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EXHIBIT H
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1 Juanita R. Brooks (SBN 75934) brooks@fr.com


Seth M. Sproul (SBN 217711) sproul@fr.com
2 FISH & RICHARDSON P.C.
3
12390 El Camino Real
San Diego, CA 92130
4 Telephone: (619) 678-5070 / Facsimile: (619) 678-5099
5 Ruffin B. Cordell (D.C. Bar #445801; Admitted Pro hac vice) cordell@fr.com
6 Lauren A. Degnan (D.C. Bar #452421; Admitted Pro hac vice) degnan@fr.com
FISH & RICHARDSON P.C.
7 1000 Maine Avenue, S.W., Suite 1000
8
Washington, D.C. 20024
Telephone: (202) 783-5070 / Facsimile: (202) 783-2331
9
William A. Isaacson (D.C. Bar #414788; Admitted Pro hac vice) wisaacson@bsfllp.com
10 Karen L. Dunn (D.C. Bar #1002520; Admitted Pro hac vice) kdunn@bsfllp.com
11 BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, N.W.
12
Washington, D.C. 20005
13 Telephone: (202) 237-2727 / Facsimile: (202) 237-6131
14 Attorneys for Plaintiff and Counterclaim-Defendant Apple Inc.
15 (Counsel for the CMs and Additional Counsel listed below Signature Line)
16
UNITED STATES DISTRICT COURT
17
SOUTHERN DISTRICT OF CALIFORNIA
18

19
IN RE: Case No. 3:17-CV-00108-GPC-MDD
20 [Consolidated with Case No. 3:17-CV-01010-
QUALCOMM LITIGATION, GPC-MDD]
21

22 EXHIBIT H: APPLE INC. AND THE CMS’


PROPOSED VERDICT FORM
23
Judge: Judge Gonzalo P. Curiel
24
Date: March 28, 2019
25 Time: 1:30 p.m.
Courtroom: 2D
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1 APPLE & CMS’ PROPOSED VERDICT FORM


2 Pursuant to the Court’s December 19, 2018 Order, Apple Inc. (“Apple”);
3 FIH Mobile Ltd. and Hon Hai Precision Industry Co., Ltd., (together, “Foxconn”),
4 Pegatron Corporation, Wistron Corporation, and Compal Electronics, Inc.
5 (collectively, “the CMs”) hereby submit their proposed verdict form.
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EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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1 We, the jury in the above-captioned action, find the following verdicts on the
2 questions submitted to us.
3

4 I. Antitrust and Unfair Competition


5 A. Monopolization - Sherman Act Section 2 (Jury Instructions, Pages
6 [●]-[●])
7

8 Question 1: On Apple’s claim against Qualcomm for monopolization, in violation


9 of Section 2 of the Sherman Act, we find in favor of:
10

11 _____ Apple _____ Qualcomm


12 (Apple Count LXII)
13 QUALCOMM’S OBJECTIONS
14 Qualcomm objects to the order in which claims appear in this proposed
15 verdict form for the reasons set forth in Exhibit B filed herewith. This objection is
16 not specific to this question, but rather applies to the entire form.
17

18 Question 2: Did Qualcomm prove any of the following affirmative defenses to


19 Apple’s monopolization claim that Qualcomm violated Section 2 of the Sherman
20 Act? “Yes” is a finding for Qualcomm. “No” is a finding for Apple.
21 Estoppel: Yes: _____ No: _____
22 Unclean Hands: Yes: _____ No: _____
23 Laches: Yes: _____ No: _____
24 (Apple Count LXII)
25 QUALCOMM’S OBJECTIONS
26 Qualcomm objects to this question because including affirmative defenses
27 adds needless length and complexity to the verdict form. Nevertheless, if the Court
28 decides to include affirmative defenses, Qualcomm objects that this question
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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1 excludes the following defenses that Qualcomm asserts against this claim: statute
2 of limitations, waiver, business justification, ratification, agreement, acquiescence,
3 consent, unwilling licensee and the Illinois Brick doctrine. See Final Pretrial
4 Conference Order § III.
5 Qualcomm notes that unclean hands, estoppel, laches and the Illinois Brick
6 doctrine are defenses that should be decided by the Court rather than the jury. See
7 JIPC Management, Inc. v. Incredible Pizza Co., Inc., No. CV 08-04310 MMM
8 (PLAx), 2009 WL 8591607, at *19 (C.D. Cal. July 14, 2009) (unclean hands); Ill.
9 Tool Works, Inc. v. MOC Prods. Co., Inc., 946 F. Supp. 2d 1042, 1044 (S.D. Cal.
10 2012) (estoppel and laches); Sun Microsystems Inc. v. Hynix Semiconductor Inc.,
11 608 F. Supp. 2d 1166, 1177 (N.D. Cal. 2009) (Illinois Brick). However, if the
12 Court decides that the verdict form should include Apple’s and the CMs’ defenses
13 that will ultimately be decided by the Court, Qualcomm’s defenses also should be
14 included. Qualcomm does not waive its objection that defenses and claims that
15 should be decided by the Court should not be included on the verdict form.
16

17 Question 3: On the CMs’ claims against Qualcomm for monopolization, in


18 violation of Section 2 of the Sherman Act, we find in favor of:
19

20 _____ CMs _____ Qualcomm


21 (CM Count I)
22 QUALCOMM’S OBJECTIONS
23 No objection.
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1 Question 4: Did Qualcomm prove any of the following affirmative defenses to the
2 CMs’ monopolization claims under Section 2 of the Sherman Act? “Yes” is a
3 finding for Qualcomm. “No” is a finding for the CMs.
4 Estoppel: Yes: _____ No: _____
5 Unclean Hands: Yes: _____ No: _____
6 Laches: Yes: _____ No: _____
7 (CM Count I)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because including affirmative defenses
10 adds needless length and complexity to the verdict form. Nevertheless, if the Court
11 decides to include affirmative defenses, Qualcomm objects that this question
12 excludes the following defenses that Qualcomm asserts against this claim: statute
13 of limitations, waiver, business justification, failure to mitigate, unjust enrichment
14 and offset. See Final Pretrial Conference Order § III.
15 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
16 that should be decided by the Court rather than the jury. See JIPC Management,
17 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
18 1044 (estoppel and laches); Crasnick v. Marquez, 248 Cal. App. 4th Supp. 1, 6
19 (2016) (offset). However, if the Court decides that the verdict form should include
20 Apple’s and the CMs’ defenses that will ultimately be decided by the Court,
21 Qualcomm’s defenses also should be included. Qualcomm does not waive its
22 objection that defenses and claims that should be decided by the Court should not
23 be included on the verdict form.
24

25 If your answer to Question 3 is “CMs” and your answer to each part of Question 4
26 is “No,” please answer Question 5. Otherwise, please skip to Question 6.
27

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1 Question 5: We award the CMs the following antitrust damages for Qualcomm’s
2 violation of Section 2 of the Sherman Act (monopolization):
3 Compal: $_______________________________
4 Foxconn: $_______________________________
5 Pegatron: $_______________________________
6 Wistron: $_______________________________
7 (CM Count I)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because it fails to account for the fact that
10 Apple and the CMs seek the same damages for the same harm under multiple legal
11 theories. Accordingly, this question, when combined with others, may result in
12 duplicative recoveries.
13

14 B. Tying and Unreasonable Restraint of Trade - Sherman Act Section


15 1 (Jury Instructions, Pages [●]-[●])
16

17 Question 6: On the CMs’ claims against Qualcomm for tying and/or unreasonable
18 restraint of trade, in violation of Section 1 of the Sherman Act, we find in favor of:
19

20 _____ CMs _____ Qualcomm


21 (CM Count II)
22 QUALCOMM’S OBJECTIONS
23 No objection.
24

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1 Question 7: Did Qualcomm prove any of the following affirmative defenses to the
2 CMs’ claims against Qualcomm for tying and/or unreasonable restraint of trade, in
3 violation of Section 1 of the Sherman Act? “Yes” is a finding for Qualcomm.
4 “No” is a finding for the CMs.
5 Estoppel: Yes: _____ No: _____
6 Unclean Hands: Yes: _____ No: _____
7 (CM Count II)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because including affirmative defenses
10 adds needless length and complexity to the verdict form. Nevertheless, if the Court
11 decides to include affirmative defenses, Qualcomm objects that this question
12 excludes the following defenses that Qualcomm asserts against this claim: statute
13 of limitations, laches, waiver, business justification, ratification, agreement,
14 acquiescence, consent, failure to mitigate, unjust enrichment and offset. See Final
15 Pretrial Conference Order § III.
16 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
17 that should be decided by the Court rather than the jury. See JIPC Management,
18 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
19 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
20 However, if the Court decides that the verdict form should include Apple’s and the
21 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
22 also should be included. Qualcomm does not waive its objection that defenses and
23 claims that should be decided by the Court should not be included on the verdict
24 form.
25

26 If your answer to Question 6 is “CMs” and your answer to each part of Question 7
27 is “No,” please answer Question 8. Otherwise, please skip to Question 9.
28
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1 Question 8: We award the CMs the following antitrust damages for Qualcomm’s
2 tying and/or unreasonable restraint of trade, in violation of Section 1 of the
3 Sherman Act:
4 Compal: $_______________________________
5 Foxconn: $_______________________________
6 Pegatron: $_______________________________
7 Wistron: $_______________________________
8 (CM Count II)
9 QUALCOMM’S OBJECTIONS
10 Qualcomm objects to this question because it fails to account for the fact that
11 Apple and the CMs seek the same damages for the same harm under multiple legal
12 theories. Accordingly, this question, when combined with others, may result in
13 duplicative recoveries.
14

15 C. Tying and Unreasonable Restraint of Trade - California


16 Cartwright Act (Jury Instructions, Pages [●]-[●])
17

18 Question 9: On the CMs’ claims against Qualcomm for tying and/or unreasonable
19 restraint of trade, in violation of the California Cartwright Act, we find in favor of:
20 _____ CMs _____ Qualcomm
21 (CM Count III)
22 QUALCOMM’S OBJECTIONS
23 Qualcomm objects to this question because the CMs’ Sherman Act Section 1
24 (Count II) and Cartwright Act claims (Count III) challenge the same alleged
25 conduct and the elements of these claims are the same and thus the answers to
26 Questions 6 and 9 necessarily should be the same. See Cty. of Tuolumne v. Sonora
27 Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001). Accordingly, the jury should
28 not be asked separate questions about Counts II and III.
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1 Question 10: Did Qualcomm prove any of the following affirmative defenses to
2 the CMs’ claims that Qualcomm engaged in tying and/or unreasonably restrained
3 trade, in violation of the California Cartwright Act? “Yes” is a finding for
4 Qualcomm. “No” is a finding for the CMs.
5 Estoppel: Yes: _____ No: _____
6 Unclean Hands: Yes: _____ No: _____
7 (CM Count III)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because including affirmative defenses
10 adds needless length and complexity to the verdict form. Nevertheless, if the Court
11 decides to include affirmative defenses, Qualcomm objects that this question
12 excludes the following defenses that Qualcomm asserts against this claim: statute
13 of limitations, laches, waiver, business justification, ratification, agreement,
14 acquiescence, consent, failure to mitigate, unjust enrichment and offset. See Final
15 Pretrial Conference Order § III.
16 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
17 that should be decided by the Court rather than the jury. See JIPC Management,
18 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
19 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
20 However, if the Court decides that the verdict form should include Apple’s and the
21 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
22 also should be included. Qualcomm does not waive its objection that defenses and
23 claims that should be decided by the Court should not be included on the verdict
24 form.
25

26 If your answer to Question 9 is “CMs” and your answer to each part of Question
27 10 is “No,” please answer Question 11. Otherwise, please skip to Question 12.
28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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1 Question 11: We award the CMs the following antitrust damages for Qualcomm’s
2 tying and/or unreasonable restraint of trade, in violation of the California
3 Cartwright Act:
4 Compal: $_______________________________
5 Foxconn: $_______________________________
6 Pegatron: $_______________________________
7 Wistron: $_______________________________
8 (CM Count III)
9 QUALCOMM’S OBJECTIONS
10 Qualcomm objects to this question because it fails to account for the fact that
11 Apple and the CMs seek the same damages for the same harm under multiple legal
12 theories. Accordingly, this question, when combined with others, may result in
13 duplicative recoveries.
14 Qualcomm further objects to this question because the CMs’ Sherman Act
15 Section 1 (Count II) and Cartwright Act claims (Count III) challenge the same
16 alleged conduct and the elements of these claims are the same and thus the answers
17 to Questions 6 and 9 necessarily should be the same. See Cty. of Tuolumne, 236
18 F.3d at 1160. Accordingly, the jury should not be asked separate questions about
19 Counts II and III.
20

21 II. California Unfair Competition Law (Jury Instructions, Pages [●]-[●])


22

23 Question 12: On Apple’s claim against Qualcomm for violation of California’s


24 Unfair Competition Law, we find in favor of:
25

26 _____ Apple _____ Qualcomm


27 (Apple Count LXIII)
28
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1 QUALCOMM’S OBJECTIONS
2 Qualcomm objects to the question because it addresses a claim for the Court,
3 not the jury. See U.S. Sec. & Exch. Comm’n v. Jensen, 835 F.3d 1100, 1111 (9th
4 Cir. 2016) (“[T]he right to a jury trial exists only for legal and not equitable claims .
5 . . .”). There is no right to a jury trial for claims brought under the California Unfair
6 Competition Law (“UCL”). See MAP Co. v. Lebanese Arak Corp., No. 2:16-cv-
7 05039-AB-RAO, 2018 WL 3357474, at *2 (C.D. Cal. Feb. 5, 2018) (“[I]t is well-
8 established that there is no right to a jury trial in an action under the UCL.”); Hodge
9 v. Superior Court, 145 Cal. App. 4th 278, 284-85 (2006) (no right to jury trial for
10 UCL claim).
11

12 Question 13: Did Qualcomm prove any of the following affirmative defenses to
13 Apple’s claim that Qualcomm violated California’s Unfair Competition Law?
14 “Yes” is a finding for Qualcomm. “No” is a finding for Apple.
15 Estoppel: Yes: _____ No: _____
16 Unclean Hands: Yes: _____ No: _____
17 Laches: Yes: _____ No: _____
18 (Apple Count LXIII)
19 QUALCOMM’S OBJECTIONS
20 Qualcomm objects to this question because including affirmative defenses
21 adds needless length and complexity to the verdict form. Nevertheless, if the Court
22 decides to include affirmative defenses, Qualcomm objects that this question
23 excludes the following defenses that Qualcomm asserts against this claim: statute
24 of limitations, waiver, business justification, ratification, agreement, acquiescence,
25 consent, failure to mitigate, unjust enrichment, offset and unwilling licensee. See
26 Final Pretrial Conference Order § III.
27 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
28 that should be decided by the Court rather than the jury. See JIPC Management,
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1 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
2 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
3 However, if the Court decides that the verdict form should include Apple’s and the
4 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
5 also should be included. Qualcomm does not waive its objection that defenses and
6 claims that should be decided by the Court should not be included on the verdict
7 form.
8 Qualcomm further objects to this question because it addresses a claim for
9 the Court, not the jury. See Jensen, 835 F.3d at 1111. There is no right to a jury
10 trial for claims brought under the UCL. See MAP, 2018 WL 3357474, at *2;
11 Hodge, 145 Cal. App. 4th at 284-85.
12

13 If your answer to Question 12 is “Apple” and your answer to each part of Question
14 13 is “No,” please answer Question 14. Otherwise, please skip to Question 15.
15

16 Question 14: We award Apple the following amount as restitution for


17 Qualcomm’s violation of California’s Unfair Competition Law:
18

19 $_______________________________
20 (Apple Count LXIII)
21 QUALCOMM’S OBJECTIONS
22 Qualcomm objects to this question because it addresses a claim for the Court,
23 not the jury. See Jensen, 835 F.3d at 1111. There is no right to a jury trial for
24 claims brought under the UCL. See MAP, 2018 WL 3357474, at *2; Hodge, 145
25 Cal. App. 4th at 284-85. In addition, the parties agree that restitution is an
26 equitable remedy.
27 Qualcomm further objects to this question because it fails to account for the
28 fact that Apple and the CMs seek the same damages for the same harm under
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1 multiple legal theories. Accordingly, this question, when combined with others,
2 may result in duplicative recoveries.
3

4 Question 15: On the CMs’ claims against Qualcomm for violation of California’s
5 Unfair Competition Law, we find in favor of:
6

7 _____ CMs _____ Qualcomm


8 (CM Count IV)
9 QUALCOMM’S OBJECTIONS
10 Qualcomm objects to this question because it addresses a claim for the Court,
11 not the jury. See Jensen, 835 F.3d at 1111. There is no right to a jury trial for
12 claims brought under the UCL. MAP, 2018 WL 3357474, at *2; Hodge, 145 Cal.
13 App. 4th at 284-85.
14

15 Question 16: Did Qualcomm prove any of the following affirmative defenses to
16 the CMs’ claims that Qualcomm violated California’s Unfair Competition Law?
17 “Yes” is a finding for Qualcomm. “No” is a finding for the CMs.
18 Estoppel: Yes: _____ No: _____
19 Unclean Hands: Yes: _____ No: _____
20 Laches: Yes: _____ No: _____
21 (CM Count IV)
22 QUALCOMM’S OBJECTIONS
23 Qualcomm objects to this question because including affirmative defenses
24 adds needless length and complexity to the verdict form. Nevertheless, if the Court
25 decides to include affirmative defenses, Qualcomm objects that this question
26 excludes the following defenses that Qualcomm asserts against this claim: statute
27 of limitations, waiver, business justification, ratification, agreement, acquiescence,
28
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1 consent, failure to mitigate, unjust enrichment and offset. See Final Pretrial
2 Conference Order § III.
3 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
4 that should be decided by the Court rather than the jury. See JIPC Management,
5 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
6 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
7 However, if the Court decides that the verdict form should include Apple’s and the
8 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
9 also should be included. Qualcomm does not waive its objection that defenses and
10 claims that should be decided by the Court should not be included on the verdict
11 form.
12

13 If your answer to Question 15 is “CMs” and your answer to each part of Question
14 16 is “No,” please answer Question 17. Otherwise, please skip to Question 18.
15

16 Question 17: We award the CMs the following amounts as restitution for
17 Qualcomm’s violation of California’s Unfair Competition Law:
18 Compal: $_______________________________
19 Foxconn: $_______________________________
20 Pegatron: $_______________________________
21 Wistron: $_______________________________
22 (CM Count IV)
23 QUALCOMM’S OBJECTIONS
24 Qualcomm objects to the question because it addresses a claim for the Court,
25 not the jury. See Jensen, 835 F.3d at 1111. There is no right to a jury trial for
26 claims brought under the UCL. See MAP, 2018 WL 3357474, at *2; Hodge, 145
27 Cal. App. 4th at 284-85. In addition, the parties agree that that restitution is an
28 equitable remedy.
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1 Qualcomm further objects to this question because it fails to account for the
2 fact that Apple and the CMs seek the same damages for the same harm under
3 multiple legal theories. Accordingly, this question, when combined with others,
4 may result in duplicative recoveries.
5

6 III. FRAND (Jury Instructions, Pages [●]-[●])


7

8 Question 18: On the CMs’ claims that Qualcomm breached its FRAND
9 commitments to license its standard essential patents on “fair, reasonable and
10 nondiscriminatory” (“FRAND”) terms, we find in favor of:
11

12 _____ CMs _____ Qualcomm


13 (CM Counts V, VI, VIII, IX)
14 QUALCOMM’S OBJECTIONS
15 Qualcomm objects to this question because it misstates the nature of the
16 relevant FRAND commitment. See Frank Briscoe Co., Inc. v. Clark Cty., 857 F.2d
17 606, 614 (9th Cir. 1988) (verdict form must accurately state the issues). For
18 example, ETSI’s Intellectual Property Rights (“IPR”) Policy obligated Qualcomm
19 to be “prepared to grant” licenses to the relevant SEPs on FRAND terms. (ETSI
20 IPR Policy Clause 6.1 (available at
21 https://www.etsi.org/website/document/legal/etsi_ipr-policy.pdf) (emphasis added);
22 see also ECF 876 at 5 (Qualcomm Incorporated’s Opening Memorandum In
23 Support Of Motion For Determination Of French Law Pursuant To Fed. R. Civ. P.
24 44.1); ECF 881 at 58-66 (Joint Pretrial Brief Identifying Disputed Contract
25 Provissions And The Parties’ Position On Each Disputed Provision).)
26 Qualcomm further objects to this question with respect to Count IX because a
27 FRAND commitment to ETSI is not a waiver under French law. (See ECF 876 at
28 29-30 (Qualcomm Incorporated’s Opening Memorandum In Support Of Motion
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1 For Determination Of French Law Pursuant To Fed. R. Civ. P. 44.1).) In addition,


2 waiver is not a cause of action under California law. See Fidelity & Guaranty Life
3 Ins. Co. v. Albertson, No. 07-cv-00045 BTM (LSP), 2007 WL 4224628, at *1 (S.D.
4 Cal. Nov. 26, 2007).
5

6 Question 19: Did Qualcomm prove any of the following affirmative defenses to
7 the CMs’ claims that Qualcomm breached its FRAND commitments? “Yes” is a
8 finding for Qualcomm. “No” is a finding for the CMs.
9 Ratification: Yes: _____ No: _____
10 Waiver: Yes: _____ No: _____
11 Unclean Hands: Yes: _____ No: _____
12 (CM Counts V, VI, VIII, IX)
13 QUALCOMM’S OBJECTIONS
14 Qualcomm objects to this question because including affirmative defenses
15 adds needless length and complexity to the verdict form. Nevertheless, if the Court
16 decides to include affirmative defenses, Qualcomm objects that this question
17 excludes the following defenses that Qualcomm asserts against these claims:
18 statute of limitations, laches, estoppel, failure to mitigate, unjust enrichment and
19 offset. See Final Pretrial Conference Order § III.
20 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
21 that should be decided by the Court rather than the jury. See JIPC Management,
22 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
23 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
24 However, if the Court decides that the verdict form should include Apple’s and the
25 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
26 also should be included. Qualcomm does not waive its objection that defenses and
27 claims that should be decided by the Court should not be included on the verdict
28 form.
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1 Question 20: On the CMs’ claims that Qualcomm’s promises to standard-setting


2 organizations should be enforced in light of the CMs’ reasonable and foreseeable
3 reliance upon such promises, under the doctrine of promissory estoppel, we find in
4 favor of:
5

6 _____ CMs _____ Qualcomm


7 (CM Count VII)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because it addresses an issue for the
10 Court, not the jury. See Jensen, 835 F.3d at 1111. Promissory estoppel is an
11 equitable claim with no right to a jury trial. See C & K Eng’g Contractors v. Amber
12 Steel Co., 587 P.2d 1136, 1141 (Cal. 1978); Nationwide Biweekly Admin., Inc. v.
13 Superior Court, 24 Cal. App. 5th 438, 451 (2018).
14 Qualcomm further objects to the question because it is argumentative. See
15 Frank Briscoe, 857 F.2d at 614; Paramount Film Distrib. Corp. v. Applebaum, 217
16 F.2d 101, 123 (5th Cir. 1954). The phrase “in light of the CMs’ reasonable and
17 foreseeable reliance upon such promises” adopts the CMs’ position and is
18 prejudicial to Qualcomm.
19 Qualcomm further objects to this question because French law does not
20 recognize the CMs’ promissory estoppel cause of action. (See ECF 876 at 29
21 (Qualcomm Incorporated’s Opening Memorandum In Support Of Motion For
22 Determination Of French Law Pursuant To Fed. R. Civ. P. 44.1).) In addition,
23 there can be no claim for promissory estoppel when the relationship is governed by
24 a contract. See Youngman v. Neg. Irrigation Dist., 449 P.2d 462, 468 (Cal. 1969);
25 see also Horne v. Harley-Davidson, Inc., 660 F. Supp. 2d 1152, 1163 (C.D. Cal.
26 2009).
27

28
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1 Question 21: Did Qualcomm prove any of the following affirmative defenses to
2 the CMs’ claims that Qualcomm’s promises to standard-setting organizations
3 should be enforced in light of the CMs’ reasonable and foreseeable reliance upon
4 such promises? “Yes” is a finding for Qualcomm. “No” is a finding for the
5 CMs.
6 Ratification: Yes: _____ No: _____
7 Waiver: Yes: _____ No: _____
8 Unclean Hands: Yes: _____ No: _____
9 (CM Count VII)
10 QUALCOMM’S OBJECTIONS
11 Qualcomm objects to this question because including affirmative defenses
12 adds needless length and complexity to the verdict form. Nevertheless, if the Court
13 decides to include affirmative defenses, Qualcomm objects that this question
14 excludes the following defenses that Qualcomm asserts against this claim: statute
15 of limitations, laches, estoppel, failure to mitigate, unjust enrichment and offset.
16 See Final Pretrial Conference Order § III.
17 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
18 that should be decided by the Court rather than the jury. See JIPC Management,
19 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
20 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
21 However, if the Court decides that the verdict form should include Apple’s and the
22 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
23 also should be included. Qualcomm does not waive its objection that defenses and
24 claims that should be decided by the Court should not be included on the verdict
25 form.
26 Qualcomm further objects to the question because it is argumentative. See
27 Frank Briscoe, 857 F.2d at 614; Paramount Film Distrib. Corp, 217 F.2d at 123.
28
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1 The phrase “in light of the CMs’ reasonable and foreseeable reliance upon such
2 promises” adopts the CMs’ position and is prejudicial to Qualcomm.
3

4 Question 22: On the CMs’ claims against Qualcomm for Qualcomm’s negligent
5 misrepresentation, we find in favor of:
6

7 _____ CMs _____ Qualcomm


8 (CM Count X)
9 QUALCOMM’S OBJECTIONS
10 Qualcomm objects to this question because the jury only should consider
11 negligent misrepresentation if it finds that the CMs have proved harm other than
12 damages for the alleged breach of the FRAND commitments. Under California’s
13 economic loss doctrine, the CMs cannot bring a tort claim in a case arising out of a
14 breach of contract for pure economic loss “unless [they] can demonstrate harm
15 above and beyond a broken contractual promise”. Robinson Helicopter Co. v.
16 Dana Corp., 34 Cal. 4th 979, 988 (2004); see also Westport Ins. Corp. v. Vasquez,
17 Estrada and Conway LLP, No. 15-cv-05789-JST, 2016 WL 1394360, at *5 (N.D.
18 Cal. Apr. 8, 2016).
19 Qualcomm further objects to this question because French law prohibits a
20 claim for negligent misrepresentation based on an alleged contractual breach to the
21 claimant. (See ECF 876 at 30 (Qualcomm Incorporated’s Opening Memorandum
22 In Support Of Motion For Determination Of French Law Pursuant To Fed. R. Civ.
23 P. 44.1).)
24 Qualcomm further objects to the question because it is argumentative. See
25 Frank Briscoe, 857 F.2d at 614; Paramount Film Distrib. Corp, 217 F.2d at 123.
26 The phrase “for Qualcomm’s negligent misrepresentation” adopts the CMs’
27 position and is prejudicial to Qualcomm.
28
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1 Question 23: Did Qualcomm prove any of the following affirmative defenses to
2 the CMs’ claims against Qualcomm for negligent misrepresentation? “Yes” is a
3 finding for Qualcomm. “No” is a finding for the CMs.
4 Ratification: Yes: _____ No: _____
5 Waiver: Yes: _____ No: _____
6 Unclean Hands: Yes: _____ No: _____
7 (CM Count X)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because including affirmative defenses
10 adds needless length and complexity to the verdict form. Nevertheless, if the Court
11 decides to include affirmative defenses, Qualcomm objects that this question
12 excludes the following defenses that Qualcomm asserts against this claim: statute
13 of limitations, laches, estoppel, failure to mitigate, unjust enrichment and offset.
14 See Final Pretrial Conference Order § III.
15 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
16 that should be decided by the Court rather than the jury. See JIPC Management,
17 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
18 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
19 However, if the Court decides that the verdict form should include Apple’s and the
20 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
21 also should be included. Qualcomm does not waive its objection that defenses and
22 claims that should be decided by the Court should not be included on the verdict
23 form.
24

25 If (1) your answer to Question 18 is “CMs” and your answer to each part of
26 Question 19 is “No,” or (2) your answer to Question 20 is “CMs” and your answer
27 to each part of Question 21 is “No,” or (3) your answer to Question 22 is “CMs”
28
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1 and your answer to each part of Question 23 is “No,” please answer Question 24.
2 Otherwise, please skip to Question 25.
3

4 Question 24: We award the CMs the following damages for Qualcomm’s breach
5 of its FRAND commitments, the harm caused by the CMs’ reliance on
6 Qualcomm’s promises to standard-setting organizations, and/or for Qualcomm’s
7 negligent misrepresentation:
8 Compal: $_______________________________
9 Foxconn: $_______________________________
10 Pegatron: $_______________________________
11 Wistron: $_______________________________
12 (CM Counts V, VI, VII, VIII, IX, X)
13 QUALCOMM’S OBJECTIONS
14 Qualcomm objects to this question because it fails to account for the fact that
15 Apple and the CMs seek the same damages for the same harm under multiple legal
16 theories. Accordingly, this question, when combined with others, may result in
17 duplicative recoveries.
18 Qualcomm further objects to this question for the reasons stated in its
19 objections to the previous questions.
20

21 Question 25: On Qualcomm’s claim against Apple that its SULAs with the CMs
22 do not violate Qualcomm’s FRAND commitments to ETSI, we find in favor of:
23

24 _____ Apple _____ Qualcomm


25 (Qualcomm Count II against Apple)
26 QUALCOMM’S OBJECTIONS
27 Qualcomm objects to the phrase “its SULAs” as ambiguous.
28
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1 Question 26: Did Apple prove any of the following affirmative defenses to
2 Qualcomm’s claim that its SULAs with the CMs do not violate Qualcomm’s
3 FRAND commitments to ETSI? “Yes” is a finding for Apple. “No” is a finding
4 for Qualcomm.
5 Unlawful and/or Unenforceable: Yes: _____ No: _____
6 Violation of SSO IPR Policy: Yes: _____ No: _____
7 Unconscionable: Yes: _____ No: _____
8 Unclean Hands: Yes: _____ No: _____
9 (Qualcomm Count II against Apple)
10 QUALCOMM’S OBJECTIONS
11 Qualcomm objects to this question because including affirmative defenses
12 adds needless length and complexity to the verdict form.
13 Qualcomm further objects to this question because it addresses defenses for
14 the Court, not the jury. See Jensen, 835 F.3d at 1111. The Court should decide
15 whether a contract is unenforceable or unlawful, whether a contract is
16 unconscionable and the defense of unclean hands. See Erhart v. BofI Holding, Inc.,
17 No. 15-cv-02287-BAS-NLS, 2017 WL 588390, at *6 (S.D. Cal. Feb. 14, 2017)
18 (unenforceability and unlawfulness); De La Torre v. CashCall, Inc., 5 Cal. 5th 966,
19 973 (Cal. 2018) (unconscionability); JIPC Management, Inc., 2009 WL 8591607,
20 at *19 (unclean hands).
21 Qualcomm further objects to this question because Apple waived the
22 purported defense of “Violation of SSO IPR Policy” by failing to plead it in its
23 answer to Qualcomm’s counterclaims. See Jorst v. D’Ambrosio Bros. Inv. Co., No.
24 C 00-03646 CRB, 2001 WL 969039, at *9 (N.D. Cal. Aug. 13, 2001) (“A
25 defendant waives an affirmative defense where the defendant fails to plead that
26 defense in its answer.”); Quantification Settlement Agreement Cases, 201 Cal. App.
27 4th 758, 813 (2011) (“A party who fails to plead affirmative defenses waives
28 them.”) (internal citations omitted).
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1 Qualcomm further objects to the phrase “its SULAs” as ambiguous.


2

3 Question 27: On Qualcomm’s claim that Qualcomm satisfied and discharged its
4 FRAND commitments to ETSI with respect to Apple, we find in favor of:
5

6 _____ Apple _____ Qualcomm


7 (Qualcomm Count IV against Apple)
8 QUALCOMM’S OBJECTIONS
9 No objection.
10

11 Question 28: Did Apple prove any of the following affirmative defenses to
12 Qualcomm’s claim that it satisfied and discharged its FRAND commitments to
13 ETSI with respect to Apple? “Yes” is a finding for Apple. “No” is a finding for
14 Qualcomm.
15 Violation of SSO IPR Policy: Yes: _____ No: _____
16

17 Unclean
18 Hands:
19 Yes: _____
20 No: _____
21 (Qualcomm Count IV against Apple)
22 QUALCOMM’S OBJECTIONS
23 Qualcomm objects to this question because including affirmative defenses
24 adds needless length and complexity to the verdict form.
25 Qualcomm further objects to this question because unclean hands is a
26 defense for the Court, not the jury. See Jensen, 835 F.3d at 1111; JIPC
27 Management, Inc., 2009 WL 8591607, at *19.
28
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1 Qualcomm further objects to this question because Apple waived the


2 purported defense of “Violation of SSO IPR Policy” by failing to plead it in its
3 answer to Qualcomm’s counterclaims. See Jorst, 2001 WL 969039, at *9;
4 Quantification Settlement Agreement Cases, 201 Cal. App. 4th at 813.
5

6 IV. SULAs (Jury Instructions, Pages [●]-[●])


7

8 Question 29: On Apple and the CMs’ claims that the SULAs between Qualcomm
9 and the CMs are unenforceable as against public policy, we find in favor of:
10

11 _____ Apple and CMs _____ Qualcomm


12 (Apple Count LXI, CM Count XII)
13 QUALCOMM’S OBJECTIONS
14 Qualcomm objects to this question because it addresses an issue for the
15 Court, not the jury. See Jensen, 835 F.3d at 1111. Whether a contract is
16 unenforceable is an issue for the Court. Erhart, 2017 WL 588390, at *6.
17

18 Question 30: Did Qualcomm prove any of the following affirmative defenses to
19 Apple and the CMs’ claims that the SULAs between Qualcomm and the CMs are
20 unenforceable as against public policy? “Yes” is a finding for Qualcomm. “No”
21 is a finding for Apple and the CMs.
22 Estoppel: Yes: _____ No: _____
23 Laches: Yes: _____ No: _____
24 Unclean Hands: Yes: _____ No: _____
25 (Apple Count LXI, CM Count XII)
26 QUALCOMM’S OBJECTIONS
27 Qualcomm objects to this question because including affirmative defenses
28 adds needless length and complexity to the verdict form. Nevertheless, if the Court
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1 decides to include affirmative defenses, Qualcomm objects that this question


2 excludes the following defenses that Qualcomm asserts against these claims:
3 statute of limitations, waiver, business justification, ratification, agreement,
4 acquiescence, consent, failure to mitigate, unjust enrichment, the Illinois Brick
5 doctrine and offset. See Final Pretrial Conference Order § III.
6 Qualcomm notes that unclean hands, estoppel, laches, the Illinois Brick
7 doctrine and offset are defenses that should be decided by the Court rather than the
8 jury. See JIPC Management, Inc., 2009 WL 8591607, at *19 (unclean hands); Ill.
9 Tool Works, 946 F. Supp. 2d at 1044 (estoppel and laches); Sun Microsystems, 608
10 F. Supp. 2d at 1177 (Illinois Brick); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
11 However, if the Court decides that the verdict form should include Apple’s and the
12 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
13 also should be included. Qualcomm does not waive its objection that defenses and
14 claims that should be decided by the Court should not be included on the verdict
15 form.
16

17 If your answer to Question 29 is “Apple and CMs” and your answer to each part of
18 Question 30 is “No,” please answer Question 31. Otherwise, please skip to
19 Question 32.
20

21 Question 31: We award Apple the following amount as restitution for amounts
22 Apple paid pursuant to SULAs between Qualcomm and the CMs for patents that
23 were exhausted:
24 $_______________________________
25 (Apple Count LXI)
26 QUALCOMM’S OBJECTION
27

28
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1 Qualcomm objects to this question because it addresses an issue for the


2 Court, not the jury. See Jensen, 835 F.3d at 1111. The parties agree that restitution
3 is an equitable remedy.
4

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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1 Question 32: On Qualcomm’s claim against Apple that the SULAs between
2 Qualcomm and the CMs do not violate Section 2 of the Sherman Act or
3 California’s Unfair Competition Law, we find in favor of:
4

5 _____ Apple _____ Qualcomm


6 (Qualcomm Count III against Apple)
7 QUALCOMM’S OBJECTIONS
8 Qualcomm objects to the question to the extent it addresses a claim for the
9 Court, not the jury. See Jensen, 835 F.3d at 1111. There is no right to a jury trial
10 for claims brought under the UCL. MAP, 2018 WL 3357474, at *2; Hodge, 145
11 Cal. App. 4th at 284.
12

13 Question 33: On the CMs’ claims against Qualcomm for breach of the SULAs
14 between Qualcomm and the CMs, we find in favor of:
15 _____ Compal _____ Qualcomm
16 _____ Foxconn _____ Qualcomm
17 _____ Pegatron _____ Qualcomm
18 _____ Wistron _____ Qualcomm
19 (CM Count XI)
20 QUALCOMM’S OBJECTIONS
21 Qualcomm objects to this question because it could lead the jury to return an
22 inconsistent verdict. See, e.g., Guidry v. Kem Mfg. Co., 598 F.2d 402, 405-06 (5th
23 Cir. 1979) (the verdict form’s “successful use requires the careful attention of
24 counsel for all parties as well as of the court to be certain that the questions are
25 framed to avoid the possibility of inconsistent answers”). Qualcomm and the CMs
26 each claim that the other party breached the SULAs and the jury should decide the
27 parties’ respective claims together. The verdict form should pose one question
28
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1 asking the jury whether it finds for Qualcomm or the CMs on their claims against
2 each other for breach of the SULAs. (See Qualcomm Proposed Question 1.)
3

4 Question 34: Did Qualcomm prove any of the following affirmative defenses to
5 the CMs’ claims that Qualcomm breached the SULAs between Qualcomm and the
6 CMs? “Yes” is a finding for Qualcomm. “No” is a finding for the CMs.
7 Waiver: Yes: _____ No: _____
8 Ratification: Yes: _____ No: _____
9 Unclean Hands: Yes: _____ No: _____
10 (CM Count XI)
11 QUALCOMM’S OBJECTIONS
12 Qualcomm objects to this question because including affirmative defenses
13 adds needless length and complexity to the verdict form. Nevertheless, if the Court
14 decides to include affirmative defenses, Qualcomm objects that this question
15 excludes the following defenses that Qualcomm asserts against this claim: statute
16 of limitations, laches, estoppel, failure to mitigate, unjust enrichment and offset.
17 See Final Pretrial Conference Order § III.
18 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
19 that should be decided by the Court rather than the jury. See JIPC Management,
20 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
21 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
22 However, if the Court decides that the verdict form should include Apple’s and the
23 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
24 also should be included. Qualcomm does not waive its objection that defenses and
25 claims that should be decided by the Court should not be included on the verdict
26 form.
27

28
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1 If your answer to Question 33 is for any of the CMs and your answer to each part
2 of Question 34 is “No,” please answer Question 35. Otherwise, please skip to
3 Question 36.
4

5 Question 35: We award the CMs the following damages for Qualcomm’s breach
6 of the SULAs between Qualcomm and the CMs:
7 Compal: $_______________________________
8 Foxconn: $_______________________________
9 Pegatron: $_______________________________
10 Wistron: $_______________________________
11 (CM Count XII)
12 QUALCOMM’S OBJECTIONS
13 Qualcomm objects to this question because it addresses an issue for the
14 Court, not the jury. See Jensen, 835 F.3d at 1111. The monetary relief sought by
15 CM Count XII is restitution and the parties agree that restitution is an equitable
16 remedy.
17 Qualcomm further objects to this question because it fails to account for the
18 fact that Apple and the CMs seek the same damages for the same harm under
19 multiple legal theories. Accordingly, this question, when combined with others,
20 may result in duplicative recoveries.
21

22 Question 36: On Qualcomm’s claims against the CMs for breach of the SULAs
23 between Qualcomm and the CMs, we find in favor of:
24 _____ Compal _____ Qualcomm
25 _____ Foxconn _____ Qualcomm
26 _____ Pegatron _____ Qualcomm
27 _____ Wistron _____ Qualcomm
28 (Qualcomm Counts I, III, V, VII and IX against CMs)
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1 QUALCOMM’S OBJECTIONS
2 Qualcomm objects to this question because it could lead the jury to return an
3 inconsistent verdict. See, e.g., Guidry, 598 F.2d at 405-06. Qualcomm and the
4 CMs each claim that the other party breached the SULAs and the jury should
5 decide the parties’ respective claims together. The verdict form should pose one
6 question asking the jury whether it finds for Qualcomm or the CMs on their claims
7 against each other for breach of the SULAs. (See Qualcomm Proposed Question 1.)
8

9 Question 37: Did the CMs prove any of the following affirmative defenses to
10 Qualcomm’s claims that the CMs breached the SULAs between Qualcomm and the
11 CMs? “Yes” is a finding for the CMs. “No” is a finding for Qualcomm.
12 Unlawful and/or Unenforceable: Yes: _____ No: _____
13 Unconscionable: Yes: _____ No: _____
14 Unclean Hands: Yes: _____ No: _____
15 Estoppel: Yes: _____ No: _____
16 Waiver: Yes: _____ No: _____
17 Excuse: Yes: _____ No: _____
18 Ratification: Yes: _____ No: _____
19 Acquiescence: Yes: _____ No: _____
20 Consent: Yes: _____ No: _____
21 Unreasonable Liquidated Damages: Yes: _____ No: _____
22 Laches: Yes: _____ No: _____
23 Violation of SSO IPR Policy: Yes: _____ No: _____
24 (Qualcomm Counts I, III, V, VII and IX against CMs)
25 QUALCOMM’S OBJECTIONS
26 Qualcomm objects to this question because including affirmative defenses
27 adds needless length and complexity to the verdict form.
28
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1 Qualcomm further objects to this question because it addresses defenses for


2 the Court, not the jury. See Jensen, 835 F.3d at 1111. The Court should decide
3 whether a contract is unenforceable or unlawful, whether a contract contains an
4 unenforceable penalty, whether a contract is unconscionable and the defenses of
5 unclean hands, estoppel and laches. See Erhart, 2017 WL 588390, at *6
6 (unenforceability and unlawfulness); Morris v. Redwood Empire Bancorp, 128 Cal.
7 App. 4th 1305, 1314 (Cal. Ct. App. 2005) (unenforceable penalty); De La Torre, 5
8 Cal. 5th at 973 (unconscionability); JIPC Management, Inc., 2009 WL 8591607, at
9 *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at 1044 (estoppel and
10 laches).
11

12 If your answer to Question 36 is for Qualcomm and your answer to each part of
13 Question 37 is “No,” please answer Question 38. Otherwise, please skip to
14 Question 39.
15

16 Question 38: We award Qualcomm the following damages for the Contract
17 Manufacturers’’ breach of the SULAs between Qualcomm and the CMs:
18 Against Compal: $_______________________________
19 Against Foxconn: $_______________________________
20 Against Pegatron: $_______________________________
21 Against Wistron: $_______________________________
22 (Qualcomm Counts I, III, V, VII against CMs)
23 QUALCOMM’S OBJECTIONS
24 No objection.
25

26

27

28
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1 V. Contract Manufacturer-Qualcomm Master Software Agreements (Jury


2 Instructions, Pages [●]-[●])
3

4 Question 39: On Qualcomm’s claims against the CMs for breach of the MSAs
5 between Qualcomm and the CMs, we find in favor of:
6 _____ Compal _____ Qualcomm
7 _____ Foxconn _____ Qualcomm
8 _____ Pegatron _____ Qualcomm
9 _____ Wistron _____ Qualcomm
10 (Qualcomm Counts II, IV, VI, VIII, and IX against CMs)
11 QUALCOMM’S OBJECTIONS
12 No objection.
13

14 Question 40: Did the CMs prove any of the following affirmative defenses to
15 Qualcomm’s claims that the CMs breached the MSAs between Qualcomm and the
16 CMs? “Yes” is a finding for the CMs. “No” is a finding for Qualcomm.
17 Unlawful and/or Unenforceable: Yes: _____ No: _____
18 Unconscionable: Yes: _____ No: _____
19 Unclean Hands: Yes: _____ No: _____
20 Estoppel: Yes: _____ No: _____
21 Waiver: Yes: _____ No: _____
22 Excuse: Yes: _____ No: _____
23 Ratification Yes: _____ No: _____
24 Acquiescence Yes: _____ No: _____
25 Consent: Yes: _____ No: _____
26 Laches: Yes: _____ No: _____
27 Violation of SSO IPR Policy: Yes: _____ No: _____
28 (Qualcomm Counts II, IV, VI, VIII, and IX against CMs)
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1 QUALCOMM’S OBJECTIONS
2 Qualcomm objects to this question because including affirmative defenses
3 adds needless length and complexity to the verdict form.
4 Qualcomm further objects to this question because it addresses defenses for
5 the Court, not the jury. See Jensen, 835 F.3d at 1111; Erhart, 2017 WL 588390, at
6 *6 (unenforceability and unlawfulness); JIPC Management, Inc., 2009 WL
7 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at 1044 (estoppel
8 and laches); De La Torre, 5 Cal. 5th at 973 (unconscionability).
9

10 If your answer to Question 39 is for Qualcomm and your answer to each part of
11 Question 40 is “No,” please answer Question 41. Otherwise, please skip to
12 Question 42.
13

14 Question 41: We award Qualcomm the following damages for the CMs’ breach of
15 the MSAs between Qualcomm and the CMs:
16 Against Compal: $_______________________________
17 Against Foxconn: $_______________________________
18 Against Pegatron: $_______________________________
19 Against Wistron: $_______________________________
20 (Qualcomm Counts II, IV, VI, VIII against CMs)
21 QUALCOMM’S OBJECTIONS
22 No objection.
23

24

25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1 VI. BCPA (Jury Instructions, Pages [●]-[●])


2

3 Question 42: On Apple’s claim against Qualcomm for breach of the Business
4 Cooperation and Patent Agreement (“BCPA”), we find in favor of:
5

6 _____ Apple _____ Qualcomm


7 (Apple Counts I, II, IV)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because it could lead the jury to return an
10 inconsistent verdict. See, e.g., Guidry, 598 F.2d at 405-06. Apple and Qualcomm
11 each claim that the other party breached the BCPA and the jury should decide the
12 parties’ respective claims together. The verdict form should pose one question
13 asking the jury whether it finds for Qualcomm or Apple on their claims against
14 each other for breach of the BCPA. (See Qualcomm Proposed Question 7.)
15

16 Question 43: Did Qualcomm prove any of the following affirmative defenses to
17 Apple’s claim that Qualcomm breached the BCPA? “Yes” is a finding for
18 Qualcomm. “No” is a finding for Apple.
19 Ratification: Yes: _____ No: _____
20 Mistake: Yes: _____ No: _____
21 Estoppel: Yes: _____ No: _____
22 Unclean Hands: Yes: _____ No: _____
23 (Apple Counts I, II, IV)
24 QUALCOMM’S OBJECTIONS
25 Qualcomm objects to this question because including affirmative defenses
26 adds needless length and complexity to the verdict form. Nevertheless, if the Court
27 decides to include affirmative defenses, Qualcomm objects that this question
28 excludes the following defenses that Qualcomm asserts against these claims:
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -33-
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50

1 waiver, excuse, failure to mitigate, unjust enrichment and offset. See Final Pretrial
2 Conference Order § III.
3 Qualcomm notes that unclean hands, estoppel, laches and offset are defenses
4 that should be decided by the Court rather than the jury. See JIPC Management,
5 Inc., 2009 WL 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at
6 1044 (estoppel and laches); Crasnick, 248 Cal. App. 4th Supp. at 6 (offset).
7 However, if the Court decides that the verdict form should include Apple’s and the
8 CMs’ defenses that will ultimately be decided by the Court, Qualcomm’s defenses
9 also should be included. Qualcomm does not waive its objection that defenses and
10 claims that should be decided by the Court should not be included on the verdict
11 form.
12

13 If your answer to Question 42 is “Apple” and your answer to each part of Question
14 43 is “No,” please answer Question 44. Otherwise, please skip to Question 45.
15

16 Question 44: We award Apple the following damages for Qualcomm’s breach of
17 the BCPA:
18 $_______________________________
19 (Apple Counts I, II)
20 QUALCOMM’S OBJECTIONS
21 No objection.
22

23 Question 45: On Qualcomm’s claim against Apple for breach of the Business
24 Cooperation and Patent Agreement (“BCPA”), we find in favor of:
25

26 _____ Apple _____ Qualcomm


27 (Qualcomm Counts VI, VII, and IX against Apple)
28 QUALCOMM’S OBJECTIONS
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50

1 Qualcomm objects to this question because it could lead the jury to return an
2 inconsistent verdict. See, e.g., Guidry, 598 F.2d at 405-06. Apple and Qualcomm
3 each claim that the other party breached the BCPA and the jury should decide the
4 parties’ respective claims together.
5 Qualcomm further objects to this question because it is repetitive. See Gill v.
6 Manuel, 488 F.2d 799, 802 (9th Cir. 1973). The question calls on the jury to decide
7 whether Apple breached the BCPA, which is addressed in whole or in part in
8 Questions 42 and 43. The verdict form should pose one question asking the jury
9 whether it finds for Qualcomm or Apple on their claims against each other for
10 breach of the BCPA. (See Qualcomm Proposed Question 7.)
11

12 Question 46: Did Apple prove any of the following affirmative defenses to
13 Qualcomm’s claim that Apple breached the BCPA? “Yes” is a finding for Apple.
14 “No” is a finding for Qualcomm.
15 Unlawful and/or Unenforceable: Yes: _____ No: _____
16 Unclean Hands: Yes: _____ No: _____
17 Section 47(b) Privilege: Yes: _____ No: _____
18 Unreasonable Liquidated Damages: Yes: _____ No: _____
19 Estoppel: Yes: _____ No: _____
20 Waiver: Yes: _____ No: _____
21 Ratification: Yes: _____ No: _____
22 Acquiescence: Yes: _____ No: _____
23 Consent: Yes: _____ No: _____
24 Laches: Yes: _____ No: _____
25 (Qualcomm Counts VI, VII, and IX against Apple)
26 QUALCOMM’S OBJECTIONS
27 Qualcomm objects to this question because including affirmative defenses
28 adds needless length and complexity to the verdict form.
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -35-
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50

1 Qualcomm further objects to this question because it addresses defenses for


2 the Court, not the jury. See Jensen, 835 F.3d at 1111; Falcon v. Long Beach
3 Genetics, Inc., 224 Cal. App. 4th 1263, 1272-73 (Cal. Ct. App. 2014) (§ 47(b)
4 privilege); Erhart, 2017 WL 588390, at *6 (unenforceability and unlawfulness); Ill.
5 Tool Works, 946 F. Supp. 2d at 1044 (estoppel and laches); JIPC Management,
6 Inc., 2009 WL 8591607, at *19 (unclean hands); Morris, 127 Cal. App. 4th at 1314
7 (unenforceable liquidated damages).
8 Qualcomm further objects to this question because it is repetitive. See Gill,
9 488 F.2d at 802. The question calls on the jury to decide whether Apple breached
10 the BCPA, which is addressed in whole or in part in Questions 42 and 43. The
11 verdict form should pose one question asking the jury whether it finds for
12 Qualcomm or Apple on their claims against each other for breach of the BCPA.
13 (See Qualcomm Proposed Question 7.)
14

15 If your answer to Question 45 is “Qualcomm” and your answer to each part of


16 Question 46 is “No,” please answer Question 47. Otherwise, please skip to
17 Question 48.
18

19 Question 47: We award Qualcomm the following damages for Apple’s breach of
20 the BCPA:
21 $_______________________________
22 (Qualcomm Counts VI, VII, and IX against Apple)
23 QUALCOMM’S OBJECTIONS
24 No objection.
25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1 Question 48: Did Apple prove that the liquidated damages provision in Section 7
2 of the BCPA, as interpreted by Qualcomm, was unreasonable under the
3 circumstances at the time the contract was made? “Yes” is a finding for Apple.
4 “No” is a finding for Qualcomm.
5

6 Yes: _____ No: ______


7 (Apple Count III)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because it addresses an issue for the
10 Court, not the jury. See Jensen, 835 F.3d at 1111. The Court should decide
11 whether a contractual provision is a liquidated damages provision and if so whether
12 it is unreasonable. Morris, 128 Cal. App. 4th at 1314.
13

14 Question 49: Did Apple prove that if Qualcomm’s interpretation of the BCPA is
15 given effect, that interpretation would render Section 7 unenforceable as against
16 public policy? “Yes” is a finding for Apple. “No” is a finding for Qualcomm.
17

18 Yes: _____ No: ______


19 (Apple Count IV)
20 QUALCOMM’S OBJECTIONS
21 Qualcomm objects to this question because it addresses an issue for the
22 Court, not the jury. See Jensen, 835 F.3d at 1111. The Court should decide
23 whether a contract is unenforceable or unlawful. Erhart, 2017 WL 588390, at *6.
24

25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -37-
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50

1 Question 50: On Qualcomm’s claim against Apple for unjust enrichment, did
2 Qualcomm prove that the BCPA was not a contract and that Apple was unjustly
3 enriched by payments from Qualcomm under the BCPA?
4

5 Yes: _____ No: _____


6 (Qualcomm Count VIII against Apple)
7 QUALCOMM’S OBJECTIONS
8 Qualcomm objects to this question because it is confusing. See Frank
9 Briscoe, 857 F.2d at 614; Byrum v. Brand, 219 Cal. App. 3d 926, 936 (Cal. Ct.
10 App. 1990). If the jury finds that the BCPA was not a legally formed contract,
11 Qualcomm’s payments to Apple were not made “under the BCPA” and referring to
12 Qualcomm’s payments as such would be confusing to the jury.
13

14 Question 51: Did Apple prove any of the following affirmative defenses to
15 Qualcomm’s claim for unjust enrichment under the BCPA? “Yes” is a finding for
16 Apple. “No” is a finding for Qualcomm.
17 Unlawful: Yes: _____ No: _____
18 Unclean Hands: Yes: _____ No: _____
19 Section 47(b) Privilege: Yes: _____ No: _____
20 Waiver: Yes: _____ No: _____
21 Acquiescence: Yes: _____ No: _____
22 Consent: Yes: _____ No: _____
23 Estoppel: Yes: _____ No: _____
24 Laches: Yes: _____ No: _____
25 (Qualcomm Count VIII against Apple)
26 QUALCOMM’S OBJECTIONS
27 Qualcomm objects to this question because including affirmative defenses
28 adds needless length and complexity to the verdict form.
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -38-
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50

1 Qualcomm further objects to this question because it addresses defenses for


2 the Court, not the jury. See Jensen, 835 F.3d at 1111; Falcon, 224 Cal. App. 4th at
3 1272-73 (§ 47(b) privilege); Erhart, 2017 WL 588390, at *6 (unlawfulness); Ill.
4 Tool W orks, 946 F. Supp. 2d at 1044 (estoppel and laches); JIPC Management,
5 Inc., 2009 WL 8591607, at *19 (unclean hands).
6

7 If your answer to Question 50 is “Qualcomm” and your answer to each part of


8 Question 51 is “No,” please answer Question 52. Otherwise, please skip to
9 Question 53.
10

11 Question 52: We award Qualcomm the following amount on its unjust enrichment
12 claim against Apple under the BCPA:
13

14 $_______________________________
15 (Qualcomm Count VIII)
16 QUALCOMM’S OBJECTIONS
17 No objection.
18

19 VII. 2013 Statement of Work (Jury Instructions, Pages [●]-[●])


20

21 Question 53: On Qualcomm’s claim against Apple for breach of the 2013
22 Statement of Work, we find in favor of:
23

24 _____ Apple _____ Qualcomm


25 (Qualcomm Count V against Apple)
26 QUALCOMM’S OBJECTIONS
27 No objection.
28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -39-
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50

1 Question 54: Did Apple prove any of the following affirmative defenses to
2 Qualcomm’s claim for breach of the 2013 Statement of Work? “Yes” is a finding
3 for Apple. “No” is a finding for Qualcomm.
4 Estoppel: Yes: _____ No: _____
5 Acquiescence: Yes: _____ No: _____
6 Consent: Yes: _____ No: _____
7 (Qualcomm Count V against Apple)
8 QUALCOMM’S OBJECTIONS
9 Qualcomm objects to this question because including affirmative defenses
10 adds needless length and complexity to the verdict form.
11 Qualcomm further objects to this question because estoppel is a defense for
12 the Court, not the jury. See Jensen, 835 F.3d at 1111; Ill. Tool Works, 946 F. Supp.
13 2d at 1044.
14

15 If your answer to Question 53 is “Qualcomm” and your answer to each part of


16 Question 54 is “No,” please answer Question 55. Otherwise, please skip to
17 Question 56.
18

19 Question 55: We award Qualcomm the following damages for Apple’s breach of
20 the 2013 Statement of Work:
21

22 $_______________________________
23 (Qualcomm Count V against Apple)
24 QUALCOMM’S OBJECTIONS
25 No objection.
26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -40-
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50

1 VIII. Tortious Interference with Contract (Jury Instructions, Pages [●]-[●])


2

3 Question 56: On Qualcomm’s claim against Apple for tortious interference with
4 the SULAs between Qualcomm and the CMs, we find in favor of:
5 Compal SULA: _____ Apple _____ Qualcomm
6 Foxconn SULA: _____ Apple _____ Qualcomm
7 Pegatron SULA: _____ Apple _____ Qualcomm
8 Wistron SULA: _____ Apple _____ Qualcomm
9 (Qualcomm Count I against Apple)
10 QUALCOMM’S OBJECTIONS
11 No objection.
12

13 Question 57: Did Apple prove any of the following affirmative defenses to
14 Qualcomm’s claim that Apple tortiously interfered with the SULAs between
15 Qualcomm and the CMs? “Yes” is a finding for Apple. “No” is a finding for
16 Qualcomm.
17 Justification: Yes: _____ No: _____
18 Unlawful and/or Unenforceable: Yes: _____ No: _____
19 Unconscionable: Yes: _____ No: _____
20 Unclean Hands: Yes: _____ No: _____
21 Estoppel: Yes: _____ No: _____
22 Waiver: Yes: _____ No: _____
23 Consent: Yes: _____ No: _____
24 Ratification: Yes: _____ No: _____
25 Acquiescence: Yes: _____ No: _____
26 Excuse: Yes: _____ No: _____
27 Laches: Yes: _____ No: _____
28 (Qualcomm Count I against Apple)
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -41-
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50

1 QUALCOMM’S OBJECTIONS
2 Qualcomm objects to this question because including affirmative defenses
3 adds needless length and complexity to the verdict form.
4 Qualcomm further objects to this question because it addresses defenses for
5 the Court, not the jury. See Jensen, 835 F.3d at 1111; Ill. Tool Works, 946 F. Supp.
6 2d at 1044 (estoppel and laches); JIPC Management, Inc., 2009 WL 8591607, at
7 *19 (unclean hands); Erhart, 2017 WL 588390, at *6 (unenforceability and
8 unlawfulness); De La Torre, 5 Cal. 5th at 973 (unconscionability).
9

10 If your answer to any part of Question 56 is “Qualcomm” and your answer to each
11 part of Question 57 is “No,” please answer Question 58. Otherwise, please skip to
12 Question 61.
13

14 Question 58: We award Qualcomm the following damages for Apple’s tortious
15 interference with the SULAs between Qualcomm and the CMs:
16 $_______________________
17 (Qualcomm Count I against Apple)
18 QUALCOMM’S OBJECTIONS
19 No objection.
20

21

22

23

24

25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1 Question 59:1 Did Qualcomm prove that Apple engaged in tortious interference
2 with the SULAs between Qualcomm and the CMs with malice, oppression, or
3 fraud? “Yes” is a finding for Qualcomm. “No” is a finding for Apple.
4

5 Yes: _____ No: _____


6 (Qualcomm Count I against Apple)
7 QUALCOMM’S OBJECTIONS
8 Qualcomm objects to Apple’s request for bifurcation for the reasons stated in
9 its forthcoming opposition to Apple’s Motion in Limine No. 5.
10

11 If your answer to Question 59 is “Yes,” please answer Question 60. Otherwise,


12 please skip to Question 61.
13

14 Question 60: We award Qualcomm the following punitive damages for Apple’s
15 tortious interference with the SULAs between Qualcomm and the CMs:
16 $_______________________
17 (Qualcomm Count I against Apple)
18 QUALCOMM’S OBJECTIONS
19 Qualcomm objects to Apple’s request for bifurcation for the reasons stated in its
20 forthcoming opposition to Apple’s Motion in Limine No. 5.
21

22

23

24

25

26
1
27 Questions 59 and 60 are to be submitted to the jury separately if the issue of
punitive damages is bifurcated, and submitted only if there is proof that Apple acted
28 with malice, oppression, or fraud.
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -43-
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50

1 IX. STA Assignment Agreement (Jury Instructions, Pages [●]-[●])


2

3 Question 61: On Apple’s claim that the Section 4.4 of the STA Assignment
4 Agreement is unenforceable as against public policy, we find in favor of:
5

6 _____ Apple _____ Qualcomm


7 QUALCOMM’S OBJECTIONS
8 Qualcomm objects to this question because it addresses an issue for the
9 Court, not the jury. See Jensen, 835 F.3d at 1111. The Court should decide
10 whether a contract is unenforceable. Erhart, 2017 WL 588390, at *6.
11

12 Question 62: Did Qualcomm prove any of the following affirmative defenses to
13 Apple’s claim that Section 4.4 of the STA Assignment Agreement is unenforceable
14 as against public policy? “Yes” is a finding for Qualcomm. “No” is a finding
15 for Apple.
16 Estoppel: Yes: _____ No: _____
17 Unclean Hands: Yes: _____ No: _____
18 (Apple Count LX)
19 QUALCOMM’S OBJECTIONS
20 Qualcomm objects to this question because including affirmative defenses
21 adds needless length and complexity to the verdict form. Nevertheless, if the Court
22 decides to include affirmative defenses, Qualcomm objects that this question
23 excludes the following defenses that Qualcomm asserts against this claim: waiver,
24 ratification, agreement, acquiescence and consent. See Final Pretrial Conference
25 Order § III.
26 Qualcomm notes that unclean hands and estoppel are defenses that should be
27 decided by the Court rather than the jury. See JIPC Management, Inc., 2009 WL
28 8591607, at *19 (unclean hands); Ill. Tool Works, 946 F. Supp. 2d at 1044
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1 (estoppel). However, if the Court decides that the verdict form should include
2 Apple’s and the CMs’ defenses that will ultimately be decided by the Court,
3 Qualcomm’s defenses also should be included. Qualcomm does not waive its
4 objection that defenses and claims that should be decided by the Court should not
5 be included on the verdict form.
6

7 Please sign and date this verdict form and return it to Judge Curiel.

10
_________________________
11

12
Date: _________________________
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1 Dated: February 23, 2019 Respectfully submitted,


2
By: /s/ William Isaacson
3
Juanita R. Brooks, SBN 75934, brooks@fr.com
4 Seth M. Sproul, SBN 217711, sproul@fr.com
FISH & RICHARDSON P.C.
5
12390 El Camino Real
6 San Diego, CA 92130
Phone: (619) 678-5070; Fax: (619) 678-5099
7

8 Ruffin B. Cordell (D.C. Bar No. 445801;


pro hac vice) cordell@fr.com
9
Lauren A. Degnan (D.C. Bar No. 452421;
10 pro hac vice) degnan@fr.com
11
FISH & RICHARDSON P.C.
1000 Maine Avenue, S.W., Suite 1000
12 Washington, D.C. 20024
13
Phone: (202) 783-5070; Fax: (202)783-2331

14 William A. Isaacson (D.C. Bar No. 414788;


15
pro hac vice) wisaacson@bsfllp.com
Karen L. Dunn (D.C. Bar No. 1002520;
16 pro hac vice) kdunn@bsfllp.com
17
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, N.W.
18 Washington, D.C. 20005
19 Phone: (202) 237-2727; Fax: (202) 237-6131

20 Attorneys for Plaintiff and Counterclaim-Defendant


Apple Inc.
21

22
By: /s/ Jason Lo
23 Theodore R. Boutrous, Jr., SBN 132099,
24 tboutrous@gibsondunn.com
Richard J. Doren, SBN 124666
25 rdoren@gibsondunn.com
26 Daniel G. Swanson, SBN 116556,
dswanson@gibsondunn.com
27 Michele L. Maryott, SBN 191993
28 mmaryott@gibsondunn.com
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1 Jason C. Lo, SBN 219030,


jlo@gibsondunn.com
2 Jennifer J. Rho, SBN 254312,
3 jrho@gibsondunn.com
Melissa Phan, SBN 266880,
4 mphan@gibsondunn.com
5 GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
6 Los Angeles, CA 90071
7 Tel: (213) 229-7000; Fax: (213) 229-7520
8 Cynthia E. Richman, DC Bar No. 492089,
9 pro hac vice
crichman@gibsondunn.com
10 GIBSON, DUNN & CRUTCHER LLP
11 1050 Connecticut Avenue, N.W.
Washington, DC 20036
12 Tel: (202) 955-8500; Fax: (202) 467-0539
13
Attorneys for Defendants, Counterclaimants, and
14 Third-Party Plaintiffs Compal Electronics, Inc., FIH
15 Mobile Ltd., Hon Hai Precision Industry Co., Ltd.,
Pegatron Corporation, and Wistron Corporation
16

17
Hugh F. Bangasser, pro hac vice
18 hugh.bangasser@klgates.com
Christopher M. Wyant, pro hac vice
19
chris.wyant@klgates.com
20 J. Timothy Hobbs, pro hac vice
tim.hobbs@klgates.com
21
K&L GATES LLP
22 925 Fourth Avenue, Suite 2900
Seattle, Washington 98104
23
Tel: (206) 623-7580; Fax: (206) 370-6371
24
Caitlin C. Blanche, SBN 254109,
25
caitlin.blanche@klgates.com
26 K&L GATES LLP
1 Park Plaza Twelfth Floor
27
Irvine, CA 92614
28 Tel: (949) 253-0900; Fax: (949) 253-0902
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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50

1
Attorneys for Defendant, Counterclaimant, and
2 Third-Party Plaintiff Wistron Corporation
3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
EXHIBIT H: APPLE & CMS’ PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM -48-

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