Elan Microelectronics Corporation v. Apple, Inc.

Filing 236

Declaration of Derek Walter IN SUPPORT OF APPLE INC'S OPPOSITION TO ELAN MICROELECTRONICS CORPORATION'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INFRINGEMENT OF U.S. PATENT 5,825,352] filed byApple, Inc.. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit I, # 6 Exhibit J, # 7 Exhibit K)(Greenblatt, Nathan) (Filed on 6/2/2011)

Exhibit K

CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, D.C.
Before the Honorable Paul J. Luckern
Chief Administrative Law Judge
In the Matter of
CERTAIN ELECTRONIC DEVICES WITH
MULTI-TOUCH ENABLED TOUCHPADS
AND TOUCHSCREENS

Investigation No. 337-TA-714

COMPLAINANT ELAN MICROELECTRONICS CORPORATION’S
POST HEARING BRIEF

CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

G.

Apple Employees Perform Multi-Finger Gestures on the Accused
Apple Products

Apple is liable for direct infringement when its employees cause the accused devices to
perform the steps of the claimed methods. Apple is also liable for inducing its customers to use
the accused devices in an infringing manner. Infringement arises where a person performs all of
the steps of the method. Lucent Techs., Inc. v. Microsoft Corp., 580 F.3d 1301, 1317 (Fed. Cir.
2009). A finding of infringement may rest on as little as one instance of the method being
performed. Id. Elan was not required to provide direct evidence of infringement. Id. at 1318
(citing Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 172 (Fed. Cir. 1986). In fact,
“’circumstantial evidence is not only sufficient, but may also be more certain, satisfying and
persuasive than direct evidence.” Id. In Moleculon, the circumstantial evidence of the direct

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CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

infringement of a method to solve the Rubik’s Cube puzzle consisted of puzzle sales, and
instruction sheet and brochures. Id. Similarly, in Lucent, the circumstantial evidence consisted
of extensive sales, instruction manuals and expert testimony. Id. Under this standard, there is
sufficient evidence to show that users of the Accused Apple Devices perform the steps of the
claimed methods as described above.
Each of the Accused Apple Products is designed to be used with two fingers in contact
with the touch sensor. Apple’s 30(b)(6) witness, Wayne Westerman, testified that Apple’s
employees use the Accused Products in connection with their employment, including testing in
the United States on production and prototype models.
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Okay. Earlier in the deposition you pulled
out an iPhone to illustrate part of your testimony.
Do you use that iPhone in connection with
your work for Apple?
I use it to read e-mails.
Okay. Do you ever use it to make phone
calls for work?
Yeah.
You have colleagues at Apple that also have
iPhones that they use in connection with their
employment?
Yes.
Do you have a computer that Apple has
provided to you?
Yes.
What kind of computer is that?
MacBook Pro.
And do you use multi-finger gestures on the
trackpad of the MacBook Pro?
Yes.
You have colleagues who also have MacBook
Pro laptops?
Yup.
Those colleagues use multi-finger gestures?
As far as I know, yeah. . . .

(CFF IV.137-143).

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CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

Some of these gestures are shown in the User Guides provided with the Accused
Products. The Apple MacBook laptop computers are exemplary:

(CFF IV.419-424). The iPhone, iPod Touch, iPad, MacBook Air, Magic Mouse and Magic
TrackPad products also detect and process gestures with two or more fingers in order to allow
similar control functions (see generally CFF IV .404-418, CFF IV .428-430).
In demonstrating how an Apple iPhone touchpad may typically be used with two fingers,
Apple’s expert witness, Dr. Balakrishnan, demonstrated two fingers lined up on the touchscreen:

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