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

Filing 1057

Declaration of Cyndi Wheeler in Support of #999 Administrative Motion to File Under Seal , #1007 Administrative Motion to File Under Seal Samsung's Opposition to Apple's Motion for Summary Judgment and Documents in Support Thereto , Samsung's Oppotiion to Apple's Motion to Strike, and Samsung's Opposition to Motion to Exclude filed byApple Inc.. (Attachments: #1 Proposed Order, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K)(Related document(s) #999 , #1007 ) (Jacobs, Michael) (Filed on 6/7/2012)

Exhibit G

EXHIBIT 15
FILED UNDER SEAL

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
APPLE INC., a California
corporation,

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Plaintiff,
vs.
Case No. 11-CV-01846-LHK
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,
Defendants.
---------------------------------/

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CONFIDENTIAL
ATTORNEYS' EYES ONLY

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VIDEOTAPED DEPOSITION OF DUNCAN KERR
Redwood Shores, California
Wednesday, October 26, 2011

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24

Reported by:
LORRIE L. MARCHANT, CSR No. 10523
RPR, CRR, CCRR, CLR
JOB NO. 42863

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2

THE VIDEOGRAPHER:

Thank you.

Will the

court reporter please swear in the witness.

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THE REPORTER:

Do you solemnly swear or

4

affirm under the penalties of perjury that the

5

testimony you are about to offer will be the truth,

6

the whole truth and nothing but the truth?

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THE WITNESS:

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EXAMINATION BY MS. CARUSO

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10
11

BY MS. CARUSO:
Q.

Good morning.

I'd like to start just by

going over your educational background.

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13

I do.

Did you obtain a degree in mechanical
engineering at Imperial College in London in 1985?

14

A.

Yes.

15

Q.

Did you obtain a degree in industrial

16

design engineering at Royal College of Art in 1987?

17

A.

Yes.

18

Q.

After your obtaining your degree in

19

industrial design engineering, where was the first

20

place you worked after that?

21

A.

I worked in a design consultancy in London.

22

Q.

What was the name of the firm it was

23

associated with?

24

A.

ISIS UK Limited.

25

Q.

How long were you there?
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A.

Not by myself.

2

Q.

Were you asked to -- whether you had any

3

documents relating to the development of the iPad?

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A.

I don't recall that specific question.

5

Q.

Were you asked whether you had any

6

documents relating to the development of the iPhone?

7

A.

I don't recall that specific question.

8

Q.

It doesn't need to be that specific

9

question.

10

the iPad.

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It could be any general question about

MR. MONACH:

Here again, I'll instruct the

12

witness not to answer about any communications --

13

the substance of any communications you may have had

14

with counsel about the iPad.

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questions about document collection, you can

16

respond.

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THE WITNESS:

18

If you remember

BY MS. CARUSO:

19
20

Q.

What types of documents were you asked to

identify?

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22

So what's the question?

MR. MONACH:

Objection.

Assumes facts not

in evidence.

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THE WITNESS:

24

BY MS. CARUSO:

25

Q.

I don't remember.

Are you taking any medication this morning?
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4

A.

I took some herbal throat and cough

medication.
Q.

Are you under the influence of any other

medication, anything that might affect your memory?

5

A.

No.

6

Q.

Looking at the drawings in the D'889

7

patent, do you recall at some point at Apple

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creating a design of a handheld tablet?

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10

MR. MONACH:
question.

11
12

Object to the form of the

THE WITNESS:

So which document are you

referring to?

13

BY MS. CARUSO:

14

Q.

Yes.

15

A.

This one (indicating).

16

That one (indicating).

MR. MONACH:

Object to the form of the

17

question as vague.

18

question intends to include a legal conclusion about

19

the drawings.

Object to the extent the

I'm not sure that it does.

20

THE WITNESS:

21

BY MS. CARUSO:

22
23

Q.

The question again, please.

Do you recall at Apple, at some point in

time, creating a handheld tablet design?

24

A.

Yes, I do.

25

Q.

Do you understand the drawings of the D'889
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patent that's in front of you to reflect any design

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that you created while you were at Apple?

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MR. MONACH:

I'll instruct you not to

4

reveal any communications with counsel, but

5

otherwise you can answer the question.

6

THE WITNESS:

I'm a designer.

7

patent attorney.

8

I'm not a

in the way a patent attorney would.

9
10

They do, to my design eyes, reflect designs
that we -- we worked on.

11
12

I don't understand patent drawings

BY MS. CARUSO:
Q.

Looking at Figure 2, do you have any

13

understanding of what the parallel lines inside this

14

rectangular shape represent?

15

MR. MONACH:

Object to the form of the

16

question to the extent it calls for a legal

17

conclusion from a nonlawyer witness.

18

foundation in light of the prior testimony.

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20

Lacking in

I'll instruct you not to reveal any
attorney-client communications.

21

THE WITNESS:

So I see a lot of lines.

22

not sure if you're specifically referring to

23

particular ones.

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25

BY MS. CARUSO:
Q.

Referring to these three sets of lines
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I'm

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(indicating) which have three parallel lines.

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MR. MONACH:

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THE WITNESS:

Same objection.
So, again, I'm a designer.

4

I'm not a patent attorney.

5

those lines were put there to represent some legal

6

aspect of this document which I'm not aware of.

7
8

As a designer, my interpretation of that
would be that it's a reflective surface.

9
10

My assumption is that

BY MS. CARUSO:
Q.

Okay.

Do you have any understanding of

11

whether, in Figure 2, the lines that we're referring

12

to as a -- you identified as perhaps being

13

reflective surface are on the front or the back of

14

the device?

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16

MR. MONACH:
foundation.

17

Objection.

Lack of

Calls for a legal conclusion.

THE WITNESS:

From my design interpretation

18

of these drawings, Figure 2 represents the rear

19

surface.

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21
22

BY MS. CARUSO:
Q.

Do you understand Figure 1 to represent the

front surface?

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MR. MONACH:

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THE WITNESS:

Same objection.
Yes.

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2

BY MS. CARUSO:
Q.

Do you have any understanding of what the

3

sort of interior line that goes within the outline

4

of the front surface represents?

5

MR. MONACH:

6

THE WITNESS:

7

So this dot -- this dotted

BY MS. CARUSO:
Q.

10
11

Vague.

line (indicating)?

8
9

Same objection.

Yes.
MR. MONACH:

foundation.

12

Same objection.

Lack of

And calls for a legal conclusion.

THE WITNESS:

Again, as a designer, I would

13

be interpreting this patent drawing, which I would

14

understand that drawing to mean something for a

15

patent attorney.

16

interpretation of it as a designer.

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18
19

BY MS. CARUSO:
Q.

MR. MONACH:
foundation.

22
23

Objection.

Lack of

Calls for a legal conclusion.

Continuing instruction not to reveal any
attorney-client communications, if you had them.

24
25

Do you have any understanding of what it

represents?

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21

I would be making an

THE WITNESS:

It could be a number of

things.
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2

BY MS. CARUSO:
Q.

Which are?

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MR. MONACH:

4

THE WITNESS:

Same objection.
Making the assumption that

5

this -- has a display visible from the front

6

surface, it could be the edge of the active area of

7

the display.

8
9

If this were a -- a display which had touch
sensing on it, it could be a demarcation of what's

10

active and what's inactive from a touch perspective.

11

It could be -- it could be some -- a design detail

12

on the front surface.

13

It could be -- presuming, again, that this

14

is a reflective material which is transparent, there

15

could be some detail on the back side of that

16

surface.

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assembly, behind the transparent surface.

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19

It could be some component inside the

BY MS. CARUSO:
Q.

In Figure 2, on the right-hand side of the

20

drawing, what looks to be the side edge of the

21

device tapers towards the rear of the drawing.

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23
24

Do you see that?
A.

You mean -MR. MONACH:

Objection.

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BY MS. CARUSO:
Q.

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Yes.
MR. MONACH:

Assumes facts not in evidence.

4

Objection to the extent it calls for a legal

5

conclusion.

6

THE WITNESS:

7

BY MS. CARUSO:

8

Q.

I see that tapering, yes.

Do you have an understanding of what that

9

tapering represents?

10

MR. MONACH:

11

Objection.

Vague.

Object to

the extent it calls for a legal conclusion.

12

THE WITNESS:

Again, I'm a designer, not a

13

patent attorney.

14

constraints or the -- what the goals of a patent

15

attorney drawing -- patent drawing are.

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17

My design interpretation of that could be a
number of things.

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19

I don't understand the -- the

BY MS. CARUSO:
Q.

Which are?

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MR. MONACH:

21

THE WITNESS:

Same objection.
It could be an attempt at a

22

perspective representation of this object.

23

be that the shape of the -- the object, actually the

24

thickness of it, changes from one corner to the

25

other corner.

It could

It could be a combination of those.
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BY MS. CARUSO:

2

Q.

Do you recall creating a product at Apple

3

in which the thickness of a handheld tablet device

4

changed from one corner to the next?

5

A.

I don't recall.

6

Q.

Focusing on the upper right corner of

7

Figure 2, that tapering portion that we were

8

referring to earlier doesn't appear to go all the

9

way to the top edge of the product.

10

Do you see that?

11

MR. MONACH:

Objection.

12

in evidence.

13

Assumes facts not

legal conclusion from the witness.

14

Object to the extent it asks for a

THE WITNESS:

Again, it's difficult for me

15

to interpret this patent drawing.

16

on what lines on the patent drawing are supposed to

17

represent.

18

I'm not an expert

BY MS. CARUSO:

19

Q.

I'm not -- as a designer, how would you

20

interpret this drawing if someone presented it to

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you?

22

MR. MONACH:

Objection.

Vague.

Incomplete

23

hypothetical.

24

legal conclusion since it's a patent drawing.

25

Object to the extent it calls for a

THE WITNESS:

I find it ambiguous from a

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BY MS. CARUSO:
Q.

You're not aware of whether the design of

3

the D'270 was an iPod touch that made it to

4

production?

5

MR. MONACH:

6

foundation.

7

Objection.

Lack of

legal conclusion.

8
9

Objection to the extent it calls for a

THE WITNESS:

Again, as a designer, I'm

looking at patent drawings.

These are not drawings

10

that we would use in the development of a design.

11

So I -- I can't interpret them as design drawings to

12

be able to reference them to objects that we've

13

produced.

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15

BY MS. CARUSO:
Q.

I'm going to hand you what's been marked

16

previously as Lutton Exhibit 7.

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this is a copy of U.S. Design Patent 618,677.

18
19

For the record,

Mr. Kerr, have you seen the '677 patent
before?

20

A.

I don't recall.

21

Q.

You're identified on the front page of the

22

'677 as one of the inventors of this design.

23

Do you see that?

24

A.

I do.

25

Q.

Looking at the drawings of the '677, do you
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understand them to reflect something that you

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designed?

3

MR. MONACH:

Objection to the extent it

4

calls for a legal conclusion about the drawings in

5

the patent.

6

THE WITNESS:

I see a patent drawing

7

representation of what my design interpretation --

8

my design interpretation of this is of an iPhone

9

design that we worked on as a team.

10

BY MS. CARUSO:

11

Q.

23

Q.

Looking at Figure 1 of the D'677, there's a

24

grid area on that drawing.

25

screen.

It looks almost like a

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Do you see that?

2

MR. MONACH:

3

Object to the form of the

question.

4

THE WITNESS:

I see a portion of the

5

drawing which has, if I'm following you, a -- a

6

region which has a crosshatch, yes, like a grid-type

7

fill.

8

BY MS. CARUSO:

9

Q.

10

shows?

11

Do you have any understanding of what that

MR. MONACH:

Object to the form of the

12

question as vague.

13

for a legal conclusion.

14

Object to the extent it calls

THE WITNESS:

As a designer, it's -- I

15

don't know how to interpret this patent drawing.

16

It's not a design drawing.

17
18

I see in the patent document a reference
to --

19

(Reporter clarification.)

20

THE WITNESS:

21

I see, in reference to Figure 1, claimed

Sorry.

22

surface of the electronic devices illustrated with

23

the color designation for the color black.

24
25

BY MS. CARUSO:
Q.

The slanted lines that are parallel to each
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other, across what appears to be the surface of

2

Figure 1, do you see those?

3

A.

(Indicating?)

4

Q.

Yes.

5

A.

Yes, I do.

6

Q.

Do you have any understanding what those

7

show?

8
9

MR. MONACH:
foundation.

10

Objection.

Lack of

Calls for a legal conclusion.

THE WITNESS:

Again, as a designer, I'm not

11

familiar with the conventions of patent drawings.

12

My assumption is that they represent something very

13

specific as -- for the patent application.

14
15

My interpretation of those as a designer is
that they represent a reflective surface.

16

BY MS. CARUSO:

17
18

Q.

Is there anything about the design of the

iPhone that you believe was new?

19

MR. MONACH:

Object to the form of the

20

question.

21

in foundation.

22

the extent it calls for a legal conclusion.

Vague and ambiguous.

Compound.

Incomplete hypothetical.

23

You can answer.

24

THE WITNESS:

25

Yes.

///
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BY MS. CARUSO:

2

Q.

What is that?

3

MR. MONACH:

4

THE WITNESS:

Same objection.
It's my understanding that it

5

was the iPhone, first iPhone, was the first

6

multi-touch telephone device.

7

respect.

8

So it was new in that

BY MS. CARUSO:

9

Q.

Is there anything about the design, the

10

industrial design, of the iPhone that you understood

11

to be new?

12

MR. MONACH:

13

ambiguous.

14

with.

15

Same objection.

Vague and

conclusion.

No antecedent for what he's to compare

Object to the extent it calls for a legal

16

But you can give your understanding.

17

THE WITNESS:

18

Apple is new to us, so -- so, yes.

19

BY MS. CARUSO:

20
21

Q.

MR. MONACH:

Object to the form of the

question as vague and ambiguous.

24
25

There aren't any particular features of the

design that you can identify as being new?

22
23

Everything that we design at

THE WITNESS:

"New" in what sense?

///
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had worked on a phone, but you had seen other mobile

2

phones at the time you were creating the iPhone 1

3

design; correct?

4

A.

Sure.

5

Q.

Did you use a cell phone at that time?

6

A.

Yes.

7

Q.

Which one was it?

8

A.

If I remember, I had a number of phones

9
10

over the years.

If I remember correctly it was a

Motorola flip phone.

11

Q.

Was it a RAZR?

12

A.

A RAZR.

13

Q.

Do you recall other phones that you've had

14
15

over the years?
A.

I had -- I don't remember the names of

16

them.

I had a different Motorola flip phone at one

17

point.

I had a Nokia -- I believe they're kind of

18

called candy bar style, solid block phone.

19

Sony phone.

20

Something like that.

21
22
23

Q.

I had a

My first one was a Sony, from '98.

All right.

I apologize.

I can't remember

if I've asked you this already.
But for the design of the iPhone, is it

24

correct that you can't distinguish your -- any

25

unique contribution you made in the design of the
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iPhone from that of the other Apple designers?

2

11

Q.

I'm handing you what's been previously

12

marked as Lutton Exhibit 6, which is a copy of the

13

U.S. Design Patent 593,087.

14

Do you see that?

15

A.

Yes.

16

Q.

Do you have an understanding of what the

17

design of the D'087 patent is?

18

MR. MONACH:

Objection.

Vague and

19

ambiguous.

20

legal conclusion about the scope of the patent.

21

Object to the extent it calls for a

THE WITNESS:

22

at a patent drawing.

23

I'm a designer.

I'm looking

drawings.

24
25

I'm not an expert in patent

But my interpretation of what I see as a
designer is of the iPhone.

Based on one detail

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which I see, I believe it's the iPhone 1.

2
3
4
5

BY MS. CARUSO:
Q.

Which detail are you looking at to identify

it as the iPhone 1?
A.

If we start on Figure 2, there's this

6

dashed line which runs across what I'm interpreting

7

as the body of the product.

8
9

If that is trying to represent the antenna,
the separation between the body -- metal body and

10

the plastic antenna cover, then that would lead me

11

to believe this is attempting to represent the

12

iPhone 1.

13

Q.

All right.

I'm going to hand you a copy of

14

what was previously marked as Exhibit 842 to

15

Zorkendorfer.

16

it, but it has been previously marked.

17

The document, Exhibit 842, is

It doesn't have an exhibit stamp on

18

Bates-numbered APLNDCX2049, and then there's a

19

second page attached, which is APLNDCX2056.

20

That was on your exhibit as well?

21

A.

Yes.

22

Q.

Do you recognize what's shown in

23

Exhibit 842?

24

A.

I don't remember specifically what this is.

25

Q.

Do you have an understanding of what this
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is?

2
3

MR. MONACH:
ambiguous.

4
5

Objection.

Vague and

Asked and answered.

THE WITNESS:

I'm presuming it's a

photograph of a industrial design model from Apple.

6

BY MS. CARUSO:

7

Q.

Is there any part of the photograph, 2049

8

or 2056, that you believe has what you would

9

describe as a vent detail?

10
11

MR. MONACH:
foundation.

12

Objection.

Lack of

Calls for speculation.

THE WITNESS:

I can only describe what I

13

see.

14

elements of what I'm looking at.

15

BY MS. CARUSO:

16

I don't know the function of different

Q.

How would you describe this (indicating)

17

detail that runs along the edge of the -- what

18

appears to be electronic -- excuse me, the edge of

19

the surface display?

20

MR. MONACH:

Object under the best evidence

21

rule that the photograph is the best evidence of

22

what the photograph is.

23

vague and asking for some further verbal

24

description.

25

THE WITNESS:

Objection.

The question is

You just described these as

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