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Apple v. Samsung - More Unredacted Documents Surface Re Foreman, "Proof" of "Copying" That Isn't ~pj Up
Sunday, October 07 2012 @ 01:03 PM EDT

The judge in the Apple v. Samsung case ordered more documents unsealed and unredacted, and so there is another mountain of filings that previously were redacted and are now publicly available in full. When you see "Filing is Sealed" on them, you can ignore it. It's no longer the case. And while many of the new filings are dated as filed this month, if they say "Unredacted", they are actually older documents now being refiled in an unredacted state, so a lot of the discovery arguments you'll see on the list are already ruled on. We also learn some new details about the foreman from his bankruptcy that raise additional questions in my mind.

As for what's new, the parties are, as usual, going at each other in every possible way in every nook and cranny of the post-trial motions. Samsung points out that the judge told the parties to restrict their filings regarding a permanent injunction and enhanced damages to 30 pages. Apple instead helped itself to extra pages, Samsung says, by attaching a gazillion exhibits and declarations. The motion for enhancements was filed under seal originally, but you can read the public version [PDF], and if you go to this page, you'll see for yourself all the exhibits attached to docket number 1982 and the declarations in support that follow, numbered from 1983, which has more exhibits, to number 1986. Samsung has a point. And so Samsung wants some portions of the declarations cut, and it presents a list of proposed cuts, also asking for expedited briefing.

And finally there is more on the subject of FRAND obligations, which I'll write about separately. Suffice it to say that Samsung says [PDF] the jury found it had not violated its FRAND obligations, and that should be the end of Apple's claims of unfair competition based on alleged violations.

I'm grateful the judge has done this unsealing, because we can get a much clearer picture of what the evidence in this trial demonstrated. For example, do you remember hearing about the comparison by a Samsung executive between the iPhone and Samsung's phones as being the difference between heaven and hell? Here's an example of media coverage of the trial, this snip being from the Guardian's Charles Arthur:

The idea that Samsung intentionally copied Apple's designs is one that Apple's lawyers pushed extremely hard during the case. They have produced internal documents in which Samsung staff talk about a "design crisis" ... talking of the difference being "heaven and hell".
But does that turn out to be so in all particulars? That was based on what was said at trial, but when I read the unredacted exhibit [PDF] it was based on, I read it as showing the opposite, as I'll show you, so you can be the judge.

First, the filings:
2014 - Filed & Entered: 10/02/2012
Notice (Other)
Docket Text: Unredacted OPPOSITION to Samsung's Motion to Compel by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Unredacted Decl. Of Samuel J. Maselli ISO Apples Opp. To Samsungs Motion To Compel Discovery)(Bartlett, Jason) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2015 - Filed & Entered: 10/02/2012
Notice (Other)
Docket Text: Unredacted Apples Opposition To Samsungs Motion To Enforce Various Court Orders by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Unredacted Declaration Of Jason R. Bartlett ISO Apples Opp To Samsungs Motion To Enforce Various Court Orders, # (2) Unredacted Bartlett Decl. Ex. B)(Bartlett, Jason) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2016 - Filed & Entered: 10/02/2012
Statement
Docket Text: Statement Regarding [1978] September 18, 2012 Order on Administrative Motion to File Under Seal, by Apple Inc.. (Selwyn, Mark) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2017 - Filed & Entered: 10/02/2012
Notice (Other)
Docket Text: Unredacted Apple Inc.s Motion For Rule 37(B)(2) Sanctions For Samsungs Violation Of Two Discovery Orders by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Unredacted Decl Of Minn Chung ISO Apples Motion For Rule 37(B)(2) Sanctions For Samsungs Violation Of Two Discovery Orders, # (2) Unredacted Chung Decl. Ex. A, # (3) Unredacted Chung Decl. Ex. B, # (4) Unredacted Chung Decl. Ex. C, # (5) Unredacted Chung Decl. Ex. F, # (6) Unredacted Chung Decl. Ex. H, # (7) Unredacted Chung Decl. Ex. L, # (8) Unredacted Chung Decl. Ex. M, # (9) Unredacted Chung Decl. Ex. N, # (10) Unredacted Chung Decl. Ex. R, # (11) Unredacted Chung Decl. Ex. S, # (12) Unredacted Chung Decl. Ex. U, # (13) Unredacted Chung Decl. Ex. W, # (14) Unredacted Chung Decl. Ex. X, # (15) Unredacted Chung Decl. Ex. BB)(Bartlett, Jason) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2018 Filed & Entered: 10/02/2012 Notice (Other) Docket Text: Unredacted Apples Motion To Compel Depositions Of 14 Of Samsungs Purported Apex Witnesses by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Unredacted Decl Of Mia Mazza ISO Apples Motion To Compel Depositions Of 14 Of Samsungs Purported Apex Witnesses, # (2) Unredacted Mazza Decl. Ex. 1, # (3) Unredacted Mazza Decl. Ex. 2, # (4) Unredacted Mazza Decl. Ex. 3, # (5) Unredacted Mazza Decl. Ex. 4, # (6) Unredacted Mazza Decl. Ex. 5, # (7) Unredacted Mazza Decl. Ex. 6, # (8) Unredacted Mazza Decl. Ex. 7, # (9) Unredacted Mazza Decl. Ex. 9, # (10) Unredacted Mazza Decl. Ex. 23, # (11) Unredacted Mazza Decl. Ex. 24, # (12) Unredacted Mazza Decl. Ex. 25, # (13) Unredacted Mazza Decl. Ex. 26, # (14) Unredacted Mazza Decl. Ex. 27, # (15) Unredacted Mazza Decl. Ex. 28, # (16) Unredacted Mazza Decl. Ex. 39, # (17) Unredacted Mazza Decl. Ex. 44, # (18) Unredacted Mazza Decl. Ex. 45, # (19) Unredacted Mazza Decl. Ex. 46, # (20) Unredacted Mazza Decl. Ex. 47, # (21) Unredacted Mazza Decl. Ex. 48, # (22) Unredacted Mazza Decl. Ex. 49, # (23) Unredacted Mazza Decl. Ex. 50, # (24) Unredacted Mazza Decl. Ex. 51, # (25) Unredacted Mazza Decl. Ex. 52, # (26) Unredacted Mazza Decl. Ex. 53, # (27) Unredacted Mazza Decl. Ex. 54, # (28) Unredacted Mazza Decl. Ex. 55)(Bartlett, Jason) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2019 - Filed & Entered: 10/02/2012
Notice (Other)
Docket Text: Unredacted Declaration Of S. Calvin Walden In Support Of Apples Motion To Compel Depositions Of 14 Of Samsungs Purported Apex Witnesses by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Unredacted Walden Decl. Ex. 2, # (2) Unredacted Walden Decl. Ex. 3, # (3) Unredacted Walden Decl. Ex. 4, # (4) Unredacted Walden Decl. Ex. 5, # (5) Unredacted Walden Decl. Ex. 6, # (6) Unredacted Walden Decl. Ex. 7, # (7) Unredacted Walden Decl. Ex. 8, # (8) Unredacted Walden Decl. Ex. 9, # (9) Unredacted Walden Decl. Ex. 10, # (10) Unredacted Walden Decl. Ex. 21, # (11) Unredacted Walden Decl. Ex. 22, # (12) Unredacted Walden Decl. Ex. 25)(Bartlett, Jason) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2020 - Filed & Entered: 10/02/2012
Notice (Other)
Docket Text: Unredacted Apples Rule 37(B)(2) Motion Re Samsungs Violation Of January 27, 2012 Damages Discovery Order; Memorandum Of Points And Authorities In Support Thereof by Apple Inc. re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Unredacted Decl Of Erik J. Olson ISO Apples Rule 37(B)(2) Motion Re Samsungs Violation Of January 27, 2012 Damages Discovery Order, # (2) Unredacted Olson Decl. Ex. 1, # (3) Unredacted Olson Decl. Ex. 2, # (4) Unredacted Olson Decl. Ex. 3, # (5) Unredacted Olson Decl. Ex. 4, # (6) Unredacted Olson Decl. Ex. 5, # (7) Unredacted Olson Decl. Ex. 6, # (8) Unredacted Olson Decl. Ex. 7, # (9) Unredacted Olson Decl. Ex. 8, # (10) Unredacted Olson Decl. Ex. 10, # (11) Unredacted Olson Decl. Ex. 11, # (12) Unredacted Olson Decl. Ex. 12, # (13) Unredacted Olson Decl. Ex. 13, # (14) Unredacted Olson Decl. Ex. 14, # (15) Unredacted Olson Decl. Ex. 15, # (16) Unredacted Olson Decl. Ex. 16, # (17) Unredacted Olson Decl. Ex. 18, # (18) Unredacted Olson Decl. Ex. 19, # (19) Unredacted Decl Of Eric R. Roberts ISO Motion To Enforce January 27, 2012 Order As To Financial Documents)(Bartlett, Jason) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2021 - Filed & Entered: 10/02/2012
Notice (Other)
Docket Text: NOTICE of Filing of Documents Previously Filed Under Seal (Docket Nos. 603, 604, 605, 606, 607, 642, 643, 707, 754, and 758) by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC re [1978] Order on Administrative Motion to File Under Seal, (Attachments: # (1) Samsung's Notice of Motion and Motion to Compel Apple to Produce Documents and Things (Dkt. No. 603), # (2) Declaration of Diane C. Hutnyan, # (3) Exhibit A, # (4) Exhibit B, # (5) Exhibit D, # (6) Exhibit J, # (7) Exhibit K, # (8) Exhibit L, # (9) Exhibit M, # (10) Exhibit N, # (11) Exhibit O, # (12) Exhibit P, # (13) Exhibit Q, # (14) Exhibit R, # (15) Exhibit S, # (16) Exhibit T, # (17) Exhibit U, # (18) Exhibit V, # (19) Exhibit W, # (20) Exhibit X, # (21) Exhibit Y, # (22) Exhibit Z, # (23) Exhibit AA, # (24) Exhibit BB, # (25) Exhibit CC, # (26) Samsung's Renewed Motion to Compel Discovery Relating to Mac OS 10.0 (Dkt. No. 604), # (27) Declaration of Diane C. Hutnyan, # (28) Exhibit A, # (29) Exhibit B, # (30) Exhibit C, # (31) Samsung's Motion to Enforce Various Court Orders Requiring the Production of Materials Relevant to Apple's Asserted Design Patents (Dkt. No. 605), # (32) Exhibit C, # (33) Exhibit D, # (34) Exhibit F, # (35) Exhibit I, # (36) Samsung's Motion For Clarification Regarding the Court's December 22, 2011 Order (Dkt. No. 606), # (37) Declaration of Brett Arnold, # (38) Exhibit C, # (39) Exhibit F, # (40) Manual Filing Notification, # (41) Exhibit H, # (42) Exhibit I, # (43) Exhibit J, # (44) Samsung's Notice of Motion and Motion for a Protective Order (Dkt. No. 607), # (45) Declaration of Diane C. Hutnyan, # (46) Exhibit B, # (47) Exhibit C, # (48) Exhibit D, # (49) Exhibit E, # (50) Exhibit F, # (51) Exhibit I, # (52) Exhibit K, # (53) Samsung's Opposition to Apple's Motion to Compel Production of Documents and Things (Dkt. No. 642), # (54) Declaration of Melissa C. Chan, # (55) Exhibit 1, # (56) Exhibit 4, # (57) Declaration of Hankil Kang, # (58) Samsung's Opposition to Apple's Motion to Compel (Dkt. No. 643), # (59) Declaration of Rosa Kim, # (60) Declaration of Melissa C. Chan, # (61) Exhibit 1, # (62) Exhibit 2, # (63) Exhibit 7, # (64) Exhibit 8, # (65) Exhibit 9, # (66) Exhibit 10, # (67) Exhibit 11, # (68) Exhibit 12, # (69) Samsung's Unopposed Motion for Issuance of a Request for Judicial Assistance (Dkt. No. 707), # (70) Exhibit 1, # (71) Exhibit 2, # (72) Exhibit 3, # (73) Exhibit 5, # (74) Exhibit 6, # (75) Samsung's Notice of Motion and Motion for a Protective Order (Dkt. No. 754), # (76) Exhibit 2, # (77) Exhibit 3, # (78) Exhibit 4, # (79) Exhibit 5, # (80) Exhibit 6, # (81) Exhibit 7, # (82) Exhibit 8, # (83) Exhibit 9, # (84) Exhibit 10, # (85) Exhibit A, # (86) Exhibit B, # (87) Exhibit E, # (88) Exhibit F, # (89) Exhibit G, # (90) Exhibit H, # (91) Exhibit I, # (92) Exhibit J, # (93) Exhibit K, # (94) Exhibit L, # (95) Exhibit M, # (96) Samsung's Opposition to Apple's Motion for Rule 37(B)(2) Sanctions for Samsung's Alleged Violations of Two Discovery Orders (Dkt. No. 758), # (97) Declaration of Sara Jenkins, # (98) Exhibit A, # (99) Exhibit C, # (100) Exhibit D, # (101) Exhibit E, # (102) Exhibit F, # (103) Exhibit H, # (104) Exhibit I, # (105) Exhibit J, # (106) Exhibit K, # (107) Exhibit L, # (108) Exhibit M, # (109) Exhibit N, # (110) Declaration of Hankil Kang)(Maroulis, Victoria) (Filed on 10/2/2012) Modified text on 10/3/2012 (dhmS, COURT STAFF).

2022 - Filed & Entered: 10/04/2012
Affidavit
Docket Text: AFFIDAVIT of Michael T. Zeller in Support of Samsung's Motion for Judgment as a Matter of Law, New Trial, and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59 by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: *** # (1) Exhibit FILED IN ERROR. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** )(Estrich, Susan) (Filed on 10/4/2012) Modified on 10/5/2012 (ewn, COURT STAFF).

2023 - Filed & Entered: 10/05/2012
Notice (Other)
Docket Text: NOTICE by Apple Inc. Notice of Withdrawal of Appearance of Ali Shah (Selwyn, Mark) (Filed on 10/5/2012)

2024 - Filed & Entered: 10/05/2012
Exhibits
Docket Text: EXHIBITS re [2013] MOTION for Judgment as a Matter of Law, New Trial and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59 Corrected Exhibit B to the Estrich Declaration in Support of Samsung's Rules 50 and 59 Motion filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2013]) (Estrich, Susan) (Filed on 10/5/2012)

2025 - Filed & Entered: 10/05/2012
Exhibits
Docket Text: EXHIBITS re [2022] Affidavit, Corrected Exhibits A-I to the Zeller Declaration in Support of Samsung's Rules 50 and 59 Motion filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2022]) (Estrich, Susan) (Filed on 10/5/2012)

2026 - Filed & Entered: 10/05/2012
Motion to Remove Incorrectly Filed Document
Docket Text: MOTION to Remove Incorrectly Filed Document re Dkt. Nos. 2013-3 and 2022-1 filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Estrich, Susan) (Filed on 10/5/2012)

2027 - Filed & Entered: 10/05/2012
Opposition/Response to Motion
Docket Text: RESPONSE (re [1988] MOTION on Samsung's Non-Jury Claims, Including Indefiniteness ) Apples Opposition To Samsungs Motion On Nonjury Claims, Including Indefiniteness filed byApple Inc.. (Attachments: # (1) Declaration Of Nathan Sabri In Support Of Apples Opposition To Samsungs Motion On Nonjury Claims, Including Indefiniteness, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5)(Jacobs, Michael) (Filed on 10/5/2012)

2028 - Filed & Entered: 10/05/2012
Administrative Motion to File Under Seal
Docket Text: Emergency Administrative Motion to File Under Seal Confidential Document filed by Motorola Mobility LLC. (Attachments: # (1) Declaration, # (2) Declaration, # (3) Proposed Order, # (4) Certificate/Proof of Service)(Golinveaux, Jennifer) (Filed on 10/5/2012)

2029 - Filed & Entered: 10/05/2012
Brief
Docket Text: Brief re [1981] Brief, Samsung's Response to Apple's Brief Regarding Non-Jury Claims, Including Waiver, Equitable Estoppel, Unclean Hands, and Unfair Competition filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Proposed Order, # (2) Declaration of Victoria Maroulis, # (3) Exhibit 1, # (4) Exhibit 2, # (5) Exhibit 3, # (6) Exhibit 4, # (7) Exhibit 5)(Related document(s)[1981]) (Maroulis, Victoria) (Filed on 10/5/2012)

2030 - Filed & Entered: 10/05/2012
Exhibits
Docket Text: EXHIBITS re [2029] Brief,, Exhibit 6 to the Declaration of Victoria Maroulis in Support of Samsung's Respone to Apple's Brief Regarding Non-Jury Claims filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 7, # (2) Exhibit 8, # (3) Exhibit 9, # (4) Exhibit 10, # (5) Exhibit 11)(Related document(s)[2029]) (Maroulis, Victoria) (Filed on 10/5/2012)

2031 - Filed & Entered: 10/05/2012
Motion to Shorten Time
Docket Text: MOTION to Shorten Time Regarding Samsung's Motion to Strike filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Kara Borden in Support of D, # (2) Exhibit 1)(Maroulis, Victoria) (Filed on 10/5/2012)

2032 - Filed & Entered: 10/05/2012
Motion to Strike
Docket Text: MOTION to Strike Portions of Declarations of Christopher Crouse, Terry Musika, Marylee Robinson, Phillip W. Schiller, and Russell S. Winer in Support of Apples Motion for a Permanent Injunction filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Responses due by 10/9/2012. (Attachments: # (1) Proposed Order Granting Samsung's Motion to Strike)(Maroulis, Victoria) (Filed on 10/5/2012)

2033 - Filed & Entered: 10/05/2012
Proposed Order
Docket Text: Proposed Order Granting Samsung's Motion to Shorten Time by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/5/2012)

2034 - Filed & Entered: 10/05/2012
Opposition/Response to Motion
Docket Text: RESPONSE (re [2031] MOTION to Shorten Time Regarding Samsung's Motion to Strike ) APPLES OPPOSITION TO SAMSUNGS MOTION TO SHORTEN TIME RE MOTION TO STRIKE filed byApple Inc.. (Jacobs, Michael) (Filed on 10/5/2012)

As you may notice, I didn't grab all the exhibits, simply because it got incredibly expensive. But I have almost all of them, certainly the ones that seemed most interesting. If you notice something in a listing that sounds like something you'd like to read, let me know. Otherwise, later, I'll try to fill in the blanks.

Here's what I think the judge will notice about the bankruptcy filing by the jury foreman, if she looks at this exhibit, #224. It's the detailed filing in the 1993 bankruptcy, and it's clear that the foreman told the truth about one thing. It was indeed a bankruptcy to save assets, not because he otherwise needed to file. For example, notice that the filing says that his income was $4,000 a month. His wife was not working. And their bills added up to $4,009 a month. OK. Red ink, I suppose. But they allege $50 a month for "Recreation, clubs, and entertainment, newspapers and magazines". And he had an IRA with $2800 in it. I mean. Those three things alone could have been adjusted to cover the $9 a month overage, one would think. Plus, they list his income as just his salary. But on page 24, there is an additional $4500 in addition to the $4000/month from his employment. That's $375/month right there. There would, presumably, have to be taxes paid from that, but surely there was $9/month available. So he wasn't really bankrupt as you or I would see it.

It was about the loan from Seagate, I gather, and a way to avoid paying it while keeping the house listed as his in the bankruptcy. And oddly, the house at 306 Colville Drive listed as being under a mortgage and which he wanted to retain and listed as his address, well, he was not living in it, having moved out in July of 1992, according to the filing. I see nothing about a house in Colorado, the last story I read. He had moved to an apartment in Canoga Park in California, judging from page 26, in July of 1993 and page 12, which shows a deposit "to landlord", which makes it very noticeable that he claims he'd given no financial institution or any party a financial statement in the two years prior to the bankruptcy (see page 27). How can that be? It's a bankruptcy filed in December of 1993. The landlord asked for a deposit but no financial information? It's possible, I guess. But he lists the Colville address as his mailing address.

These details raise inevitable questions, perhaps even of character, but there may be more to the story. But the questions are in the air, and I would assume the judge would notice what I do. I see on page three that the bankruptcy lawyer hadn't been paid yet either. And he'd checked the box saying that after the bankruptcy, he anticipated having nothing for creditors. But he was making nearly $80,000/year in 1993. Presumably he could have opted for Chapter 11 instead and at least paid off something.

The claim regarding the house was that he claimed the value of the exemption for the property was $75,000 (based on California C.C.P. Section 704.910 et seq. in 1993). That's the homestead exemption, as per California's Code of Civil Procedure. As I read it, your dwelling was your homestead. The idea of California's homestead protection law works like this:

If a creditor obtains a judgment against the owner of a homestead, the creditor can obtain a court order to force a sale of the real property used as a homestead, but only if the property can be sold for enough to satisfy all liens and encumbrances on the property plus the amount of the homestead exemption. [CCP Sec. 704.800(a)] For example, if the debtorís residence has a fair market value of $200,000, and has a mortgage of $100,000, and the debtor is entitled to a homestead exemption of $50,000, if the judgment creditor forces a sale of the house, the proceeds of the sale would be first applied to pay off the $100,000 mortgage, then to pay the debtor his $50,000 exemption, then the remainder would be applied to the judgment.
So this house had a value of $235,000 and a mortgage of $186,354. He wasn't living in this house, though, if the filing means what it says, so I'm not at all clear how it could be his homestead under the law. But leaving that aside, if the house was sold and the mortgage paid off in full, there'd be only $48,646 left over, not enough to pay the $75,000 exemption to him, and for sure nothing left to pay creditors like Seagate or his credit cards or a second bank loan (see page 18). So I gather there could be no forced sale due to the Seagate debt, which was I gather the whole point of the bankruptcy. Kind of a fancy dance to be able to get the house and shrug off the debts.

Like I say, this all raises questions, but not definitive answers. I mean, why not sell a house if you aren't even living there and pay off your creditors? That's what you and I would have done, I think, instead of this rather clever move that to my sense of ethics is beyond the purpose of bankruptcy protection, which is to give folks who really are financially in over their heads a second chance to straighten up and fly right, not a way to gingerly step past one's debts because it's to one's financial advantage. And the real question is why didn't he mention anything about the Seagate loan or even the bankruptcy in voir dire when asked what litigations he'd ever been involved in? Had he mentioned it, Samsung would have noticed the Seagate loan and it would have set off warning bells, due to the Seagate/Samsung connection, and very likely the foreman would never have been on this jury at all. That could have led to a different verdict, given his influence on the others, even according to his own descriptions of the deliberations in his media interviews.

Now I'd like to highlight the exhibit about heaven and hell, actually heaven and earth. Let's look at the exhibit itself, now that it's been unredacted and we can read it all. That's Exhibit H [PDF], attached to an Apple motion [PDF] dated February 8, 2011, asking for sanctions against Samsung, so Apple thinks it proves something negative about Samsung.

It's a translation of someone's notes from a kind of Samsung pep rally for the heads of departments, including the mobile design team, in February of 2010. It's titled "Summary of Executive-Level Meeting Supervised by Head of Division", where the top executive tries to inspire everyone to raise their game, to excel, to show creativity, so as to surpass the iPhone, not to copy it, which he acknowledges has raised the bar for everyone. Here's one segment, to give you the flavor:

I attended the meeting described below. There are a few corrections and missing items. - Strive to realize UX that is easy to use regardless of age, occupation, and education, UX that is not like UX, UX that flows like water as its alarm goes off when you wake in the morning, then has the news coming out of it as you get ready to leave for work. => To this the Executive Director [jeonmu-nim] said, Thatís what weíre doing, to which [Head of Division [saíeop-bu-jang]] said:,ĒNo, Iím not saying do that for everything; Iím saying I like it this way, but others may have UXs that they like based on their individuality So, we should be able to accommodate that. UX thatís not called UX and not like UX. I donít mean UX needs to disappear; itís something that is a matter of course, so even if we donít call it UX, if we use it itís as a matter of course.Ē

I wrote it all down without leaving out a single grammatical particle out. I get the gist of it but itís convoluted...Yikes.

- Screens are our most important asset. It is very important that we increase the size of our screen.

=> To explain this point more concretely, he talked about the TVs that are in homes as an example. . Before, everyone used small TVs but nowadays, every house has a large TV. Everyone wants to look at a big screen. It is the same for mobile phones. Once youíve come across a touch phone, you desire to view the contents in a larger screen.

- A judge speaks through judgments, an engineer speaks through products, and a designer should not need to speak.

=> There is a saying that ďJudges speak through their judgments.Ē Have you heard that? (Nobody answers...) You havenít heard that? Engineers donít need to say, ďI implemented this however which wayĒ and donít need to talk about this problem or that. They show, with the very product they have developed. The same goes for designers. Whatever else can be said about design language, there is no need for explanations. Does not President Choi demand to see the mockup first, before he listens to any explanations?

Designers, too, do not speak; show your properly executed design.

- I absolutely never demand anything unreasonable of you. I never make you do anything that is difficult. And I speak in simple terms. I never talk in a vague and ambiguous manner, I speak in precise terms. Recognize that.

- The most important aspect of a design is its level of perfection. I hope that you do your best to increase the level of perfection until you have achieved higher quality.

- A company goes out of business because of its own success factors. Samsungís success factors are diligence, sincerity, and acting in an exemplary manner. The kind that says yes to whatever a carrier wants...

Thatís a shortcut to going out of business. All the carriers tell me, Hey JK! Your phones have great technological prowess and everythingís great. But itís hard to sell them as high-end phones.

Thatís because we spent all of our subsidy funds on the iPhone and canít give a penny in subsidy to your phones, so of course your phones will be expensive and then it follows that they wonít sell.

I hear things like this: Letís make something like the iPhone.

- When everybody (both consumers and the industry) talk about UX, they weigh it against the iPhone. The iPhone has become the standard. Thatís how things are already.

Do you know how difficult the Omnia is to use? When you compare the 2007 version of the iPhone with our current Omnia, can you honestly say the Omnia is better? If you compare the UX with the iPhone, itís a difference between Heaven and Earth.

- If a shabby UX gets proposed, we put together a task force with Executive Director [jeonmu] Young Hwan Kim as its leader to stop development. Now weíre making a process by which if that kind of UX gets proposed, itíll get stopped and Improvements can be made.

- He called out the names of the leaders of each section. Where is Principal Sung-Sik Lee? (Executive Director [jeonmu] Jang: He went to Suwon.) Is he living in Suwon? (Yes, still living there, he took everyone with him and is living there with about forty people.) Heís suffering, right? I know you guys are suffering. Have things gotten better? (Yes, itís getting better). Good, good, they should. Letís muster up more strength.

You are the experts. Iím not a designer, as you know. But in my opinion there are so many designs that depart from common sense. Sometimes Iíve thought Iím looking at a college graduation project. Iíve never said so because I didnít want to discourage you, but since youíre the heads of your sections so Iím saying it. I look at things from the perspective of consumers, so I fix things that donít make sense. It would be nice if I could look at everything but I canít, so youíll have to do it well yourselves.

- For goodness sake letís get things done while working within the realm of common sense. When it comes to UX, fix things that make sense first. Iíve always said this, havenít I? A UX that can be used by anyone from six year olds to senior citizens. Ease of use is the answer.

- I live in Bundang and it only takes me 30 minutes to get here. Iíll come by here from time to time early in the morning or in the evening for discussions like this. Donít you go on business trips, stay here and improve quality. Donít even go to MWC. Why do we need to go see the Chinese products that are there because no one else shows up? None of you should go.

- *** To product designers, he said, you must make three or four design languages a year and put them to good use! The look and feel of a product matters most.

To UX designers, he said, you must increase the level of perfection, make products within the realm of common sense and based on comfort and ease of use

To everyone, he said you must think at least six months ahead; be the solution to the problems that related departments come looking for. Be people with creativity.

"Be people with creativity", he told them. It's *others* who told him to make something like the iPhone, but he tells the designers instead to be creative. Muster up more strength, he says, and make something so easy to use it's like flowing water. He definitely didn't tell them to copy the iPhone, just to strive for quality.

Here are the comments from the heads of the divisions regarding the same pep talk, taken from the same exhibit:

Summary of the Comments of the Head of the Division

- [Our] quality isnít good, perhaps because the designers are chased along by our schedule as they get so many models done. Donít you say ďlaughableĒ about something that is so lacking in the level of perfection that youíre embarrassed to show someone? Itís better to not make anything at all than to make it in a laughable way. All you do is make things hard for the consumer if you put a product on the market that was made in a laughable and makeshift manner. In all the work you do, do it with the mindset that once it leaves your hands itís final, do all you can to make a final product with a high level of perfection, having checked and improved on it meticulously and in detail numerous times over.

Designers rightly should be respected and recognized within [their] organization, and in society outside the organization. Work with self-confidence, but there needs to be change in the methods by which you work.

Iíll be tied up with various strategy meetings and overseas business trips until March but after March it is my intention to set each and every thing right around here. It seems like thereís an unnecessary increasing of the number of products at product planning. The path to improving Quality is to eliminate inefficient models and reduce the number of models overall.

Right now weíre expecting to do around 350 models in the first half of this year. If you ask the companies, the Operators we deal with, whether they like that we launch one model right after the another, [the answer is] absolutely not. Quantity isnít whatís important, whatís important is putting on the market models with a high level of perfection, one to two Excellent ones.

We are at the point where we can proudly say weíre worthy of being No. 2 in the Telecom Industry, and since we are in a position where we are Leading the Industry, what is most important is that we select one Design Language based on ďcreativityĒ befitting our status, and do Maximum Variation with that one Design Language.

Minimize the time Executive Director [jeonmu] Donghoon Chang and the rest of the designers spend going back and forth from Suwon and the time spent away from Seocho on things like overseas business trips and try to spend long periods of time with subordinates putting your heads together to come up with the best results.

I donít know how many of you are getting ready to go to MWC, but not only are Nokia and many other companies saying theyíre not going to participate, thereís also nothing to see, so donít go.

See to it that should anyone come to Seocho, that person gets the feeling that thereís something metaphysical, mysterious, and secretive, and see to it that you do not show non-final designs that are are in an intermediate stage to this person and that person, and then gather various comments and make corresponding modifications.

Designers rightly must make their own designs with conviction and confidence; do not strive to do designs to please me (the president); instead make designs with faces that are creative and diverse.

I have confidence in our productsí H/W, in their exterior design, and in their quality. But when it comes to the ease of use of our UX, I lack such confidence. Influential figures outside the company come across the iPhone, and they point out that ďSamsung is dozing off.Ē

All this time we've been paying all our attention to Nokia, and concentrated our efforts on things like Folder, Bar, Slide, yet when our UX is compared to the unexpected competitor Appleís iPhone, the difference is truly that of Heaven and Earth.

Itís a crisis of design. The world is changing, and the flow of change isnít something that you can have come back again by going against it.

Metamorphosis requires energy; we have ample assets in the form of our people, so as long as we are equipped with capability, the worldís change will function for us as an advantageous opportunity.

All the executives and employees in the Mobile Communications Division are diligent and exemplary that all this time, when Operators made comments about the designs we put before them, we modified and modified again, without missing a single comment. That style of Business has worked until now, but the iPhoneís emergence means the time we have to change our methods has arrived.

In regards to exteriors, do your best not to create a plastic feeling and instead create a Metallic feel.

As for UX, see to it that it is a UX that is easy to use regardless of age, occupation, and level of education, that itís a UX thatís not like a UX, that, just like the flow of water, its alarm rings when you wake in the morning then out comes the news while youíre getting ready to leave for work, see to it that youíre able to come up with that kind of UX.

Our biggest asset is our Screen.

It is very important that we make Screen Size bigger, and in the future mobile phones will absorb even the Function of e-books.

The concern about being too far ahead is that it can also mean failure; so our designers need to think at least six months ahead; they need enough prior preparation to resolve whatever sales or product planning says about their designs.

From now on Iíll come to Seocho more often and agonize together with you. If you have something to report, donít come to Suwon bearing a bag of mockups, just call me anytime.

A judge speaks through judgments, an engineer speaks through products, and a designer should not need to speak.

That is all.

Could it be any clearer? He told them to make the screen larger, larger than the iPhone, and he says he has confidence in the design of their products, the hardware. But they could do better and should think about the future. Apple had changed the marketplace, raised the level of perfection, and they had to acknowledge that they needed to up their own game to compete.

Do you see him telling them at all anywhere to copy the iPhone? Me neither. Instead I see this:

Designers rightly must make their own designs with conviction and confidence; do not strive to do designs to please me (the president); instead make designs with faces that are creative and diverse.
Creative and diverse. If you are a copycat, you can't be either creative or diverse.

Yet Apple used this exhibit to prove "copying" not only with the jury but also as an example of Samsung withholding documents showing the company "copying" Apple products. Apple asked for sanctions against Samsung for not coughing up this document as an example of what Apple claimed as evidence of deliberate copying. They had asked Samsung to provide all documents showing Samsung copying Apple's products, and they express outrage that Samsung didn't see this exhibit as an example of that. I don't either, actually.

I think they have to know better, but it was effective, if not really fair to Samsung, which had been asked to turn over any documents showing copying, and to Samsung (and to me) this exhibit doesn't fall into that category.

Here's how Apple described the exhibit to the magistrate:

Similarly, an email chain sourced to Designer Custodian Jeeyeun Wang summarizes a February 2010 meeting between the Head of Samsungís Mobile Communication Division on Design and numerous Samsung designers, including Minhyouk Lee, Yunjung Lee, and Jinsoo Kim. (Chung Decl. Ex. H at SAMNDCA10247377.) The Head of Samsungís Mobile Division strongly criticized the design of Samsungís current phones and, at the same time, praised the iPhone design:
Influential figures outside the company come across the iPhone and they point out that ďSamsung is dozing off.Ē All this time we've been paying all our attention to Nokia, and concentrated our efforts on things like Folder, Bar, Slide, yet when our UX is compared to the unexpected competitor Appleís iPhone, the difference is truly that of Heaven and Earth. Itís a crisis of design.

....

[A]ll this time, when Operators made comments about the designs we put before them, we modified and modified again, without missing a single comment. That style of Business has worked until now, but the iPhoneís emergence means the time we have to change our methods has arrived

(Id. (emphasis added).) Samsungís Mobile Division Head further stated:
. . . All the carriers tell me, Hey JK! Your phones have great technological prowess and everythingís great. But itís hard to sell them as high-end phones.

Thatís because we spent all of our subsidy funds on the iPhone and canít give a penny in subsidy to your phones, so of course your phones will be expensive and then it follows that they wonít sell.

I hear things like this: Letís make something like the iPhone.

When everybody (both consumers and the industry) talk about UX, they weigh it against the iPhone. The iPhone has become the standard. Thatís how things are already.

(Chung Decl. Ex. H at SAMNDCA10247374; see also id. ∂ 20 & Ex. G (U.S. mobile carriers urged Samsung to make its phone look more like iPhone).)
See how selective their quotations are? They leave out the part about being creative. They leave out the part about being satisfied with the design. And they slide over the fact that it was those outside of Samsung, not Samsung, telling them to make their phones more like the iPhone. This proves Samsung's point, actually, that the iPhone was the standard against which others judged all phones. So, of course, Samsung would look at Apple's iPhone and see what the world was raving about. All companies look at the competition. The issue wasn't design so much as ease of use. That relates to design, but it's not exactly the same thing.

So, to my reading, Apple is distorting what this exhibit was really about. It was not about copying. It was about learning and being inspired and then doing something better. If they wanted to copy, they'd have made the screen smaller to match the iPhone. Instead, they correctly saw that the trend would be toward larger screens, and they were already doing that and saw it as superior to the iPhone. So, they analyzed where they were strong and where they were weak, and the pep talk spoke to both.

Finally, the argument about filing too many pages. The issue arises because the judge in August told the parties to limit their filings to 30 pages, and here's Samsung [PDF] view:

This motion is brought on the ground that the cited portions of each of these declarations violate this Courtís August 28, 2012 Order limiting each party to 30 pages of briefing regarding Appleís Motion for Permanent Injunction and Enhancements, and expressly prohibiting either party from circumventing these limitations through the use of supporting materials that are not included in the brief in support of the motion.
So Samsung asks that portions of some of the declarations Apple used be stricken and that the court set an expedited schedule on the matter. It's a creative solution, picking out certain paragraphs from each, but I'm not so sure it will fly. Apple doesn't like [PDF] the plan to expedite:
Apple filed its motion for judgment as a matter of law on September 21. After waiting for two full weeks, Samsung moves to strike materials from five declarations that Apple attached to its JMOL motion. Samsung also requests that the Court expedite its consideration of its motion to strike, such that Apple has just two business days to respond.

There is no legitimate reason for Samsungís request for such a highly expedited schedule. Samsung, not Apple, inexplicably waited two weeks to raise its motion to strike with the Court. The burden of any exigency caused by Samsungís delay in bringing its motion therefore should fall on Samsungónot the Court or Apple. The Court thus should deny Samsungís request to expedite and consider its motion to strike on the normal briefing schedule under Civil Local Rules 7-2 and 7-3.

If the Court is inclined to expedite Samsungís motion despite its lengthy delay, Apple respectfully requests more than two business days to respond to Samsungís motion. In particular, Apple proposes that its response be due by October 12, 2012, that Samsung not be permitted to submit a reply, and that the Court resolve the matter without a hearing.

Update: Chris Matyszczyk at CNET says something that touches me:

Well, those who like poring over these things have been spending long and, no doubt, sober nights examining the documents that were presented to the court -- documents that have now been unredacted.

What odd suggestions these documents make.

I am grateful to Groklaw for reading and reading and reading until its eyeballs were larger and more oblong than a Galaxy S3 screen....

Groklaw locates the fuller version of the Samsung internal documents in question and something peculiar appears. The senior executive at Samsung who presided over internal meetings actually is heard to say: "I hear things like this: Let's make something like the iPhone."

He goes on to lament: "When everybody (both consumers and the industry) talk about UX, they weigh it against the iPhone. The iPhone has become the standard. That's how things are already."

And yet there appear to be no words that suggest the iPhone is to be copied.

Instead, one document ends with: "To everyone, he said you must think at least six months ahead; be the solution to the problems that related departments come looking for. Be people with creativity."

I'm grateful that he noticed that what I'm doing here is hard. Because it is. So thank you for noticing it.

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