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

Filing 1140

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: #1 Wheeler Declaration in Support of Administrative Motion, #2 Proposed Order, #3 Declaration of Jason R. Bartlett, #4 Exhibit 1, #5 Exhibit 2, #6 Exhibit 3, #7 Exhibit 4, #8 Exhibit 5, #9 Exhibit 6, #10 Exhibit 7, #11 Exhibit 8, #12 Exhibit 9, #13 Exhibit 10, #14 Exhibit 11, #15 Exhibit 12, #16 Exhibit 13, #17 Exhibit 14, #18 Exhibit 15, #19 Exhibit 16, #20 Exhibit 17, #21 Exhibit 18, #22 Exhibit 19, #23 Exhibit 20, #24 Exhibit 21, #25 Exhibit 22, #26 Exhibit 23, #27 Exhibit 24, #28 Exhibit 25, #29 Exhibit 26, #30 Exhibit 27, #31 Public Declaration of Peter W. Bressler, #32 Exhibit 1, #33 Exhibit 2, #34 Exhibit 3, #35 Exhibit 4, #36 Exhibit 5, #37 Exhibit 6, #38 Exhibit 7, #39 Exhibit 8, #40 Exhibit 9, #41 Exhibit 10, #42 Exhibit 11, #43 Exhibit 12, #44 Exhibit 13, #45 Exhibit 14, #46 Exhibit 15, #47 Exhibit 16, #48 Exhibit 17, #49 Exhibit 18, #50 Exhibit 19, #51 Exhibit 20, #52 Exhibit 21, #53 Exhibit 22, #54 Exhibit 23, #55 Exhibit 24, #56 Exhibit 25, #57 Exhibit 26, #58 Exhibit 27, #59 Exhibit 28, #60 Exhibit 29, #61 Exhibit 30, #62 Exhibit 31, #63 Exhibit 32, #64 Exhibit 33, #65 Exhibit 34, #66 Exhibit 35, #67 Exhibit 36, #68 Exhibit 37, #69 Exhibit 38, #70 Exhibit 39, #71 Exhibit 40, #72 Exhibit 41, #73 Exhibit 42, #74 Exhibit 43, #75 Exhibit 44, #76 Exhibit 45, #77 Exhibit 46, #78 Exhibit 47, #79 Exhibit 48, #80 Exhibit 49, #81 Exhibit 50, #82 Exhibit 51, #83 Exhibit 52, #84 Exhibit 53, #85 Exhibit 54, #86 Exhibit 55, #87 Exhibit 56, #88 Exhibit 57, #89 Exhibit 58, #90 Exhibit 59, #91 Exhibit 60, #92 Exhibit 61, #93 Exhibit 62, #94 Exhibit 63, #95 Exhibit 64, #96 Exhibit 65, #97 Exhibit 66, #98 Exhibit 67, #99 Exhibit 68, #100 Exhibit 69, #101 Exhibit 70, #102 Exhibit 71, #103 Exhibit 72, #104 Exhibit 73, #105 Exhibit 74, #106 Exhibit 75, #107 Exhibit 76, #108 Exhibit 77)(Jacobs, Michael) (Filed on 6/26/2012) Modified on 6/27/2012 pursuant to General Order No. 62, attachment #1 sealed (dhm, COURT STAFF).

Exhibit 15

SUBJECT TO PROTECTIVE ORDER
CONTAINS HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY INFORMATION
EXPERT REPORT OF ITAY SHERMAN
I.

INTRODUCTION
I was retained by Quinn Emanuel Urquhart & Sullivan, LLP, attorneys for Defendants

Samsung Electronics Co., Ltd., Samsung Electronics America, Inc. and Samsung
Telecommunications America, LLC (hereinafter “Samsung”) to provide opinions and testimony
pursuant to Federal Rule of Civil Procedure 26(a)(2) about certain design patents and alleged trade
dress asserted by Apple Inc. (“Apple”) in this action.
II.

BACKGROUND/QUALIFICATIONS
I earned a bachelor degree with honors (B.S.) in Electrical engineering from TelAviv

University in 1991, and a master degree with honors (M.S.) in Biomedical engineering from Tel
Aviv University in 1995. I have worked in the telecommunication industry for the last 20 years,
and for the last 10 years I have worked on mobile handset technology and products.
Between 2004 and 2007, I was the Chief Technology Officer for Texas Instruments
Mobile Connectivity group that developed key components for mobile handsets. While there, I
worked closely with the Nokia, Motorola, and Sony Ericsson to define technology solutions based
on their handset design constraints.
Between 2007-2010, I served as the Chief Technology Officer for modu LTD, a handset
and accessories manufacture that pioneered the concept of modular handsets. The modu concept
revolved around the idea of a modular phone that has a base unit that can operate as a very small
form factor handset, but could also be plugged to consumer electronic devices we termed “jackets”
that enhance the capabilities and external design of the handset and enable it highlight other
functions, such as a wrist watch or music player.
The development of the modu concept required investigation and experimentation with the
possible boundaries of handset design electrical circuitry, mechanical design, and industrial
design. I led the effort for design of multiple handsets as well as additional consumer devices that

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Earpiece with horizontally-oriented lozenge shape centered over the display screen
The use of an earpiece is necessary on a smartphone to allow the user to listen to a
conversation privately without the use of a separate headphone or ear bud connection. Ever since
handsets were invented, the most natural place to put the earpiece of the phone was on the upper
portion of the handheld part of the phone, near the ear—on the opposite end from the microphone,
which is customarily placed on the end closest to the user’s mouth. Centering the earpiece on the
vertical axis is required allows user to conveniently align the phone to their ears, and hold the
phone in the same alignment relative to the head irrespective of whether it is held in the right or
left hand. Placing the earpiece anywhere other than on the upper portion of the phone, such as on
the back or side of the phone, would be a highly inefficient choice that would force users to hold
the smartphone in an unnatural position when using the phone feature.
Horizontal earpiece slots (as opposed to vertical slots) maximize the area that can be
devoted to a receiver without impinging on the display screen size. They also have a larger “sweet
spot,” when compared to a circle or square shape, that make it easier for the user to place the
device in a position where the sound can be heard. The slot shape, with its narrow height, also
serves to protect the mesh covering the receiver below it by not having a more expansive area,
such as a circle or square, which might allow the mesh to be more easily punctured, torn, or
obstructed by dirt or dust. The slot shape also increases the durability of the smartphone surface
by not weakening it with a relatively large expanse of less rigid material. In addition, having
rounded edges increases the ease of manufacturing by allowing the slot to be created by a drill (the
slots created by which are naturally rounded on the edges due to the spinning of the drill).
This is not to say that the precise vertical placement of the earpiece slot on the vertical axis
within the upper portion of the phone is purely functional. Likewise, some options exist for
styling the horizontal earpiece slot and selecting its length and width. The range of options is not
limitless, however, and the overall horizontally symmetrical placement on the upper portion of the
front surface as well as the horizontally-oriented lozenge shape of the D’677 patent are functional
elements of the device and the earpiece in particular.
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In summary, it is my opinion that the D’677 patent design is functional.
The D’087 Is Functional
’087 is similar to the D’677 in terms of functionality. The only difference between the two
being that the D’087 does not claim the black color for the front face, but does claim the bezel
structure. The D’087 also shows combinations of the 3 front face elements (earpiece hole, inset
display and rounded control button). The analysis presented for the D’677 as relating to front
surface flatness and transparency, rounded corners, centered rectangular screen, inset display and
borders around it and earpiece hole shape and location is directly applicable to this design patent.
In addition, the added bezel feature functionality is analyzed.
Bezel
A bezel in a mobile phone handset is a frame that surrounds the front face of the device to
provide structural support and to join and hold together the front and back pieces of the device.
Apple’s US Patent 7,688,574 utility patent covering the bezel for the iPhone, which was filed on
the same day as the application for D’757, claims that the bezel “forms a uniform peripheral
structure” and “provides structural support.” US Patent 7,688,574 at 8:60-63. The ‘574 patent
also states that the housing of the portable electronic device can take any suitable shape, but notes
that the device shown in the drawings, which resembles an iPhone housing, has rounded corners
where the sides meet “to provide a housing having a comfortable feel (e.g., no hard angles).”
Thus, Apple also recognized the function of creating a portable electronic device that is
ergonomically correct.
The existence of the bezel in the type of design disclosed in the D’087 patent is a
functional necessity, but its exact details could be an ornamental choice. Another approach for a
handset’s mechanical design would be to use a bottom piece that wraps around to the front surface
structure. In these types of designs, a bezel is not required

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An analysis of the functionality of each of the named elements comprising the trade dress
of the iPhone, iPhone 3G, iPhone 3GS, iPod Touch, iPhone 4 and iPad devices is set forth above
in connection with my analysis of Apple's design patents.
It is my conclusion that the trade dress asserted by Apple in the Amended Complaint is
functional.

Signature executed on March 23,2012

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