECORD.)
`THE WITNESS: THANK YOU VERY MUCH. I APPRECIATE IT.
`THE COURT: OKAY.
`(THE EVENING RECESS WAS TAKEN AT 4:35 P.M.)
`
`UNITED STATES COURT REPORTERS
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`EXHIBIT 2
`Page 16
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`CERTIFICATE OF REPORTERS
`
`WE, THE UNDERSIGNED OFFICIAL COURT REPORTERS OF THE
`UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
`CALIFORNIA, 280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO
`HEREBY CERTIFY:
`THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS
`A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE
`ABOVE-ENTITLED MATTER.
`
`______________________________
`IRENE RODRIGUEZ, CSR, CRR
`CERTIFICATE NUMBER 8076
`
`_______________________________
`LEE-ANNE SHORTRIDGE, CSR, CRR
`CERTIFICATE NUMBER 9595
`
`DATED: APRIL 1, 2014
`
`UNITED STATES COURT REPORTERS
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