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 63
FILED UNDER SEAL

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

____________________________________
APPLE, INC., a California corporation
Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
Defendants.
___________________________________

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Case No. 11-cv-01846-LHK

EXPERT REPORT OF SAM LUCENTE

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AIGA / U.S. Department of Transportation Symbols
The first set of 34 symbols was published in 1974, and received one of the first Presidential
Design Awards, then 16 more symbols were added in 1979. ―These copyright-free symbols have
become the standard for off-the-shelf symbols in the catalogues of U.S. sign companies..‖37
Even Apple‘s former CEO, in directing his designers and programmers, noted the
pervasiveness of the rounded rectangle as a proven, universal communication symbol saying,
―Well, circles and ovals are good, but how about drawing rectangles with rounded corners?‖
―Rectangles with rounded corners are everywhere!... Just look around this room… And look
outside, there‘s even more, practically everywhere you look!‖ ―Within three blocks, we found
seventeen examples . . . I started pointing them out everywhere until he was completely
convinced.‖ Eventually his software engineer conceded and implemented this direction: ―When
he finally got to a No Parking sign, I said, ‗Okay, you‘re right, I give up. We need to have a
rounded-corner rectangle as a primitive!‖38 The rounded rectangular icon was implemented on
early Apple desktop applications following the Xerox efforts.
The current Apple iOS Human Interface Guidelines also emphasize the functionality of
the icons themselves. Apple expressly adopted a consistent rounded rectangular design as a
functional design element as noted in their detailed specifications. Using current tools not
37
38

http://www.aiga.org/symbol-signs/
Steve Jobs, Walter Isaacson (page 130).
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available to the Xerox designers, the conversion from a square icon to a consistent, rounded
square icon with added visual effects is programmed into the guidelines.
―When iOS displays your application icon on the Home screen of a device, it automatically adds
the following visual effects:


Rounded corners



Drop shadow



Reflective shine (unless you prevent the shine effect)

For example, a simple 57 x 57 pixel iPhone application icon might look like this:

When it‘s displayed on an iPhone Home screen, iOS adds rounded corners, a drop shadow, and a
reflected shine. So the same application icon would look like this:‖39

Emphasizing the functional aspect of the icons, the Apple iOS Human Interface
Guidelines note that, ―Beautiful, compelling icons and images are a fundamental part of the iOS
user experience. Far from being merely decorative, the icons and images in your app play an
essential role in communicating with users.‖ They continue, saying, ―Embrace simplicity. In
particular, avoid cramming lots of different images into your icon. Try to use a single object that
expresses the essence of your app. Start with a basic shape and add details cautiously. If an
icon‘s content or shape is overly complex, the details can become confusing and may appear
muddy at smaller sizes.‖40
Apple‘s Guidelines also acknowledge the need for universal imagery and metaphors in
icons that convey their function to the user easily. Initially, Apple instructs that designers must
―[u]se universal imagery that people will easily recognize. Avoid focusing on a secondary or
obscure aspect of an element.‖ ―Try to balance eye appeal and clarity of meaning in your icon so
that it‘s rich and beautiful and clearly conveys the essence of your application‘s purpose. Also,
39

Apple iOS Human Interface Guidelines,
https://developer.apple.com/library/IOs/#documentation/UserExperience/Conceptual/MobileHIG
/IconsImages/IconsImages.html#//apple_ref/doc/uid/TP40006556-CH14-SW1
40
Apple iOS Human Interface Guidelines,
https://developer.apple.com/library/IOs/#documentation/UserExperience/Conceptual/MobileHIG
/IconsImages/IconsImages.html#//apple_ref/doc/uid/TP40006556-CH14-SW1
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it‘s a good idea to investigate how your choice of image and color might be interpreted by people
from different cultures.‖
Icons in the shape of rounded rectangles as a functional element on a touch interface were
used on the first smartphone, the IBM Simon, which was launched in 1993.41 The Simon
included a calendar, address book, world clock, calculator, note pad, e-mail, and games. The
Simon used a touchscreen and optional stylus to dial phone numbers, send faxes and write
memos. Text could be entered with either an on-screen ―predictive‖ keyboard or QWERTY
keyboard. The IBM Human Factors Group spent two years conducting studies and providing
usability guidance, again focusing on the functional aspects of the graphical user interface.

Views of IBM Simon Smartphone and Graphical User Interface (1993)
The Simon‘s icons are positioned in an icon grid much like the Xerox Star. When touched, the
icons launch applications, such as the phone shown here.42 Rounded rectangles are used
consistently throughout the Simon design.
The Simon included another functional element by adding descriptive labels under the
icons to provide a redundant means of communicating the function to the user in addition to the
graphical image. More importantly, however, the small size of the touchscreen led to the
introduction of an ―icon dock,‖ containing the most frequently used icons located at the bottom
of the rectangular screen. The dock concept was another functional element in the evolution of
41

http://www.business2community.com/mobile-apps/a-look-back-in-time-at-the-firstsmartphone-ever-040906
42
http://research.microsoft.com/enus/um/people/bibuxton/buxtoncollection/detail.aspx?id=40
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Another Apple interface designer, Freddy Anzures, testified to the number of icons on the
similar D‘305 Patent discussed below, stating that, ―based on a design perspective, there were a
certain number of applications that we were looking at for the phone, they happen to round out to
a particular number, and so we determined this grid based on the number of applications that we
had. Deposition of Freddy Anzures (Anzures Dep.) at 141:14-19. This is a functional
requirement determined by the manufacturer.
The spacing, proportions, shape and number of the icons on a graphical interface are
fundamental components of human-computer interaction. Thus, the rounded square elements of
the D‘790 ―design‖ are merely functional and not decorative in the context of a ―Graphical User
Interface for a Display Screen or Portion Thereof.‖
Accordingly, it is my opinion that the claimed elements of the D‘790 design are all
functional, and not decorative, whether taken as individual elements or the design as a whole.
Design Patent D 604,305
The D‘305 patent application was filed on June 23, 2007, and the patent issued on
November 17, 2009. The D‘305, entitled ―Graphical User Interface for a Display Screen or
Portion Thereof,‖ shows two variations of the same ―design,‖ with one in color and one in black
and white. The overall rectangular outline of the D‘305 figures matches exactly the rectangular
outline that is centered within the larger rounded rectangular shapes in the D‘790 Patent.

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Figs. 1 and 2 of D604,305
Functionality of a Rectangular Display, Icon Grid, Icon Dock, and the Size, Shape and Number
of Icons
Given that this patent has the same title as D‘790, I once again assume for the sake of this
report that the upper 12 squares with rounded corners and the lower 4 squares with rounded
corners depict selectable icons on a display screen. The D‘790 Patent and the D‘305 Patent
depict the same basic functional elements. Accordingly, for all the reasons set forth above
regarding the D‘790, it is my opinion that the rectangular shape, grid of rounded squares,
separate lower grouping of rounded squares, and the size, shape and number of the 16 rounded
squares are all functional elements in the D‘305 Patent.
Several aspects of the functionality of these elements are further reinforced in D‘305. For
example, use of the gray background for icon dock area uses shading to functionally group like
items. The use of a color or shading to functionally group the icons on the dock is a functional
necessity, but the exact details regarding color or texture could be an ornamental choice. Thus, it
is my opinion that these elements of the D‘305 ―design‖ are merely functional and not
decorative, as set forth more fully above.
Functionality of Status Indicators
I will assume for the sake of this report that the symbols and nomenclature at the top of
the large rectangular area are status indicators on a display screen. The status indicators in the
upper area are functional because they are located at the top to provide quick readability.
Moreover, the status indicators use established conventions for cellular or wireless connectivity:
name of the carrier, type and strength of cellular connection, time and battery level to
communicate status.
The International Standards Organization49 defines status indicators as ―a graphic symbol
that represents a state within the system. It is noted that status indicators assist a mobile device
user to confirm some system-setting state without accessing the system settings. They are
dynamically updated only when the state changes in real-time. Users are not able to use the
status indicator to control the change. For example, a status indicator is used to show that
vibration is set in a cellular phone instead of sounds to indicate ringing or alert. Or as a second
example, a status indicator is used to show the remaining battery charge of a personal data
assistant (PDA).‖
The status indicators on a graphical user interface are a fundamental, functional element
for human-computer interaction. Thus, the top line elements of the D‘305 ―design‖ are merely
functional elements, and not decorative.

49

International Standards Organization document ISO/IEC 24755:2007(E) 4.5.
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The Functionality of Icons
Icons themselves are functional because they are metaphors for the function the user
wishes to access. In other words, icons are descriptive of the applications and/or features that
they activate, and thus they are functional. The International Organization for Standardization
(ISO) provides a relevant definition of icons:
―Icons are used on Information and Communications Technology (ICT) products
to facilitate interaction with their users. Icons can provide a language-independent
means of communicating information to the user. They can facilitate the user‘s
ability to learn, understand, and remember functional elements of the system, and
aid in the manipulation of these elements. They are especially suitable for
elements that are frequently used and where the meaning of the icon can be easily
understood.
Typically, icons draw on a user‘s environment to provide a metaphorical
representation of the user‘s tasks, objects, actions, and attributes. A metaphor
provides an analogy to concepts already familiar to the user, from which the user
can deduce the system‘s use and behaviour. Icons can express the metaphor
directly, as graphical representations of the metaphorical objects. They may also
directly represent a physical object.
Icons are distinguished from other user interface symbols by the fact that they represent
underlying system functions. Icons represent the objects, pointers, controls and tools making up
the domain of an application that users manipulate in doing their jobs. They can also represent
status indicators used by the computer system to give information to the user and to mediate user
interactions with software applications..‖50
Technical authors, Mullet and Sarno provide clear direction to designers of icons stating:
A crucial aspect of visual imagery is the speed and directness of recognition and
identification. Selecting the correct approach for a particular communication task
is more a discipline than a technique:
1.

Use an icon if the concept to be communicated is a familiar object
or an externally obvious state.

50

ISO/IEC TR 11581-1:2011(E) ) © ISO (the International Organization for
Standardization) is a worldwide federation of national standards bodies (ISO member bodies).
The work of preparing International Standards is normally carried out through ISO technical
committees. Each member body interested in a subject for which a technical committee has been
established has the right to be represented on that committee. International organizations,
governmental and non-governmental, in liaison with ISO, also take part in the work. ISO
collaborates closely with the International Electrotechnical Commission (IEC) on all matters of
electrotechnical standardization.

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Analysis of Prior Art Regarding Design Patents D'790, D'305, and D'334
The following section considers a number of prior art references for the D'790, D'305,
and D'334 patents. I base my analysis of the patents and the prior art on the testimony of the
inventors named on the patents, Imran Chaudhri and Freddy Anzures, who testified about their
own understanding of what these patented designs claim. I have made no judgments as to
whether they have accurately described these patents, nor have I offered my own alternative
claim interpretation.
According to Imran Chaudrhi, the D'790 patent appeared to be the homescreen of the
iPhone. Chaudhri Dep. at 133:11-12. The square elements in the patents were called "icons".
Id. at 133:18. And these icons are laid out in "two sections". Id. The first section included the
upper rows of icons, and the second section included the bottom row of icons below a blank area.
Id. at 133:18-24. Chaudhri testified that this arrangement included "rows and columns that are
orderly — laid out in an orderly fashion." Id. at 135:11-14. He also called the layout "clean,"
"regular," and "predictable." Id. at 135:17-24. Regarding the space above the bottom row of
icons, Chaudhri stated that this was a place where additional icons could go, so there was " really
no difference between it and the three by four above it." Id. at 139:24-25. He also stated that he
did not know if the blank row was a part of his invention, but that it was "more a result of how
many icons are on the screen." Id. at 143:16-144:12. If more icons were added to the D'790
layout, they would go in the empty row, he said. Id. Chaudhri also stated that the D'790 design
would be substantially the same if one, two, three, or four icons were added to the empty row.
Id. at 188:4-17. Also, according to Chaudhri, the spacing between the rows of icons in the upper
section included "an appreciable amount of room to accommodate a label that would indicate
what the icon is.‖ Id. at 159:25 and 160:1-2. He also stated that in comparison to the D'334
patent, the D'790 patent was lacking in details and was minimalistic. Id. at 207:9-23.
Freddy Anzures noted that the D'790 patent included "round rects," or rectangles, that he
assumed were icons. Anzures Dep. at 159:24-160:18. Anzures also stated that the D'790
included a specific spacing and scale for the icons "with respect to the aspect ratio of the screen."
Id. at 160:21-161:3. He also testified about the D'790 patent that "the visual proportion creates a
hierarchy when you look at the device," and that the "four at the bottom" and the "cluster above
it" communicates "a certain hierarchy of use, of what's important." Id. at 160:23-161:3.
Imran Chaudhri stated that the D'334 design included "icons" and a "dock". Id. at 192:67. He did not know whether the words "AT&T" or "YouTube" were a part of the claimed
design. Id. at 194:25-195:25. He identified a number of icons, including a "Phone" icon that had
a telephone receiver or handset in it, id. at 170:4-25; a "Text" icon that had a "speech bubble" or
"chat bubble" in it, id. at 172:14-9; a "Notes" icon with a picture of a memo pad, id at 173:11-15;
an "iTunes" icon with "music notes" in it, id. at 173:21-174:8; a "settings" icon that included
gears, id. at 176:13-177:3; a "photos" icon that depicted a flower, id. at 179:13-20, and an icon
above the words "YouTube" that depicted an old-style television, id. at 184:12-20.

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Regarding the D'305 patent, Chaudhri indicated that it was substantially the same as the
design in the D'334 patent. Chaudhri Dep. at 203:8-13. He noted as differences that the D'334
design had "page dots" and a "pause button or icon," which the D'305 design did not, and that
these were the differences that made the D'334 design a "new and different design when
compared to the '305 patent." Id. at 204:3-205:12. Regarding the D'305 patent, Anzures stated
that it was the "visual execution" of the D'790 layout. Anzures Dep. at 162:20-21. He also
stated that it had a "bottom dock". Id. at 50:11-12. Anzures also indicated that he thought "the
idea of having applications on a phone and presented in rounded rectangles or rounded squares
for icons . . . had not been done before." Id. at 53:6-11. Chaudhri stated that the D'305 design
was "substantially the same as the layout that is shown in the D'790 design patent." Chaudhri
Dep. at 198:2-6.

Anticipatory Reference for D'790, D'305, and D'334
1. January 9, 2007 Public Announcement of the iPhone by Apple

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On January 9, 2007, several months before the alleged conception date for D'790 and
D'305, and over a year before the alleged conception of D'334, Steve Jobs publicly announced
the iPhone and Apple released images showing a display screen that is substantially the same as
the D'790, D'305 and D'334 designs. The only difference between the images released by Apple
in January 2007 and the D'305 patent appears to be that the D'305 patent shows a different
number on the icon above the word Calendar, it has the addition of an icon featuring an old-style
television, and the icons labeled Calculator, Notes, Clock and Settings have moved in their
relative positions. An ordinary observer would find these designs to be substantially the same.
And although there are a few extra differences between the January 9th image and the D'334
patent, these would be considered minor and obvious to someone skilled in the art. The addition
of an extra icon in the case of the D'790 patent, or four extra icons for the D'334 patent, would be
obvious to a designer skilled in the art, especially in light of the testimony by Imran Chaudhri
that adding icons in the blank row would still yield substantially the same design.

Comparison between D'305, the Jan. 9, 2007 image, D'334, and D'790

Primary Obviousness References for D'790, D'305, and D'334
1. BellSouth/IBM Simon Personal Communicator — (1993)
The Simon Personal Communicator was developed as a joint venture between BellSouth
and IBM in the early 1990s and was first shown publicly at a trade show in 1992. The phone
was released in 1993 and utilized a touchscreen interface. The interface had a dock of four icons
at the bottom of the screen. The phone also ran applications, and the icons for these applications
were arrayed in rows and columns, and included a calendar, world clock, calculator, note pad,
mail, and address book. The grid pattern provided enough room to accommodate text below the
icons. And as can be seen in the middle image below, the background displayed behind the four
bottom row or "dock" icons is different than that behind the icons displayed above, helping it to
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stand out in a visual hierarachy. The dock is also static though the remainder of the screen
changes, just as the dock in the GUI design patents remains static while pages of icons are
scrolled through, according to Mr. Chaudhri. Chaudhri Dep. at 134:4-10.
The Simon phone shows that from the inception of the "smartphone" era, the obvious and
intuitive way to create a touch user interface was through icons and rounded rectangular
elements depicting common, everyday metaphors and arranged in a grid pattern of rows and
columns. Using the Simon interface as a primary reference in combination with the collection of
icons in the chart at the end of the section, a designer of ordinary skill in the art could arrive at a
design that is substantially the same as the D'790, D'305, and D'334 patents. I believe this
because as telephone and touchscreen technology has improved, phones have decreased in size
from what they were in the early 1990s and display screens have become much more high
resolution. Designers can visually communicate more in a smaller area than was possible with
lower resolutions and larger pixel dimensions in older devices. Reducing the size of the Simon
to account for these changes would yield a display screen with dimensions more similar to the
three design patents. Maintaining the dock already present in the Simon, a designer would find it
obvious to arrange icons and text labels above that dock in rows and columns. A configuration
of 4 columns would be obvious in light of the 4 icons in the dock, and as seen in the secondary
references below, 4 or 5 rows of icons would be an obvious design choice if the display screen
could accommodate it.

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2. Samsung Mobile UX Group — Intelligent Screen Interaction Studies
The following image was included in a report and presentation created within Samsung in
mid-2006 by the Mobile UX Group. I understand that the report was designed to investigate
touchscreen interfaces and to develop and recommend an appropriate interface for a touchscreen
mobile phone.

The above side-by-side comparison shows that the Samsung Mobile UX Group report
already included a design that was substantially the same as the one shown in the D'790 patent.
Both designs include squares with rounded corners. These rounded squares are arranged in a
grid pattern in both designs. The squares in both designs also have no ornamentation in them
and the display area is rectangular in both designs. There is no status bar at the top of the UX
report, but I understand that the elements at the top of the D'790 patent are purportedly not part
of the claimed design, so that is not a consequential difference. Also, the colors used in the UX
report do not affect my opinion as I understand that the D'790 patent makes no claim as to any
specific colors.
The only differences between the designs are that the Mobile UX Group report design
shows a grid pattern of 3x5, while the D'790 includes a 4x4 pattern with the appearance of a
missing row. I believe that a designer skilled in the art would have found it to be an obvious
choice to modify the Mobile UX Group design to have an extra column and to remove the fourth
row if that were a desirable configuration for the aspect ratio of the touchscreen display. Indeed,
the following image from the report shows that the Mobile UX Group considered a pattern of 4
columns, but chose 3 columns in order to optimize the size of the squares for use in a
touchscreen device with the specific aspect ratio presented.

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3. LG KE850 ("LG Prada")
The LG Prada was announced in December 2006, and images of the phone were already
public by that time because it had won a design contest in September of 2006. The display
screen of the device is rectangular and of similar proportion to the designs shown in the asserted
GUI patents. The images below show several alternate graphical user interface displays
produced by the LG Prada.

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The first image contains a row of four squares or icons at the bottom of the display
screen, as do the D'790, D'305, and D'334. The second image of the Prada contains rounded
rectangles arranged in a grid pattern. Although the grid pattern is 3x5 in the LG Prada and 4x4
with an apparently missing row in D'790, it would be obvious to a designer skilled in the art to
alter the number of rectangles in the rows and columns to match what is displayed in D'790 if the
designer had a reason to make this change. This is especially true because the image on the left
already has four icons in a row, so it was apparent to the designers of the LG Prada that a row of
four was feasible if desired. And as seen in the image on the bottom right, the LG Prada
displayed icons with text below them, arranged in a grid pattern. For these reasons, I believe the
user interface of the LG Prada is a primary obviousness reference for the asserted GUI patents.
In combination with secondary references, the LG Prada user interface renders as obvious
the designs in the D'790, D'305, and D'334 patents, as they are claimed by Apple's designers.
For example, the four icon dock at the bottom of the screen could be used in combination with a
device such as the BlackBerry 7130e to create a 4x4 grid of colorful icons with a missing row
above the fourth row, like D'305, or a 4x5 grid with a missing icon in the fourth row, like the
D'334. And as with many of the other prior art devices in this report, the LG Prada displays
icons using common everyday metaphors. For example, there is an icon featuring the receiver of
an analog phone, a gear wheel, an envelope, and an address book. These features further render
obvious the individual icons in the D'305 and D'334 patents.
4. Finnish Design Application 20030256
Design application 20030256 from Finland was published on April 29, 2004. It depicts
an organization of icons in 4x5 grid pattern. The icons are rounded rectangles and are evenly
spaced. The icons also contain images that are used in graphical user interfaces as common
metaphors. For example, the following images are present: an analog phone receiver, musical
eighth notes, a note pad, a calendar, a clock, and a spiral bound address book.

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Comparison views of D'305, Finnish Design Registration 20030256, and D'334
The above side-by-side comparison shows that the Finnish design is very similar to the
designs in the D'305 and D'334 patents. For example, the Finnish design does not include text
below the icons and there is no status bar or region at the top of the display. The D'305 and
D'334 patents each have empty or blank spaces above the dock, while the Finnish design has a
full grid.
I believe it would have been obvious to a designer skilled in the art to remove some of the
differences between the Finnish design and either D'305 or D'334. For example, a slight rescaling of the Finnish design so that it displays squares instead of rectangles makes the grid
pattern, icon size, and icon spacing virtually identical to that in the D'305 and D'334 patents:

Comparison views of D'305, re-scaled Finnish Design Registration 20030256, and D'334

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Also, as explained below, adding text to label icons was a common and obvious design choice at
the time the D'305 and D'334 were allegedly conceived. Status bars were another commonplace
design choice for user interface displays in mobile devices in 2007. Thus, any modifications or
secondary reference combinations needed to make the Finnish design substantially the same as
the D'305 and D'334 designs would have been obvious to a designer skilled in the art of creating
a graphical user interface for a mobile device in 2007.
5. Japanese Design Patent D1279226 (Issued Aug. 21, 2006)
The Japanese design patent below shows that several design elements said to be claimed
in the asserted GUI patents were obvious prior to their alleged conception. Most notably, the use
of rounded squares for icons or icon containers. Also, the arrangement of those rounded squares
in two sections. Just as Mr. Chaudhri and Mr. Anzures testified regarding the D'790 patent, the
Japanese reference below has a row of icons at the bottom of the display that are part of a
different visual hierarchy from the icons above, which can help in denoting their importance.

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6. Sharp Zaurus SL-6000L
The Sharp Zaurus SL-6000L was released in 2004 and includes a user interface with
colorful square icons arranged in a grid pattern.

Comparison views of D'305, Sharp Zaurus SL-6000L, and D'334.
The above side-by-side comparison shows the three designs to be similar to one another.
For example, the user interface display in the Sharp Zaurus SL-6000L contains an array of
colorful icons arranged in a grid pattern. The icons are square in all three displays. There are
also text labels below each icon for all three. The Sharp Zaurus SL-6000L display also includes
a status bar that shows information such as the time and battery strength, although it is located at
the bottom of the screen, not the top. The Sharp Zaurus also includes a number of icons with the
same or similar text and metaphor as the D'305 and D'334 patents. For example, all three have
an icon with the word "calendar" below a calendar page with a day and number on it; all three
have an icon above the word "clock" with an image of a clock on it; all three include an icon
labeled "calculator" with the addition, subtraction, multiplication, and division symbols arranged
in a 2x2 grid on it; and all three have an icon labeled "mail" or "Email" with a picture of an
envelope on it. Also, both the Sharp Zaurus SL-6000L and the D'334 patent have an icon

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featuring musical eighth notes and a circular element. Each of these two designs also has 5 rows
of icons.
There are a few differences between the Sharp Zaurus SL-6000L design and the two
Apple designs. For example, the Sharp Zaurus SL-6000L design has 3 columns while the D'305
and D'334 patents have 4 columns.

7. Midinux
The Midinux was released on April 18, 2007 and includes a user interface with colorful
rounded square icons with labels beneath that are arranged in a grid pattern, and a dock of icons
at the bottom of the screen.

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Early Development of Computer Graphical User Interfaces
1. Xerox Star display – (1981)
The Xerox Star, released in 1981, featured a functional icon layout with icons arrayed in a
grid pattern. Frequently used icons were placed at the bottom of the screen and were given text
labels. Many icons were square with rounded corners. This reference was the basis for the
contemporary development of iconography. The display also contained a status bar at the top of
the display.

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The following image shows a Xerox design study that was done in 1980. The image shows a
graphical user interface design using square icons with rounded corners. The icons are displayed
in an evenly spaced grid pattern. Combining this reference with the icons collected below would
be enough to create designs that are substantially the same as the D'305 and D'334 designs.
Removing the content of the icons to leave only the outlines of rounded squares would yield the
D'790 patent.

(http://www.digibarn.com/collections/screenshots/xerox-star-8010/index.html)
2. Arthur — Acorn Computers (1987)
In 1987, Acorn Computers released an operating system known as Arthur that utilized
icons and a taskbar (or icon bar) at the bottom of the display. The system used common
metaphors such as a clock, a calculator, a calendar, and a notepad for the icons. This reference
helps render those metaphors as obvious for use in an operating system, as well as placing
commonly used icons in a dock or taskbar at the bottom of the display screen.

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3. NeXTSTEP — (1989)
The NeXTSTEP user interface was released in 1989 and featured a dock where icons
were gathered. The icons were squares with colorful images on them displaying the various
metaphors that represented the underlying applications. This reference renders obvious the
square shape of the icons in the GUI patents as well as the dock.

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4. Windows 95 — (1995)
In 1995, Microsoft released the Windows 95 graphical user interface-based operating
system. The system featured icons, arranged in a grid pattern, included text labels below the
icons, and a dock of applications in use.

5. Mac OS X 10.4 — Tiger (2005)
The Tiger operating system, released in 2005, included a user interface application called
the Dashboard. The Dashboard displayed a dock at the bottom of the screen where square icons
with rounded corners were located. These icons also had text labels beneath them and the dock
featured a background distinct from the background used for the main screen. Among the icons
in Dashboard were those for calculator, calendar, and stocks applications or "widgets". Several
icons, such as the calculator, calendar, and stocks icons look substantially the same as they do in
the D'305 and D'334 patents.

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Development of PDAs and Phones with Graphical User Interface Systems
8. BellSouth/IBM Simon Personal Communicator — (1993)
As mentioned above, the IBM Simon was the first "smartphone" and contained a number of
features that Apple's inventors claimed were new and unique to the Apple GUI design patents.
9. MessagePad — Apple Newton — (1993)
The MessagePad was developed by Apple in the early 1990s and featured a touchscreen
user interface. Various models of the MessagePad are shown below, all of which feature a user
interface with icons arrayed in a grid pattern, with common applications represented in a dock,
usually at the bottom of the screen.

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10. Tandy Zoomer — (1992)
In 1992, the Tandy company released the Tandy Zoomer, which was a personal digital
assistant ("PDA"). The Zoomer was a touchscreen device and the graphical user interface utilized
icons arrayed at the bottom of the screen in a dock region. The icons included a calendar page, an
analog phone receiver, a calculator, a writing pad, and a world clock.

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11. Handspring Visor — (1999)
Like its predecessors, the Handspring Visor user interface displayed icons arranged in a grid
pattern with text labels beneath. A dock of four icons for commonly used tasks surrounded a stylus
input matrix in a 2x2 grid. The Visor had icons for common applications such as calculator, date
book, mail, addresses, and world clock. The Visor also had a status bar at the top of the display
showing information such as the time and battery strength. A location indicator on the side of the
display indicated the portion of the icon catalog being displayed on the screen. Although the user
interface included a 3x4 grid pattern, it would be an obvious choice to a designer with skill in the
art to create a 4x4 grid if the screen permitted. Using this device as a primary reference, adjusting
the dock to look like the one in the Simon Personal Communicator, and adding square icons from
the collection below, the display of the Visor could be easily altered to look substantially the same
as the GUI patents.

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12. Palm
a. Palm i705
The Palm i705 is an example of an early PDA device made by Palm. The i705 device
was released in January 2002 and the display maintained the same general appearance as the
predecessor Handspring device.

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b. Palm Treo
The Palm Treo is a line of PDAs beginning in 2002. Building off of the earlier
Handspring and Palm devices, the Treo display featured colorful icons arranged in a grid pattern.
The display also had a status bar at the top including information such as time, network, battery
power, and signal strength. The devices also had icons for various applications such as
messages, calendar, picture/video, calculator, memos, and contacts, and each icon had a text
label beneath.

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13. BlackBerry Devices
Beginning in the late 1990s, the company Research in Motion (RIM) developed and
produced BlackBerry devices that operated as smartphones and PDAs. Representative pictures
of the displays of various models are shown below. In general, the displays for the BlackBerry
devices share many of the same features:
 Colorful array of icons
 Icons in matrix pattern
 Status bar or region at top of display screen, including information such as
time, network, battery power, and signal strength.
 Icons for various applications such as messages, telephone calling, tasks,
settings, notes, calculator, clock, volume, calendar, address book.

i) BlackBerry 6710 (released Oct. 2002))

ii) RIM BlackBerry 7100V (released around Oct. 2004)

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iii) BlackBerry 7290 (released early 2005)

iv) BlackBerry 7130e (released Nov. 2005)

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v) BlackBerry 8700C (released Nov. 2005)

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vi) BlackBerry 8700g (released April 17, 2006)

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14. Nokia N73 — (August 2006)
The Nokia N73 was announced in April 2006 and released in August 2006. As with
many of the references above, the rectangular display on the device contained a matrix of
colorful icons in a grid pattern. The icons used common metaphors such as eighth notes for the
music player function, an envelope for messages, and a wirebound page displaying the day of the
month the calendar function. One and two word text labels were used below each icon. All of
these features were further rendered obvious to designers with skill in the art by the Nokia N73.

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15. Samsung F700
The Samsung F700 was announced in February 2007, and like the LG Prada above, it
contains a number of features later included in the D'305 and D'334 patents. The phone has a
rectangular display screen presenting a grid of icons. There is a row of four icons at the bottom
of the display screen, and the display includes icons using common metaphors such as the
receiver of an analog phone, an envelope, musical eighth notes, a globe, the silhouette of a
person, a camera, a wirebound calendar page that includes the day of the month, and a clock.
These features, which are shared by a number of other prior art devices, had become common by
the time they were used in the Samsung F700.

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Various Design Elements Already Known Prior to the Alleged
Conception Dates for D'790, D'305 and D'334
1. Dot Indicators
The Samsung F300 was announced in December 2006 and contained a dual face
construction, one side being a phone and the other an MP3 player. The user interface for the
MP3 player included a row of icons at the bottom of the display, including a common musical
eighth note icon for the music player. Above each icon was a small filled circle, or dot, that
increased in brightness when the user scrolled to that icon at the icon menu screen.

Like many of the previously discussed devices, the F300 also had a status bar or region at
the top of the screen that displayed useful information such as the battery's strength.

2. Square Icons and Containers with Rounded Corners
The following references in this section all display square icons or containers with
rounded corners. All of these pieces of prior art serve as secondary references of obviousness for
the rounded square design feature, as well as other features, such as the use of a status bar and
arrangement of icons in a grid pattern. Many of the individual icons shown in the designs below
can also serve as secondary references for the obviousness of the individual icons in the D'305
and D'334 patents. Many of those icons have been collected in the chart at the end of this
section.

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a. Korean Patent 30-20060005195 (Issued February 11, 2006)

b. Nokia 7710 – (Released Nov. 2004)

c. European Community Design Registration No. 000505532-0001 (Published
May 23, 2006)

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c. Korean Design Patent 30-0403504 (Published Jan. 10, 2006)

d. Japanese Design Patent D1189312 (Issued Nov. 5, 2003)

e. United States Patent Application Publication 2007/0067738 (Published Mar.
22, 2007)

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3. Status Bar or Region at Top of Display Screen
The following is a sampling of devices and designs that present a status bar or region at
the top of the display, including images that symbolize battery strength, signal strength, the name
of a carrier and/or network, and the time. In almost every case, the signal strength and battery
strength are indicated using parallel bars. In the case of signal strength, the bars increase in
height from left to right, as with the D'305 and D'334 patents. And battery strength is often
depicted using equal parallel bars inside the outline of a battery, as in the D'305 and D'334
patents. Time is also displayed in a number of the status bars below, and is usually depicted
using numerals and the abbreviations "AM" or "PM".

Korean Patent 30-20060005195 (February 11, 2006)

US 2005/0183026 A1 (Aug. 18, 2005)

Community Design Reg. 000584529-0001 (Nov. 14, 2006)

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Windows Mobile 5.0 (2005)
Windows Mobile 6.0 (Feb. 2007)
Palm i705 (Jan. 2002)

Palm Treo (Nov. 2006)

RIM BlackBerry 7100V Oct. 2004)
BlackBerry 8700C (Nov. 2005)

BlackBerry 7130g (Sept. 2006)

BlackBerry 6710 (Oct. 2002)
United States Patent Application Publication
2007/0067738 (Mar. 22, 2007)
LG KE850 ("LG Prada") (Dec. 2006)

4.

Common Metaphors for Icons

The following is a collection of prior art icons using the same metaphors that appear to
have been used by Apple in the D'305 and D'334 patents.
Icon Features



Icon Images
1. Phone Icons

An icon featuring the
receiver of an analog
phone.
Receiver depicted at a near

Samsung M4300 (2005)

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

Icon Features
45 degree angle.
Green color often used
either for the phone
receiver or the phone.

Icon Images

Windows Mobile 5.0 (2005)
(08.2007 – KU990Viewty)
(09.2007 - LG KS20)
(05.2007 - LG U960)
(Samsung SGH 800 (1999))
(Samsung SCH-X800 (2003))
Nokia 6310i (March 2002)
Skype (2005-2006)

Finnish Design Registration 20030256 (April 2004)
BlackBerry 6710 (released Oct. 2002)
BlackBerry 7290 (released early 2005)

BlackBerry 7130e (Released Nov. 2005)



Nokia 7710 – (Nov. 2004)
2. Settings Icons
An icon featuring gear
wheel(s).

2002 Samsung (CDMA2000)

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Icon Features

Icon Images

2004 Samsung (Mega2 model)

2005 design registration

Windows Mobile 5.0 (2005)

중남미향 (2002)

의장등록 (2004)

(2006 – Samsung SCH-U420)

(2004 Sony Ericsson Q4 T290)

(Dec. 2006 – LG ke850 prada)

GNOME 2.0 (2002 – ―Applications‖)

Windows 95 (1995 – ―Settings‖)

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Icon Features

Icon Images

Windows 98 (1998 – ―Settings‖)
GNOME 2.0 (2002 – ―Run‖)

Slicer – 2006 Windows Icons Design Contest Winner

Slicer – 2006 Windows Icons Design Contest Winner

BlackBerry 8700c (Nov. 2005)

Windows Mobile 6 (Feb. 2007)

Korean Patent 30-20060005195 (Issued February 11,
2006)

European Community Design Registration No.
000505532-0001 (Published May 23, 2006)

European Community Design Registration No.
000778741-0001 (Published April 9, 2007)

Korean Design Patent 30-0403504 (Published Jan. 10,
2006)


3. Notes Icons
An icon featuring paper
bound at one edge

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Icon Features

Icon Images

GEOS (1986)

GeoWorks 1990-2002

Mac OS 1995-1999

OS/2 (1992)

OS/2 (1994)

OS/2 (1996)

US 2005/0183026 A1 (Aug. 18, 2005)

BlackBerry 7290 (2005)

Finnish Design Registration 20030256 (April 2004)

BlackBerry 7130e (Nov. 2005)

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Icon Features

Icon Images

BlackBerry 8700g (April 2006)

BlackBerry 7130g (Sept. 2006)
Korean Design Patent 30-0441582 (Feb. 27,
2007)

BellSouth/IBM Simon Personal Communicator —
(1993)


4. Contacts Icons
Colorful icons that include
the silhouette of a person‘s
head and shoulders on or
next to a bound address
book or information card.

Palm Treo 700p (Q2 2006)
Gigabyte GSmart q60 (May 2007)

Windows Mobile 5.0 (2005)

Windows Mobile 6.0 (Feb. 2007)
Vodafone v1240 (HTC Tornado Noble) (Jan. 2006)
Sony Clie PEG-NX73VE (Sept. 2003)

Blackberry 8703e (Verizon 2006)

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Icon Features

Icon Images

BlackBerry 8700c (Nov. 2005)

Sharp Zaurus SL-5600 (2003)

United States Patent Application Publication
2007/0067738 (Mar. 22, 2007)
Samsung F700 (Feb. 2007)




5. Music Icons
Colorful icons that include
eighth notes
Icons that include a CD
Icons that include eighth
notes and a CD

GNOME 2.0 (2002 – ―Media Player‖)

GNOME 2.0 (2002 – ―CD Player‖)

OS/2 Warp 3 (1994 – ―CD Player‖)

Window NT 3.1 (1993 – ―CD Player‖)

BeOS Operating System – (1995)

Samsung SCH-X650 (Aug. 2002)

SonyEricsson K800 (June 2006)

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Icon Features

Icon Images

2007 SAMSUNG SGH-F700

Nokia N77 (Feb. 2007)

Slicer – 2006 Windows Icons Design Contest Winner

BlackBerry 8700c (Nov. 2005)

Sharp Zaurus SL-5600 (2003)

Finnish Design Registration 20030256 (April 2004)

BlackBerry 6710 (released Oct. 2002)

Korean Patent 30-20060005195 (Issued February 11,
2006)
European Community Design Registration No.
000584529-0001 (Published Nov. 14, 2006)

European Community Design Registration No.
000778741-0001 (Published April 9, 2007)
European Community Design Registration No.
000778741-0001 (Published April 9, 2007)

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Icon Features

Icon Images

Nokia 7710 – (Nov. 2004)
Nokia N73 (August 2006)



Samsung F300 (Dec. 2006)
6. Photos Icons
Colorful icons or images
depicting an orange or
yellow flower.
01.2007 Windows Vista

Photoshop 2006





7. Text Messaging Icons
Colorful icons featuring
cartoon text balloons of
various shapes including
rounded rectangles.
Text balloons including
several letters or a small
picture.

Samsung SGH-Z130 (Jan. 2005)

2005 AOL Icon

2003 ICQ

Blackberry 8830 (Q2 2007)



Colorful icons that include
a calendar page, often

8. Calendar Icons

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Icon Features
including the day number.

Icon Images
United States Patent D445,428 (Issued July 24, 2001)

Sharp Zaurus SL-5600 (2003)

Windows Mobile 5.0 – (2005)

Finnish Design Registration 20030256 (April 2004)
BlackBerry 7130g (Sept. 2006)

Windows Mobile 6 – (Feb. 2007)
BlackBerry 6710 (released Oct. 2002)

BlackBerry 7290 (released early 2005)
BlackBerry 8700C (released Nov. 2005)

BlackBerry 7130e (Released Nov. 2005)

RIM BlackBerry 7100V (released Oct. 2004)
Palm Treo (released Nov. 2006)

Palm i705 (released ~ Jan. 2002)
European Community Design Registration No.
000584529-0001 (Published Nov. 14, 2006)

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Icon Features

Icon Images
European Community Design Registration No.
000778741-0001 (Published April 9, 2007)
Korean Design Patent 30-0441582 (Published Feb. 27,
2007)

BellSouth/IBM Simon Personal Communicator —
(publicly announced 1993)

Nokia 7710 – (Nov. 2004)
Nokia N73 (August 2006)
Apple Newton MessagePad 2000 (1995)
Samsung F700 – (Announced Feb. 2007)
Mac OS X 10.4 Tiger (2005)
Sony Ericsson T610i (2003)



Colorful icons that include
mathematical symbols in a
2x2 grid pattern.
Colorful icons that include
images of a calculator.

9. Calculator Icons

Palm i705 (released ~ Jan. 2002)

US 2005/0183026 A1 (Published Aug. 18, 2005)

Sharp Zaurus SL-5600 (2003)
Palm Treo (released Nov. 2006)

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Icon Features

Icon Images

Mac OS X 10.4 Tiger (2005)

BlackBerry 7130g (Sept. 2006)
BlackBerry 7290 (released early 2005)

BlackBerry 7130e (Released Nov. 2005)
United States Patent D445,428 (Issued July 24, 2001)

BellSouth/IBM Simon Personal Communicator —
(publicly announced 1993)


Colorful icons that include
an envelope.

10. Mail Icons

Sharp Zaurus SL-5600 (2003)
LG Prada (Dec. 2006)
BlackBerry 7130g (Sept. 2006)

Windows Mobile 5.0 – (2005)

Windows Mobile 6.0 – (Feb. 2007)
BlackBerry 6710 (released Oct. 2002)

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Icon Features

Icon Images
BlackBerry 7290 (released early 2005)
Korean Patent 30-20060005195 (Issued February 11,
2006)
Motorola Razr (late 2004)
BlackBerry 8700c (Nov. 2005)

BlackBerry 7130e (Released Nov. 2005)

RIM BlackBerry 7100V (released Oct. 2004)
Palm Treo (released Nov. 2006)

Palm i705 (released ~ Jan. 2002)
European Community Design Registration No.
000584529-0001 (Published Nov. 14, 2006)

European Community Design Registration No.
000505532-0001 (Published May 23, 2006)
United States Patent D445,428 (Issued July 24, 2001)
BellSouth/IBM Simon Personal Communicator —
(publicly announced 1993)

Nokia 7710 – (Nov. 2004)
Nokia N73 (August 2006)
Samsung F700 – (Announced Feb. 2007)

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Icon Features


Colorful icons that include
a clock.

Icon Images
Sony Ericsson T610i (2003)
11. Clock Icons

United States Patent D445,428 (Issued July 24, 2001)

Sharp Zaurus SL-5600 (2003)

Finnish Design Registration 20030256 (April 2004)

BlackBerry 7130g (Sept. 2006)
BlackBerry 6710 (released Oct. 2002)

Palm i705 (released ~ Jan. 2002)
European Community Design Registration No.
000584529-0001 (Published Nov. 14, 2006)

BlackBerry 7130e (Released Nov. 2005)
Korean Design Patent 30-0441582 (Published Feb. 27,
2007)

BellSouth/IBM Simon Personal Communicator —
(publicly announced 1993)


Colorful icons that include
a globe, a portion of a
globe, or a web browser
program symbol.

Samsung F700 – (Announced Feb. 2007)
12. Web Browser Icons

Korean Design Patent 30-0441582 (Published Feb. 27,
2007)

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Icon Features

Icon Images

Nokia 7710 – (Nov. 2004)
European Community Design Registration No.
000584529-0001 (Published Nov. 14, 2006)
BlackBerry 7130e (Released Nov. 2005)
BlackBerry 8700C (released Nov. 2005)
Samsung F700 – (Announced Feb. 2007)
BlackBerry 8700g (Released April 17, 2006)
BlackBerry 7290 (released early 2005)
BlackBerry 6710 (released Oct. 2002)
BlackBerry 7130g (Released Sept. 2006)

Windows Mobile 5.0 – (2005)

Windows Mobile 6.0 – (Feb. 2007)


Colorful icons that include
a camera.

13. Camera Icons

Palm Treo (released Nov. 2006)
European Community Design Registration No.
000584529-0001 (Published Nov. 14, 2006)

Korean Design Patent 30-0403504 (Published Jan. 10,
2006)
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Icon Features

Icon Images
Korean Design Patent 30-0441582 (Published Feb. 27,
2007)

Nokia 7710 – (Nov. 2004)
Samsung F700 – (Announced Feb. 2007)
Samsung F300 (Dec. 2006)
Sony Ericsson T610i (2003)



Icon that includes a line
graph.

United States Patent Application Publication
2007/0067738 (Mar. 22, 2007)
14. Stocks Icon

Mac OS X 10.4 Tiger (2005)

Additional Obviousness References for D'790
1. United States Patent 6,983,424
US patent 6,983,424 ("'424") was filed on June 23, 2000 and issued on January 3, 2006.
The patent is directed at a method of automatically scaling icons to fit a display area. Figure 8b
of the '424 patent shows empty squares evenly arranged in a 4x3 grid pattern.

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I understand Apple contends that its iTunes icons are distinctive. To the contrary, as the
images below illustrate, icons bearing an eighth note and/or a record are frequently used by
companies other than Apple to represent music functions in connection with consumer
electronics sold on the market today:

Apple

SONY VITA

NOKIA

Smart Music

In sum, none of the graphical user interface elements identified by Apple as being
trademarks and/or trade dress are distinctive in the marketplace. A matrix of colorful icons, an
icon ―dock‖ as well as all of the individual icons are all widely used by competing manufactures
of consumer electronics and are not unique to Apple.
VII.

SUMMARY

In conclusion, it is my opinion that the Asserted Design Patents, trade dress and
trademarks are functional because they enhance utility of the subject devices. In addition, it is
my opinion that the asserted trademarks and trade dress are not distinctive because similar
trademarks and trade dress are regularly used on consumer electronics by manufactures other
than Apple. If Apple were to ―own‖ any of these features, other manufacturers would be placed
at a significant competitive disadvantage from an industrial design perspective in that they could
not employ many of the most useful and efficient designs and configurations, and the quality of
the resulting devices would suffer.

Signature executed on March 22, 2012

______________________________
Samuel Lucente

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