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 F

Page 1
BEFORE THE
UNITED STATES INTERNATIONAL TRADE COMMISSION
___________________________
In the Matter of:

)

CERTAIN ELECTRONIC DEVICES )
WITH MULTI-TOUCH ENABLED

Investigation No.
337-TA-714

)

TOUCHPADS AND TOUCHSCREENS )
___________________________
Hearing Room B

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

Wednesday, August 18, 2010

MARKMAN HEARING, VOLUME I

The parties met, pursuant to the notice of the
Judge, at 12:00 noon.

BEFORE:

THE HONORABLE PAUL J. LUCKERN

Page 2
1
2

APPEARANCES:
For Complainant Elan Microelectronics Corp:

3

SEAN P. DeBRUINE, ESQ.

4

YITAI HU, ESQ.

5

Alston & Bird LLP

6

275 Middlefield Road, Suite 150

7

Menlo Park, CA 94025-4004

8

[phone]

9
10

ADAM D. SWAIN, ESQ.

11

ALEX LASHER, ESQ.

12

Alston & Bird LLP

13

The Atlantic Building

14

950 F Street, N.W.

15

Washington, D.C. 20004-1404

16

[phone]

17
18

For Respondent Apple Inc.:

19

MATTHEW D. POWERS, ESQ.

20

JARED BOBROW, ESQ.

21

SONAL N. MEHTA, ESQ.

22

Weil, Gotshal & Manges LLP

23

201 Redwood Shores Parkway

24

Redwood Shores, CA 94065

25

[phone]

Page 3
1

APPEARANCES (Cont'd):

2
3

For Respondent Apple Inc.:

4

MARK G. DAVIS, ESQ.

5

Weil Gotshal & Manges LLP

6

1300 Eye Street, N.W., Suite 900

7

Washington, D.C. 20005

8

[phone]

9
10

For ITC Staff:

11

KEVIN BAER, ESQ.

12

ANNE GOALWIN, ESQ.

13

U.S. International Trade Commission

14

500 E Street, S.W.

15

Washington, D.C. 20436

16
17

Attorney-Advisor:

18

ROBERT HALL, ESQ.

19

Attorney-Advisor

20

Office of Administrative Law Judges

21

U.S. International Trade Commission

22

500 E Street, S.W.

23

Washington, D.C. 20436

24
25

*** Index appears at end of transcript ***

Page 4
1

P R O C E E D I N G S

2

(12:00 p.m.)

3

JUDGE LUCKERN:

This is a Markman

4

hearing in the matter of Certain Electronic

5

Devices with Multi-Touch Enabled Touchpads and

6

Touchscreens, Investigation 337-TA-714.

7
8

It is pursuant to Order Number 8,
which was issued on June 22nd, 2010.

9

I would like to have the record

10

reflect who is in the hearing room.

11

start out with Complainant, who filed the

12

complaint.

13

let's hear from Complainant.

14

Complainant, who represents Complainant, and

15

move down the line with Respondents and the

16

Staff.

17

So we will

That's why we're here today.

So

They are the

Go ahead.
MR. DeBRUINE:

Thank you, Your Honor.

18

Good afternoon.

Sean DeBruine from Alston &

19

Bird on behalf of Elan Microelectronics.

20

me here today is my colleague, Adam Swain, from

21

our office here in Washington, D.C., and also

22

Alex Lasher.

23

unfortunately called away on a personal matter,

24

and he sends his regards, but he is unable to

25

be with us today.

With

I should say Mr. Brinkman was

Page 5
1

To my left is Yitai Hu, who is my

2

partner at Alston & Bird in Silicon Valley.

3

And, finally, with us at counsel table is Wayne

4

Jong, who is representing Elan

5

Microelectronics.

6

He is with us from Taiwan.

JUDGE LUCKERN:

All right.

Thank you.

7

Please be seated.

8

You can stay seated if you want to or you can

9

stand.

10

Let's hear from Respondents.

It makes no difference to me.
MR. DeBRUINE:

Your Honor, I forgot

11

perhaps our most important guest, Robert

12

Dezmelyk, Elan's expert, is here.

13

JUDGE LUCKERN:

All right.

14

Let's hear from Respondents.

15

MR. POWERS:

Thank you.

From Weil Gotshal, Matt

16

Powers, Mark Davis, Jared Bobrow and Sonal

17

Mehta.

18
19
20
21
22

And from Apple, Noreen Krall.
JUDGE LUCKERN:

Let's hear from the

Staff.
MR. BAER:

Good afternoon, Your Honor,

Kevin Baer for the Staff.
JUDGE LUCKERN:

All right.

We're on

23

the public record.

But as you know, I would

24

like to keep as much as we can on the public

25

record, but if we have to go on the

Page 116
1

I will read into the record JX-7.

2

JUDGE LUCKERN:

I have it here.

Let

3

me get it, please.

4

Well, I don't have JX-7.

Go ahead.

5

have JX-7.

I've got JX-7 in

6

front of me.

7

Again, I just -- all right.

Get me JX-7.

MR. POWERS:

Well, I do

JX-7 is Mr. Dezmelyk's

8

deposition in the District Court case.

And if

9

you go to the page at the bottom which is

10

JX-7.053, on that page, page 208 of the

11

transcript, lines 17 to 23, there is a precise

12

question about the actual function, and the

13

question and answer is as follows:

14

"Question:

And as part of these

15

flowchart descriptions, is there any algorithm

16

here that says I'm going to take this set of

17

numbers and I'm going to perform this

18

calculation in this way to come up with these

19

statistics between these two points?

20
21
22

"Answer:

No, because the

practitioners already know how to do that."
That's a perfect example of what

23

Aristocrats and other cases have said you can't

24

do, which is add an algorithm from the supposed

25

knowledge of one skilled in the art to what's

Page 117
1

missing.

2

So the next citation, Your Honor, is

3

in the means for calculating the centroids.

4

That's from JX-7 at page 205, Your Honor.

5

appears at JX-7.052, line 22, continuing over

6

to 206.

7

front of me.

For some reason I don't have that in

8
9
10

That

Let me get it.

So, Your Honor, from the transcript at
page 205, line 22, continuing over onto line
page 206, line 12, the question is:

11

"Question:

Now, is there any

12

algorithm described performing that function of

13

calculating first and second centroids

14

corresponding to said first and second

15

fingers?"

16
17

And the answer that starts on page
206, Your Honor, is:

18

"Answer:

Well, there is an algorithm

19

that explains how to calculate a certain

20

example of calculating a centroid across a

21

pair.

22

known how to compute a centroid at a single

23

peak as opposed to the whole set.

24
25

But practitioners at the time would have

"Question:

And what I am asking is

whether there is an algorithm in the '352

Page 118
1

patent that says here is how you calculate the

2

centroid for each of the two fingers as opposed

3

to one centroid across the pair?

4

"Answer:

No.

Because the design

5

people would have known exactly how to do that.

6

You don't need to disclose that at the time."

7

In each case when there is a question

8

about whether there is an algorithm for

9

performing the exact function of a claim, the

10

answer comes back, no, that's something that

11

those skilled in the art would have known how

12

to do.

13
14
15

And that's the problem we have, Your
Honor.
MR. DeBRUINE:

That, Your Honor, goes

16

to claims we haven't even discussed yet.

17

haven't gotten to the particular claims he was

18

saying there was an admission on.

19

We

I disagree that that is an admission

20

that there is insufficient structure disclosed

21

in the patent in any way, shape, or form.

22

Dezmelyk will further explain why that is, when

23

the entirety of the patent is read as would be

24

understood by one of ordinary skill in the art,

25

as opposed to someone who, you know, has no

Mr.

Page 340
1

A.

Well, it discloses determining a

2

distance between two points on the touchpad by

3

subtracting the location.

4

In the case of a moving finger, you

5

want to know the difference between where you

6

were at the first moment and where you are at

7

the second moment.

8

subtraction of the location.

9
10
11

Q.
5?

So it shows there

For example, would this be in figure

510?
A.

Yes, the subtraction and position is

12

shown in figure 5.

13

based on valley depth, I believe, is in 6-2, if

14

I am correct.

15
16

Q.

The detection of distance

And let me pull up figure 5, please.

510, so we have JX-1, figure 5.

17

Can you point specifically where the

18

calculation of the distance between two points

19

on a touchpad is?

20

A.

Sure.

The distance calculation is

21

shown at the bottom left in block 510, where

22

the motion X is shown as the distance between

23

the -- the subtraction of the current location

24

in X minus the previous location in X is the

25

change in X or Xmotion.

Page 341
1

That's showing that we can determine

2

-- and I think this is probably a pretty clear

3

idea -- that the difference between two

4

locations is the distance between them.

5

is, if you were at one location and you moved

6

to another location, a subtraction gives you,

7

of course, the distance you moved.

8
9
10

Q.

That

Now, does the patent have a box like

this that says compute distance between
centroids?

11

A.

No.

12

Q.

In one of the flow charts?

13

A.

No.

14

Q.

Is that necessary to disclose an

15
16

algorithm, in your opinion?
A.

Well, it is not necessary to provide

17

an explanation of how you get distance by

18

subtracting.

19

it is not even a term of the art or something

20

known in the art, it is just a known concept

21

that if you have one location and another

22

location, that you can subtract to get the

23

distance between them.

24
25

Q.

I think that's a pretty known --

So is it your opinion that the

disclosure of the patent when it talks about

Page 342
1

competing that distance and discloses how

2

distances are computed on the touchpad that it

3

discloses structure for computing the distance

4

between two maxima?

5

A.

Yes, because it discloses how to

6

identify the locations of the two maxima, and

7

so when you have done that, when you found the

8

value, the N corresponding to the first peak

9

and the N corresponding to the second peak, you

10

inherently know that there is a distance

11

between them because you found them and they

12

are two separate values of N.

13

between those two give you the distance between

14

them.

15

Q.

16

The subtraction

And did you create slides to

illustrate that?

17

A.

Yes, I did.

18

Q.

Can we have CDX-149, please.

19
20

Is this a slide that you prepared?
A.

This is figure 3, right?

This is the

21

slide that shows a profile.

22

3 from the patent which shows an example

23

profile with two maxima and a minima in

24

between.

25

I am using figure

And even before we do much of a

Page 343
1

calculation on it, we know that the two maxima

2

have a distance.

3

between them, as soon as we find them.

4
5
6

Q.

We have detected a distance

And how do you mean "we have detected

a distance"?
A.

Well, let's step on the next slide.

I

7

think we have showing where they are.

8

in the algorithm, it is 6-2, the algorithm

9

steps along by element to find which N is the N

10

at the peak or at the maxima.

11

Each --

this case, of course, is N equals 13.

12

The first one in

And then when we get to the second

13

maxima, this is at N equals 24.

14

point in time where you have made the

15

determination that you have the two peaks, you

16

have found these two values.

17
18

JUDGE LUCKERN:

And at the

These two values are

what?

19

THE WITNESS:

N equal to 13 in this

20

example.

21

equal to 24, the 24th element at 95 on the

22

profile.

23

This is the 13th element.

And then N

And to a practitioner, as soon as I

24

have those two numbers, I have detected the

25

distance, because I know the location of the

Page 344
1

two items.

2

MR. DeBRUINE:

Slight change in plans.

3

We're going to do the two very brief

4

means-plus-function claims on direct and allow

5

cross, if that is acceptable to the Staff, and

6

we can be sure to wrap up.

7

One other question, though, on --

8

JUDGE LUCKERN:

9

this:

Let me ask the witness

Of course, Apple in its memorandum in

10

support of the motion for summary determination

11

and claim construction in connection with the

12

claim phrase "means for detecting a distance

13

between said first and second maxima" at page

14

56, I mean, I can show it to you.

15

you know what they said.

16

patent fails to set forth even a rudimentary

17

algorithm for doing this.

18

Presumably

They said the '352

To the contrary, the specification

19

discloses a most, et cetera, et cetera, et

20

cetera.

21

Did you get into this in your two

22

declarations, CX-24 and CX-25?

23

elaborated on that in those two declarations?

24
25

THE WITNESS:

Have you

I know, Your Honor, in

CX-25 where I am rebutting their position.

Page 345
1

JUDGE LUCKERN:

2

THE WITNESS:

3

JUDGE LUCKERN:

4

MR. DeBRUINE:

5

Where is it in CX-25?
Let me look at that.
What paragraph?
We can look on page 24,

I believe would be where it begins, Your Honor.

6

THE WITNESS:

Thank you.

Your Honor,

7

CX-25 beginning at paragraph 43 and continuing

8

through paragraph 47.

9
10

JUDGE LUCKERN:

would be 43 and 44, 45, 46 and 47?

11

THE WITNESS:

12

JUDGE LUCKERN:

13

immediately.

Anything

I don't recall

I can look for you.

JUDGE LUCKERN:

MR. BAER:

Hang on.

Well, we're under a

tremendous time bind.

18
19

All right.

THE WITNESS:

16
17

43, 44, 45, 46, and 47.

in CX-24?

14
15

In other words, it

You can look quickly.

You may want to look at

CX-24, page 23.

20

JUDGE LUCKERN:

Can you look at that

21

and tell me what the record, what paragraph

22

that is?

23

THE WITNESS:

24

CX-24, paragraph 33.

25

single paragraph.

It is, Your Honor,
That paragraph.

The

Page 346
1

JUDGE LUCKERN:

2

Go ahead, Mr. DeBruine, with what you

3

were saying.

4

That's it?

minute.

5

I interrupted you.

All right.

Hold on a

You said, you said the question,

6

"Slight change in plans.

7

two" -- well, what about cross-examination?

8
9

MR. POWERS:
to you, Your Honor.

We're going to do the

The question really is up
Mr. DeBruine asked if he

10

could do two terms at once.

I said I had no

11

objection.

12

term, we will do it term by term.

13

JUDGE LUCKERN:

If you would rather do it term by

However you people

14

have been living in this matter and close to

15

it.

16

an opportunity to do cross-examination.

17

have an open mind.

18

agreeable to, it is fine with me.

19

I want to make sure you and Mr. Baer get
So I

Whatever you people are

Mr. DeBruine said we're going to do

20

the two very brief means-plus-function claims

21

on direct and allow cross, if that is

22

acceptable to the Staff.

23

Then I guess you are going to cross on

24

this term tomorrow morning.

25

want to do?

Is that what you

Page 347
1

MR. POWERS:

Actually, no.

If we can

2

finish these both terms tonight, then I would

3

agree to the proposal.

4

If Mr. DeBruine's direct is five

5

minutes or so, I think we will have no problem.

6

If he is going to do 10 or 15 minutes direct on

7

this term, then we won't finish cross, and I

8

would rather do it term by term.

9

MR. DeBRUINE:

We should be done with

10

direct in five minutes on the next and last

11

means-plus-function term, Your Honor.

12

MR. POWERS:

13

objection proceeding that way.

14

to you.

15
16

In that case, I have no

JUDGE LUCKERN:

Are you going to have

an opportunity to do any cross on this term?

17

MR. POWERS:

18

JUDGE LUCKERN:

19

It is really up

Exactly.
The term we just

finished.

20

MR. POWERS:

Yes.

If Mr. DeBruine is

21

only five minutes on the next term, I will have

22

time to do cross on both terms and finish it

23

today.

24
25

And I don't know how much time Mr.
Baer has.

So if he has more time, then I think

Page 348
1

we should do it term by term, because we should

2

finish a term.

3

JUDGE LUCKERN:

How about the

4

cross-examination of what we just finished this

5

witness testifying to?

6

cross on that?

Are you going to do any

7

MR. POWERS:

8

JUDGE LUCKERN:

9

Oh, yes.
When do you plan to do

that in this scenario you are doing now?

10

MR. POWERS:

If Mr. DeBruine finishes

11

in five minutes with the next term, I would

12

cross on both terms, and I can finish, leaving

13

Mr. Baer at least five to seven minutes for

14

both.

15

term by term.

16

If that's not enough, we should do it

JUDGE LUCKERN:

I want to say this.

17

You people have been living with this matter

18

for months.

19

don't want to deprive anybody of any

20

cross-examination or redirect they want.

21

You are well familiar with it.

I

So I am not going to bring it up

22

again.

23

because I certainly, if you want cross, you are

24

going to get it.

25

But you got to bring it up to me

If nobody says anything, Mr. Baer, you

Page 349
1

say nothing tomorrow, and where we go, I am not

2

going to say, Hey, what about this?

3
4

Do you understand what I am saying,
Mr. Powers?

5

MR. POWERS:

I do.

6

JUDGE LUCKERN:

You have got enough

7

smart lawyers over there.

8

to let you forget anything.

9

They are not going

I want to make sure -- so right now

10

you are agreeable to what Mr. DeBruine wants to

11

do; is that correct, Mr. Powers?

12

MR. POWERS:

Yes, it is.

13

JUDGE LUCKERN:

You are agreeable, Mr.

And you heard me.

You are entitled to

14

Baer?

15

cross.

16

want to do, but you have to bring it up the me.

17

Do you understand what I am saying?

I want you to do whatever cross you

18

MR. BAER:

19

JUDGE LUCKERN:

20

Yes, Your Honor.
Are you agreeable with

what Mr. DeBruine wants to do right now?

21

MR. BAER:

22

JUDGE LUCKERN:

23

20 minutes to 8.

24

Yes.
Let's move on.

It is

BY MR. DeBRUINE:

25

Q.

But go ahead.

Let's move to the next slide, please.

Page 350
1

Sir, are you familiar with claim 30 of

2

the '352 patent which reads, "the sensor of

3

claim 18 further comprising means for

4

calculating first and second centroids

5

corresponding to said first and second

6

fingers"?

7

A.

Yes, I am.

8

Q.

Can you explain where the patent

9

discloses how one calculates first and second

10

centroids corresponding to the first and second

11

fingers?

12

A.

Well, the patent discloses calculating

13

centroid across all of the number of fingers

14

that are present.

15
16

Q.

And does it do that in figure 6-2 and

9-2?

17

A.

Right.

18

Q.

Can we go to CDX-154, please.

19

Can you briefly describe what is shown

20

here?

21

A.

Right.

Quickly, in 6-2, 9-2 is the

22

same, very similar in terms of this.

Block

23

295, the calculation is made of, after we have

24

summed up in 6-1, the elements of the centroid

25

calculation, we divided the weighted sum by the

Page 351
1
2

sum and we get the exposition.
Q.

So the centroid calculation will be

3

affected by how many of the, in this case, the

4

X measurements are used in the calculation; is

5

that correct?

6
7
8
9

A.

12

It would be clearer on, if we

look at 6-1, but, yes.
Q.

All right.

Let's pull up JX-1 and get

figure 6-1, please.

10
11

Right.

Okay.

And can you explain where, how

the centroid calculation is shown in 6-1?
A.

The key element in centroid

13

calculations is the steps at 215 and 220 where

14

the X sum is created for each element in X, and

15

then the weighted sum is created by adding up

16

and adding together the line number or position

17

in the profile times value of the capacitance

18

measured at that point.

19

Q.

And in this, I think you said in this

20

algorithm it assumes a centroid calculated

21

across all of the N locations; is that correct?

22

A.

That's correct.

23

Q.

All of the X locations.

24
25

Does the patent discuss calculating
separate centroids for two different fingers?

Page 352
1

A.

It certainly says you can do it.

2

Q.

And if we pull up CDX-155.

Here we're

3

showing the '352 patent at column 10, line 31

4

to 51.

5

Is there a discussion here of

6

calculating the centroids for two separate

7

fingers?

8

A.

Yes, there is.

It reads:

"In a

9

second implementation, a centroid value may be

10

calculated for each maxima, yielding multiple

11

centroid values when multiple fingers interact

12

with the pad."

13

Q.

Okay.

And so, in your view, does the

14

patent disclose the structure for calculating a

15

first and second centroid?

16

A.

Yes, it does.

17

Q.

And go ahead.

18

A.

The reason is that if we go back to

19

look at very specifically, if we look at 6-1,

20

the formula for a centroid is that you move

21

through a profile and you add up the products

22

of each, for each of the elements going

23

element-by-element here, and all you have to

24

do, to do two of them, is start at the

25

beginning and stop, when you get to the

Page 353
1

minimum.

2

point is the difference between the first and

3

the second.

4

Because that, of course, that valley

And it is not like maybe you can do it

5

that way or sort of do it that way.

6

be the definition of a centroid for each of the

7

two maxima.

8

That would

So you simply compute the centroid on

9

the first half until you get to the minimum

10

point, and you know the minimum point right

11

here (indicating).

Because the valley point --

12

JUDGE LUCKERN:

13

THE WITNESS:

14

JUDGE LUCKERN:

15

THE WITNESS:

Right here?
Right here at 262.
Thank you.
My apologies.

You know

16

at that point when you make this determination

17

that you have now found the valley, the N, the

18

value of N that causes the valley is the point

19

at which you are now going uphill on to the

20

hill of the second maxima.

21

So you simply compute the centroid for

22

the first half of the data and then the

23

centroid for the second half.

24

BY MR. DeBRUINE:

25

Q.

Did you create a slide to illustrate

Page 354
1

that concept?

2

A.

Yes, I did.

3

Q.

Can we have CDX-51, please.

4
5

Can you explain what you show here?
A.

I am just showing from the example

6

profile in the patent where 90 shows the

7

location in the minimum.

8

want to compute two separate centroids, you

9

simply compute the centroid for the first

You simply, if you

10

profile using the exact same algorithm summing

11

up and so forth that is set in that same exact

12

step of multiplying the value of N, the trace,

13

times the capacitance, adding them up, and then

14

you start again and do the exact same thing for

15

the second one.

16

It is such a minimum point change to a

17

practitioner you know by definition when

18

somebody tells you to compute a centroid for a

19

particular object that you simply start at the

20

beginning of it and go to the end of it.

21

In this case, that first maxima is all

22

over the capacitance values until you get to

23

the minima, which is separating the two, the

24

two peaks.

25

MR. DeBRUINE:

No further questions --

Page 355
1

JUDGE LUCKERN:

2

MR. DeBRUINE:

3

All right.
-- on this claim

element.

4

JUDGE LUCKERN:

5

MR. POWERS:

6

Go ahead, Mr. Powers.

Thank you, Your Honor.

will begin with claim 24.

7

So, Matt, if we could bring that up.

8

And, Your Honor, this is the term of

9

means for detecting a distance between first,

10

said first and second maxima.

11

JUDGE LUCKERN:

12
13

Okay.

CROSS-EXAMINATION
BY MR. POWERS:

14

Q.

Mr. Dezmelyk, you were asked on your

15

direct testimony a very carefully asked series

16

of questions about whether the patent teaches

17

how to detect a difference between two points

18

on a touchpad.

19
20

Do you recall that line of questions
and your answers?

21

A.

Yes.

22

Q.

That's not what the claim 24 says, is

23

it?

It says specifically detecting the

24

distance between first and second maxima.

25

Right?

I

Page 356
1

A.

That's correct.

2

Q.

And you gave us two examples in your

3

direct testimony.

4

detects or computes the difference between

5

movement of the cursor, right, or movement of

6

the fingers?

7
8
9
10

A.

One was in figure 5 which

What I gave there was an example of

subtraction to show distance.
Q.

And specifically distance between

movement of fingers, right?

11

A.

Between the locations of fingers, yes.

12

Q.

Not the distance between a first and

13

second maxima, right?

14

A.

Right.

15

Q.

The second example and last example

16

you gave is from 6-2, which is measuring the

17

distance between a peak and a valley, true?

18

A.

No.

I think that -- and I'm sorry, I

19

don't have a tape to look at, but what I was

20

attempting to explain is that the patent

21

teaches that the difference in height between

22

peak and valley is a measure of distance for

23

close separation and that they explain that in

24

the text.

25

And then they show that you can test

Page 357
1

based on that.

2

and, therefore, know if you are too close by

3

making a comparison of that measure or

4

detection of distance.

5

Q.

You can detect the distance

Nothing in 6-2 that you were relying

6

upon discusses in any way computing the

7

distance between a first and second maxima,

8

does it, as claim 24 requires?

9

A.

I disagree.

10

Q.

It doesn't --

11

A.

If we look at 6-2, I would be happy to

12
13

direct you to the spot where your -Q.

Your last testimony was not about the

14

distance between one maxima and another but

15

between the height of the maxima and the

16

valley, right?

17
18
19

A.

No.

You are misinterpreting my

testimony.
Q.

20

Let's go to 6-2 and blow it up.
Show us what in figure 6-2 discusses

21

measuring the distance between the two maxima.

22

That's the question.

23

A.

305.

24

Q.

And where does it do so?

25

A.

Well, the patent explains in text, and

Page 358
1

we can find the citation, that this measure,

2

that is, the distance, the height variation --

3
4

JUDGE LUCKERN:

You are referring to

305?

5

THE WITNESS:

Perhaps it would be

6

helpful to find the citation for you and make

7

my answer clearer.

8

BY MR. POWERS:

9

Q.

When you say the "height variation,"

10

you are referring to the distance, the

11

difference in height between the peak and the

12

valley, right?

13
14
15

A.

No.

Let me take a moment to find the

citation, if I can, sir.
Q.

16

Where it says Xpeak1 -JUDGE LUCKERN:

He is looking for

17

something that he wants to find, Mr. Powers.

18

And then you can continue, Mr. Powers.

19

BY MR. POWERS:

20

Q.

21

line 52.

22

A.

23
24
25

You might want to look at column 10,

Right.

That's one part of it.

But

there is another citation I am looking for.
Q.

All I am looking for is the part you

are relying upon to say that figure 6-2 in some

Page 359
1

way expressly discusses measuring the distance

2

between two maxima.

3

for.

4
5

That's all I am looking

MR. DeBRUINE:

Might I suggest the

witness look at the bottom of column 6?

6

JUDGE LUCKERN:

7

MR. DeBRUINE:

Speak up.
Suggesting that the

8

witness look at the bottom of column 6 of the

9

patent.

10

MR. POWERS:

I will object to the

11

leading during cross.

12

the witness relying on?

13
14
15
16
17
18
19
20
21
22
23

The question is, what is

THE WITNESS:

The bottom of column 6,

which I was having a hard time finding.
JUDGE LUCKERN:
have got an objection.

Wait a minute now.

We

Leading during cross.

I am going to overrule that objection.
He is just trying to help.

Look at column 6.

So whatever you want to do, you got
lines, Mr. DeBruine, to refer to in column 6?
MR. POWERS:

Let's put Mr. DeBruine

under oath, and I will cross-examine him.
THE WITNESS:

Okay.

I still don't

24

have the exact citation I want, but I am going

25

to testify in the hope that we can locate or

Page 360
1

perhaps I can locate or point to this.

2
3
4
5

The patent discloses that -BY MR. POWERS:
Q.

I am not asking -- no, no, let's be

clear what the question is.

6

I am asking for a very specific

7

citation where the patent discloses expressly

8

computing the distance between two maxima.

9

don't want generalizations.

10

I

I want you to show

me where it is.

11

A.

Well --

12

Q.

Can you do that?

13

A.

Yes.

14

Q.

Where?

15

A.

And my answer is that this step is a

16

Yes or no.

measure or a test --

17

JUDGE LUCKERN:

18

THE WITNESS:

305 step.
305, because the patent

19

teaches, and I can find the citation, given a

20

few more moments, that as the fingers get close

21

together, the depth of the valley varies with

22

the separation.

23

That is, the difference between the

24

peak and the valley is proportional between the

25

difference between the peaks, the fingers.

Page 361
1
2

BY MR. POWERS:
Q.

In fact, it is your opinion, isn't it,

3

that there is no algorithm disclosed in the

4

'352 patent for calculating the distance

5

between two maxima, and you have to rely upon

6

the knowledge of one skilled in the art to

7

provide that information?

8

testimony?

9
10
11

A.

Isn't that your

Well, it is also true -- that is also

my testimony.
Q.

So you agree it is not actually

12

disclosed; you have to rely upon one skilled in

13

the art would know?

14

A.

That they would know how to subtract

15

between the two locations where the peaks are,

16

yes.

17

Q.

And that that's not disclosed in the

18

patent?

19

A.

It doesn't need to be.

20

Q.

But it is not disclosed, is it?

21

A.

It is -- the patent does not tell the

22

practitioner you need to subtract the locations

23

to get the distance between the location of the

24

first peak and second peak.

25

subtract the two numbers.

You need to

Page 362
1
2

Q.
30.

All right.

So let's go then to claim

Matt, could you put that up, please.

3

Claim 30 requires means for

4

calculating first and second centroids

5

corresponding to said first and second fingers.

6
7

And in your testimony you cited box
215 and 220 of 6-1.

Do you recall that?

8

A.

Yes.

9

Q.

That's a means for computing the

10

centroid for the entire touchpad, isn't it, not

11

two fingers?

12

A.

I explained that -- well --

13

Q.

Answer the question, please.

14

A.

Yes.

15

Q.

All right.

And you then cited to

16

column 10, lines 31 to 51, for the proposition

17

that the patent says you can calculate the

18

centroids for two fingers.

Do you recall that?

19

A.

That's correct.

20

Q.

But at that column 10, line 31 to 51,

21

it does not say how to do so, does it?

22
23
24
25

A.

It does not because it does not need

to.
Q.

In fact, nowhere in the '352 patent is

there a disclosure of how to compute the

Page 363
1

centroids, first and second centroids

2

corresponding to the first and second fingers.

3

You are relying upon the knowledge of skill in

4

the art to supply that information, aren't you?

5

A.

Because, yes, because a person of

6

skill in the art already knows what that means

7

when they say that.

8
9

MR. POWERS:

No further questions,

Your Honor.

10

JUDGE LUCKERN:

11

EXAMINATION BY COUNSEL FOR ITC STAFF

12

All right.

Mr. Baer?

BY MR. BAER:

13

Q.

Could I get you to look at the patent,

14

figure 5.

15

on the screen.

It may magically appear.

Comes up

16

A.

Okay, thank you.

17

Q.

And box 520.

18

A.

Yes.

19

Q.

That's measuring the motion of one

20

finger being pulled across the screen; is that

21

correct?

22

A.

23
24
25

That's correct.

And I think there may

be some confusion.
The reason I cited to that is it
explains -- it is a disclosure of how

Page 376
1

CERTIFICATE OF REPORTER

2
3

TITLE: Certain Electronic Devices w/Multi-Touch enabled
Touchpads & Touchscreens
INVESTIGATION NO: 337-TA-714

4

HEARING DATE: August 18, 2010

5

LOCATION: Washington, DC

6

NATURE OF HEARING: Markman Hearing

7

I hereby certify that the foregoing/attached
transcript is a true, correct and complete record of
the above-referenced proceedings of the U.S.
International Trade Commission.
Date: 8/18/10

8
9
10
11
12

SIGNED:KAREN BRYNTESON______________________
Signature of the Contractor of the
Authorized Contractor's Representative
1220 L Street, N.W, Suite 600
Washington, D.C. 20005

13
14
15
16
17
18
19

I hereby certify that I am not the Court
Reporter and that I have proofread the
above-referenced transcript of the proceedings of the
U.S. International Trade Commission, against the
aforementioned Court Reporter's notes and recordings,
for accuracy in transcription in the spelling,
hyphenation, punctuation and speaker identification
and did not make any changes of a substantive nature.
The foregoing/attached transcript is a true, correct
and complete transcription of the proceedings.
SIGNED:JOHN D. LASHER ____________________________
Signature of Proofreader

20
21
22

I hereby certify that I reported the
above-referenced proceedings of the U.S. International
Trade Commission and caused to be prepared from my
tapes and notes of the proceedings a true, correct and
complete verbatim recording of the proceedings.

23
24
25

SIGNED:KAREN BRYNTESON ___________________________
Signature of the Court Reporter