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

Filing 1359

Unredacted Exhibits to Kanada Declaration in Support of Apple's Opposition to Samsungs Motions in Limine re 1256 Order on Administrative Motion to File Under Seal, re (Dkt. No. 1206) by Apple Inc.. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 9, # 8 Exhibit 10, # 9 Exhibit 12, # 10 Exhibit 41)(Jacobs, Michael) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

Exhibit 5
(Submitted Under Seal)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
APPLE INC., a California corporation,
Case No.
Plaintiff,

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11-cv-01846-LHK

REBUTTAL EXPERT REPORT
OF PETER W. BRESSLER,
FIDSA

v.
SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Defendants.

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**CONFIDENTIAL – CONTAINS MATERIAL DESIGNATED AS HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY PURSUANT TO A PROTECTIVE
ORDER**

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REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

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282.

It appears from a designer’s perspective that Samsung had the design capacity to

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visually differentiate its products from the iPhone. Nonetheless, in 2010, Samsung chose to

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release its Galaxy S line of mobile phones. For example, a 2010 development document for one

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of the initial versions of the Galaxy S phone (designated the “Aries”) noted the “stylish, slim and

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minimal” design of the phone. (S-ITC-007849424 at 429.) Mobile phones released in the

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Galaxy S line ultimately looked so similar to the iPhone 3G that the press called them

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“shockingly similar,”57 and “very iPhone 3GS-like.”58

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283.

In light of the documents I have seen suggesting alternative designs for the Galaxy

S line prior to its introduction, and Samsung’s design progression, it is my opinion that the

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substantial similarity between the Samsung designs and the iPhone was not coincidental, or the

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result of functional requirements. The documents and mobile phones suggest that Samsung’s

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focus on Apple as a competitor led its executives and designers to pursue, and ultimately adopt,

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designs that are substantially the same as the iPhone.

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284.

Before the release of the iPad, Samsung released a line of tablets that looked very

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different from the iPad. The Samsung Q1 line of tablets had a recessed display screen

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surrounded by a large frame with multiple buttons and other features that dominated the front

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face. The Q1 looked nothing like the D’889 design or the iPad.

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285.

After the iPad was released, Samsung internal documents reflect that Samsung

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closely studied the iPad design. For instance, Samsung analyzed consumer responses to different

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tablet form factors, including the iPad form factor (SAMNDCA00237929.) Furthermore,

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Samsung made detailed comparisons of the design between its Galaxy Tab and the iPad. (See,

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e.g., Exhibit 13 (SAMNDCA10911088); Exhibit 14 (SAMNDCA10774801).)

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“First Look: Samsung Vibrant Rips Off iPhone 3G Design,” Priya Ganapati, Gadget Lab, July
15, 2010, http://www.wired.com/gadgetlab/2010/07/first-look-samsung-vibrant-rips-off-iphone-3g-design/
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“Samsung Galaxy S: How Does It Measure Up to the Competition?,” Ginny Mies, PCWorld,
June 29, 2010,
http://www.pcworld.com/article/200142/samsung_galaxy_s_how_does_it_measure_up_to_the_competitio
n.html
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

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286.

Subsequently, Samsung launched its Galaxy Tab 10.1 product, which looks

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substantially similar to the D’889 design and the iPad 2. The media confirmed that the Galaxy

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Tab 10.1 “looks very similar to the iPad 2”59 and that “[t]o the eye, the two look almost alike in

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terms of thickness.”60

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F.

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The Asserted Patents Are Not Dictated by Function
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287.

Mr. Sherman Misapplies the Legal Standard for Determining
Functionality

Above, I state my understanding, conveyed to me by counsel, of the legal

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standards pertaining to the role of “functionality” in the obviousness analysis of a design patent.
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Mr. Sherman does not apply the correct functionality standard. Instead, he concludes that
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because the asserted designs serve a function, the designs are functional. This is incorrect. The
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appropriate standard is whether the asserted designs are “dictated by” function, or if the design
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“is essential to the use or purpose of the article.” For the reasons set forth in this section, it is my
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opinion that the D’889, D’677, D’087, and D’270 patents are not “dictated by” function or
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“essential to the use or purpose” of the underlying article of manufacture. To that end I agree
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with Judge Koh’s analysis that D’889, D’677, D’087, and D’270 patents are not invalid for
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functionality. See Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK (PSG), 2011 U.S.
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Dist. LEXIS 139049 (N.D. Cal. Dec. 2, 2011).
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2.

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288.

Patentable Designs for Electronic Devices are Not Limited to
Decorative Surface Treatments

Mr. Sherman opines that the D’889, D’677, D’087, and D’270 patented designs

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are “functional, not ornamental” because they reflect a “fundamentally un-ornamental approach”

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and consist of “merely basic shapes.” (Sherman Report at 88.)

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289.

Mr. Sherman, an engineer, misunderstands industrial design. The underlying

premise of the industrial design process is that every function can have more than one visual
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Eliane Fiolet, “Galaxy Tab 10.1 Review,” Ubergizmo, May 21, 2011,
http://www.ubergizmo.com/2011/05/galaxy-tab-10-1-review/ (APLNDC-Y0000238710-38).
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John V., “Samsung Galaxy Tab 10.1 vs Apple iPad 2,” Phonearena.com, June 15, 2011,
http://www.phonearena.com/reviews/Samsung-Galaxy-Tab-10.1-vs-Apple-iPad-2_id2765 (APLNDCY0000238819-52).
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

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