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 H

EXHIBIT 16
FILED UNDER SEAL

Highly Confidential - Attorneys' Eyes Only

Page 1
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2
3
4

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

5

Plaintiff,

Case No.

6

vs.

11-CV-01846-LHK

7

8

9

10

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,

11

Defendants.
12
13
14
15

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

16
17
18
19

VIDEOTAPED DEPOSITION OF RICHARD HOWARTH
San Francisco, California
Monday, October 31, 2011

20
21
22
23
24
25

REPORTED BY:
CYNTHIA MANNING, CSR No. 7645, CLR, CCRR
JOB NO. 43007
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reporter please swear in the witness.

2
3

RICHARD HOWARTH,

4

having first been duly sworn, testified

5

as follows:

6

THE VIDEOGRAPHER:

You may proceed.

7
8
9

EXAMINATION
BY MR. ZELLER:

10

Q.

Good morning.

11

A.

Morning.

12

Q.

If you could please state and spell your

13
14
15
16

full name for the record for us.
A.

Richard Howarth.

R-I-C-H-A-R-D; Paul,

P-A-U-L; H-O-W-A-R-T-H.
MR. MONACH:

Before we get too far, I

17

just want -- so I don't forget -- I'm sure we're

18

going to do a lot of examination on documents that

19

have been marked "Highly Confidential, Attorneys'

20

Eyes Only."

21

now we'd like to have the entire transcript

22

designated as attorneys' eyes only.

23
24
25

So rather than try to parse it out

And the witness reserves the right to
review and sign the deposition transcript.
Thank you.
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tablet designs that you worked on there for Apple.

2

Is there -- is there an area that, on the

3

front face of the tablet computer devices that you

4

worked on, that you understood to include a border

5

or mask area?

6
7

MR. MONACH:

Objection; vague and

compound.

8

THE WITNESS:

9

Could you repeat the question?

10
11

MR. ZELLER:

Yeah, I'm sorry.

Yes.

If you could read it

back, please.

12

(Whereupon the reporter read the record

13

as follows:

14

"Question:

15

front face of the tablet computer devices

16

that you worked on, that you understood

17

to include a border or mask area?")

18

MR. MONACH:

19

Is there an area that, on the

And I objected; vague and

compound.

20

THE WITNESS:

Sometimes some people refer

21

to -- or I refer to the area around the display as

22

a border.

23

BY MR. ZELLER:

24
25

Q.

But in general, you don't think that

those terms are precise enough or clear enough
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that you could be -- you'd be able to say it's

2

really definite; right?

3
4

MR. MONACH:

Objection; vague and

ambiguous.

5

THE WITNESS:

6

people think.

7

I don't know what other

BY MR. ZELLER:

8
9

Q.

Well, I'm not asking about what other

people think.

10

I'm asking you.

Do you think that the word "border" or

11

"mask" is a clear term to you as to what it is

12

referring to in the context of tablet computer

13

designs that Apple has made?

14

MR. MONACH:

Objection; vague and

15

ambiguous, both a compound and incomplete

16

hypothetical.

17
18
19

THE WITNESS:

It could be.

BY MR. ZELLER:
Q.

I'm going to show you what was previously

20

marked as Exhibit 8, which for the record is

21

United States Design Patent 504,889.

22
23
24
25

And please let me know when you've had an
opportunity to review the '889 design patent.
A.

(Witness reviewing document.)
Okay.
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Q.

2

design?

3

A.

4

You're named as an inventor of the '889

I was one of the industrial design team

that worked on this product.

5

Q.

Looking at the drawings, these figures

6

that are in the '889 design patent, do any of

7

those drawings show what you, in your view --

8

well, I'm sorry.

9
10

Directing your attention to the figures
and drawings in the '889 design patent.

11
12

Let me rephrase it.

Do any of those drawings show a mask
area?

13

MR. MONACH:

Objection; lack of

14

foundation.

15

calls for a legal conclusion by a nonlawyer

16

witness.

17
18
19

Objection; compound.

THE WITNESS:

Objection;

I'm not a patent lawyer.

BY MR. ZELLER:
Q.

I'm not asking you as a patent lawyer.

20

I'm asking you as an inventor of the '889 design

21

patent.

22
23
24
25

Do any of the drawings or figures in the
'889 design patent depict a mask area?
MR. MONACH:

Same objection; lack of

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THE WITNESS:

2

MR. MONACH:

3

Lack of foundation.

4

As -Hang on a second.
Objection, to the

extent it calls for a legal conclusion.

5

THE WITNESS:

As an industrial designer,

6

and not a patent lawyer, it isn't clear to me that

7

there is an area here that is definitely a mask or

8

border.

9

BY MR. ZELLER:

10

Q.

Directing your attention to Figure 1.

11

A.

Yes.

12

Q.

You'll see that on the interior of

13

Figure 1, that there is a rectangular line.

14

Do you see that?

15

A.

I see a dotted line.

16

Q.

Do you know, is that -- is that a broken

17

line?

18

MR. MONACH:

Objection; lack of

19

foundation.

20

document speaks for itself.

21

Under the Best Evidence Rule the

THE WITNESS:

22

line.

23

Vague.

It looks like a dotted

BY MR. ZELLER:

24
25

It looks like an inconsistent dotted line.

Q.

Do you know why it's in that form?

you have an understanding?
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2

MR. MONACH:

Objection; lack of

foundation.

3

And let me just caution you.

I'm not

4

saying you did have any such communications, but I

5

don't want you, in answering any of these

6

questions, to reveal any attorney-client

7

communications.

8
9
10
11

THE WITNESS:

Okay.

I'm not exactly sure

what that rectangle is depicting.
BY MR. ZELLER:
Q.

Do you know if that dotted line that you

12

were talking about that's in that rectangular

13

shape on the interior of Figure 1 has some

14

relationship to separating the active area of the

15

display from the mask or nonactive areas of the

16

display?

17

MR. MONACH:

Objection; lack of

18

foundation, calls for speculation.

19

extent it's asking for a legal conclusion.

20

THE WITNESS:

21

I'm not sure what that line

represents.

22

Object, to the

BY MR. ZELLER:

23

Q.

And I take it you don't have an

24

understanding as to whether or not that particular

25

line, this rectangular line on the interior of
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Figure 1 that's dotted, is part of the claimed

2

design here?

3

MR. MONACH:

4

foundation.

5

Objection; lack of

a legal conclusion.

6

Objection, to the extent it calls for

THE WITNESS:

7

represents.

8

I'm not sure what that line

BY MR. ZELLER:

9
10

Q.

Directing your attention to Figure 2 of

the '889 design patent.

11
12

You'll see that there are three sets of
diagonal lines on the interior of this.

13

A.

Yes.

14

Q.

And then directing your attention to

15

Figure 4.

16
17

You'll see that it doesn't have those
diagonal lines.

18

A.

Okay.

19

Q.

Do you see that?

20

A.

Yes, I see that.

21

Q.

Do you have any understanding or

22

explanation as to why those diagonal lines don't

23

appear in Figure 4 but they do appear in Figure 2?

24
25

MR. MONACH:
foundation.

Objection; lack of

Objection, to the extent it calls for
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a legal conclusion.

2

THE WITNESS:

I'm not sure why those

3

lines are in one view and not in another.

4

BY MR. ZELLER:

5

Q.

Do you know if the design that's shown

6

here in the '889 design patent is showing a back

7

surface or bottom surface that is flat and clear?

8
9
10

MR. MONACH:
foundation.

Same objection; lack of

Object, to the extent it calls for a

legal conclusion.

11

THE WITNESS:

12

depicting.

13

I'm not sure what that is

BY MR. ZELLER:

14

Q.

Is the design that's shown here in the

15

'889 design patent, by your understanding, does

16

it -- well, I'm sorry.

17
18
19

Let me rephrase that.

Directing your attention to the '889
design patent.
In your view, as an inventor and a

20

designer, does this design show a clear front

21

surface of the device?

22

MR. MONACH:

23

foundation.

24

Objection; lack of

a legal conclusion.

25

Objection, to the extent it calls for

You can give your understanding, if you
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have one.

2

THE WITNESS:

I'm not exactly sure what

3

this document -- what this figure is showing.

4

could be.

5

BY MR. ZELLER:

6

Q.

It

And you're not sure one way or another

7

whether what's shown here in the design shows a

8

clear, flat, continuous surface on the front?

9
10

MR. MONACH:

Objection, to the extent it

calls for a legal conclusion.

11

THE WITNESS:

I didn't create these

12

drawings, so I don't know if that's what that is

13

supposed to represent.

14

BY MR. ZELLER:

15

Q.

And even apart from the fact that you

16

didn't create the drawings, you still don't know;

17

is that true?

18

MR. MONACH:

Same objection.

Object, to

19

the extent it calls for a legal conclusion; asked

20

and answered.

21

THE WITNESS:

It isn't completely clear

22

to me that that's what that is representing.

23

BY MR. ZELLER:

24
25

Q.

Directing your attention to Figure 9.
You'll see in Figure 9 that the top of
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the device that's shown there is -- from the

2

orientation of the individual holding it -- is

3

somewhat wedge-shaped, or it tapers?

4

MR. MONACH:

Objection; mischaracterizes

5

the evidence, assumes facts not in evidence,

6

argumentative.

7

BY MR. ZELLER:

8

Q.

9
10

Do you see that?
MR. MONACH:

Object, to the extent it

calls for a legal conclusion.

11

THE WITNESS:

12

to.

13

I see what you're referring

BY MR. ZELLER

14
15

I see it's an object that the guy is holding.

Q.

Well, from the perspective of the guy

whose holding it --

16

A.

Yes.

17

Q.

-- how would you describe the shape of

18

the top of the device?

19

A.

20

What -MR. MONACH:

21

ambiguous.

22

Objection; vague and

legal conclusion.

23

Object, to the extent it calls for a

THE WITNESS:

24

as "the top"?

25

What are you referring to

//
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2
3

BY MR. ZELLER:
Q.

The top, from the orientation of the

individual holding it, which would be your right.

4

MR. MONACH:

5

Objection;

vague.

6

Objection.

BY MR. ZELLER:

7

Q.

If you could hand me your copy.

8

A.

Okay.

9

MR. ZELLER:

Let's please mark as Exhibit

10

1132 a copy of the '889 design patent with a

11

marking that I'm about to give it.

12

arrow consisting of an X on Figure 9, and then two

13

arrows with the Figure X, Label X, in Figure 2.

It will be an

14

(Deposition Exhibit 1132 was marked for

15

identification)

16

BY MR. ZELLER:

17

Q.

So directing your attention to Figure 2.

18

A.

Okay.

19

Q.

You'll see that what I did there is, I

20

put two arrows with the Label X on there.

21

A.

Mm-hmm.

22

Q.

And you'll see that those portions, those

23
24
25

sides, appear to taper, or narrow?
MR. MONACH:

Object to the form of the

question as mischaracterizing the evidence;
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assumes facts not in evidence.

2

THE WITNESS:

To me, it looks like a

3

slightly perspective drawing of a rectangular

4

object.

5

BY MR. ZELLER:

6

Q.

Do you have an understanding as to

7

whether or not those lines taper because of

8

perspective or because the design that is being

9

communicated here has tapering sides?

10

A.

I couldn't say for certain.

To me

11

personally, as an industrial designer, it looks to

12

me like they're tapering because of perspective.

13

Q.

14

perspective?

15
16

And in your view, is that an accurate

MR. MONACH:

Objection; vague and

ambiguous.

17

THE WITNESS:

18

accurate perspective.

19

that's what was intended.

20

BY MR. ZELLER:

21

Q.

I don't know about an
It looks, perhaps, like

And if I asked you the same questions

22

about that edge that I labeled as X in Figure 9,

23

you'd give me the same answers?

24

MR. MONACH:

25

calls for a legal conclusion.

Objection, to the extent it

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your understanding.

2

THE WITNESS:

My understanding is that's

3

what that is trying to represent.

4

BY MR. ZELLER:

5
6

Q.

It is perspective, but you're not

certain?

7
8

MR. MONACH:

Object to the form of the

question.

9

THE WITNESS:

10

what that represents.

11

BY MR. ZELLER:

12

Q.

It's possible that that's

But, again, you can't say with certainty

13

whether or not that's -- that tapering is because

14

of perspective, as opposed to whether or not the

15

design is actually showing that there is some kind

16

of tapering?

17

MR. MONACH:

Objection; lack of

18

foundation.

19

a legal conclusion; asked and answered.

Objection, to the extent it calls for

20

You can do it again.

21

THE WITNESS:

In my opinion, as an

22

industrial designer and not a patent lawyer, I

23

think that that looks like it is an object with

24

perspective and not a tapering geometry.

25

//
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2
3

BY MR. ZELLER:
Q.

And from your perspective, is that -- is

that an accurate depiction of perspective?

4

MR. MONACH:

Objection; lack of

5

foundation, incomplete hypothetical.

6

vague.

7
8
9

THE WITNESS:

Objection;

Yes, it could be.

BY MR. ZELLER:
Q.

Can you say with any certainty if it is?

10

MR. MONACH:

11

THE WITNESS:

Same objection.
I can't say with any

12

certainty without -- whether that's an absolutely

13

accurate perspective view.

14

looks possible.

15

BY MR. ZELLER:

16

Q.

But it looks okay.

It

You'll see also in Figure 9 that there is

17

a portion of it that has a thicker, darker line

18

that runs around the perimeter of the front.

19

Do you see that?

20

A.

Yes, I see that.

21

Q.

What does that depict?

22

MR. MONACH:

23

foundation.

24

Objection; lack of

legal conclusion.

25

Object, to the extent it calls for a

THE WITNESS:

It's unclear to me exactly

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what that is trying to depict.

2

BY MR. ZELLER:

3

Q.

4

Does it depict a gap or a groove?
MR. MONACH:

5

foundation.

6

Same objection; lack of

a legal conclusion.

7

Objection, to the extent it calls for

THE WITNESS:

I'm not sure what that

8

precise detail is trying to depict.

9

like the separation between two parts to me.

But it looks
Not

10

the separation; it looks like the joint between

11

two parts.

12

BY MR. ZELLER:

13

Q.

And directing your attention to Figure 1,

14

you'll see that also at least on part of the

15

perimeter of this front surface there is a darker

16

line there as well, darker, thicker line?

17

A.

I see that.

18

Q.

And do you have an understanding as to

19

what that's depicting?

20

MR. MONACH:

21

foundation.

22

Objection; lack of

legal conclusion.

23

Object, to the extent it calls for a

THE WITNESS:

I couldn't tell you exactly

24

what that's trying to depict.

25

//
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2
3

BY MR. ZELLER:
Q.

Is that darker, thicker line depicting a

gap or a groove?

4
5

MR. MONACH:

Same objection.

Lack of

foundation, calls for a legal conclusion.

6

THE WITNESS:

In my opinion as an

7

industrial designer, it doesn't look like that's

8

trying to depict a groove or a gap.

9

it's perhaps trying to show a radius or an

10

intersection of the rear housing, perhaps.

11

BY MR. ZELLER:

12

Q.

But you're not certain?

13
14

MR. MONACH:

17

Same objection.

Asked and

answered.

15
16

It looks like

THE WITNESS:

I'm not certain.

BY MR. ZELLER:
Q.

You'll see that the date of this design

18

patent for filing -- and this is on the first

19

page --

20

A.

Okay.

21

Q.

-- in the middle of the first column,

22

March 17th, 2004.

23

Do you see that date there?

24

A.

Yes, I do.

25

Q.

Prior to March 17th, 2004, which is the
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filing date of the '889 design patent, the Apple

2

design team was working on tablet computer devices

3

that had a gap or groove that ran on the perimeter

4

of the front of the device?

5
6

MR. MONACH:

Lack of

foundation.

7
8

Object to form.

THE WITNESS:

I don't recall.

BY MR. ZELLER:

9

Q.

You just don't recall one way or another?

10

A.

I don't recall.

11

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//
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.
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7

BY MR. ZELLER:

8
9

Q.

I'm going to show you what was previously

marked as Exhibit 841.

10

A.

Mm-hmm.

11

Q.

And please let me know when you've had an

12

opportunity to review those pages.

13

A.

14

(Witness reviewing document.)
Okay.

15

Q.

I take it generally speaking, at some

16

point, you became aware that there was a dispute

17

between Apple and Samsung, a legal dispute?

18
19

MR. MONACH:

Object to the form of the

question as vague.

20

In answering this question, I'll instruct

21

the witness not to reveal any attorney-client

22

communications.

23

THE WITNESS:

24

was -- when I first found out.

25

//

I can't remember when I

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BY MR. ZELLER:

2

Q.

Right.

I'm not quite at that question

3

yet.

4

generally.

5

the questions I'm going to ask.

I'm just trying to understand something
It's to help put some time periods on

6

A.

Okay.

7

Q.

So at some point, did you become aware

8

that there was a lawsuit between Apple and

9

Samsung, just generally speaking?

10
11

MR. MONACH:

yes, no, or I don't recall.

12
13

You can answer that question

THE WITNESS:

At some point, yes.

BY MR. ZELLER:

14

Q.

Now, prior to the time that you became

15

aware that there was a lawsuit between Samsung and

16

Apple, had you seen these pages that were marked

17

as Exhibit 841 before that time?

18

A.

I don't recall.

19

Q.

Do you recognize what's depicted here in

20

Exhibit 841?

21
22

MR. MONACH:

Objection; vague and

ambiguous.

23

THE WITNESS:

I'm not -- I'm not clear on

24

what this -- on what's depicted in these pages.

25

//
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