Case 5:19-cv-00036-RWS Document 658 Filed 03/11/21 Page 1 of 6 PageID #: 33190
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`MAXELL, LTD.,
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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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`CASE NO. 5:19-CV-00036-RWS
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` JURY TRIAL DEMANDED
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`JOINT STIPULATION REGARDING AVERAGE SELLING PRICES OF
`ACCUSED APPLE PRODUCTS
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`Plaintiff Maxell, Ltd. and Defendant Apple Inc. (“the Parties”) enter this Joint Stipulation
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`Regarding Average Selling Prices of Accused Apple Products pursuant to the Court’s Order
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`regarding motions in limine (Dkt. No. 634). The Parties hereby stipulate and agree as follows:
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`1.
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`This Stipulation and the information it contains will be used only for purposes of
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`complying with the Court’s order on Apple’s MIL #1 (Dkt. No. 634 at 13) and simplifying the
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`issues for trial. Both this Stipulation and the fact that the parties have entered this Stipulation are
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`inadmissible in the present case, except for the information contained in the chart in Paragraph 2,
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`below. This Stipulation also shall not be admitted or used for any purpose in any other
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`proceeding and shall not be binding on Apple, Maxell, or any other party for any other purpose
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`or in any other judicial or administrative proceeding. Neither Apple nor Maxell waive the right
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`to object to the admissibility of this Stipulation in any other such proceeding.
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`2.
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`The Parties stipulate and agree, for purposes of this trial only, that the average
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`selling price (“ASP”) that Maxell’s damages expert has used in her calculations for each class of
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`accused Apple product is as follows:
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`PUBLIC VERSION
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`PUBLIC VERSION
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`Plaintiff
`
`v.
`
`APPLE INC.,
`
` Defendant.
`
`
`
`
`
`
`CASE NO. 5:19-CV-00036-RWS
`
` JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`
`JOINT STIPULATION REGARDING AVERAGE SELLING PRICES OF
`ACCUSED APPLE PRODUCTS
`
`Plaintiff Maxell, Ltd. and Defendant Apple Inc. (“the Parties”) enter this Joint Stipulation
`
`Regarding Average Selling Prices of Accused Apple Products pursuant to the Court’s Order
`
`regarding motions in limine (Dkt. No. 634). The Parties hereby stipulate and agree as follows:
`
`1.
`
`This Stipulation and the information it contains will be used only for purposes of
`
`complying with the Court’s order on Apple’s MIL #1 (Dkt. No. 634 at 13) and simplifying the
`
`issues for trial. Both this Stipulation and the fact that the parties have entered this Stipulation are
`
`inadmissible in the present case, except for the information contained in the chart in Paragraph 2,
`
`below. This Stipulation also shall not be admitted or used for any purpose in any other
`
`proceeding and shall not be binding on Apple, Maxell, or any other party for any other purpose
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`or in any other judicial or administrative proceeding. Neither Apple nor Maxell waive the right
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`to object to the admissibility of this Stipulation in any other such proceeding.
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`2.
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`The Parties stipulate and agree, for purposes of this trial only, that the average
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`selling price (“ASP”) that Maxell’s damages expert has used in her calculations for each class of
`
`accused Apple product is as follows:
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`PUBLIC VERSION
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`PUBLIC VERSION
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`Case 5:19-cv-00036-RWS Document 658 Filed 03/11/21 Page 2 of 6 PageID #: 33191
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`3.
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`The Parties stipulate and agree they will not refer in this case to any individual
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`ASP of any product model that varies or differs from the ASPs set forth in Paragraph 2 above.
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`4.
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`The Parties stipulate that they will not refer to or seek to introduce evidence of (i)
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`gross or net revenues, (ii) costs (excepting Carla Mulhern’s use of costs of the implicated
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`components as noted below), and/or (iii) profits or profit margin of the Apple accused products,
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`either collectively or individually.
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`5.
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`The Parties may refer to and seek to introduce evidence of Apple’s market share
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`in the relevant market segments (smartphone, tablet, and smartwatch), either on a percentage
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`basis or based on relative market share vis-à-vis competitors, but the Parties may not refer to or
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`seek to introduce evidence of aggregate dollar amounts or aggregate sales volumes in this regard.
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`6.
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`As set forth in the Court’s order on Apple’s MIL #1 (Dkt. No. 634 at 13), the
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`Parties stipulate and agree they will not refer to or seek to introduce evidence of Apple’s overall
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`revenues, sales, market capitalization, stock price, cash reserves, revenues associated with
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`unaccused products, or Apple’s ability to pay Maxell’s alleged damages.
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`7.
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`This Stipulation does not constitute, and will not be offered or construed as, an
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`admission by Apple that it is liable for infringement under 35 U.S.C. § 271, which Apple denies.
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`Nothing in this Stipulation shall be construed as an admission by Apple that the products
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`identified in this Stipulation infringe any claim of the asserted patents or any other patent.
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`PUBLIC VERSION
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`Case 5:19-cv-00036-RWS Document 658 Filed 03/11/21 Page 3 of 6 PageID #: 33192
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`8.
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`This Stipulation does not constitute, and will not be offered or construed as, any
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`admission by Apple that Maxell is entitled to any damages for alleged patent infringement under
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`35 U.S.C. § 284, which Apple denies. Maxell shall not represent to the jury that Apple approves
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`the manner in which Maxell’s damages expert, Carla Mulhern, uses the stipulated ASPs in her
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`patent damages calculations for this case, which Apple expressly opposes.
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`9.
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`This Stipulation does not, and is not intended to, prevent Ms. Mulhern from
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`presenting her apportionment analysis, including the use and application of the costs of
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`implicated components of the accused products in her analysis and testimony. However, nothing
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`in this Stipulation shall be construed as a waiver of Apple’s objections (which Apple expressly
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`maintains) that the ASPs of the accused products, as used by Ms. Mulhern, are unapportioned,
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`and that Ms. Mulhern does not apportion out the value attributable to unpatented components
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`and technology. Apple reserves the right to contest and lodge objections to Ms. Mulhern’s use of
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`the ASPs in her in patent damages calculations, in motion practice, during trial, and on appeal, if
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`necessary.
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`Dated: March 9, 2021
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`/s/ Jamie B. Beaber
`Geoff Culbertson
`Kelly Tidwell
`Patton, Tidwell & Culbertson, LLP
`2800 Texas Boulevard (75503)
`Post Office Box 5398
`Texarkana, TX 75505-5398
`Telephone: (903) 792-7080
`Facsimile: (903) 792-8233
`gpc@texarkanalaw.com
`kbt@texarkanalaw.com
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`Jamie B. Beaber
`Alan M. Grimaldi
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`/s/ Mark D. Fowler
`Harry L. Gillam, Jr.
`Texas Bar No. 07921800
`Melissa Richards Smith
`Texas Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`Email: gil@gillamsmithlaw.com
`Email: melissa@gillamsmithlaw.com
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`Mark D. Fowler (Pro Hac Vice)
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`PUBLIC VERSION
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`Case 5:19-cv-00036-RWS Document 658 Filed 03/11/21 Page 4 of 6 PageID #: 33193
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`Kfir B. Levy
`James A. Fussell, III
`Baldine B. Paul
`Tiffany A. Miller
`Saqib J. Siddiqui
`Bryan C. Nese
`William J. Barrow
`Alison T. Gelsleichter
`Clark S. Bakewell
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`Telephone: (202) 263-3000
`Facsimile: (202) 263-3300
`jbeaber@mayerbrown.com
`agrimaldi@mayerbrown.com
`klevy@mayerbrown.com
`jfussell@mayerbrown.com
`bpaul@mayerbrown.com
`tmiller@mayerbrown.com
`ssiddiqui@mayerbrown.com
`bnese@mayerbrown.com
`wbarrow@mayerbrown.com
`agelsleichter@mayerbrown.com
`cbakewell@mayerbrown.com
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`Robert G. Pluta
`Amanda Streff Bonner
`MAYER BROWN LLP
`71 S. Wacker Drive
`Chicago, IL 60606
`(312) 782-0600
`rpluta@mayerbrown.com
`asbonner@mayerbrown.com
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`Counsel for Plaintiff Maxell, Ltd.
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`
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`Brent K. Yamashita
`Christian Chessman
`DLA PIPER LLP (US)
`2000 University Ave.
`East Palo Alto, CA 94303-2214
`Tel: 650.833.2000
`Fax: 650.833.2001
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`Sean C. Cunningham (Pro Hac Vice)
`Erin P. Gibson (Pro Hac Vice)
`Kevin Hamilton (Pro Hac Vice)
`David R. Knudson (Pro Hac Vice)
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
`Tel: 619.699.2700
`Fax: 619.699.2701
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`Michael Jay (Pro Hac Vice)
`DLA PIPER LLP (US)
`2000 Avenue of the Stars, Suite 400
`Los Angeles, CA 90067
`Tel: 310.595.3000
`Fax: 310.595.3300
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`Aaron G. Fountain
`Zachary Loney
`DLA PIPER LLP (US)
`401 Congress Avenue, Suite 2500
`Austin, Texas 78701-3799
`Tel: 512.457.7000
`Fax: 512.457.7001
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`Dawn M. Jenkins
`DLA PIPER LLP (US)
`1000 Louisiana, Suite 2800
`Houston, TX 77002-5005
`Tel: 713.425.8490
`Fax: 713.300.6012
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`Paul Steadman (Pro Hac Vice)
`Stephanie Lim (Pro Hac Vice)
`DLA PIPER LLP (US)
`444 West Lake Street, Ste. 900
`Chicago, IL 60606
`Tel: 312.368.4000
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`Case 5:19-cv-00036-RWS Document 658 Filed 03/11/21 Page 5 of 6 PageID #: 33194
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`Fax: 312.236.7516
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`Counsel for Defendant Apple Inc.
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`Case 5:19-cv-00036-RWS Document 658 Filed 03/11/21 Page 6 of 6 PageID #: 33195
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who are deemed to have consented to
`electronic service are being served this 9th day of March, 2021, with a copy of this document via
`electronic mail pursuant to Local Rule CV-5(d).
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`/s/ Jamie B. Beaber
`Jamie B. Beaber
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`PUBLIC VERSION
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