Elan Microelectronics Corporation v. Apple, Inc.

Filing 431

Declaration of NATHAN GREENBLATT in Support of 430 MOTION for Summary Judgment OF INDEFINITENESS OF CLAIMS 24, 26 AND 30 OF U.S. PATENT NO. 5,825,352 filed byApple, Inc.. (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)(Related document(s) 430 ) (Greenblatt, Nathan) (Filed on 9/14/2011)

Exhibit B

UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.

In the Matter of
CERTAIN ELECTRONIC DEVICES WITH
MULTI-TOUCH ENABLED TOUCHP ADS
AND TOUCHSCREENS

Inv. No. 337-TA-714

Order No. 15: Initial Determination Relating to Motion Nos. 714-4 and 714-7 for Summary
Determination and Finding Each of Claims 19,24, and 30 Invalid
On July 14,2010, respondent Apple, Inc. (Apple) filed a motion for summary
determination in which it argued, inter alia, that each of the following claim limitations of certain
asserted claims of U.S. Patent No. 5,825,352 (the '352 patent), viz., "means for selecting an
appropriate control function based on a combination of a number of fingers detected, an amount
of time said fingers are detected, and any movement of said fingers" (claim 19); "means for
detecting a distance between said first and second maxima" (claim 24); and "means for
calculating first and second centroids corresponding to said first and second fingers" (claim 30)
are governed by 35 U.S.C. § 112 ~ 6, and because the specification does not disclose a
corresponding structure for said means, each of said limitations is indefinite, and hence, each of
said claims 19,24, and 30 is indefinite and thus invalid. (Motion No. 714-4.)
On July 27, 20 I 0, the Commission investigative staff (staff) filed a motion for summary
determination asserting, inter alia, that said asserted claims 19,24, and 30 are indefinite as
respondent Apple argued, and hence, invalid. (Motion No. 714-7.)
Complainant Elan Microelectronics Corp. (Elan) on August 3, 2010 filed a combined reply
brief in opposition to Motion Nos. 714-4 and 714-7.

On August 3, 2010, respondent Apple also filed a reply brief in support of its Motion No.
714-4.
On August 11,2010, respondent Apple filed a sur-reply in further support of its Motion
No. 714-4.

An evidentiary hearing was held on August 18 and 19. At the hearing, complainant Elan's
expert, Robert Dezmelyk, and respondent Apple's expert, Dr. Ravin Balakrishnan, were qualified
as experts in the field of computer user input devices. (Tr. at 370-71.)
On September 3 and September 10,2010, each of the parties filed post-hearing
memoranda and post-hearing reply memoranda, respectively, addressing, inter alia, said claim
limitations.
Pursuant to Commission rule 21 0.18( a), any party may move for summary determination
"in its favor upon all or any part of the issues to be determined in the investigation." Pursuant to
Commission rule 210. 18(b), summary determination " ... shall be rendered if pleadings and any
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
summary determination as a matter oflaw." The evidence "must be viewed in the light most
favorable to the party opposing the motion." Certain Magnetic Resonance Injection Systems and
Components Thereof, Inv. No. 337-TA-434, Order No. 16 at 3 (Sept. 26, 2000). However, the
non-movant "has the burden to submit more than averments in pleadings or allegations in legal
memoranda." Id. "Mere denials or conclusory statements are insufficient" to support a denial of
summary determination. Id.

2

The '352 patent titled "Multiple Fingers Contact Sensing Method For Emulating Mouse
Buttons and Mouse Operations On A Touch Sensor Pad" resulted from Application No. 608,116
that was filed on February 28, 1996 and issued on October 20, 1998. (lX-I). Said application was
a continuation of abandoned Application No. 582,768 filed January 4, 1996. The named inventors
on the '352 patent are Stephen J. Bisset and Bernard Kasser. (lX-I) The assignee on the '352
patent is Logitech, Inc. (lX-I). On October 13,2008 the '352 patent was assigned to complainant
Elan, and said assignment was recorded on October 28,2008. (Complaint Ex. 5 at 827-28).
The claims in issue in this investigation include asserted claims 19,24, and 30, which are
in issue in this order and which read:
19. The touch sensor of claim 18 further comprising:
means for selecting an appropriate control function based on a
combination of a number of fingers detected, an amount of time
said fingers are detected, and any movement of said fingers.
24. The touch sensor of claim 18 further comprising:
means for detecting a distance between said first and second
maXIma.
30. The sensor of claim 18 further comprising means for calculating first and
second centroids corresponding to said first and second fingers.

(lXl at 17:38-42,18:14-16,18:44-46) (emphasis added.)
Construction of means-plus-function claim terms is governed by 35 U.S.C. § 112 -,r 6.
Construction of these terms involves two steps. First, the Court must determine the claimed
function. Cardiac Pacemakers Inc. v. St. Jude Medical, Inc., 296 F.3d 1106, 1113 (Fed. Cir.
2002). Second, the Court must look to the written description to identify the corresponding
structure that performs the claimed function. Id. If no corresponding structure is described in the
specification, the claim is indefinite under 35 U.S.C. § 112 -,r 2. See Id.at 1114 (holding that a
3

means-plus-function claim cannot be construed and is invalid where the specification fails to
disclose corresponding structure); see also Default Proof Credit Card System, Inc. v. Home
Depot U.S.A., Inc., 412 F.3d 1291, 1302 (Fed.Cir. 2005) ("the testimony of one of ordinary skill
in the art cannot supplant the total absence of structure from the specification.... [Patentee]
cannot use the declaration of its expert to rewrite the patent's specification."); B. Braun Medical,
Inc. v. Abbott Laboratories, 124 F.3d 1419, 1424 (Fed. Cir. 1997) ("structure disclosed in the
specification is 'corresponding' structure only if the specification or prosecution history clearly
links or associates that structure to the function recited in the claim").
With respect to means-plus-function claim terms related to computer implemented
inventions, the Federal Circuit requires that the disclosed structure "be more than simply a
general purpose computer or microprocessor." Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game
Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). The required disclosure must include a specific
algorithm as a necessary part of the disclosed structure to avoid purely functional claims that
allow for any device that performs said function. See, e.g., WMS Gaming, Inc. v. Int'l Game
Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999); Aristocrat Techs., 521 F.3d at 1337; Finisar Corp.
v. DirecTV Group, Inc., 523 F.3d 1323,1340-1341 (Fed. Cir. 2008) ("Simply reciting 'software'
without providing some detail about the means to accomplish the function is not enough");
Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1384 (Fed. Cir. 2009)("when a computer
is referenced as support for a function in a means-plus-function claim, there must be some
explanation of how the computer performs the claimed function."). If the specification does not
disclose an algorithm for computer-implemented means-plus-function claim terms, the claim is
invalid as indefinite under 35 U.S.c. § 112. See Aristocrat Techs., 521 F.3d at 1337-1338. In

4

Blackboard, the disputed claim included the means-plus-function clause: "means for allowing
access to and control of the data file associated with the course if authorization is granted based
on the access level ofthe user ofthe system." 574 F.3d at 1382. The patent holder did not point
to a specific algorithm in the specification as structure but merely argued that the "process of
putting together control lists through software is well known to a person of ordinary skill." Id. at
1384. The Court indicated that such an argument relates to enablement and not definiteness; i.e.,
this argument pertains to only "whether a person of skill in the art could devise some means to
carry out the recited function" and not "whether the specification contains a sufficiently precise
description of the 'corresponding structure' to satisfy [35 U.S.C. § 112 ~ 6]." Id. at 1385. The
Court, in finding against the patentee, concluded that "[b]y failing to describe the means by
which the access control manager will create an access control list, Blackboard has attempted to
capture any possible means for achieving that end." Id. In other words, Blackboard had relied
upon purely functional claiming, which the requirements of35 U.S.C. § 112 ~ 6 are intended to
prevent. See Id.; Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1380 (Fed.
Cir. 1999). Thus, the Federal Circuit requires disclosure of an algorithm for performing the
function ofthe claim term, regardless of how well-known or simple that algorithm may be. See,

£.:.&., Encyclopaedia Britannica, Inc. v. Alpine Electronics, Inc.,355 Fed. Appx. 389, 395 (Fed.
Cir. 2009) (rejecting an argument "that the specification need not disclose any algorithm so long
as the computer function being performed is well known"); Lucent Techs., Inc. v. Gateway, Inc.,
543 F.3d 710, 719 (Fed. Cir. 2008) ("The understanding of one of skill in the art does not relieve
the patentee ofthe duty to disclose sufficient structure to support means-plus-function claim
terms"); Biomedino, LLC v. Waters Technologies Corp., 490 F.3d 946, 953 (Fed. Cir. 2007) ("a

5

bare statement that known techniques or methods can be used does not disclose structure").
With respect to the issues to be decided, the parties agree that the claim limitations at
issue are means-plus-function terms covered by 35 U.S.C. § 112, 6. (Apple's Post-Hearing
Memorandum at 33, 36, 38-39; Elan's Post-Hearing Memorandum at 23, 27, 28; Staffs PostHearing Memorandum at 6-8.) The parties also agree regarding the function covered by each of
said claim limitations as recited in each of the specific limitations in issue. rd. Thus, the only
issue to be addressed is whether the specification discloses sufficient structure for each
limitation, as required by 35 U.S.c. § 112, 6.
A. Claim term "means for selecting an appropriate control function based on a combination of a
number of fingers detected, an amount of time said fingers are detected, and any movement of
said fingers" (claim 19)

With respect to the claim term "means for selecting an appropriate control function based
on a combination of a number of fingers detected, an amount of time said fingers are detected,
and any movement of said fingers," for claim 19 to meet the requirements of 35 U.S.c. § 112, the
specification must include sufficient disclosure of an algorithm using the number of fingers
detected, an amount of time said fingers are detected, and movement of detected fingers to select
a control function. Complainant Elan asserted the corresponding structure for this means-plusfunction term includes "appropriate touchpad hardware (Analog Multiplexor 45: Capacitance
measuring circuit 70: A to D convertor 80, Microcontroller 50) along with hardware, software, or
firmware performing various algorithms disclosed in the specification." (Elan's Post-Hearing
Memorandum at 24.) Elan contended that the required structure is covered by various algorithms
in the patent specification including the descriptions related to figures 5, 6-1, 6-2, 7A-7F, 8-1, 82, 9-1, and 9-2. rd. at 24-25. Elan also argued that these algorithms may be varied by one skilled

6

in the art based on where the logic is installed. Id. at 24. Further, Elan argued that respondent
Apple's expert, Balakrishnan, "agreed that the text describing Figures 7A-7F in column 13:1-58
discloses sufficient algorithms for selecting appropriate control functions based on number of
fingers, amount oftime, and motion." Id. at 25 (citing Tr. 610:4-25,617:23-618:5,620:23621: 12). Elan also argued that algorithms represented in Figures 8 and 9 include all of the
elements of structure required by the claim, as described by its expert, Dezmelyk. Id. at 24.
Apple and the staff contended that none of these algorithms alone or in combination include all
of the elements of structure required by the claim.
With regard to Figures 7A-7F and the text of column 13, lines 1-58 relied on by
complainant Elan, the administrative law judge finds that the finger representations in these
figures do not constitute an algorithm, as said figures merely show various finger positions and
capacitance profiles. Additionally, he finds that the specification ofthe '352 patent at column
13, lines 1-58 does not describe any algorithms at all. Rather, said portion of the specification
states that it is describing "an exemplary definition ofthe functions associated" with the finger
positions represented in Figures 7A-7F. The administrative law judge finds that descriptions of
these finger positions describe the various control functions without providing any algorithmic
structure for performing those function. Thus, Elan's interpretation of this portion of the
specification is contradicted by the intrinsic evidence. See Default Proof, 412 F.3d at 1302
(indicating the Federal Circuit will not rely upon arguments or expert's statements regarding
corresponding structure where such evidence is "contradicted by the intrinsic record"). Further,
Elan has mischaracterized the testimony of Apple's expert, Balakrishnan. Balakrishnan did not
agree that this portion oftext disclosed sufficient structure for performing the claimed function,

7

and he made it clear that he did not believe the '352 patent disclosed algorithmic structure for
selecting control functions based on an amount of time fingers are detected. Thus, he testified:
Here this is a crucial example where the amount of time the
actual value of the amount of time is the determinant of whether
you select one control function or another.
And that's what's missing as an example in this, in this
patent, and not specifying how to treat that amount of time.
(Tr. at 613: 13-19). Balakrishnan also indicated there would be multiple ways to account
for time in performing the claimed function depending upon the implementation:

Q. Okay. That amount of time, the gap between the first click
and the second click is generally a function that's defined in the
operating system, correct?
A. It could be defined in the operating system. It could also be
defined lower down in the, in the device. It depends on the
implementation.
(Tr. at 613:20-614:2); See also Medical Instrumentation & Diagnostics Corp. v. Elekta AB, 344
F.3d 1205, 1212 (Fed. Cir. 2003) ("It is important to determine whether one of skill in the art
would understand the specification itself to disclose the structure, not simply whether that person
would be capable of implementing that structure").
Regarding Figures 5, 6, 8, and 9 and accompanying descriptions in the specification, the
administrative law judge finds that none ofthose portions of the specification ofthe '352 patent
nor any other portion of the specification describe an algorithm that accounts for the amount of
time fingers are detected on a touch pad in order to select an appropriate control function. For
example, at column 7, lines 3-5, the '352 patent states that figure 5 "is a flow diagram showing
the general operation of such software or firmware which is capable of detecting multiple fingers,

8

and which uses the algorithm of FIG. 6." Subsequently, at column 8, lines 47-48, Figure 6 is
described as "a flow diagram setting forth the steps for computing motion and 'button' states in
the X direction." Neither of these algorithms contemplates selecting a function based on an
amount of time that fingers are detected. Further, at column 5, lines 1 and 2, the '352 patent
indicates that Figures 8 and 9 are generalized versions of Figures 5 and 6, respectively. The
portions ofthe specification related to Figures 8 and 9, including column 13, line 59 to column
15, line 31, describe an algorithm for selecting a control function based on the number of fingers
detected and movement of said detected fingers. Again, the administrative law judge finds no
mention of selecting a function based on the amount of time that fingers are detected. See, e.g.,
Finisar Corp., 523 F.3d at 1340 (requiring "some detail about the means to accomplish the
function"); Blackboard, 574, F.3d at 1383 ("there must be some explanation of how the computer
performs the claimed function"). Accordingly, the administrative law judge finds that these
figures and the accompanying descriptions in the specification do not constitute sufficient
structure to satisfy 35 U.S.C. § 112,6.
Complainant Elan has attempted to supplement the intrinsic evidence with extrinsic
evidence in the form of expert testimony in order to show that the algorithms described in the
patent do indeed include the required element of selecting control functions based on an amount
of time fingers are detected. First, Elan pointed to the testimony of respondent Apple's expert,
Balakrishnan, to show "that one would, in looking at the disclosure of the '352 patent,
understand exactly what was needed to implement the claimed function based on time." (Elan's
Post-Hearing Memorandum at 25.) However, Balakrishnan merely stated that there are "several
ways" to account for time to perform the control function of Figure 8-2 and that an amount of

9

time is typically determined in order to select a particular control function. (Tr. at 591 :15-593:2.)
Significantly, no expert at the evidentiary hearing testified that the '352 patent explicitly
discloses any method for accounting for time in selecting a control function. See, e.g.,
Blackboard, 574 F.3d at 1384-1385 and Medical Instrumentation, 344 F.3d at 1212, where the
Federal Circuit has repeatedly held the requirements of 35 U.S.c. § 112 ~ 6 are not met if the
patent only discloses a function and attempts to claim all structures that would perform that
function.
Complainant Elan also pointed to the testimony of its expert, Dezmelyk. According to
Elan, "Mr. Dezmelyk's testimony and demonstratives clearly show how time is taken into
consideration by these algorithms." (Elan's Post-Hearing Reply Memorandum at 17.)
Dezmelyk's testimony indicates that time is accounted for in the algorithms described in the '352
patent because the algorithms are run on a cyclical basis. (Tr. at 295:6-302:7.) Dezmelyk
concluded that different functions can be selected based on the number of cycles that fingers are
detected. Id. Significantly, however, the specification of the '352 patent is silent with respect to
how the disclosed algorithms select appropriate control functions based on the amount of time
fingers are detected. Thus, the administrative law judge finds that Dezmelyk failed to show that
"one of skill in the art would understand the specification itself to disclose the structure."
Medical Instruments, 344 F.3d at 1212.
Based on the foregoing, the administrative law judge finds that the specification of the
'352 patent fails to disclose adequate structure for performing the described function of claim 19
as required by 35 U.S.C. § 112 ~ 6, and hence, that said claim is indefinite and thus invalid.
B. Claim term "means for detecting a distance between said first and second maxima" (claim 24)
10

With respect to the claim term "means for detecting a distance between said first and
second maxima," for claim 24 to meet the requirements of35

U~S.c.

§ 112, the specification

must include sufficient disclosure of an algorithm to detect a distance between first and second
maxima corresponding to first and second fingers. Complainant Elan asserted that "[t]he
corresponding structure includes the structure of claim 18 and firmware, software or hardware
that determines the distance between the location of the first maxima and the location of the
second maxima, and equivalents thereof." (Elan's Post-Hearing Memorandum at 27.) Elan
indicated that column 3, lines 21-26 and column 6, lines 59-67 in the '352 patent are examples of
disclosure of the function and structure of this means-plus-function claim term. Id. Elan also
argued that the specification ofthe '352 patent provides algorithms for performing the functions
of claim 18, and one of ordinary skill in the art would use these algorithms to perform the
function of claim 24 by adding a well-known step, i.e., subtraction. Id. Elan further relied on
Aristocrat and concluded that basic or well-known steps need not be disclosed once it has been
determined that an algorithm is disclosed in the specification. (Elan's Post-Hearing Reply
Memorandum at 19). Respondent Apple and the staff both argued that this claim limitation is
indefinite because the specification of the '352 patent does not disclose any algorithm for
performing the claimed function. (Apple's Post-Hearing Memorandum at 37; Staffs PostHearing Memorandum at 7). The staff also argued that Elan has misread the holding in
Aristocrat, and Elan cannot rely on expert testimony to supplement the lack of disclosure in the
specification. (Staffs Post-Hearing Reply Memorandum at 4.)
With respect to the only specification sections complainant Elan refers to for support of
its conclusion, viz., column 3, lines 21-26 and column 6, lines 59-67 ofthe '352 patent, the

11

administrative law judge finds that those sections describe functions and do not disclose any
algorithms for performing said functions. Thus, column 3, lines 18-19 ofthe '352 patent states
"there are additional functions that can be performed with two fingers" (emphasis added), and
then the '352 patent states in column 3, lines 21-26 that one example of an additional function is
calculating the distance between two fit;Igers. Further, column 6, lines 59-67 ofthe '352 patent
describes a function for limiting the distance between fingers, but it does not indicate any steps
for calculating the distance between said fingers. Accordingly, the administrative law judge finds
that said sections of the specification do not provide the necessary structure to make the meansplus-function terminology of claim 24 definite. See, e.g., Finisar Corp., 523 F.3d at 1340
(requiring "some detail about the means to accomplish the function"); Blackboard, 574, F.3d at
1383 ("there must be some explanation -of how the computer performs the claimed function").
Complainant Elan also argued that the well-known step of calculating distance via
subtraction need not appear in the specification. It is argued that under Aristocrat it only needs to
show "whether one skilled in the art would understand there to be an algorithm at all." (Elan's
Post-Hearing Memorandum at 27.) Elan further contended that the algorithms used to define the
structure of means-plus-function terms in claim 18 would be modified by one skilled in the art to
add well known steps to achieve the function of claim 24. (Elan's Post-Hearing Reply
Memorandum at 19). However, the Federal Circuit made clear in Encyclopaedia Britannica,
discussed supra, that regardless of the simplicity of the algorithm involved, the specification must
"explicitly disclose" an algorithm for performing the claimed function. 355 Fed. Appx.at 395
(holding that disclosure of a general purpose computer to perform well known functions is not
sufficient to satisfy the requirements of35 U.S.C. § 112).

12

Based on the foregoing, the administrative law judge finds that the specification of the
'352 patent fails to disclose any structure for performing the described function of claim 24 as
required by 35 U.S.C. § 112 ,-r 6, and hence, that said claim is indefinite and thus invalid.
C. Claim term "means for calculating first and second centroids corresponding to said first and
second fingers" (claim 30)
With respect to the claim term "means for calculating first and second centroids
corresponding to said first and second fingers," for claim 30 to meet the requirements of 35
U.S.c. § 112, the specification of the '352 patent must include sufficient disclosure of an
algorithm used to calculate separate centroids for first and second fingers. Complainant Elan
asserted that the corresponding structure for performing the function of claim 30 "is the
hardware, structure from claim 18 ... along with hardware, firmware and/or software performing
the various algorithms described in Figures 6-1, 6-2, 9-1, 9-2, and in the specification at 10:3151." (Elan's Post-Hearing Memorandum at 28). Elan pointed to the testimony of its expert,
Dezmelyk, and respondent Apple's expert, Balakrishnan, to support its contention that one of
ordinary skill in the art would be able to calculate a second centroid based on the disclosure of
the '352 patent. Id. Elan also relied on the Federal Circuit's decision in Allvoice Computing
PLC v. Nuance Communications, Inc. for the proposition that "algorithms in the specification
need only disclose adequate defining structure to render the bounds of the claim understandable
to one of ordinary skill in the art." 504 F.3d 1236, 1245 (Fed. Cir. 2007). Elan concluded that
because both parties agree that the '352 patent discloses an algorithm for calculating one centroid
and the parties' experts testified that one skilled in the art could calculate a second centroid, the
patent discloses sufficient structure to satisfy 35 U.S.C. § 112. (Elan's Post-Hearing Reply

13

Memorandum at 22). Apple and the staff argued that this claim limitation is indefinite because
the specification only describes calculating one centroid for the entire finger profile and explicitly
omits any disclosure related to calculating multiple centroids. (Apple Post-Hearing Memorandum
at 39; Staff's Post-Hearing Memorandum at 8.)
As found supra, the specification must provide an algorithm for performing the function
of a means-pIus-function claim limitation. Encyclopaedia Britannica, 355 Fed. Appx. at 395.
The administrative law judge finds that the '352 patent discloses a first implementation where
one centroid is calculated and a second implementation where two centroids are calculated,
which covers the function of claim 30. However, he finds that the specification of the '352
patent specifically states at column 10, lines 43-45 that only the first implementation will be
described. Thus, the administrative law judge finds that neither the figures and specification
sections to which Elan points nor any other portion of the specification provide an algorithm for
performing the function of claim 30.
Regarding the extrinsic evidence of record, viz., the testimony of complainant's expert
Dezmelyk and respondent's expert Balakrishnan, said testimony cannot be used to supplement
the specification where the specification fails to disclose any algorithm for performing the
claimed function. See Encyclopaedia Britannica, 355 Fed. Appx. at 395. Moreover, while
Balakrishnan agreed that Dezmelyk's method of calculating two centroids was one way of
performing the function of claim 30 (Tr. at 642:3-10), he made it clear that the '352 patent does
not disclose any structure for performing the claimed function. Id. at 648: 16-19 (''The patent
discloses that in a second implementation, which it does not disclose the structure of, a centroid
may be calculated for each maxima"). Further, complainant Elan's attempt to rely on the

14

Federal Circuit's decision in AllVoice Computer is rejected. In AllVoice, the Court concluded
that the relevant specification contained "sufficient algorithmic structure to give meaning to" the
means-plus-function claim terms in question. 504 F.3d at 1245. Thus, the Court relied on the
un-contradicted statements of an expert who pointed to specific algorithmic structure in the
patent specification and stated that one of ordinary skill in the art would be able to implement
that structure to perform the claimed function. Id. However, in the present case the
administrative law judge finds no algorithmic structure in the specification of the '352 patent for
performing the claimed function.
Based on the foregoing, the administrative law judge finds that the specification of the
'352 patent fails to disclose any structure for performing the described function of claim 30 as
required by 35 U.s.c. § 112'6, and hence, that said claim is indefinite and thus invalid.
Motion Nos. 714-4 and 714-7 are granted to the extent indicated.
This initial determination, pursuant to Commission rule 210.42(c), is hereby CERTIFIED
to the Commission. Pursuant to Commission rule 21 0.42(h)(3), this initial determination shall
become the determination of the Commission within thirty (30) days after the date of service
hereof unless the Commission grants a petition for review of this initial determination pursuant
to Commission rule 210.43, or orders on its own motion a review ofthe initial determination or
certain issues therein pursuant to Commission rule 210.44.

~}Lc1u~

PaulJ.Luckeln
'
Chief Administrative Law Judge
Issued: September 28,2010
15

CERTAIN ELECTRONIC DEVICES WITH MULTI-TOUCH

337-TA-714

ENABLED TOUCHPADS AND TOUCHSCREENS
PUBLIC CERTIFICATE OF SERVICE
I, Marilyn R. Abbott, hereby certify that the attached Order has been served by hand upon the
Commission Investigative Attorney, Kevin G. Baer, Esq., and the following parties as indicated,
on
September 28, 2010

Marilyn R. A ott, S retary
U.S. Internation
rade Commission
500 E Street, SW
Washington, DC 20436

On Behalf of Complainant Elan Microelectronics
Corporation:
Paul F. Brinkman, Esq.
ALSTON & BIRD LLP
The Atlantic Building
950 F Street, NW
Washington, DC 20004
P-202-756-3404
F-202-756-3333

( ) ,.£.'Hand Delivery
Via Overnight Mail
( ) Via First Class Mail
( ) Other: _ _ __

(1

Respondent Apple Inc.:
Mark G. Davis, Esq.
WElL, GOTSHAL & MANGES LLP
1300 Eye Street, NW, Suite 900
Washington, DC 20005
P-202-682-7000
F-202-857 -0940

( ) ~Hand Delivery
( 0Via Overnight Mail
( ) Via First Class Mail
( ) Other: _ _ __

PUBLIC MAILING LIST

Heather Hall

LEXIS-NEXIS
9443 Springboro Pike
Miamisburg, OH 45342

( ) yh Hand Delivery
( /via Overnight Mail
( ) Via First Class Mail
( ) Other: _ _ __
.,/

Kenneth Clair
Thomson West
1100 Thirteen Street, NW, Suite 200
Washington, DC 20005

( ) ~ Hand Delivery
(0Via Overnight Mail
( ) Via First Class Mail
( ) Other: _ _ __