Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1020

Administrative Motion to File Under Seal Documents Under Seal Re Apples Opposition To Samsungs Motion For Summary Judgment filed by Apple Inc.. (Attachments: #1 Proposed Order, #2 Declaration Of Jason R. Bartlett In Support Of Apples Opposition To Samsungs Motion For Summary Judgment, #3 Bartlett Decl. Ex. 8, #4 Bartlett Decl. Ex. 9, #5 Bartlett Decl. Ex. 10, #6 Bartlett Decl. Ex. 11, #7 Bartlett Decl. Ex. 17, #8 Bartlett Decl. Ex. 18, #9 Bartlett Decl. Ex. 19, #10 Bartlett Decl. Ex. 23, #11 Bartlett Decl. Ex. 26, #12 Bartlett Decl. Ex. 30, #13 Bartlett Decl. Ex. 31, #14 Bartlett Decl. Ex. 32, #15 Bartlett Decl. Ex. 53, #16 Bartlett Decl. Ex. 54, #17 Bartlett Decl. Ex. 55, #18 Bartlett Decl. Ex. 57, #19 Bartlett Decl. Ex. 58, #20 Bartlett Decl. Ex. 59, #21 Bartlett Decl. Ex. 60, #22 Bartlett Decl. Ex. 61, #23 Bartlett Decl. Ex. 62, #24 Bartlett Decl. Ex. 64, #25 Bartlett Decl. Ex. 67, #26 Bartlett Decl. Ex. 80)(Jacobs, Michael) (Filed on 6/1/2012)

Exhibit 53
(Submitted Under Seal)

Confidential Attorneys' Eyes Only

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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APPLE INC., a California
corporation,

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Plaintiff,
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vs.

CASE NO. 11-CV-01846-LHK

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SAMSUNG ELECTRONICS CO., LTD.,
A Korean business entity;
SAMSUNG ELECTRONICS AMERICA,
INC., a New York corporation;
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC, a Delaware
limited liability company,

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Defendants.
_____________________________/

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C O N F I D E N T I A L
A T T O R N E Y S' E Y E S O N L Y

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VIDEOTAPED DEPOSITION OF SCOTT HERZ
REDWOOD SHORES, CALIFORNIA
FRIDAY, OCTOBER 14, 2011

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BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CCRR, CLR
CSR LICENSE NO. 9830
JOB NO. 42678
TSG Reporting - Worldwide

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FRIDAY, OCTOBER 14, 2011
9:11 a.m.

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VIDEOTAPED DEPOSITION OF SCOTT HERZ,
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taken at QUINN EMANUEL URQUHART &
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SULLIVAN, LLP, 555 Twin Dolphin Drive,
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Suite 560, Redwood Shores, California,
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pursuant to Notice, before me,
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ANDREA M. IGNACIO HOWARD, CLR, CCRR, RPR, 11
CSR License No. 9830.
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A P P E A R A N C E S:
FOR APPLE INC.:
MORRISON & FOERSTER
By: ERIK J. OLSON, Esq.
755 Page Mill Road
Palo Alto, California 94304

FOR SAMSUNG ELECTRONICS CO. LTD:
QUINN EMANUEL URQUHART & SULLIVAN
By: TODD M. BRIGGS, Esq.
AARON KAUFMAN, Esq. (New York Office)
555 Twin Dolphin Drive
Redwood Shores, California 94065

ALSO PRESENT: Jayna Whitt, Apple, Inc.
Erica Tierney, Apple, Inc.
Pete Sais, Videographer
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REDWOOD SHORES, CALIFORNIA
FRIDAY, OCTOBER 14, 2011
9:11 a.m.

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THE VIDEOGRAPHER: Good morning. This is the 7
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start of tape labeled No. 1 in the videotaped
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deposition of Scott Herz.
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In the matter of Apple, Inc., versus Samsung
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Electronics Company, Ltd.
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In the United States District Court, Northern
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District of California, San Jose Division. Case
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No. 11-cv-01846-LHK.
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This deposition is being held at 555 Twin
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Dolphin Drive in Redwood Shores, California on
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October 14, 2011, at approximately 9:11 a.m.
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My name is Pete Sais from TSG Reporting,
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Inc., and I'm the legal video specialist.
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The court reporter is Andrea Ignacio in
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association with TSG Reporting.
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Will counsel please introduce yourselves, and
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the court reporter can swear in the witness.
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MR. BRIGGS: Todd Briggs from Quinn Emanuel
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for Samsung.

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MR. OLSON: Erik Olson from Morrison &
Foerster on behalf of Apple and Mr. Herz.
MR. KAUFMAN: Aaron Kaufman, also Quinn
Emanuel, for Samsung.
SCOTT HERZ,
having been sworn as a witness,
by the Certified Shorthand Reporter,
testified as follows:

EXAMINATION BY MR. BRIGGS
MR. BRIGGS: Q. Can you state your name for
the record.
A Scott Herz.
Q Can you spell it for the record.
A H-E-R-Z.
Q Where do you live?
A I live in San Jose.
Q What's your address?
A 1229 Clark Way.
Q Okay. And who are you currently employed by?
A Apple.
Q How long have you been working for Apple?
A Since September of '99.

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paper.
MR. BRIGGS: All right.
MR. KAUFMAN: This is actually better.
MR. BRIGGS: That's okay.
Q So what would you -- what would you correct
to -- to describe the process that you just described
to me a few moments ago, how would you describe the
first step if you were to do it in a flowchart?
A So I would describe it how I -- how I
described it to you.
Q And what would the first step be?
A So the -- the first step, you know, an
example of it would be to -- to take data from -- in
one particular case, like a -- a touch device, and -and package it up.
Q Okay. And that would create an event?
A I would -- that would -- could create an
event, yeah.
Q Okay. And then that event would be passed to
an application; correct?
A So the system would try and figure out where
that event needed to go.
Q So it would determine which application to
send the event to?
A Right.

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Q Okay. And then it would send the event to
the application?
A Right.
Q Okay. And then the application would
determine which view the event was associated with;
correct?
A I'm talking to you, not necessarily to this.
Q No, I understand.
A Yeah.
Q I'm just going through the process that
you -MR. OLSON: I'll just put this aside.
MR. BRIGGS: -- created a while ago.
Actually, he can have it out.
MR. OLSON: Well, I -- it should be clear
whether -MR. BRIGGS: Well, I mean, I may have
questions about it.
MR. OLSON: -- it should be clear -- well,
it -- so it should be clear whether you're asking
about it or not. You said you weren't, so I just put
it aside.
MR. BRIGGS: Okay.
MR. OLSON: That's all.
MR. BRIGGS: Okay. Okay.

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Q So again, once the application receives the
event, the application would determine which view was 2
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associated with the event; is that correct?
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A So in the case that I described earlier, it
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would figure out -- the application would try to
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determine which view should receive the event.
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Q And then the view would process the event;
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correct?
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A It -- that could be one outcome, yeah.
Q And let's assume the event included a scroll.
A So -MR. OLSON: Objection; incomplete
hypothetical.
THE WITNESS: -- so it doesn't -- an event
doesn't -- that's not quite how it works. Events
don't include a scroll.
MR. BRIGGS: Q. How does it work?
A In which case?
Q Well, when the view processes the event -let's just -- let's say the view receives the event.
Is there a way the view can determine whether
the event is associated with a scroll or a gesture
operation?
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MR. OLSON: Objection; misstates the prior
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testimony; and incomplete hypothetical as to view

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receiving an event.
THE WITNESS: So there -- there is code that
looks at a stream of events and determines whether or
not it should scroll or do other things.
MR. BRIGGS: Q. And that code is invoked
once the -- or after the event is passed to the view?
A As a -- that code is called as a result of
the events going to the -- to the view.

Q Turning back to Figure 1 of the patent, is -is -- is that process that's described in Figure 1 in

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using the word "call" to mean, you know, some kind of
function or method, it's code having to do with a
gesture.
MR. BRIGGS: Q. And is it -- is it code that
causes the gesture operation to occur?
MR. OLSON: Objection; incomplete
hypothetical; calls for a legal opinion.
THE WITNESS: So I don't know what it -- it
could do a lot of things.
MR. BRIGGS: Q. So as you sit here, you
don't have a real precise definition of gesture call?
MR. OLSON: Objection; calls for a legal
opinion.
THE WITNESS: So certainly not with respect
to specific text; but then also, a gesture could be
any number of things. So I'm not thinking of a
specific one.
MR. BRIGGS: Q. I mean, are there any -- is
there any kind of definition you can give for a
gesture call?
MR. OLSON: Same objections.
THE WITNESS: I would just repeat, I think,
what I said before, which is it's, you know, again,
not related to -- to any particular language, but a -some code that does something, some gesture, as a

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result of calling it.
MR. BRIGGS: This claim limitation also
states:
"Based on invoking the scroll or gesture
operation."
Q My question is: What is -- what is invoking
a scroll operation?
MR. OLSON: Objection; calls for a legal -legal opinion; lack of foundation.
THE WITNESS: So I don't -- I don't know with
respect to that particular limitation that -- that
you're mentioning. But if it's -- if it -- you're
asking sort of, like, what does the word "invoke" -MR. BRIGGS: That's right.
THE WITNESS: I mean -- so again, not having
to do with this particular language, an example of
invoking something would be, you know, making a method
call, making a function call, causing that code to
run.
MR. BRIGGS: Q. So invoking has a notion of
causing something to happen?
MR. OLSON: Objection; misstates the
testimony.
THE WITNESS: So in the example I gave,
invoking could mean, yeah, causing something to

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happen.
MR. BRIGGS: Q. Could it mean causing an
event handler to run?
MR. OLSON: Objection; vague; incomplete
hypothetical.
THE WITNESS: So I think it depends on, you
know, what is meant by an "event handler." I mean,
invoking, it's just -- it's like I mentioned earlier;
right? If it's a function, it's -- a function can be
invoked. A method could be invoked.
MR. BRIGGS: Q. So an event handler could be
invoked?
MR. OLSON: Objection; misstates the
testimony.
THE WITNESS: So if -- if a -- if an event
handler was a -- considered to be a method, and I
don't know that it is or isn't, it could be invoked.
MR. BRIGGS: Q. And what does invoking a
gesture operation mean -MR. OLSON: Objection -MR. BRIGGS: Q. -- to you?
MR. OLSON: -- objection; calls for a legal
conclusion; lack of foundation.
THE WITNESS: So I don't know with respect to
this particular text what it means. And sort of as I

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mentioned before, if it's -- if there's some code that
has to do with a gesture and you're invoking it, it
means, you know, you're causing that code to run.
MR. BRIGGS: Okay.
Q So I'm going to move on to the next
limitation in Claim 1, and it states:
"Responding to at least one scroll call, if
issued, by scrolling a window having a view associated
with event object based on an amount of a scroll with
the scroll stopped at a predetermined position in
relation to the user input."
Do you see that?
A Uh-huh.
Q Do you understand that?
MR. OLSON: Objection; calls for a legal
conclusion.
THE WITNESS: So, I mean, I wouldn't want to
speculate as to what it means since I'm not a -- not a
lawyer.
MR. BRIGGS: Q. Do you have a nonlegal view
of what that might mean?
MR. OLSON: Same objections.
THE WITNESS: I could -- I mean, I could
think of an example or something -- of something that
might do something like that.

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THE WITNESS: So I'm not exactly sure what it
means in a -- how it pertains to this particular
patent. I could imagine an example being a finger
going down, translating some distance and then coming
up.
MR. BRIGGS: Q. How would that -- I'm not
familiar with that movement. You said a finger going
down for some distance and then going back up?
A Sorry -MR. OLSON: Objection; misstates the
testimony.
THE WITNESS: So in this example, you could
consider a -- a finger coming vertically, you know,
down, touching the device, right, and then translating
along the device some distance and then leaving the
device over some period of time.
MR. BRIGGS: Q. How is that different from
a -- a scroll?
MR. OLSON: Objection; vague.
THE WITNESS: So -MR. OLSON: Calls for an opinion. Sorry.
THE WITNESS: -- so yeah. Again, I'm not -I don't have an opinion with respect to the text that
we're talking about here.
I would think that that could -- that -- that

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motion, you know, along with perhaps other parameters,
could result in a scroll. It could result in other
things.

Q Claim 6 states:
"The method as in claim 1, further
comprising: responding to at least one gesture call,
if issued, by rotating a view associated with the
event object based on receiving a plurality of input

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points in the form of the user input."
Do you see that?
A Actually, where is it?
Q Claim 6.
A Oh, Claim 6. Okay. I see it.
Q And what does that mean?
MR. OLSON: Objection; calls for a legal
conclusion; lack of foundation.
THE WITNESS: So I wouldn't be able to
comment or speculate on the -- the text of the claim.
If -- you know, if I was to come up with an
example of something that that could mean, it would be
something -- you know, again, being able to look at
the event stream of -- the stream of events that are
coming in, and deciding that the user wants to rotate
a view or something based on those events.
MR. BRIGGS: Q. Did -- did the code you

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Q Okay. Let's -- let's go back up to Claim 1.
We spent a lot of time going through Claims 1 through
7, and I just wanted to ask you: When did you
conceive of Claim 1?
MR. OLSON: Objection; calls for a legal

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conclusion.
THE WITNESS: So all I can answer to is when
I started working on scrolling and things related to
scrolling.
MR. BRIGGS: Okay.
Q But you have no idea whether your work
relates to this claim -MR. OLSON: Objection; misstates -MR. BRIGGS: Q. -- is that right?
MR. OLSON: -- the testimony.
THE WITNESS: So all I can do is -- you know,
is talk to the kinds of things that I've done, you
know, in code, the kinds of things that I've
implemented.
MR. BRIGGS: Q. So you -A But -MR. OLSON: Wait.
THE WITNESS: -- but I'm not able to talk
about how that then translates to, you know, those
particular claims or language.
MR. BRIGGS: Q. So if I ask you for each of
these claims when you conceived of them, you won't be
able to give me an answer -MR. OLSON: Object -MR. BRIGGS: Q. -- is that right?

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questions I had. I do want to leave the deposition
open, pending the production or inspection of the
source code, and some of the other materials we talked
about, but that's all I have for now.
MR. OLSON: All right. I have no questions.
I -- as I said before, I believe all the
source code is -- has been produced, and so I disagree
with the issue of not closing the deposition, but
we're obviously not going to resolve that here today.
We would like to designate the record Apple
Attorney's Eyes Only Confidential, until we can review
it, and then make the appropriate designations per the
protective order, and otherwise I have no questions of
Mr. Herz.
MR. BRIGGS: Okay. Thank you, Mr. Herz.
THE VIDEOGRAPHER: This marks the end of
Volume I, Disc 3 and concludes today's deposition of
Scott Herz.
The time is 2:59 p.m., and we are off the
record.
(WHEREUPON, deposition ended at 2:59 p.m.)
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JURAT
I, SCOTT HERZ, do hereby certify under
penalty of perjury that I have read the foregoing
transcript of my deposition taken on October 14, 2011;
that I have made such corrections as appear noted
herein in ink, initialed by me; that my testimony as
contained herein, as corrected, is true and correct.
DATED this ____ day of _____________, 2011,
at _____________________________, California.

__________________________________
SIGNATURE OF WITNESS

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CERTIFICATE OF REPORTER

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I, ANDREA M. IGNACIO HOWARD, hereby certify
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that the witness in the foregoing deposition was by me
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duly sworn to tell the truth, the whole truth, and
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nothing but the truth in the within-entitled cause;
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That said deposition was taken in shorthand
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by me, a Certified Shorthand Reporter of the State of
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California, and was thereafter transcribed into
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typewriting, and that the foregoing transcript
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constitutes a full, true and correct report of said
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deposition and of the proceedings which took place;
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That I am a disinterested person to the said
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action.
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IN WITNESS WHEREOF, I have hereunto set my
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hand this 14th day of October, 2011.
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___________________________________________
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ANDREA M. IGNACIO HOWARD, RPR, CCRR, CLR, CSR No. 983023
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INDEX
DEPOSITION OF SCOTT HERZ
EXAMINATION
BY MR. BRIGGS

PAGE
5

EXHIBIT
PAGE
Exhibit 630 Platzer, et al., US Patent No.
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7,844,915 BS; 52 pgs.
Exhibit 631 Flow Chart; 1 pg.
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