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.
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