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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

APPLE INC., a California Corporation,

) ) ) Plaintiff, ) ) vs. )No. 11-CV-01846-LHK ) SAMSUNG ELECTRONICS CO., LTD. , ) a Korean business entity; ) SAMSUNG ELECTRONICS AMERICA, ) INC., a New York corporation; ) SAMSUNG TELECOMMUNICATIONS ) AMERICA, LLC, a Delaware ) limited liability company, ) ) Defendants, ) _____________________________ )

HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY DEPOSITION OF TIMOTHY BENNER WEDNESDAY, FEBRUARY 22, 2012

REPORTED BY: JOB NO: 46809

JUDIE A. NICHOLAS, CSR NO. 12229

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answered.

Badgering the witness. THE WITNESS: MR. ROBINSON: I answered that question. Q. I haven't gotten an

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answer. A.

Please answer the question. Could you rephrase the question, or could

you repeat -- or would you read the question back. THE REPORTER: Question: "But you're not

saying it's not important to any of these groups; is that right?" MS. CARUSO: MR. ROBINSON: the question? A. Q. A. Q. Could you repeat it again? I can rephrase. Yeah. Is it STA's testimony that physical -- the Objection: Q. Vague.

09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45 09:45

Sir, do you understand

physical appearance of a smartphone is unimportant to consumer decision making of smartphones in any consumer segment? Is it unimportant? Objection: Vague.

MS. CARUSO: THE WITNESS:

I think my objection is with

using the word "important," because it deals in absolutes. It seems like it's either the most

important or the least important the way you're phrasing the question, and I've stated that it's of

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relative importance. Q.

It is an aspect.

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Isn't it true, Mr. Benner, that surveys

that Samsung had received show that the single most important reason why consumers purchase a particular smartphone brand is because they like its overall physical appearance? MS. CARUSO: Objection: Mischaracterizes

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the record; lacks foundation. THE WITNESS: Can you show me which

surveys you're referring to? MR. ROBINSON: Q. Do you -- did you

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understand the question, sir? A. Q. I did understand the question. Do you not know how to answer the question

without looking at a document? A. I have many surveys which show different

things among different consumer groups, so I cannot answer the question as phrased because it is too broad. Q. Can you name, sir, one survey that Samsung

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has received which shows that the physical appearance of a particular smartphone -- strike that. Mr. Benner, can you name a single survey which Samsung has received that shows that the

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physical appearance of a smartphone is unimportant to consumer purchasing behavior? MS. CARUSO: THE WITNESS: MR. ROBINSON: A. Objection: I cannot. Q. Why is that, sir? Vague.

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Because appearance is an aspect of choice

in almost every decision. Q. Are there any surveys, to your knowledge,

that show the physical appearance of a smartphone is not an important consideration driving consumer purchases of smartphones? MS. CARUSO: answered, and vague. THE WITNESS: I answered that question. Objection: Asked and

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That was the same question. MR. ROBINSON: is that right? MS. CARUSO: the prior testimony. THE WITNESS: previous question. MR. ROBINSON: Q. The answer is no, you My answer was no to the Objection: Mischaracterizes Q. And your answer was no;

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can't think of a single survey which shows that the physical appearance of a smartphone is unimportant to consumer purchasing decisions; is that right?

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MS. CARUSO: THE WITNESS:

Objection. I can think of a single

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survey that shows that it is of lesser importance. MR. ROBINSON: Q. But in answer to the

question that was pending, your answer would be no; is that right? A. What is the question as pending? MR. ROBINSON: read back, please? THE REPORTER: Question: "The answer is Could we have the question

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no, you can't think of a single survey which shows that the physical appearance of a smartphone is unimportant to consumer purchasing decisions; is that right?" THE WITNESS: think of"? The question is "No, I can't

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That is the question? Q. And your answer was? You

MR. ROBINSON: A.

My answer was that was the question.

asked if that was the question and I said yes. Q. Mr. Benner, you understand that -- you're

testifying here as though you were testifying before the jury, right? A. Q. I understand that, yes. Okay. Do you feel like you're giving me

forthright answers to my questions, sir?

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A.

I'm having a problem with that question

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because it's very, very broad, and what... I understand. Q. Thank you, sir. You mentioned that you could think of a survey in which physical appearance was of lesser importance. Please tell me about that survey. Objection: Vague; calls for

MS. CARUSO: a narrative. THE WITNESS:

The specifics that I'm

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thinking of is within particular groups where looking at purchase decision elements, the ranking or the rating of physical appearance is of less importance to factors such as price, such as operating system, such as of a plethora of other things, or of equal importance. MR. ROBINSON: Q. Do you have a survey in

mind, sir, that shows these things? A. Q. A. I do. What is that survey? The survey is our tracking survey has

elements of that in it, and there are other surveys. I can't name them off the top of my head

because it shows up in quite a few surveys looking at the relative importance of purchase decisions.

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Q.

You mentioned a tracking survey.

Could

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you please describe what that survey is, what it's called? MS. CARUSO: THE WITNESS: called? MR. ROBINSON: understand? A. Yes. MS. CARUSO: MR. ROBINSON: Objection: Q. Compound. Q. Both, sir. Do you Objection: Compound.

09:50 09:50 09:50 09:50 09:50 09:50 09:50 09:50 09:50 Which 09:50 09:50 09:50

What it is or what it's

Can you answer?

You can answer the

question if you understand. MS. CARUSO: There's two questions.

one do you want him to answer? one at a time -MR. ROBINSON:

If you want to go

Counsel, please limit your

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objections to objection to form. The witness testified that he understands the question and is prepared to give an answer. I'd like to hear the witness's answer. Sir, do you understand the question? THE WITNESS: MR. ROBINSON: Yes. Q. I'd like to hear your

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answer, and so would the jury. A. The question -- I'm sorry, the answer

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is -- the survey is called the STA tracking survey. It doesn't really have a formal name. called -- we call it a tracking survey. survey that we use to look at the overall marketplace over time and how it evolves and changes. Q. When did STA first begin using these STA It's just It is a

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tracking surveys? A. Q. A. Q. Towards the end of 2008. And does it use them today? Yes. Was there any point in time in which it

did not use these STA tracking surveys? MS. CARUSO: MR. ROBINSON: and current? A. There were periods, I believe, in 2008 Objection. Q. Between the end of 2008

where we did not run the survey, they were short, but from 2010 forward we have had it continuously. Q. Sir, can you tell me more about what these

STA tracking surveys show about the relative importance of the physical appearance of a smartphone to purchasing decisions? MS. CARUSO: narrative. Objection: Calls for a

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THE WITNESS:

As I answered before, it

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shows that it is of relative importance among different consumer groups. Some it's more It is one of

important, some it's less important.

many elements that go into consumer choice. MR. ROBINSON: Q. And you mentioned other

elements of consumer choice include price and operating platform; is that correct? A. Q. group? MS. CARUSO: THE WITNESS: Objection: Vague. That is correct. What other elements fit into that same

09:52 09:53 09:53 09:53

There are elements such

as -- I mentioned operating system, I've mentioned price, I've mentioned appearance. There is things like brand. availability at particular carriers. There is also There is

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just -- a lot of the features internal to the operating system, the screen quality, the speed of the processor, what network it's on, ratings on line, word of mouth, salesperson. There's more. I can't give you an

exhaustive list off the top of my head, but it goes on. Q. Now, you mentioned other surveys aside

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Q.

What is the criteria at the top?

Could

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you read that for me, and the percentage into the record. A. Q. Liked overall design/style, 45. Thank you. And do you see Operating System Platform on this survey? A. Q. A. Q. A. Q. I do. Is it down towards the bottom? Down towards the bottom. With about 20 percent? That is correct. Does this mean that 45 percent of the

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respondents said that the reason for choosing a handset brand because they liked the style? A. Q. No. It says "a" reason.

Thank you. With that clarification, do you see touch

screen on this list? A. Q. near it? A. Q. I do see that. Do you disagree that consumers ranked Yes. And do you see that it says 43 percent

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highly the physical appearance of a smartphone?

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MS. CARUSO: THE WITNESS:

Objection:

Vague.

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This is not a ranking

question, this is merely a yes-or-no question in the form that it was asked. MR. ROBINSON: Q. Is the physical

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appearance of a smartphone a key driver, in STA's opinion, according to all the information that STA has available to it, a key driver in consumer purchasing decisions? MS. CARUSO: answered; vague. THE WITNESS: MR. ROBINSON: How do you define "key?" Q. Does STA define key Objection: Asked and

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strategic drivers -- does it conduct market research, research at all on what strategic drivers drive consumer's demand for smartphones? MS. CARUSO: THE WITNESS: Objection: Compound; vague.

Is the question do we

perform research specifically on key drivers? MR. ROBINSON: A. Q. Yes.

We conduct research that is a part of some

of the questions and answers in many of our different research studies. MR. ROBINSON: Court reporter, could you

please mark as Exhibit 1595 a document entitled

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A.

What they were looking at -- they were not They're

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looking at the display at this point.

relying on the recall of the advertisement and saying they thought that the advertisement in question was either an Apple iPad or iPhone advertisement. Q. So, yes, in response to this prompt then,

looking at -- having looked at the display of the Samsung Galaxy Tab still photo advertisement images, nearly half of the respondents said they thought they had seen an Apple advertisement? A. What they thought, they said, was it was

an advertisement for the Apple brand. In this case, this was done at a time when the Galaxy Tab had just been introduced and the iPad had been in the market for some time, and this is -- the sample that we're looking at here is a smaller sample, so there is more variation in there. Q. A. What was the sample size? For the people who recognized the

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Galaxy -- the Samsung Tab ad, 448. Q. But this result shows, does it not, that

the misattribution back to Apple was significant at the 95 percent confidence level, right?

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A. Q.

Yes. Did STA consider it a problem that the

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Galaxy Tab advertisement was being misattributed to Apple? A. The -- as the statement here says, the

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linkage to Samsung has improved, but the Galaxy Tab execution -- misattribution was declined -- I'm sorry, this is looking at Galaxy 2. can't say strike that. But, yes, we considered it a problem because this communication should have been for the Galaxy Tab. However, the execution was not being Strike -- I

attributed correctly to Samsung. Q. What did STA do, if anything, about the

misattribution that was occurring between the Galaxy Tab and the Apple iPad? MS. CARUSO: lacks foundation. THE WITNESS: In this case, this was -Objection: Beyond the scope;

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Samsung was breaking into the tablet market which was firmly established for a period of time by Apple being the only product available. I can't

remember exactly how many months that, basically, stronghold held. For the Galaxy, the first Galaxy Tab ad

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there was a great deal of misattribution.

For the

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second Galaxy Tab ad, that misattribution dropped as awareness of Samsung's Tabs grew, so looking back and improving the communication to make sure that it was distinctive from Apple and identifiable as Samsung. Q. Didn't the advertising change as well --

the style of the advertising change as between the Galaxy Tab and Galaxy Tab 2, right? MS. CARUSO: in evidence; vague. THE WITNESS: what you're asking? MR. ROBINSON: Q. The misattribution that Can you specify more exactly Objection: Assumes facts not

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occurred between the Samsung Galaxy Tab advertisement and I guess misattributed to Apple, that was because the advertisements were confusing, they were similar, the Samsung advertisements and Apple advertisements? MS. CARUSO: Objection: Calls for a legal

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conclusion; mischaracterizes the record; assumes facts not in evidence; vague. THE WITNESS: I take issue with your

statement of it's confusing, the way it was said similarly confusing. The issue wasn't that it was

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confusing, the issue was that the iPad had been very firmly established in the marketplace, and so when people saw an ad on TV that had a large tablet-like display, the immediate reaction is it must be an iPad. This is at a time when -- breaking into the market, so it's actually not unexpected to see that, because very few people that Samsung was making these products, and growing that awareness, changing from one to the next, is the natural progression of trying to break in and make people become more aware of Samsung as a tablet manufacturer. Q. Does STA disagree that the misattribution

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occurred because the Galaxy Tab looked similar to the Apple iPad? MS. CARUSO: lacks foundation. THE WITNESS: again? MR. ROBINSON: Q. Could we have that I'm sorry, could you say it Objection: Beyond the scope;

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question read back, please. THE REPORTER: Question: "Does STA

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disagree that the misattribution occurred because the Galaxy Tab looked similar to the Apple iPad?"

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MS. CARUSO:

Objection:

Beyond the scope;

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lacks foundation; mischaracterizes the record. THE WITNESS: question. Could you rephrase the

I'm confused by the "Does STA disagree."

The negative phrasing of the question is throwing me off. I'm not sure what you're asking. MR. ROBINSON: Q. Do you agree that the

Galaxy Tab looks similar to the Apple iPad? A. Q. A. In this case, this Galaxy Tab does not. Why is that? It's half the size. (Exhibit No. 1604-1613 marked for identification.) Q. I think -- I want to show you a bunch of I'm not going to ask you detailed

other documents.

questions about them. What I'm going to ask is do you recognize this documents, do they have your name on them, and are they true and correct copies of the documents that they are. They have been premarked as

Exhibits 1604 through 1613, and I'll place this enormous stack in front of you, and -- counsel, here's your copy. And I think we can probably take

this in two phases if we wanted to go through it more quickly.

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