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

Filing 1356

Unredacted Opening Memroandum Regarding Claim Construction 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. Nos. 1090, 1091) (Attachments: # 1 Exhibit 4 to the Cashman Declaration, # 2 Exhibit 14 to the Cashman Declaration, # 3 Exhibit 15 to the Cashman Declaration, # 4 Exhibit 17 to the Cashman Declaration, # 5 Exhibit 18 to the Cashman Declaration, # 6 Exhibit 20 to the Cashman Declaration, # 7 Exhibit 63 to the Cashman Declaration, # 8 Exhibit 64 to the Cashman Declaration, # 9 Exhibit 65 to the Cashman Declaration, # 10 Exhibit 66 to the Cashman Declaration)(Maroulis, Victoria) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

EXHIBIT 15
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
1

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

10
11

ALEXANDER J. HADJIS, ESQ.

12

KRISTIN L. YOHANNAN, ESQ.

13

Morrison & Foerster LLP

14

2000 Pennsylvania Avenue, N.W.

15

Washington, D.C. 20006

16
17

CHARLES S. BARQUIST, ESQ.

18

Morrison & Foerster LLP.

19

555 West Fifth Street

20

Los Angeles, CA 90013

21
22
23
24
25

Page 697
1

APPEARANCES (Continued):

2
3

For Respondents Samsung Electronics Co.,

4

Ltd., Samsung Electronics America, Inc., and

5

Samsung Telecommunications America, LLC:

6

CHARLES K. VERHOEVEN, ESQ.

7

Quinn Emanuel Urquhart & Sullivan LLP

8

50 California Street, 22nd Floor

9

San Francisco, CA 94111

10
11

KEVIN P.B. JOHNSON, ESQ.

12

Quinn Emanuel Urquhart & Sullivan LLP

13

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
1

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

11
12

MARC K. WEINSTEIN, ESQ.

13

Quinn Emanuel Urquhart & Sullivan LLP

14

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

15

Uchisaiwai-cho, Chiyoda-ku,

16

Tokyo, 100-0011, Japan

17
18
19
20
21
22

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

23

U.S. International Trade Commission

24

500 E Street, S.W.

25

Washington, D.C. 20436

Page 699
1

APPEARANCES (Continued):

2
3

Attorney-Advisor:

4

GREGORY MOLDAFSKY, ESQ.

5

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

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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

Page 750
1

description, yes.

2

Closer to the end meaning

the outsides.

3

JUDGE PENDER:

4

THE WITNESS:

5
6
7

Correct.
Yes.

BY MR. VERHOEVEN:
Q.

And when you look at D '015, the front

surface, do you see oblique line shading?

8

A.

I do.

9

Q.

And that's to indicate that the front

10

surface is transparent or translucent or highly

11

polished or reflective or something like that?

12

A.

13
14

I -MR. BARQUIST:

Objection, compound,

Your Honor.

15

JUDGE PENDER:

You know, there's no

16

real objection to compound if you're arguing

17

it's an improper question.

18

witness can answer it or not, you know.

19

THE WITNESS:

We'll see if the

I believe it fits the

20

description of what those diagonal lines are

21

supposed to represent.

22

BY MR. VERHOEVEN:

23

Q.

Thank you, sir.

24

A.

Three of those.

25

Q.

Thank you, sir.

And the D '757 patent

Page 751
1

actually does not claim a transparent,

2

translucent or highly polished reflective

3

surface on the front?

4

A.

Of the '757?

5

Q.

Yes.

6

A.

It does not, correct.

7
8

It does

describe a flat surface.
Q.

9

Can we go to RDX-49C-12, please.
In conducting your analysis of the

10

scope of the '757, you didn't happen to review

11

the Manual of Patent Examining Procedure Rule

12

1503.02, did you?

13
14
15

A.

No, but I remember seeing the lines

you've highlighted.
Q.

Oh, so you do remember seeing these

16

lines?

17

into the record, Your Honor.

18

shading must be used to show transparent,

19

translucent and highly polished or reflective

20

surfaces such as a mirror."

21

And I'll read those highlighted lines
"Oblique line

So you were aware of that?

22

A.

Yes.

23

Q.

Now, can we go back to the slide that

24

was just on, Ryan?

So here in '757, it's not

25

claiming that, so that -- it can't be included

Page 752
1

in '757, right?

2

MR. BARQUIST:

Objection, Your Honor.

3

I mean, I don't know what that question means.

4

Can't be included.

5

misstatement of the law if it's an attempt to

6

state the law.

7

But I think it's a

MR. VERHOEVEN:

8

question.

9

I'll withdraw the

BY MR. VERHOEVEN:

10
11

Q.

In any event, there is no oblique line

shading in '757, right?

12

A.

That's correct.

13

Q.

But there is on '015, right?

14

A.

There appears to be, yes.

As I said,

15

I haven't studied the patent in depth in all

16

the views.

17

Q.

And if we move on, and you compare

18

both on the left-hand side, both the initial

19

iPhone and D '757, you see a continuous rounded

20

surface or curved surface that goes from the

21

flat front surface to the flat back, do you see

22

that?

23

A.

On which one, sir?

24

Q.

'757?

25

A.

Yes.

Page 781
1

some of them required more complicated or less

2

complicated processes.

3

them specifically or create documentation that

4

would show substantial analyzation of the

5

engineering.

6

Q.

But I didn't analyze

For these phones that you put in your

7

report as alternative designs, you did not do

8

anything specific on each of those phones to

9

determine a comparable manufacturing cost

10

between the different phones, did you, sir?

11

A.

No, I did not.

12

Q.

And you didn't acquire any data on

13

whether the performance of any of your

14

purported alternatives was degraded by the

15

alternative designs, did you?

16

A.

I think that depends on what you mean

17

by performance.

18

check that, and reviewed the phones.

19

mean performance in terms of speed or other

20

technical terms, no, I did not analyze that.

21

Q.

If you mean operability, I did
If you

And you don't have any information for

22

these alternative phones as to whether any

23

product feature affected the quality of the

24

article, correct?

25

A.

I have no specific data in that

Page 782
1
2

regard, no.
Q.

And you also don't have any data on

3

whether your alternative design phones make the

4

device more complicated for the user to use,

5

correct?

6

A.

I did review them briefly to get a

7

sense of what the level of operability was, and

8

found them generally comparable, though I

9

didn't get into the detail.

10

Q.

And you have no data and didn't review

11

any data on whether your alternative designs

12

make the device more complicated, other than

13

looking at them and thinking about it, right?

14
15
16

A.

That's correct.

the design.
Q.

I was dealing with

With the aesthetic design.

Now, in terms of the functionality

17

issue, using the standard that you used in your

18

report, isn't it true that it's your opinion to

19

His Honor that having a transparent cover over

20

the display on a smartphone is not functional?

21

A.

No, that is not my opinion.

That

22

was -- when it was presented earlier yesterday,

23

it was taken out of context.

24

it is, of course, critically important to have

25

a clear display directly over the -- a clear

What -- I believe

Page 783
1

portion directly over the display.

2

the display and the location of the display and

3

having it clear all the way out to the edges is

4

certainly not a functional requirement.

5

Q.

The size of

I'd like to play from your deposition

6

dated April 24th, 2012, an excerpt from page

7

209, lines 9 through 21.

8

(VIDEOTAPE PLAYED AS FOLLOWS:)

9

"QUESTION:

Using your definition of

10

functional in your analysis, is the use of a

11

cover that is transparent over a display

12

functional?

13
14

"ANSWER:

exclusively functional.

15
16

I believe it is not

"QUESTION:

And therefore, by your

definition, it is not functional, correct?

17

"ANSWER:

18

"Objection.

19

"ANSWER:

20

23

It is not functional as

we've defined it relative to a design patent.

21
22

Correct."

(END OF VIDEOTAPED PORTION PLAYED.)
BY MR. VERHOEVEN:
Q.

And you also, using your definition,

24

do not believe that a relatively large display

25

screen is a functional part of a smartphone

Page 784
1
2

design, correct?
A.

I believe we were talking in the

3

context of the patents that I was analyzing.

4

And there was nothing in the patents that said

5

they were smartphones.

6

think I spoke correctly.

7
8

Q.

So in that context, I

Let's play from your April 24th

deposition, page 212, lines 7 through 10.

9

(VIDEOTAPE PLAYED AS FOLLOWS:)

10

"QUESTION:

In your view, is having a

11

relatively large screen for a smartphone

12

functional, as you've used that term?

13
14

"ANSWER:
report, no."

15
16
17

As it's defined in my

(END OF VIDEOTAPED PORTION PLAYED.)
BY MR. VERHOEVEN:
Q.

Using your definition of functional,

18

it's your opinion to His Honor that the

19

incorporation of a display element into a

20

smartphone is nonfunctional, correct?

21

A.

If you are asking me about a

22

smartphone specifically, having a display is

23

functional.

24

the '678 patent, which is what I believe we

25

were discussing, there is nothing there that

If we're talking about analysis of

Page 785
1

indicates it's specifically a display, there's

2

nothing claimed that it's specifically a

3

display.

4

Q.

So it's your position and opinion that

5

a display element and the use of a display

6

element where related to the '678 patent is a

7

nonfunctional component and consideration,

8

right?

9

JUDGE PENDER:

You know, I'm going

10

to -- I anticipate the objection there, and I'm

11

not going to allow the question.

12

I'm going to say it's asked and answered, and I

13

thought it was answered in quite good

14

precision, Mr. Verhoeven.

15

need to go any further.

16

MR. VERHOEVEN:

17
18

First of all,

I don't think you

Okay.

BY MR. VERHOEVEN:
Q.

It's your opinion to His Honor that

19

locating a receiver or opening in the upper

20

portion of the front face of a smartphone is

21

not a functional consideration, correct?

22

A.

As I was defining the use of

23

functionality, analyzing those patents

24

in -- that's correct.

25

of, is it a good place for a speaker?

In the general context
It

Page 786
1
2
3

absolutely is functional.
Q.

But in your opinion, as you used the

term functional?

4

A.

Correct.

5

Q.

It's your opinion to His Honor that

6

locating a speaker in the upper portion of the

7

front face is not a functional consideration,

8

correct?

9

A.

10

location is a functional consideration.

11
12

MR. VERHOEVEN:

15

Your Honor, if I could

have one minute to review my notes.

13
14

I do not believe its aesthetic

JUDGE PENDER:

Please, sir.

BY MR. VERHOEVEN:
Q.

In your view, the location of the

16

speaker or the receiver aperture in the upper

17

portion of the front face of a smartphone is

18

not functional, as you have used that term in

19

your expert report?

20

A.

As I have understood the use of that

21

term in analyzing a design patent, I did not

22

believe that its aesthetic location is

23

functional.

24
25

MR. LUCAS:

Your Honor, is it okay if

we go back on the confidential record -- I'm

Page 787
1

sorry, the public record?

2

MR. VERHOEVEN:

Actually, I was just

3

going to say -- thank you, I was just going to

4

say at this time, I pass the witness, Your

5

Honor.

6

JUDGE PENDER:

Well, anyway, it's a

7

beautiful time to take a break.

8

minutes over, and I've noticed that clock up

9

there is a few minutes fast.

We're about 10

So when that

10

clock says 20 of 11, we will return.

11

Thank

you.

12

(Whereupon, a short recess was taken.)

13

MR. BARQUIST:

Your Honor, you may

14

want to inquire, but Mr. Lucas has told me he

15

doesn't have questions for the witness, so if I

16

may begin redirect.

17
18

JUDGE PENDER:

I'm sorry, I'm not

MR. BARQUIST:

You may -- if you want,

hearing.

19
20

I can inquire of Mr. Lucas, but he's told me

21

that he does not have cross-examination, so I

22

was prepared to start.

23

JUDGE PENDER:

24

word, sir.

25

//

I'll take you at your

Page 1047
1

or Wednesday morning and be unhappy about that,

2

okay?

3

MR. JOHNSON:

Understood.

4

JUDGE PENDER:

Thank you.

5

MR. McELHINNY:

6

(Whereupon, at 4:50 p.m., the hearing

7

recessed, to reconvene at 8:45 a.m. on Monday,

8

June 4, 2012.)

9
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Thank you, Your Honor.