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

Filing 1360

Unredacted Declaration of Bill Trac in Support of Samsung's Reply in Support of Motion for Summary Judgment 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. 1068, 1069) (Attachments: # 1 Exhibit 1 to the Trac Declaration, # 2 Exhibit 2 to the Trac Declaration, # 3 Exhibit 8 to the Trac Declaration, # 4 Exhibit 9 to the Trac Declaration, # 5 Exhibit 10 to the Trac Declaration, # 6 Exhibit 14 to the Trac Declaration, # 7 Exhibit 15 to the Trac Declaration, # 8 Exhibit 16 to the Trac Declaration, # 9 Exhibit 17 to the Trac Declaration, # 10 Exhibit 18 to the Trac Declaration, # 11 Exhibit 19 to the Trac Declaration, # 12 Exhibit 20 to the Trac Declaration, # 13 Exhibit 21 to the Trac Declaration, # 14 Exhibit 22 to the Trac Declaration, # 15 Exhibit 23 to the Trac Declaration, # 16 Exhibit 24 to the Trac Declaration, # 17 Exhibit 25 to the Trac Declaration, # 18 Exhibit 26 to the Trac Declaration, # 19 Exhibit 27 to the Trac Declaration, # 20 Exhibit 28 to the Trac Declaration)(Maroulis, Victoria) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

EXHIBIT 23
FILED UNDER SEAL

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,
Plaintiff,

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Case No.

11-cv-01846-LHK

REBUTTAL EXPERT REPORT
OF SUSAN KARE

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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EXPERT REBUTTAL REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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VII.

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MR. LUCENTE DOES NOT DEMONSTRATE THAT THE CLAIMED DESIGNS
ARE OBVIOUS IN LIGHT OF THE PRIOR ART
A.

Mr. Lucente Does Not Identify Prior Art that Is Basically the Same as Any of
the Claimed Designs

64.

Mr. Lucente does not identify any references that present “basically the same”

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overall visual impression as does any of the Design Patents. I have been informed that because of

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this failure, Mr. Lucente’s analysis cannot meet the proper legal standard for obviousness.

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Nonetheless, I will respond to Mr. Lucente’s opinions as I understand them.31

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1.

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65.

Examples of Proper and Improper Primary References.32

I have been informed that proving obviousness of a design patent requires

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identification of a primary reference that is “basically the same” as the patented design. The table

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below contains examples of prior art that, according to the Federal Circuit, failed to meet this

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standard.

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Claimed Design

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Improper Primary Reference

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Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100, 104 (Fed. Cir. 1996) (primary

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reference fails because the design contains “significant differences” from the claimed design:

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the prior art sofa “does not have a corner table” and “[m]ore significantly, the front rail in the

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[prior art] curves upward and then around the end table”).

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This report does not address Mr. Lucente’s section titled “Anticipatory Reference for D’790, D’305, and D’334.” I
p
p
y
have been informed that Mr. Lucente’s analysis in that section relies on alleged prior art that is not properly in this
y
g p
case. I have not been asked to opine on anticipation, nor have I studied or analyzed that issue.
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I am not an expert in design patent law. The examples in this section have been provided to me to demonstrate the
requirement of a “primary reference” for determining obviousness.
EXPERT REBUTTAL REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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X.

EXHIBITS TO BE USED
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I anticipate using as exhibits during trial certain documents and things referenced

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or cited in this report or accompanying this report. I also anticipate using other demonstrative

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exhibits or things at trial.

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Dated: April 16, 2012
SUSAN KARE

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EXPERT REBUTTAL REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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