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

Filing 1353

Unredacted Opposition to Apple's Opening Claim Construction Brief by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company) re 1256 Order on Administrative Motion to File Under Seal, re (Dkt. No. 1139) (Attachments: # 1 Exhibit 5 to the Cashman Declaration)(Maroulis, Victoria) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

EXHIBIT 5
FILED UNDER SEAL

Page 695
BEFORE THE
UNITED STATES INTERNATIONAL TRADE COMMISSION

___________________________
In the Matter of:

)

CERTAIN ELECTRONIC DIGITAL )
MEDIA DEVICES AND

337-TA-796

)

COMPONENTS THEREOF

Investigation No.

)

___________________________
Main Hearing Room

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

Friday, June 1, 2012

Volume 2

The parties met, pursuant to the notice of the
Judge, at 8:44 a.m.

BEFORE:

THE HONORABLE THOMAS B. PENDER

Page 696
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APPEARANCES:

2
3

For Complainant Apple, Inc.:

4

HAROLD J. McELHINNY, ESQ.

5

MICHAEL A. JACOBS, ESQ.

6

RACHEL KREVANS, ESQ.

7

Morrison & Foerster LLP

8

425 Market Street

9

San Francisco, CA 94105

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11

ALEXANDER J. HADJIS, ESQ.

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KRISTIN L. YOHANNAN, ESQ.

13

Morrison & Foerster LLP

14

2000 Pennsylvania Avenue, N.W.

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Washington, D.C. 20006

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17

CHARLES S. BARQUIST, ESQ.

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Morrison & Foerster LLP.

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555 West Fifth Street

20

Los Angeles, CA 90013

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Page 697
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APPEARANCES (Continued):

2
3

For Respondents Samsung Electronics Co.,

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Ltd., Samsung Electronics America, Inc., and

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Samsung Telecommunications America, LLC:

6

CHARLES K. VERHOEVEN, ESQ.

7

Quinn Emanuel Urquhart & Sullivan LLP

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50 California Street, 22nd Floor

9

San Francisco, CA 94111

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KEVIN P.B. JOHNSON, ESQ.

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Quinn Emanuel Urquhart & Sullivan LLP

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555 Twin Dolphin Drive, 5th Floor

14

Redwood Shores, CA 94065

15
16

RYAN S. GOLDSTEIN, ESQ.

17

MICHAEL T. ZELLER, ESQ.

18

Quinn Emanuel Urquhart & Sullivan LLP

19

865 South Figueroa St., 10th Floor.

20

Los Angeles, CA 90017

21
22

ERIC HUANG, ESQ.

23

Quinn Emanuel Urquhart & Sullivan LLP

24

51 Madison Avenue, 22nd Floor

25

New York, New York 10010

Page 698
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APPEARANCES (Continued):

2
3

For Respondents Samsung Electronics Co.,

4

Ltd., Samsung Electronics America, Inc., and

5

Samsung Telecommunications America, LLC:

6

S. ALEX LASHER, ESQ.

7

PAUL BRINKMAN, ESQ.

8

Quinn Emanuel Urquhart & Sullivan LLP

9

1101 Pennsylvania Avenue

10

Washington, D.C. 20004

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12

MARC K. WEINSTEIN, ESQ.

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Quinn Emanuel Urquhart & Sullivan LLP

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NBF Higiya Building, 25F, 1-1-7

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Uchisaiwai-cho, Chiyoda-ku,

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Tokyo, 100-0011, Japan

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For ITC Staff:
REGINALD LUCAS, ESQ.
Investigative Attorney
DAVID LLOYD, ESQ.
Supervisory Attorney

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U.S. International Trade Commission

24

500 E Street, S.W.

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Washington, D.C. 20436

Page 699
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APPEARANCES (Continued):

2
3

Attorney-Advisor:

4

GREGORY MOLDAFSKY, ESQ.

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Attorney-Advisor

6

Office of Administrative Law Judges

7

U.S. International Trade Commission

8

500 E Street, S.W.

9

Washington, D.C. 20436

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

Page 797
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overall impression.

2

And then tried to apply that to all of

3

the phones that we examined and, in fact,

4

narrowed that field down significantly.

5

then compared that to select items of prior art

6

that I selected from many of the pieces of

7

prior art that Samsung had provided in their

8

materials.

9

And

And then we did a -- then I did a -- a

10

prior art to the patent, to the phone

11

comparison.

12

that you're comparing each of them to the prior

13

art.

14

the patent than it is to the prior art, then

15

that's a reasonable understanding of it being

16

satisfactory in that regard.

17

Q.

And my understanding of the law is

And if the infringing phone is closer to

Now, you mentioned in that answer your

18

functionality analysis, and of course, you were

19

asked some questions about that during

20

cross-examination?

21

A.

Yes.

22

Q.

Would you tell us what exactly you

23

believe is and is not functional about having a

24

display on a smartphone?

25

A.

I believe having a display in a

Page 798
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smartphone is absolutely functional from a

2

performance and engineering standpoint.

3

believe that the size of that display and the

4

location of that display and in some cases the

5

shape of that display is definitely not

6

functional.

7

Q.

Why not?

8

A.

I

It's an appearance element as it

9
10
11

relates on a patent, and it certainly is not a
requirement that it cover the entire face.
Q.

And why do you mention covering the

12

entire face, why is that important in this

13

case?

14

A.

Because in my personal opinion as an

15

expert, the major overall impression created by

16

the '757 patent and the '678 patents are that

17

of a -- an electronic device with a flat face

18

that covers the entire surface of the phone.

19

And based on the '678, one that is transparent,

20

in which you can see an area that if it were a

21

phone would be a display.

22

transparency covers the phone from edge to

23

edge, and I think that's really a dominant

24

visual element.

25

Q.

And that

Is there anything functional about

Page 799
1

having a clear transparent face on any part of

2

the front face of a phone other than over the

3

display?

4

A.

Not that I'm aware of.

5

Q.

Now you were also asked about the

6

functionality of the location of the receiver

7

or the speaker slot or speaker hole on a phone,

8

do you recall that?

9

A.

Yes.

10

Q.

And what, in your opinion, is

11

functional or nonfunctional about the location

12

or shape of the speaker slot or hole?

13

A.

Well, based on my comparison to other

14

phones, it became pretty clear that the

15

location of that speaker slot and the size and

16

the shape of that speaker slot really was not

17

determined by function.

18

different places on the face, and I seem to

19

recall having seen at some point a phone where

20

the speaker was actually on the top edge.

21

can't produce one as proof, but I do recall

22

that.

23

Q.

24
25

It could be many

So as long as it's somewhere near the

ear, it would be good enough?
A.

I

Yes.

Page 810
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question and ask another question, okay.

2

you don't -- you didn't mean to ask that

3

question, because you asked about phone, you

4

didn't ask design.

5

quicker than either one of us.

6

MR. BARQUIST:

7
8
9

Okay.

So

Your witness was

Yes, Your Honor.

BY MR. BARQUIST:
Q.

Mr. Bressler, could you please explain

to the Court the basis for your opinion, if

10

this is your opinion, for why an ordinary

11

observer could mistake the Samsung phone

12

RPX-149 for the Apple design?

13

MR. VERHOEVEN:

14

JUDGE PENDER:

Same objections.
Overruled.

And when

15

you say design, do you mean the '757, do you

16

mean the two patents together, sir?

17
18
19

MR. BARQUIST:

Thank you, Your Honor.

BY MR. BARQUIST:
Q.

Take it one at a time, so we're really

20

clear, Mr. Bressler.

21

Court your opinion for how it is an ordinary

22

observer could mistake the Samsung phone

23

RPX-149 for the design of the D '757 patent?

24
25

A.

Yes.

Could you explain to the

The D '757 patent describes a

rectangular solid that has radiused corners and

Page 811
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soft edges and a totally flat front surface.

2

The Samsung phones in question have -- are

3

rectangular in nature, have radiused corners,

4

have soft -- for the most part, soft sides, and

5

have a continuous flat front surface.

6

Q.

And same question with regard to the

7

'678 patent, can you explain how it is in your

8

opinion an ordinary observer could mistake the

9

Samsung phone RPX-149 for the design claimed in

10

the '678 patent?

11

JUDGE PENDER:

Actually, you asked a

12

different question.

The first way you asked it

13

was great.

14

other words, that was slightly leading, what

15

you just asked.

You said if he could mistake.

In

16

MR. BARQUIST:

Thank you, Your Honor.

17

JUDGE PENDER:

You're welcome.

18
19

BY MR. BARQUIST:
Q.

Mr. Bressler, could you please explain

20

what your opinion is with regard to whether or

21

not an ordinary observer could mistake the

22

Samsung phone RPX-149 for the design claimed in

23

the '678 patent?

24
25

A.

Absolutely.

I believe that the

'678 patent is the core of the overall

Page 812
1

impression created by these phones, which is a

2

continuous surface that is transparent over its

3

entire surface until it gets to a bezel, and

4

that it has lateral borders on either side that

5

are narrower and borders at the top and bottom

6

that are wider, and they all have

7

lozenge-shaped speaker slots.

8

So, to me, there's not very much that

9

isn't very, very subtle differentiating them,

10

except maybe the couple of little icons across

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the bottom.

12
13
14

Q.

What role, if any, do the four icons

across the bottom play in your analysis?
A.

I acknowledged them and thought about

15

them and determined that I didn't feel they

16

played an important role in the overall

17

impression of the design.

18

Q.

What role, if any, does the logo or

19

name of Samsung on the front of the phone play

20

in your analysis?

21

A.

None.

22

JUDGE PENDER:

23

Mr. Barquist, and he said none.

24

response, his response, sir.

25

MR. BARQUIST:

You rung that bell,
That was the

Yes, Your Honor.

Page 813
1
2
3

JUDGE PENDER:

All right.

Thank you.

BY MR. BARQUIST:
Q.

You were also asked some questions

4

during cross-examination about the iPhone 3G

5

and its design, do you recall that?

6

A.

Yes.

7

Q.

And I think, in that respect, the

8

discussion was on the curvature of the back of

9

the 3G and how that compared to the

10

'757 patent, do you recall that?

11

A.

I do.

12

Q.

And can you explain what role the

13

curvature on the back of the iPhone 3G plays in

14

your analysis about whether or not the 3G

15

practices the '757 patent?

16

A.

I believe that the overall impression

17

that an ordinary observer would have of

18

that -- of that patent, because the sides are,

19

in fact, spine curves and not exact radii, the

20

overall impression is simply that it's soft.

21

And given that overall impression, I believe

22

that the 3G and 3GS, provide that same overall

23

impression.

24
25

Q.

Going back one-half step, can you tell

us why you didn't consider the Samsung logo

Page 1073
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CERTIFICATE OF REPORTER

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TITLE:

3

INVESTIGATION NO:

4

HEARING DATE:

5

LOCATION:

6

NATURE OF 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: June 1, 2012

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9
10
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Certain Electronic Digital Media Devices
337-TA-796

June 1, 2012

Washington, D.C.
Hearing

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

13

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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.

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SIGNED:

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H. NGUYEN ____________________________
Signature of Proofreader

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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.

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SIGNED:CYNTHIA OTT ___________________________
Signature of the Court Reporter