Elan Microelectronics Corporation v. Apple, Inc.

Filing 251

Declaration of Palani P. Rathinasamy in Support of 249 MOTION to Compel Apple, Inc. to Produce Testing Tool (Public Version) filed byElan Microelectronics Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Related document(s) 249 ) (Rathinasamy, Palani) (Filed on 6/7/2011)

EXHIBIT D

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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

Inv. No. 337-TA-714

RESPONDENT APPLE INC.’S POSTHEARING BRIEF
Mark G. Davis, Esq.
Robert T. Vlasis III, Esq.
WEIL, GOTSHAL & MANGES LLP
1300 Eye Street, NW
Washington, DC 20005
[phone]
[phone] (fax)
Matthew D. Powers, Esq.
Jared Bobrow, Esq.
Sonal N. Mehta, Esq.
Derek C. Walter, Esq.
Stefani C. Smith, Esq.
Nathan Greenblatt, Esq.
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, California 94605
[phone]
[phone] (fax)
March 4, 2011

Counsel for Respondent Apple Inc.

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Putting aside the strained nature of Mr. Dezmelyk’s infringement theory, in order to meet
the burden of proof on infringement, it was nonetheless incumbent upon Mr. Dezmelyk to
present meaningful evidence confirming that the Apple products actually produce the narrow
data assumptions that he alleges are required to infringe.

Yet, at the hearing, Mr. Dezmelyk did

the opposite, confirming time and again that, on an issue where Elan has the burden of proof, he
did not base his opinion on any actual measured data to confirm infringement.

Rather, Mr.

Dezmelyk relied almost exclusively upon hypothetical data that he created deliberately to
suggest infringement.8 See, e.g., Dezmelyk, Tr. at 668:3-7 (“Q.

My only question is whether

you did it deliberately, Mr. Dezmelyk. Was it accidental or was it deliberate? A. All data in
the hypothetical has been deliberately placed.”); id. at 512:21-25 (“And I will point out the only
thing that is important to note, since it is hypothetical data, I don’t know the actual magnitude
that would be seen from the actual sensor.”); id. at 665:22-666:5 (“Q.

.”); id. at 666:25-667:3 (“Q. And, again, the data that you have depicted on this
illustrative exhibit were hypothetical data, not actual data.

True? A. That’s correct.”).

Ultimately, Mr. Dezmelyk relied upon only a single exhibit that showed real data. See
RX-631C [USPTO Presentation] at RX-631C.019.

And, Mr. Dezmelyk conceded on cross-

examination that this one real data set did not even show infringement under his theory. See
8

While it is true that Apple’s expert Dr. Balakrishnan also pointed to hypothetical data sets,
he did so to illustrate the function of Apple’s code and the flaws in Mr. Dezmelyk’s analysis.
Because Apple does not carry the burden of proof on this issue, Dr. Balakrishnan’s approach of
using such data sets to illustrate his testimony is entirely appropriate. Elan’s attempt to
substitute hypothetical data sets for proof of infringement is not. See Section X.A.2.a(3).

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Instead of presenting any evidence of specific instances where all of the conditions
necessary for infringement under its theory have actually been met in practice, Elan has merely
argued that its required data conditions are likely to have been met in practice in at least some of
the accused Apple products. In support, Elan relies upon its expert Mr. Dezmelyk’s opinion as
to what is and is not likely to occur in the operation of the accused products. But neither Elan
nor its expert Mr. Dezmelyk has actually measured any data of capacitive coupling for actual
fingers on actual accused products to determine whether the conditions necessary for
infringement under Elan’s theory have actually ever been met in practice. Dezmelyk, Tr. at
652:7-12, 660:3-11, 668:17-25, 669:8-12.
Rather, Mr. Dezmelyk’s opinions are based on hypothetical data sets. Dezmelyk, Tr. at
652:13-653:1, 666:25-667:3. To be sure, hypothetical data sets can be useful to understand how
Apple’s algorithms would function in certain conditions (as Dr. Balakrishnan used them to
illustrate the operation of Apple’s code).

But hypothetical data sets cannot be used as a

substitute for evidence to satisfy a burden of proof on whether those certain conditions actually
occur in practice. The testimony on Mr. Dezmelyk’s hypothetical data sets reveals exactly why
this is so. Mr. Dezmelyk testified that the data depicted on his demonstrative slides including
CDX-172.232, are hypothetical data, not actual data. Dezmelyk, Tr. at 652:13-653:1, 666:25667:3; CDX-172C.232. “All data in the hypothetical has been deliberately placed” by Mr.
Dezmelyk, presumably to support Elan’s infringement case. Dezmelyk, Tr. at 667:10-668:7.

the hypothetical would be
non-infringing even under his own theory. Dezmelyk, Tr. at 668:8-12.

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