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

Filing 1382

Unredacted Exhibits to Arnold Declaration ISO Samsung's MSJ ( 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, (Dkt. Nos. 930, 944, 945) (Attachments: # 1 Exhibit 20 to Arnold, # 2 Exhibit 23 to Arnold, # 3 Exhibit 31 to Arnold, # 4 Exhibit 36 to Arnold, # 5 Exhibit 38 to Arnold, # 6 Exhibit 39 to Arnold, # 7 Exhibit 40 to Arnold, # 8 Exhibit 41 to Arnold, # 9 Exhibit 42 to Arnold, # 10 Exhibit 43 to Arnold, # 11 Exhibit 44 to Arnold)(Maroulis, Victoria) (Filed on 7/26/2012) Modified text on 7/27/2012 (dhm, COURT STAFF).

EXHIBIT 36

Highly Confidential - Attorneys' Eyes Only

Page 1
1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

2
3
4
5

APPLE INC., a California
corporation,

6

Plaintiff,
7

vs.

CASE NO.

11-cv-01846-LHK

8

9

10

11

12
13

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.
____________________________/

14
15
16
17

H I G H L Y
C O N F I D E N T I A L
A T T O R N E Y S' E Y E S O N L Y

18
19
20
21

VIDEOTAPED DEPOSITION OF SUSAN KARE, Ph.D.
SAN FRANCISCO, CALIFORNIA
FRIDAY, April 27, 2012

22
23
24
25

BY: ANDREA M. IGNACIO HOWARD, CSR, RPR, CCRR, CLR
CSR LICENSE NO. 9830
JOB NO. 48804
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have to double-check.

2
3

MS. CARUSO:
Q

10:26
Okay.

10:26

Is it your recollection that the speech

10:26

4

balloon was part of the graphic element that you

10:26

5

create -- that you worked on for messaging?

10:26

6

A

Yes.

10:27

7

Q

Why was the speech balloon chosen for that

10:27

8

function?

10:27

9

A

10:27

I believe in that particular case, Fossil

10

provided some mockups, as clients do, that are their

10:27

11

notions, and I rendered them.

10:27

12

range of options.

13
14
15

Q

It was one of -- of a

10:27

When you say "a range of options," do you

mean a range of metaphors or something else?
A

Probably in that case, as in general, there

10:27
10:27
10:27

16

would be a range of metaphorical options, as well as

10:27

17

when there's one option, there's different ways always

10:28

18

to represent any one concept.

10:28

19
20
21
22
23

Q

But you chose to develop the speech balloon

concept for messaging?
MS. TAYLOR:

10:28
10:28

Objection; mischaracterizes her

testimony.

10:28
10:28

THE WITNESS:

I -- I think, as I said, I

10:28

24

believe that that was one visual in a mockup they gave

10:28

25

me that I explored, along with other -- along with

10:28

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other options.

2
3
4

10:28

MS. CARUSO:

Q.

Do you remember any of the

other options for the messaging function?
A

I don't remember exactly what I provided, but

5

I could check.

6

look at it.

7
8

Q

Do you think that a speech balloon is a

MS. TAYLOR:

10

THE WITNESS:

Objection; that's vague.
I mean, I'm not quite sure what

you're asking, "useful."

12

MS. CARUSO:

13

Q

15
16

Well, let's -- let's take a step

10:28

10:28
10:28
10:29
10:29

10:29
10:29

What's the purpose of an icon, the kind that

you design?

10:29
10:29

Usually, it's a visual shorthand to

10:29

17

communicate an idea or some kind of information that

10:29

18

in an application is represented with a visual to

10:29

19

identify it at a glance.

10:29

20
21
22

A

10:28

10:29

back.

14

10:28

10:28

useful symbol in connection with messaging?

9

11

I'd have to pull up the document and

10:28

Q

So when you set out to develop an icon, how

do you approach that task?
A

10:30
10:30

I would find out everything I could from the

10:30

23

client about what the icon was intended to communicate

10:30

24

or represent.

10:30

25

client their notion of their need, and as I said

I would usually try to extract from the

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before, keeping in mind perhaps the intended audience

10:30

2

or marketing factors, and then you just want to know

10:30

3

what you're trying to symbolize and make that visual.

10:30

4
5
6

Q

When you say extract from the client their

need, what would you mean by that?
A

10:31
10:31

Usually the client gives, when they need

10:31

7

icons, a list of deliverables, and the deliverables

10:31

8

would be the -- their -- their request for aspects of

10:31

9

a product.

10:31

That might be categories or navigational

10

or applications or any -- any parts of the product

10:31

11

that -- where it's helpful for the user to interact

10:31

12

with symbols.

10:31

13
14
15

Q

Is it a consideration for you how the user

will interact with the symbols?
A

10:32
10:32

I probably focus most on how things look

10:32

16

versus how things work, but they go hand in hand.

10:32

17

These products are useful.

10:32

18

Q

Right.

10:32

19

A

So it's not pure fine art.

10:32

20

Q

Would it make a difference to you in

10:32

21

designing a graphic element if it's a graphic element

10:32

22

that is going to be on a touch screen versus accessed

10:32

23

in some other way, like with a mouse or a stylus?

10:32

24
25

A

Conceptually, no.

There could be practical

considerations in a touch screen.

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would say I would think about it the same way in terms

10:33

2

of concept and metaphor.

10:33

3
4
5

Q

What are some of the practical considerations

with a touch screen?
A

10:33
10:33

We would probably poll the client about --

10:33

6

there -- there might be issues of using your finger.

10:33

7

There might be size issues or position on the screen

10:33

8

to physically be able to use the device.

10:33

9
10
11

Q

When you say there might be issues with using

your finger, what kind of issues?
A

10:34
10:34

If you're using a finger versus a stylus,

10:34

12

depending on the device and the physical requirements

10:34

13

of the device, from device to device, there could be

10:34

14

issues of needing to have enough -- enough room to

10:34

15

select something.

10:34

16

Q

18
19

10:34

So what would affect the amount of room you

17

I'm trying to understand that a little more.

10:34

have to select something?
A

10:34

When there's a touch screen, there is a hit

10:35

20

area that is really an engineering concern, not

10:35

21

that -- that you would designate part of the screen

10:35

22

area to respond to your finger.

10:35

23

find out from a client how much space they would want

10:35

24

to allot, how many pixel dimensions, so that it's

10:35

25

possible to hit one area and not another.

10:35

And the -- we might

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2

Q

Do you ever take into consideration how the

user will discover that hit area?

3

MS. TAYLOR:

4

THE WITNESS:

5

10:35
10:35

Objection; vague.

10:36

I -- we would usually be guided

10:36

by a client's request for what they need technically.

10:36

6

MS. CARUSO:

Q.

Have you ever considered

10:36

7

whether the user would be assisted by visual cues as

10:36

8

to what the hit area is?

10:36

9

MS. TAYLOR:

10
11

THE WITNESS:

I -- yeah, I'm not quite

sure -- I'm not quite sure what you're asking me.

12
13

Objection; it's vague.

MS. CARUSO:
Q

Sure.

10:36
10:36
10:36
10:36

Well, for example, if you're dealing with a

10:36

14

touch screen device, is there anything that would lead

10:37

15

you to believe that a -- given any engineering-driven

10:37

16

hit area -- is that what you referred to it as -- that

10:37

17

the icon size should bear any relationship to that hit

10:37

18

area?

10:37

19

MS. TAYLOR:

Wait just a moment.

You paused

10:37

20

in the middle and just added in, like, that inner

10:37

21

question.

10:37

22

I'm sorry.

23
24
25

Could you ask it -- like, a clear question.

10:37

MS. CARUSO:

Q.

Do you have the question in

mind?

10:37
10:37

MS. TAYLOR:

Objection; it's vague.

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"What do you mean by simple?

That could

11:09

2

be -- I'm talking visual appearance, not -- that it

11:09

3

can communicate to a wide audience as being

11:09

4

representative of a concept."

11:09

5

MS. TAYLOR:

6

after the "not."

7

I think there was a long pause

then --

8
9

I think she started a sentence and

11:09
11:09
11:09

MS. CARUSO:

Well, I would like to ask the

witness --

11:09
11:09

10

MS. TAYLOR:

Okay.

11:09

11

MS. CARUSO:

-- to clarify what her testimony

11:09

12

was there because I don't want the transcript to be

11:09

13

confusing about what your testimony is.

11:09

14
15

THE WITNESS:

Okay.

I don't want to be

confusing, either.

11:09
11:09

16

When you asked what is simple, do you mean --

11:09

17

MS. CARUSO:

I didn't ask what is simple.

11:09

How does being simple contribute to

11:09

18
19
20

Q

I asked:

good icon design?
A

11:09

So in a visual sense, simplicity might --

11:09

21

could mean lack of extraneous detail, and that can

11:09

22

make an image that a user brings -- can project their

11:10

23

own idea onto something that's simple rather than

11:10

24

having an image that has so many details that it's

11:10

25

clearly defined as one very specific thing.

11:10

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So this is one way to think about when you

11:10

2

said what makes a good icon.

3

simplicity can mean someone doesn't have to puzzle

11:10

4

over, what is that?

11:10

5
6
7

Q

It's something that --

How does being clear contribute to an icon

being a good icon?
A

11:10

11:11
11:11

You know what, it's very difficult to talk

11:11

8

without talking -- you know, if we're looking at a

11:11

9

range of icons, we might say this.

11:11

I mean, I'm using

10

that word "clear" in the sense of as opposed to

11:11

11

unclear, puzzling.

11:11

12

to be -- I mean, it --

So I think generally, it's better

11:11

13

Q

Not puzzling?

11:11

14

A

Not puzzling.

11:11

15

Q

Is the -- the clarity you're talking about

11:11

16

here seems to be not so much visual clarity as

11:12

17

communicative clarity.

11:12

18

A

It could be either.

11:12

19

Q

So clarity meaning it's not a fuzzy image?

11:12

20

A

That could be one, like, drawn in a way that

11:12

21

you're drawing a -- if you were drawing a picture of a

11:12

22

pencil, and the style was fuzzy or impressionistic,

11:12

23

that might be unclear, or it could be conceptually

11:12

24

unclear.

11:12

25

Q

Okay.

You also identified the characteristic

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of not loaded with extraneous detail.

2

contribute to a good icon?

3

A

It's like a traffic sign.

How does that

11:12
11:12

I think in some

11:13

4

ways, good icons are like traffic signs because one of

11:13

5

their purposes is to communicate.

11:13

6

You know, a school crossing sign has a

11:13

7

silhouette of a boy and girl holding hands, and

11:13

8

there's no technical reason they couldn't have 3-D

11:13

9

clothes and plaid skirts and carrying books that you

11:13

10

could read the name of the books they were carrying.

11:13

11

But I would say that would be extraneous

11:13

It could almost impede your at-a-glance

11:13

12

detail.

13

recognition of what -- of that message.

14

it's analogous to that kind of thing.

15
16
17
18
19

Q

Okay.

So, I mean,

So do you agree that good icons are

more like road signs than like illustrations?
MS. TAYLOR:

Mischaracterizes her testimony.

It's also vague.

11:13
11:13
11:13
11:14
11:14
11:14

THE WITNESS:

I don't think you can

11:14

20

completely generalize and say every icon needs to look

11:14

21

like a road sign.

11:14

22

say when you're designing icons, you need to -- one of

11:14

23

the many things you need to consider is how much

11:14

24

detail when there's -- is there a point when extra

11:14

25

detail might be obfuscating rather than illuminating.

11:14

I was using that as an example to

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MS. CARUSO:

Q.

And that goes to the

11:14

2

ultimate question of at-a-glance recognition that you

11:14

3

were talking about is the goal of the icon?

11:14

4
5

A

Well, there's not a single goal, but that is

a positive aspect.

11:14
11:15

6

Q

What -- what other goals are there for icons?

11:15

7

A

Well, again, different products, different

11:15

8

icons, there could be different goals.

9

the pur -- you need to think about the purpose of

11:15

10

where the icons are.

11:15

11

communicate in a visual, shorthand way some concept or

11:15

12

purpose or...

11:15

13
14

Q

That's a --

But as I said, usually they

When you design icons, do you endeavor to

11:15

make them communicate their function immediately?

11:15

15

MS. TAYLOR:

16

THE WITNESS:

Objection; it's vague.
It -- an icon maybe needs to

17

communicate something.

18

probably a range of what that could be.

19

be -- it might be a category.

20

It might be some process.

21

11:15

MS. CARUSO:

It might -- but there's

Q.

It might just

It might be an idea.

11:15
11:15
11:16
11:16
11:16
11:16

Would you agree that it's

11:16

22

important that the icon communicate immediately,

11:16

23

whatever it is it's communicating?

11:16

24

MS. TAYLOR:

25

THE WITNESS:

Objection; it's vague.
I mean, I don't know what the

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alternative to "immediately" would be, but you -- they

11:16

2

exist to communicate.

11:16

3
4

MS. CARUSO:

Q.

And do you want it to be

memorable as well?

11:16
11:16

5

A

Easy to remember.

11:17

6

Q

Do you have a -- a website for your business?

11:17

7

A

I do.

11:17

8

Q

And do you have a biography on that website?

11:17

9

A

I believe so.

11:17

10

Q

Did you write that yourself?

11:17

11

A

I may have had assistance with that.

11:17

12

Q

Did you review what was posted on your

11:17

13

website about you?

11:17

14

A

Yes, I think so.

11:17

15

Q

All right.

11:17

Well, let's -- let's confirm.

16

MS. CARUSO:

17

(Document marked Kare Exhibit 1

18

for identification.)

19
20

Can we mark this as Exhibit 1.

MS. CARUSO:

11:17
11:17
11:18

Ms. Kare, you see what has been

marked as Exhibit 1.

11:18
11:18

21

Q

Do you recognize this?

11:18

22

A

The first paragraph is from -- I did a series

11:18

23

of products for the Museum of Modern Art in New York,

11:18

24

and that quote is from a copy that they put on the

11:18

25

back of the products.

11:18

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Q

Do you agree that your icons communicate

11:18

2

their function immediately and memorably with wit and

11:18

3

style?

11:18

4

A

Well, that's what the Museum of Modern Art

11:19

5

said about the icons on those products.

6

think -- I think in that particular case, that was

11:19

7

completely accurate.

11:19

8
9

Q

Okay.

And I

Do you recognize this Exhibit 1 as a

printout from your website?

11:19

11:19
11:19

10

A

Yes.

11:19

11

Q

In Paragraph 3, there's the statement:

11:19

"Kare believes that good icons should be more

11:19

12
13

like road signs than illustrations, easily

11:19

14

comprehensible and not cluttered with extraneous

11:19

15

detail."

11:19

16

Is that an accurate statement of your belief?

11:19

17

A

Yes.

11:20

18

Q

When did you -- well, let me -- before we get

11:20

19

there, we were talking earlier about your -- your

11:20

20

experience and your interactions with clients.

11:20

21

Aside from the consumers who are your

11:20

22

clients, have you spoken with other consumers of

11:20

23

graphic user interfaces about how they perceive

11:20

24

graphic elements?

11:21

25

A

In -- like, in passing or just --

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Q

In any context.

11:21

2

A

Do I ever speak with people about -- could

11:21

3
4

you just ask me that one more time.

11:21

Aside from your clients, have you spoken with

11:21

5

anyone about their perceptions of graphic elements in

11:21

6

computers?

11:21

7

A

Just anecdotally?

11:21

8

Q

In any way.

11:21

9

A

Yes.

11:21

10

Q

Can -- how frequently does that happen?

11:21

11

A

To just be in a conversation about graphics?

11:21

12

Q

Yes.

11:22

13
14

Q

Just --

About, specifically, graphic user

interfaces.
A

11:22

I mean, it's something that's interesting to

11:22

15

me, and I might talk about with -- casually.

16

about my colleagues, but I -- I don't know that I

11:22

17

could say minutes a day or...

11:22

18

Q

I talk

I -- I'm asking outside of your client

11:22

11:22

19

relationships or your work colleagues, those

11:22

20

conversations.

That's what I'm focusing on.

11:22

And I'm not asking for minutes a day, but is

11:22

21
22

it something that you do every day?

23

maybe once a month?

24
25

Is it something

11:22

Is it frequently?

11:22

MS. TAYLOR:

Objection; it's compound.

11:22

THE WITNESS:

I guess I never really

11:23

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2

Q

Do you think that gives the user any

12:39

information about how these icons work?

3

MS. TAYLOR:

4

THE WITNESS:

12:39

Objection; it's vague.

12:39

I think looking at this

12:39

5

picture, you don't know how anything works.

6

a picture.

7

with the phone, so it's easy to look at this.

8

someone who's never seen this might just see it as a

12:40

9

picture.

12:40

10
11
12

It's just

You know, we bring to it our experience

MS. CARUSO:

Q.

But

Like a picture that you

would hang on a wall?
A

12:39
12:40
12:40

12:40
12:40

Possibly like a screen shot, but you wouldn't

12:40

13

necessarily know from this picture if it was a touch

12:40

14

screen or what -- what -- what those -- if those

12:40

15

images are images that can be interacted with and what

12:40

16

would happen if you did.

12:40

17

Q

Do you think there's anything about the

12:40

18

images that might suggest to a user that they should

12:40

19

be touched?

12:40

20

A

I think that the -- I don't know.

I -- I --

12:41

21

I think that obviously, there's a picture and it says

12:41

22

"calculator."

So, you know, anyone with some

12:41

23

experience with any kind of icon on any other

12:41

24

device -- but it's kind of speculative.

12:41

25

I mean, we know and I know this is a -- that

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this is an app screen, but it's -- really looking at

12:41

2

this, it's about the visual.

12:41

3

Q

Do you think that the figure -- the I --

12:41

4

the -- well, the icons on Figure 2 have a button-like

12:42

5

sense to them?

12:42

6

MS. TAYLOR:

7

THE WITNESS:

Objection; it's vague.
I think that they have a

12:42
12:42

8

unifying element that is -- can be a button shape, but

12:42

9

it's not the only button shape.

12:42

10

MS. CARUSO:

Q.

Leaving aside whether it's

12:42

11

the only button shape, do you think that the image on

12:42

12

Figure 2 conveys a sense of buttons?

12:42

13

MS. TAYLOR:

14

THE WITNESS:

15

I think that there exist in the

real world physical buttons that these evoke, but --

16
17

Objection; it's vague.

MS. CARUSO:

Q.

How do you think that

these --

12:43
12:43
12:43
12:43
12:43

18

MS. TAYLOR:

19

She said "but."

20

THE WITNESS:

Could you let her finish.
Go ahead.

12:43
12:43

But again, that was -- it --

12:43

21

it's -- I wouldn't want to overgeneralize just because

12:43

22

it's a very specific shape.

12:43

23

MS. CARUSO:

12:43

24

"The button-like icons are all shaped as

25

Q.

In your report, you say:

squares with rounded corners."

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2
3

Do you agree that these are button-like
icons?

12:44

A

12:44
They are.

I just said there exist in the

12:44

4

real world buttons -- physical buttons that look --

12:44

5

that -- that these evoke.

12:44

6

say that is "button-like."

So I guess another way to

12:44

7

Q

Okay.

8

A

I think that screen elements that are virtual

12:44

can -- because you can have -- you can design them to

12:44

10

look like anything.

12:44

11

it's the easiest way to do some virtual industrial

12:44

12

design.

12:44

9

13

And what about them evokes buttons?

You don't need a hard tool or --

You know, there's all -- all kinds of buttons

12:44

12:44

14

on refrigerators and calculators and blenders and auto

12:45

15

tellers.

12:45

16

that have so many buttons and a lot of buttons, but

12:45

17

not all, that -- that this is a shape that draws

12:45

18

from -- there were physical buttons that looked like

12:45

19

this before there were -- there were touch screens,

12:45

20

and that was what would make me say "button-like."

12:45

21

Q

You know, there's -- there's so many devices

12:45

Is there anything about these icons that --

22

All right.

12:45

23

in addition to the shape that conveys a more

12:45

24

three-dimensional button-like quality?

12:45

25

A

Well, because of the high resolution and

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because of the light source and -- I can't tell,

12:45

2

remember, without looking at this.

12:46

3

the most subtle drop shadow to make them look as if

12:46

4

they virtually are raised above the plane on which

12:46

5

they sit.

12:46

6

There may be just

But there's differently -- the algorithm

12:46

7

that -- that creates these from flat art gives them a

12:46

8

little bit of dimension.

12:46

9

Q

10

feel?

11

A

Yes.

12:46

12

Q

You noted in describing the arrangement that

12:46

13

So all of that helps give this button-like

12:46

it's not completely random.

14

12:46

12:47

Do you -- do you think it makes it easier for

12:47

15

a user to interact with a graphic user interface

12:47

16

that's organized in a way that's not completely

12:47

17

random?

12:47

18

A

I think that it's a part of human nature to

12:47

19

want to have your stuff organized, whether it's on the

12:47

20

shelves of the supermarket or icons on your desktop,

12:47

21

that some kind of organizing structure underlying is

12:47

22

good; right?

12:47

23

probably know exactly why it's good.

24

orderly is usually helpful for finding things.

25

Q

If I were a psychologist, I would
But -- but

All right.

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Do you think that the -- the black background

12:48

2

compared to the icon images helps the images stand out

12:48

3

more on the screen?

12:48

4

A

As opposed to?

12:48

5

Q

As opposed to, for example, a white

12:48

6
7

background.
A

12:48

I don't know.

I think you'd have to put side

8

by -- side by side.

9

images, then I could compare them.

10
11

If you put side by side two

12:49
12:49

But it's probably

one of those, it depends what the alternative is.

12:49
12:49

I think that in this case, I believe, as it

12:49

12

says in the report, there's kind of a dual-tone

12:49

13

colorful quality to the icons, that being against a

12:49

14

background that isn't equivalently colorful provides

12:49

15

contrast.

12:49

16

background, but --

17
18
19
20
21

Probably doesn't have to be this black

12:49

THE VIDEOGRAPHER:

I'm going to have to

12:49

adjust your mic.

12:49

THE WITNESS:

Oh, I'm sorry.

I'm sorry.

I

should have worn something thicker.
THE VIDEOGRAPHER:

22

to keep it in place.

23

THE WITNESS:

24

MS. CARUSO:

Go above your top button

25

12:49
12:49
12:50
12:50

Okay.
Q.

Thanks.

In looking at the image of

Figure 2, do you have any understanding of what is new

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about this design?

12:50

2

A

As opposed to?

12:50

3

Q

As opposed to any prior graphic user

12:50

4

interfaces.

5
6

12:50

MS. TAYLOR:

I'm going to object to the

extent it's calling for a legal conclusion.

7

THE WITNESS:

I feel as if I would -- I would

12:50
12:50
12:50

8

need to compare it.

9

patent is about, and I know -- but I feel as if I

12:51

10

couldn't -- I couldn't say categorically that I know

12:51

11

exactly what's new about it.

12:51

MS. CARUSO:

12:51

12

I mean, I guess that's what a

Q.

You said you would -- you

13

feel like you would need to compare it.

14

you want to compare it to?

15

A

What would

12:50

12:51
12:51

Well, if you said, "Here is a -- here is a

12:51

16

handheld device, and here is the iPhone that is older,

12:51

17

and this is newer, what's new about it," then I could

12:51

18

see and I could say.

12:51

19
20
21

But in a vacuum, to just say what's new about
it, I don't know how -- I don't know what I would say.

12:51

Is that something that you attempted to

12:51

22

provide an opinion on in any way, to look at the prior

12:51

23

art and identify what is new in the -- in the design

12:51

24

patent '334?

12:52

25

Q

12:51

A

I believe that in my report and in my role,

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know that for sure from looking at this.

2

MS. CARUSO:

If you were designing a

14:09

3

graphic user interface -- let me ask a different

14:09

4

question.

14:09

5

Q.

14:09

Have you ever designed a graphic user

14:09

6

interface in which you applied two dots for purely

14:09

7

ornamental purposes?

14:10

8
9

A

I've certainly used little sets of dots to

separate things.

14:10
14:10

10

Q

I'm asking about just two dots.

14:10

11

A

Two?

14:10

Probably a few more than two.

14:10

All right.

14:10

So you said that in devices that use this

14:10

12
13
14

Q

15

design shown in Figure 2, there is a purpose for these

14:10

16

two dots; is that correct?

14:10

17

MS. TAYLOR:

14:10

18

THE WITNESS:

Mischaracterizes her testimony.
I know that this -- in this

14:10

19

patent, this is a visual appearance.

20

in some iPhone devices they make use of this

14:10

21

appearance, and in those devices there's a purpose.

14:11

22

They're controls.

14:11

23

And I know that

But I -- this is just based on my

14:10

14:11

24

understanding of what a -- and I'm not a lawyer -- of

14:11

25

what a -- I think I understand what the patent means,

14:11

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just like this isn't a functioning device.

2

just a picture.

3
4
5

14:11
14:11

MS. CARUSO:
Q

This is

Okay.

14:11

So this picture -- nothing on this page

itself has any function whatsoever?

14:11
14:11

6

A

Right.

14:11

7

Q

Just --

14:11

8

THE REPORTER:

9

MS. CARUSO:

Hold on.
Q.

I didn't get that.

So on the iPhone devices

14:11
14:11

10

that have dots located above the four icons at the

14:11

11

bottom, what purpose do they serve?

14:11

12

A

In the device?

14:12

13

Q

Yes.

14:12

14

A

It's an indicator of a -- that there is

14:12

multiple screens to access, and it's a control.

14:12

15
16
17

Q

Can you think of other ways to show that

there are multiple screens available on a device?

14:12
14:12

18

A

A lot of different ways.

14:12

19

Q

Can you think of any that are more visually

14:12

20

simple than having two dots?

14:12

21

MS. TAYLOR:

14:12

22

THE WITNESS:

Objection; that's vague.
I can think of other ways that

14:12

23

applications and devices show multiple screens.

14:12

24

Whether or not it's -- you know, there's relative

14:13

25

degrees of simplicity.

14:13

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I mean, you can have tiny pages.

You can

14:13

2

have numbers, which in some ways is even more

14:13

3

explicit, and in some ways might be simpler than

14:13

4

counting five dots to see one through five and have

14:13

5

the number light up.

14:13

6

I think there -- you know, so many websites

14:13

7

have page indicators in that affordance.

8

the only device where there's multiple screens to see,

14:13

9

so there are pretty many examples out there.

14:13

10
11

MS. CARUSO:

Q.

Phone isn't

Are there any others you can

think of other than the ones you've identified?

12

MS. TAYLOR:

I assume you're not going to

14:13

14:13
14:13
14:13

13

give her her expert report to refer to because I think

14:13

14

she had multiple samples in there.

14:14

15

Go ahead from your memory.

14:14

16

THE WITNESS:

14:14

I mean, numbers, different

17

shapes, circles.

18

report, I could look at some other phones and remind

14:14

19

myself.

14:14

20
21
22

It's true that if I could look at my

MS. CARUSO:

Q.

You believe that your report

had different alternatives to the page dot indicators?
A

I'd probably start with that.

If it was a

14:14

14:14
14:14
14:14

23

test to show other page indicators, then we could look

14:14

24

online.

14:14

25

Q

I'd start with my report.
All right.

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beyond --

17:13

2

THE WITNESS:

3

MS. TAYLOR:

4
5

I couldn't --

17:13

-- the scope of her expert

report.

17:13
17:13

THE WITNESS:

-- I couldn't say.

Better in

17:13

6

what way?

7

functionality of that phone.

17:13

MS. CARUSO:

As a user of cell phones, do

17:13

you find that some user interfaces are more intuitive

17:13

than others?

17:13

8
9
10
11
12
13

I don't -- I'm not an expert on the

MS. TAYLOR:

Q.

Objection; it's vague; it's also

beyond the scope of her expert report.
THE WITNESS:

My real focus is on the -- the

17:13

17:13
17:14
17:14

14

ornamental visual design, looking at the Samsung phone

17:14

15

and the Apple phone.

17:14

16

I -- I think, in general, some phones -- it's

17:14

17

hard to say this phone is better categorically than

17:14

18

this phone because sometimes one phone will do some --

17:14

19

something really well, search the Internet and be

17:14

20

clear on the phone, and another phone which might be

17:14

21

inferior in those ways might have a feature keyboard

17:14

22

or -- that some people like physical keyboards and

17:14

23

swear by them and are willing to put up with a more

17:14

24

inferior browsing experience to get a keyboard.

17:14

25

So it depends on need, and it depends on the

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person, and it depends on the task.

2

something is better depends on your priorities, not

17:15

3

exclusively how intuitive an interface might be.

17:15

4
5
6

MS. CARUSO:

Q.

So whether

So your focus is really on

the visual appearance; is that correct?
A

17:15

17:15
17:15
17:15

Again, the visual appearance in a graphical

7

(Witness nods head.)

17:15

8

UI, it's a marriage of looks, how it looks and how it

17:15

9

works.

17:15

I sit squarely on the how it looks side, but

10

there's still some carryover.

11

don't just design.

12

to make it ornamental.

13
14

Q

When you design, you

You don't just design to make --

17:15
17:15
17:15

But you didn't evaluate how it works, aside

from this report?

17:15
17:15

15

A

No.

16

Q

Okay.

17

A

I wasn't asked to for this report.

17:15

18

Q

All right.

17:16

17:15
All right.

17:15

19

What about for your rebuttal report?

20

consider the -- anything about the how it works side

17:16

21

of the --

17:16

22

A

Well --

17:16

23

Q

-- user interface?

17:16

24

A

-- they're -- they're not mutually exclusive.

17:16

25

Did you

And again, a good icon, it's not just, oh, it's

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attractive.

2

say I don't think about how things work, but I think a

17:16

3

lot about how things look.

17:16

4

That's not the scale.

So I would never

And a primary part of what I was asked for

17:16

17:16

5

for this report was, is the overall visual impression

17:16

6

of this like the overall visual impression of that?

17:16

7
8

Q

And you didn't evaluate how the Nokia N9

works?

17:16
17:16

9

A

I was not asked to.

17:16

10

Q

And you didn't evaluate how the Samsung

17:16

11
12
13
14

phones work?
A

17:16

Primary focus, a visual -- overall visual

impression of the applications screen.
Q

Okay.

Did you consider how any of the other

17:17
17:17
17:17

15

alternatives that you identified, how those graphic

17:17

16

user interfaces work?

17:17

17

A

Some.

Like the Prada phone that I held, I

17:17

18

could experience it or -- and I actually think, now

17:17

19

that I have the -- you know, in flipping through the

17:17

20

report, there were a couple of other phones that we

17:17

21

looked at.

There was a -- there was a BlackBerry.

17:17

22

You know, there were a lot of phones on the table.

17:17

23

And there is a list.

17:17

24

Q

Oh, where is that list?

25

A

There is a list in here.

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2

his expert report?
A

18:04

I looked at a number of the screen shots and

18:04

3

sometimes searched online to see if I could find a

18:04

4

bigger or clearer version.

18:04

5

Q

In the process of looking at the prior art,

18:04

6

did it change your opinion in any way about the

18:04

7

similarity of the Samsung phones to the Apple design

18:04

8

patents?

18:04

9

A

No.

18:05

10

Q

All right.

18:05

Did you consider whether the prior art might

18:05

11
12

affect how an ordinary observer would compare the

18:05

13

Samsung phones to the Apple design patents?

18:05

14

A

15

examples.

16

to -- in general, I didn't see anything that -- that

18:05

17

caused me to pause and reconsider.

18:05

18
19
20

Q

There's a lot.

I mean, he gave a lot of

So I -- it -- it would probably make sense

18:05

(Document marked Kare Exhibit 13

18:06

for identification.)
MS. CARUSO:

22

THE VIDEOGRAPHER:

24
25

18:05

Okay.

21

23

18:05

18:06

Oh, sorry.

18:06

Just hand it to me, and

I'll hand it to her.
MS. CARUSO:

18:06
18:06

This is better than having my

shoulder in the picture.

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THE WITNESS:

2

MS. CARUSO:

3

If this is prior art, then -Q.

Then what?

Is that a

problem?

18:06
18:06
18:06

4

MS. TAYLOR:

What number is that?

18:06

5

MS. CARUSO:

Exhibit 13.

18:06

6

MS. TAYLOR:

Okay.

18:06

7

MS. CARUSO:

Q.

18:06

8

Have you seen the image in

Exhibit 13 before?

18:06

9

A

It looks similar to phones I've seen before.

18:06

10

Q

Does it look similar in its overall

18:07

11

impression to the D '305 patent?

18:07

12

MS. TAYLOR:

It's one of those.

18:07

13

MS. CARUSO:

Q.

18:07

Or Exhibit 4 on your...

14

A

It looks similar, but not identical.

18:07

15

Q

Would you say it's substantially similar to

18:08

16

an ordinary observer?

18:08

17

A

Yes, probably.

18:08

18

Q

Why do you hesitate?

18:08

19

A

Well, there's -- there's just some small

18:08

20

differences, but I -- I would say they're very

18:08

21

similar.

18:08

22

Q

What differences do you note?

18:08

23

A

It's Wednesday, not Tuesday, nine versus six,

18:08

24

different time on the clock, notes to the left, one

18:08

25

extra icon on the third row.

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Q

Is it your opinion that collectively those

18:08

2

things would change an ordinary observer's overall

18:08

3

impression?

18:08

4

A

No.

5

Q

All right.

18:08

Do you remember when you first saw an image

18:08

6
7
8
9

I just said they're very similar.

that -- that looked like Exhibit 13?
A

I'm not sure.

I think there's a picture of

18:08

18:09
18:09

Steve Jobs holding up a phone, but I'm not sure if

18:09

10

this is that or not, and whether that's the phone or

18:09

11

if I'm confusing something else that I saw.

18:09

12

Q

I'll draw your attention to the fact that the

18:09

13

carrier identified on Exhibit 13 is Cingular, if that

18:09

14

helps you place the timing at all.

18:09

15

A

I don't know.

18:09

16

Q

Okay.

18:09

17

Do you remember when the iPhone was

announced?

18:09

18

A

I don't know.

18:09

19

Q

Leaving aside if you remember the exact date

18:09

20

that it was announced, do you remember there being a

18:09

21

day that the iPhone was announced?

18:10

22

A

Announced with an event or --

18:10

23

Q

Announced --

18:10

24

A

-- announced --

18:10

25

Q

-- by Apple.

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2

Steve Jobs introduced it at the Macworld
conference?

18:10
18:10

3

A

Yeah, and I went to that.

18:10

4

Q

Okay.

18:10

5

A

But I don't know when it was.

18:10

6

Q

All right.

18:10

So you were there when the first iPhone was

18:10

7
8

introduced?

18:10

9

A

Yes.

18:10

10

Q

Do you remember any publicity after that

18:10

11

event that -- that showed a picture of the iPhone as

18:10

12

it was shown at that Macworld event?

18:10

13

A

I don't remember.

18:10

14

Q

Do you remember if you went on Apple's

18:10

15

website and looked at any images of the phone after

18:10

16

attending that event?

18:10

17

A

I went to Macworld, and there was one in a --

18

like a plexi-box, but I -- I don't remember.

19

know about the website.

20
21

Q

I don't

18:10
18:10
18:11

And attending that event, did it make you

want to get an iPhone 1?

18:11
18:11

22

A

No.

18:11

23

Q

Why is that?

18:11

24

A

A variety of personal reasons.

18:11

25

Q

Did any of those reasons have to do with the

18:11

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