Elan Microelectronics Corporation v. Apple, Inc.

Filing 168

Letter from Matthew D. Powers regarding Elan's August 20, 2010 letter ( 165 ) re: claim constrction proceedings in the parallel ITC Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Powers, Matthew) (Filed on 9/8/2010) Modified on 9/15/2010 (tsh, COURT STAFF).

Elan Microelectronics Corporation v. Apple, Inc.

Doc. 168 Att. 1

EXHIBIT A

Dockets.Justia.com

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BEFORE THE UNITED STATES INTERNATIONAL TRADE COMMISSION ___________________________ In the Matter of: ) Investigation No. 337-TA-714

CERTAIN ELECTRONIC DEVICES ) WITH MULTI-TOUCH ENABLED )

TOUCHPADS AND TOUCHSCREENS ) ___________________________ Hearing Room B

United States International Trade Commission 500 E Street, Southwest Washington, D.C.

Thursday, August 19, 2010

MARKMAN HEARING, VOLUME II

The parties met, pursuant to the notice of the Judge, at 9:00 a.m.

BEFORE:

THE HONORABLE PAUL J. LUCKERN

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first identifying said first maxima and said minima? Do you understand what I am trying to ask you? THE WITNESS: Yes, I do, Your Honor. JUDGE LUCKERN: And have you already explained that in what you have said this morning? If you have, you just say, Judge, I have already gone into it, I don't have to say anything more, and that's fine. THE WITNESS: I would be happy to explain it, Your Honor. JUDGE LUCKERN: Well, have you already -THE WITNESS: I haven't gone into the details of how one could do that, and I think that's a good question. JUDGE LUCKERN: All right. Would you mind briefly doing it? THE WITNESS: Not at all. The step of searching for maxima, for instance, you could find all of the maxima on a profile. Algorithmically the process of finding a maxima is looking for the top of a hill. So you could find all the maxima. And then the real question, the real test is is
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A. Well, there is certainly a description of algorithms for finding maxima. And there is no particular requirement that you would have to find and identify and choose the minima that were located there. That is, you could look at the pattern and the actual determination of the depths and so forth later. There is no real need to do it in a particular order. There is also a notion of disclosure in the patent of being a hardware implementation. And if we look back at Rympalski, for instance, Rympalski does a hardware-based threshold determination, which would identify all the maxima instantaneously in parallel. And there are other hardware implementations where the determination of maxima and minima is conducted in a parallel operation. That may well be happening in the inside of that neural network in the Synaptics part. Q. Okay. In a number of your answers, you have referred to the word "profile" this morning. A. Yes. 452

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there a valley between them? And is the valley deep enough? So there is no inherent need to find them in a particular order. It is true if you find two maxima, that pretty much inherently there is some kind of a valley between them. That's a result of finding the two maxima. But you don't need to go find the valley in between before you can find the two maxima. JUDGE LUCKERN: Okay. So that's your answer to my question, huh? THE WITNESS: Yes. JUDGE LUCKERN: All right. Go ahead, Mr. DeBruine. BY MR. DeBRUINE: Q. Just to clarify that answer a bit, when you said one could do that, is it your opinion that one of ordinary skill in the art in January of 1996 would have known how to do that? A. Yes. Q. And is there anything in the patent that describes, that would instruct one of ordinary skill in the art how to do that?
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Q. What do you mean in connection with the '352 patent when you say profile? A. Well, a profile, the ordinary way we use that term, is kind of the outline of a side view. So one of the ways we commonly use "profile" would be the outline of a side view of a set of data. And I have often described it as the profile of a person's face, we look at them from the side, we see the extent of the greatest distance, you know, from the axis of symmetry, shall we say, of their body. If we look at hills, we would say the profile of the hills goes along the top of the hills. If we look at the other use of the term commonly used by practitioners, it is a slice, like a slice through a three-dimensional shape. And in that case the profile becomes the values along the top of the slice. So in Bisset's discussion in the earlier patent of sensing across the array, then he calls or uses the term "profile" to represent those ordered arrays of data that are taken at slices through the data set. So profile has those two meanings. 453

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One is a view of a data set showing either some derivative result like adding up the values to the data set or determining the maximum or otherwise constructing the view across the data, and it has the other meaning of a slice through the data, a set of slices through the data. Q. Okay. And could one analyze -JUDGE LUCKERN: Let me ask you this question. I am going to interrupt Mr. DeBruine. Apple in its supporting memorandum with respect to its motion for summary determination at page 11 states that "the claims, specification, and prosecution history of the '352 patent confirm conclusively that the claims require a finger profile and that a finger profile is a one-dimensional representation of finger contact taken along an axis of the touchpad." Now, do you agree that the claims require a finger profile? THE WITNESS: I think that the use of the term "profile" is fine. I don't agree that it has to be taken on an axis. JUDGE LUCKERN: And then you don't 454

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THE WITNESS: No, Your Honor. But I think it is important to make it clear that the one-dimensional seems to be coming in because it is a line. In other words, the profile is along a line, and a line by itself, of course, is one-dimensional. But I think it is better to say like a straight line or a line instead of one-dimensional, because there may be some confusion because we maybe are using "dimensional" in other places in this type of discussion amongst practitioners. JUDGE LUCKERN: Okay. Thank you. Go ahead, Mr. DeBruine. MR. DeBRUINE: I have nothing more for Mr. Dezmelyk. JUDGE LUCKERN: Oh, boy. That's a present for me. Mr. Powers, let's proceed with cross-examination. Are you doing all right? Does anybody want a break? We have been going since 9:00 o'clock. I am fine. The reporter certainly has been doing a fantastic job. Mr. Powers? MR. POWERS: Would you like to take a break? THE WITNESS: I am fine.
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agree that the claims require a finger profile? A finger profile? THE WITNESS: Well, the profile of capacitance, I think a finger profile in this case is, what they mean is the profile of capacitance. So I don't have a quibble with finger. JUDGE LUCKERN: All right. Well, how about the definition that Apple says the patent confirms to a person of ordinary skill in the art that finger profile is a one-dimensional representation of finger contact taken along an axis of the touchpad? Would you agree with that? THE WITNESS: I don't agree with the "taken along an axis" part. JUDGE LUCKERN: And that's because of what you have already testified this morning? THE WITNESS: Right. JUDGE LUCKERN: But you agree -- well, there is not much left in this definition -one-dimensional representation of finger, and it says something to do with a touchpad. You don't quibble with that phraseology used in Apple's definition, correct?
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MR. POWERS: I am ready to start. JUDGE LUCKERN: All right. Nobody wants a break? Fine with me. Let's continue. Go ahead, Mr. Powers. MR. POWERS: Thank you, Your Honor. CROSS-EXAMINATION BY MR. POWERS: Q. Mr. Dezmelyk, we have RDX-303 up on the screen, which is a depiction of the term and the proposed constructions from all three parties in the case. Do you see that? A. Yes, I do. Q. And you have reviewed those proposed constructions? A. I have seen them, yes. Q. All right. And I want to first just confirm what I think you said in response to Judge Luckern's questions. One difference between Apple and the Staff's construction on the one hand and Elan's on the other, with regard to each of these terms of identify a first maxima, identify a minima, and identify a second maxima, is that Apple and the Staff's construction says identify a first peak value in a finger profile, the phrase "in a finger
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profile" appears in each of those constructions and is absent from Elan's. Do you see that? A. Yes. Q. I take it from your answer to Judge Luckern's question, you agree the language "in a finger profile" is an appropriate construction for these terms in this patent based on the intrinsic evidence and your understanding? A. Yes, and it is essentially equivalent to Elan's construction in the same section. MR. POWERS: I would move to strike, Your Honor, because he has not expressed an opinion about Elan's construction in this case, and I don't want him to. And my question did not ask him about Elan's construction. I merely asked about whether he agreed with "in a finger profile," and I would move to strike any testimony that regards Elan's most recent proposed construction on this term, because he has not expressed an opinion on it. JUDGE LUCKERN: Mr. Baer, where do you stand on the motion to strike? MR. BAER: Staff supports the motion, Your Honor.
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appropriateness or interpretation of Elan's construction even in any of the multitudinous reports that he submitted or declarations. Is that correct? You certainly are familiar with what's gone on in the past. MR. DeBRUINE: Yes, Your Honor. He has put in two declarations in connection with this. He has discussed at length why Apple's construction is -JUDGE LUCKERN: No, we're talking about Elan's construction, not Apple's construction. I have asked you about Elan's construction, Complainant's construction. That's the point. And I hear Mr. Powers saying that the witness has never expressed any opinion with respect to Complainant's construction until we have heard something a few minutes ago. Is that correct? MR. DeBRUINE: Well, Your Honor, be that as it may, Apple has, in fact, put these constructions in front of this witness. JUDGE LUCKERN: But you haven't answered my question, though. I know -- well, this is cross-examination, that's true, but the
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JUDGE LUCKERN: Mr. DeBruine, what is your position on the motion to strike? MR. DeBRUINE: Our position, Your Honor, is that the expert should be allowed to provide his full and complete testimony. Again, Apple took extensive deposition of this expert on these very topics on Tuesday. There is no surprise here. I think we should have a complete record. MR. POWERS: Your Honor, we took a deposition on the positions and opinions he had expressed. He carefully did not ever express an opinion about the appropriateness or interpretation of Elan's construction. Ever. In any of the multitudinous reports that he submitted or declarations. So we have not had a chance to depose on that. And it would be inappropriate for him now on the second day of a Markman hearing to all of a sudden start expressing opinions about a construction he has not before opined about. JUDGE LUCKERN: Mr. DeBruine, Mr. Powers has said that the witness carefully did not ever express an opinion about the
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question was directed to a certain aspect and then we have more testimony, so I am just asking you in the past has the witness ever expressed an opinion with respect to Complainant's construction? That's all I want to know, yes or no or you don't know. MR. DeBRUINE: He has not, Your Honor. JUDGE LUCKERN: Then I am going to grant the motion to strike. Go ahead, Mr. Powers. MR. POWERS: Thank you, Your Honor. BY MR. POWERS: Q. Now, the second part of that difference is "taken on an axis." And as I understand your testimony on direct and particularly in response to Judge Luckern's question, if Apple's proposed construction were changed to say "taken on a straight line," you would agree with it? A. Right. I don't have a problem with "taken on a straight line." Q. All right. Now, in your understanding, claim -- this language, these three terms of claim 1 and 18 require that you identify this first maxima, the minima, and the
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