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

Filing 1568

OBJECTIONS to Newly-Disclosed Bressler and Denison Exhibits, Revised Schiller Exhibits, and Responses Re: Forstall, Bressler, Kare, and Schiller Cross Exhibits by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of Diane C. Hutnyan, # 2 Exhibit 1, # 3 Exhibit 2)(Maroulis, Victoria) (Filed on 8/3/2012)

EXHIBIT
1

1
2
3
4

UNITED STATES DISTRICT COURT

5
6
7

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

8
9
10
11
12
13

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.

14
15
16

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

17
18
19
20
21
22
23
24
25
26
27
28
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

1

The flatness of the front surface is communicated by additional D’677 patent figures, as shown

2

below.3

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

58.

In particular, Figures 5-8 show that the D’677 patent depicts a completely flat

front surface—as can be seen by the solid, unbroken line denoting the front surface, reproduced
below with the solid line denoting the front surface in red. Figures 5-8 without the red are shown
elsewhere in my reports.
59.

Accordingly, in an analysis of alleged prior art, views other than the front view

contain relevant—indeed, necessary—information because they are required to determine
whether the front surfaces of the prior art designs are flat or have surface contour or topography.
Without considering all figures of the D’677 patent and all views of the prior art, Mr. Sherman
has improperly failed to take into account the design as a whole in arriving at his opinion that the
D’677 patent is anticipated.

24
25
26
3

27
28

In this report, I have scaled images of the patents, the prior art, and alternative designs so that
they correspond with one another in height. Care has been taken not to change the proportional
relationship (i.e., aspect ratio) of the images.
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

20

1

106.

Therefore, even if one of the Fidler designs were considered a primary reference, it

2

is my opinion that the ordinary designer, at the time the D’889 design was invented, would not

3

have found it obvious to modify any of the Fidler designs to arrive at the D’889 design.

4

107.

The D’037 Patent. Due to the same visual differences identified in my foregoing

5

treatment of the D’037 patent, it is my opinion as a designer of ordinary skill in the art that the

6

D’037 design does not present basically the same overall visual impression as the D’889 patent.

7

Notably, the D’037 patent fails to disclose a tablet having a continuous transparent front surface

8

through which a centered rectangular element is visible. The differences between the D’037

9

design and the D’889 patent are significant enough that major modifications to the D’037 design

10
11

would be required to make it substantially the same as the D’889 design.
108.

Even if the D’037 patent were considered a primary reference against the D’889

12

design, the unmodified design would not appear substantially the same to the ordinary observer,

13

as I opined previously.

14

109.

Moreover, Mr. Sherman has not identified any secondary reference that he

15

proposes to combine with the D’037 design. Mr. Sherman suggests, however, that modifications

16

“to have the identical profile as the D’889, as well as changes in aspect ratios and width of rims,

17

would have been trivial to someone skilled in the art to produce the design of the D’889.”

18

(Sherman Report at 30.) But Mr. Sherman fails to provide any explanation why the proposed

19

modifications would have been obvious to the ordinary designer at the time the D’889 design was

20

invented, or any suggestion that would have caused the ordinary designer to make the proposed

21

modification. Accordingly, Mr. Sherman’s statement is unsupported and conclusory in my

22

opinion.

23

110.

As discussed previously, I disagree that the differences between the D’037 design

24

and the D’889 design are trivial. The D’037 design merely discloses a continuous front surface,

25

and not a transparent front surface with a viewable rectangular element marking an even border.

26

Even if one changed the profiles, the aspect ratios, and the width of the rims of the D’037 patent,

27

as suggested by Mr. Sherman, the resulting design would still not have a continuous transparent

28

front surface with a viewable rectangular element as in the D’889 Patent. Moreover, the D’037 is
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

43

1

also significantly thicker than the D’889 design, and has straight sides that form an angled edge

2

with the back surface that differs from the D’889 design. It would not have been trivial or

3

obvious to the ordinary designer at the time the D’889 design was invented to change all these

4

features of the D’037 design to the exact features claimed in the D’889 patent. This is evidenced

5

by the fact Mr. Sherman could not identify a single prior art reference having these design

6

features of the D’889 patent.

7

111.

Therefore, even if the D’037 patent were considered a primary reference, it is my

8

opinion that the ordinary designer, at the time the D’889 design was invented, would not have

9

found it obvious to modify the D’037 design to arrive at the D’889 design.

10

112.

The D’157 Patent. Due to the same visual differences identified in my foregoing

11

treatment of the D’157 patent, it is my opinion as a designer of ordinary skill in the art that the

12

D’157 design does not present basically the same overall visual impression as the D’889 patent.

13

Notably, the D’157 patent fails to disclose a tablet having a continuous transparent front surface

14

through which a centered rectangular element is visible. The differences between the D’157

15

design and the D’889 patent are such that major modifications to the D’157 design would be

16

required to make it look like the D’889 design.

17

113.

Even if the D’157 patent were considered a primary reference against the D’889

18

design, the unmodified design would not appear substantially the same to the ordinary observer,

19

as I opined previously.

20

114.

Moreover, Mr. Sherman has not identified any secondary reference that he

21

proposes to combine with the D’157 design. Mr. Sherman suggests, however, that modifications

22

“to have the identical profile as the D’889, as well as changes in aspect ratios and width of rims,

23

would have been trivial to someone skilled in the art to produce the design of the D’889.”

24

(Sherman Report at 30.) But Mr. Sherman fails to provide any explanation why the proposed

25

modifications would have been obvious to the ordinary designer at the time the D’889 patent was

26

invented, or any suggestion that would have caused the ordinary designer to make the proposed

27

modification. Accordingly, Mr. Sherman’s statement is unsupported and conclusory in my

28

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

44

1

115.

As discussed previously, I disagree that the differences between the D’157 design

2

and the D’889 design are trivial. At most, the D’157 design discloses an opaque frame

3

surrounding a transparent surface. It does not disclose a transparent front surface with a viewable

4

rectangular element that marks an even border around the element. Even if one changed the

5

profiles, the aspect ratios, and the width of the rims of the D’157 patent, as suggested by

6

Mr. Sherman, the resulting design would still not have a continuous transparent front surface with

7

a viewable rectangular element as in the D’889 Patent. That modification alone would not have

8

been trivial or obvious to the ordinary designer at the time the D’889 patent was invented, as

9

evidenced by Mr. Sherman’s inability to identify a single prior art reference having this feature of

10
11

the D’889 patent.
116.

Therefore, even if the D’157 patent were considered a primary reference, it is my

12

opinion that the ordinary designer, at the time the D’889 design was invented, would not have

13

found it obvious to modify the D’157 design to arrive at the D’889 design.

14

117.

JP D1142127 (“the JP’127 patent”). Mr. Sherman appears to assert that the

15

JP’127 patent is a primary reference against the D’889 patent. I disagree with any such opinion.

16

The JP’127 design discloses an opaque frame around a center display area. The opaque frame

17

also includes patterns formed of circular holes on the left and right-hand sides. The opaque frame

18

is also raised above the front surface, such that it is visible in the profile views. This visual

19

appearance is distinctly different than that of the D’889 design. Moreover, the JP’127 patent

20

includes a visible notch on its top surface and various other visual elements on its back surface,

21

which do not exist in the D’889 patent. Due to these visual differences, it is my opinion as a

22

designer of ordinary skill in the art that the JP’127 design does not present basically the same

23

overall visual impression as the D’889 patent. The differences between the JP’127 design and the

24

D’889 patent are such that major modifications to the JP’127 design would be required to make it

25

substantially the same as the D’889 design.

26

JP’127 Patent

D’889 Patent

27
28
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

45

1

JP’127 Patent

D’889 Patent

2
3
4
5
6
7
8

No corresponding view.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

46

1

118.

Even if the JP’127 patent were considered a primary reference against the D’889

2

design, the unmodified design would not appear substantially the same to the ordinary observer

3

for reasons set forth above.

4

119.

Mr. Sherman suggests that the JP’127 reference can be combined with the D’037

5

patent, the D’157 patent, or Apple’s “brain box” design to render the front face of the device

6

“completely flush” and produce the design of the D’889 patent. (Sherman Report at 30.)

7

Mr. Sherman fails to provide any rationale for why the appearance of visual features in the

8

D’037, D’157, and “brain box” references would have suggested to the ordinary observer their

9

application to the D’889 patent. Moreover, even the combined references would fail to produce

10

the D’889 patent, as Mr. Sherman claims, or a design that would appear substantially the same in

11

the eyes of the ordinary observer.

12

120.

In particular, even if the JP’127 reference front surface were made “completely

13

flush” as suggested by Mr. Sherman, it would still lack a continuous transparent surface with a

14

viewable rectangular element over the front face. The other differences in the JP’127 reference

15

would also remain, such as the prominent dotted design elements on the left and right of the

16

device’s front surface. Such a design would not appear substantially the same to the ordinary

17

observer.

18

121.

Furthermore, even if the JP’127 reference were combined with one of the three

19

references suggested by Mr. Sherman, the resulting design would still lack a continuous

20

transparent front surface with an underlying rectangular element, because none of these

21

references discloses that visual feature. Without that feature, none of these hypothetical

22

combined designs would appear substantially the same to the ordinary observer.

23

122.

Accordingly, even if the JP’127 patent were considered a primary reference, it

24

would not render the D’889 patent obvious, whether alone or in combination with the D’037,

25

D’157, or “brain box” references.

26

123.

D461,802 (“the D’802 patent”). Mr. Sherman appears to assert that the D’802

27

patent is a primary reference against the D’889 patent. I disagree with any such opinion. The

28

D’802 design discloses an opaque frame with textured patterns surrounding a center area that is
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

47

1
2

127.

Even if the D’802 patent were considered a primary reference against the D’889

3

design, the unmodified design would not appear substantially the same to the ordinary observer

4

for reasons set forth above.

5

128.

Mr. Sherman suggests that the D’802 patent can be combined with the D’037

6

patent or the D’157 patent to render its patterned borders flat and its overall shape completely

7

rectangular so as to produce the D’889 design. (Sherman Report at 30.) Mr. Sherman fails to

8

provide any rationale for why the appearance of visual features in the D’037 or D’157 patents

9

would have suggested to the designer of ordinary skill in the art their application to the D’889

10

patent. Moreover, even the combined references would fail to produce the D’889 patent, as

11

Mr. Sherman claims, or a design that would appear substantially the same in the eyes of the

12

ordinary observer.

13

129.

In particular, even if the D’802 design were combined with the D’037 patent or

14

D’157 patent, the resulting design would still lack a continuous transparent front surface with a

15

viewable rectangular element, which is not disclosed in either the D’037 or D’157 patents.

16

Moreover, the resulting design would not come any closer to the D’889 patent in profile shape, as

17

the D’157 patent profile is more similar to the D’802 patent than to the D’889 patent, and the

18

D’037 has a thick, angled side profile, which looks nothing like the D’889 side profile. None of

19

the resultant designs from Mr. Sherman’s proposed combinations would appear substantially the

20

same to the ordinary observer.

21

130.

Accordingly, even if the D’802 patent were considered a primary reference, it

22

would not render the D’889 patent obvious, whether alone or in combination with the D’037 or

23

D’157 patents.

24

131.

Unapplied References. Mr. Sherman lists a number of alleged prior art

25

references in his report that he does not assert as anticipatory references or references that render

26

the D’889 patent obvious. In particular, Mr. Sherman generally describes the alleged designs for

27

the 1998 University of Illinois tablet, D’337,569, KR30-0304216, JP0921403, JP0887388, U.S.

28
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

50

1

Patent No. 6,919,678,8 CDR 000048061-0001, HP Compaq TC1000, D464,344, D463,797,

2

pictures from the movie Space Odyssey 2001, and pictures from the TV series “Tomorrow

3

People.” I disagree with a number of Mr. Sherman’s assertions regarding the visual appearance

4

of these references. But as Mr. Sherman has not provided any specific opinions as to how these

5

references invalidate the D’889 patent, I am unable to rebut them. I reserve the right, however, to

6

offer such rebuttals if Mr. Sherman later provides specific opinions on how these references

7

invalidate the D’889 patent.

8

11.

9
10
11
12
13
14
15
16
17
18
19
20
21
22

132.

Mr. Sherman Cannot Identify a Proper Primary Design Reference for
the D’677 Patent

Given the importance of the flat, continuous, and edge-to-edge transparent front

surface for the overall appearance of the D’677 design, it is my opinion that any prior art design
without such a front surface cannot present basically the same visual impression as the D’677
design and thus cannot serve as a primary reference. The few prior art designs identified by
Mr. Sherman as allegedly having this feature are so visually dissimilar from the D’677 design that
they cannot serve as primary references.
133.

The JP’221 Patent. To the extent Mr. Sherman implies that the JP’221 patent

could be considered a primary reference against the D’677 patent, I disagree. As discussed in
detail above, the overall appearance of the JP’221 design is significantly different from that of the
D’677 patent. In particular, the JP’221 design lacks a flat, continuous, and edge-to-edge
transparent front surface, which is an integral visual element of the D’677 design. The JP’221
design cannot be used as a primary reference, because in my opinion, it does not create basically
the same visual impression as the D’677 design to the designer of ordinary skill in the art.

23
24
25
26
27
28

8

Although Mr. Sherman does not provide any specific explanation for why U.S. 6,919,678
anticipates or renders obvious the D’889 patent, I concluded that U.S. Patent Application Publication No.
2004/0041504, which gave rise to U.S. 6,919,678, does not disclose a design that is substantially the same
as the D’889 patent in my opening Expert Report at ¶¶ 109-117. My analysis therein applies to U.S.
6,919,678, and I incorporate such analysis by reference. Moreover, for the reasons that U.S. 6,919,678
does not invalidate the D’889 patent, it also does not invalidate the D’677 patent. Mr. Sherman does not
provide any explanation for why U.S. 6,919,678 does not invalidate the D’677 patent, and I reserve the
right to rebut such opinions if he comes forward with them.
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

51

1

134.

Even if the JP’221 design were considered a primary reference for the D’677

2

patent, for the reasons discussed above, the JP’221 design would not appear substantially the

3

same as the D’677 design to an ordinary observer and therefore would not render the D’677

4

patent obvious on its own. Mr. Sherman does not suggest any modifications to the JP’221 design

5

or identify any secondary references for combination with the JP’221 design, so I cannot further

6

rebut his opinion that the JP’221 patent renders the D’677 patent obvious.

7

135.

The D’889 Patent. To the extent Mr. Sherman implies that the D’889 patent

8

could be considered a primary reference against the D’677 patent, I disagree. As discussed in

9

detail above, the overall appearance of the D’889 design is significantly different from that of the

10

D’677 patent. In particular, the D’889 patent has a different form factor, different proportions,

11

lacks the unique border configuration of the D’677 design, and is missing a lozenge-shaped slot

12

feature. The D’889 design also lacks the D’677 patent’s black color. The D’889 design cannot

13

be used as a primary reference, because in my opinion, it does not create basically the same visual

14

impression as the D’677 design to the designer of ordinary skill in the art.

15

136.

Even if the D’889 design were considered a primary reference for the D’677

16

patent, for the reasons discussed above, the D’889 design would not appear substantially the same

17

as the D’677 design to an ordinary observer and therefore would not render the D’677 patent

18

obvious on its own. Mr. Sherman does not suggest any modifications to the D’889 design or

19

identify any secondary references for combination with the D’889 design, so I cannot further

20

rebut his opinion that the JP’221 patent renders the D’677 patent obvious.

21

137.

The JP’638 Patent. To the extent Mr. Sherman implies that the JP’638 patent

22

could be considered a primary reference against the D’677 patent, I disagree. As discussed in

23

detail above, the overall appearance of the JP’638 design is significantly different from that of the

24

D’677 patent. In particular, the JP’638 design lacks a flat, continuous, and edge-to-edge

25

transparent front surface, which is an integral visual element of the D’677 design. The JP’638

26

design cannot be used as a primary reference, because in my opinion, it does not create basically

27

the same visual impression as the D’677 design to the designer of ordinary skill in the art. Major

28

modifications are required to make the JP’638 design look like the D’677 patent.
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

52

1

•

2
3
4

•

5
6

•

7
8

•

9
10
11

255.

A New York Times review of the iPhone dated January 11, 2007, entitled “Apple
Waves Its Wand at the Phone.” The article notes that “[a]s you’d expect of Apple,
the iPhone is gorgeous.” It likens Apple’s creation of the iPhone to the work of
“the fairy godmother in ‘Cinderella’”: transformation of a “homely and utilitarian
object, like a pumpkin or a mouse, into something glamorous and amazing . . .”35
A New York Times article dated June 27, 2007, describes the iPhone as “a tiny,
gorgeous hand-held computer,” and notes that “[t]he phone is so sleek and thin, it
makes Treos and Blackberrys look obese.”36
A Korea JoonsAng Daily Internet article dated February 18, 2008, entitled “Apple
iPhone Tops List of Innovative Inventions,” reporting the results of a survey of
599 Korean CEOs by Samsung Economic Research Institute, in which the CEOs
indicated that the “iPhone’s sleek design caught their eye.”37
A Wall Street Journal article, dated June 27, 2007, entitled “Testing Out the
iPhone,” which states that smartphone “designers have struggled to balance screen
size, keyboard usability and battery life . . . . [T]he iPhone is, on balance, a
beautiful and breakthrough handheld computer.”38
The iPhone is not merely an example of excellence in design. The purity of design

12

expression pushes the iPhone into the realm of art. In recognition of the iPhone’s aesthetic

13

beauty, iPhones have been added to the permanent collections of museums including the Museum

14

of Modern Art, the San Francisco Museum of Modern Art, and the Museum for Kunst und

15

Gewerbe (Arts & Crafts) in Hamburg, Germany. The iPhone has been displayed in exhibitions

16

including:

17

•

18

•

19

Less and More: The Design Ethos of Dieter Rams, San Francisco Museum of
Modern Art, August 27, 2011, through February 20, 2012 and
Stylectrical, Museum for Kunst und Gewerbe (Arts & Crafts), August 26, 2011,
through January 15, 2012.

20
21
22
23
24

35

David Pogue, “Apple Waves Its Wand at the Phone,” NY Times, Jan. 11, 2007
http://www.nytimes.com/2007/01/11/technology/11pogue.html?sq=pogue.
36

25
26
27
28

David Pogue, “The iPhone Matches Most of Its Hype,” NY Times, June 27, 2007,
http://www.nytimes.com/2007/06/27/technology/circuits/27pogue.html?pagewanted=1&_r=1&ref=iphone.
37

Korea JoongAng Daily, “Apple’s iPhone Tops List of Innovative Inventions,” Feb. 18, 2008,
http://joongangdaily.joins.com/article/view.asp?aid=2886322.
38

Walter Mossberg & Katherine Boehret, “Testing Out the iPhone, The Wall Street Journal, June
27, 2007, http://online.wsj.com/articles/SB118289311361649057.html.
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

102

1
2
3

256.

Additionally, the United States Patent and Trademark office featured iPhone

shaped displays in an exhibit showcasing Steve Jobs’ numerous patents and trademarks.39
257.

iPod touch. The iPod touch’s design as embodied in the D’270 patent has also

4

received much acclaim. The iPod touch received a gold design award at the iF Product Design

5

Awards at the CeBit 2008 show in Hanover, Germany.40 The iPod touch also received a “Yellow

6

Pencil” design award in a 2008 Design and Art Direction design competition.41 Similarly, in part

7

due to its distinctive design, Apple’s iPod touch was named “Gadget of the Year” by T3, in a

8

British awards competition.42 The iPod touch was also named one of the “Best Inventions of

9

2008” by Time magazine.43

10

258.

The distinctive design of the iPod touch has also received widespread praise from

11

various media outlets. For example, a PC Magazine article dated September 12, 2007, entitled

12

“Apple iPod touch,” calls the iPod touch a “thing of beauty” and explains that as an “elegant

13

design, the iPod touch is simply the best portable media player ever made.”44 Likewise, a

14

Guardian (London) article notes “[w]ith its eye catching design, the iPod [touch] has become a

15

landmark of 21st century living in just a few years.”45

16
17
18
19
20
21
22
23
24

39

Brian Chen, “Patent Office Highlights Jobs’s Innovations,” New York Times, Nov. 23, 2011,
http://bits.blogs.nytimes.com/2011/11/23/patent-office-highlights-jobss-innovations; APL-ITC796X0000003306 - APL-ITC796-X0000003666.
40

MacNN, “Apple Wins Eight iF Design Awards at CeBIT,” Mar. 8, 2008,
http://www.macnn.com/articles/08/03/08/apple.wins.8.if.awards/.
41

Palmer, Robert, “Apple Wins Two D&AD ‘Black Pencil’ Awards,” TUAW, May 16, 2008,
http://www.tuaw.com/2008/05/16/apple-wins-two-dandad-black-pencil-awards/.
42

iPodNN, “iPod touch Voted Gadget of the Year,” Oct. 10, 2008,
http://www.ipodnn.com/articles/08/10/10/gadget.of.the.year.ipod/.
43

25
26
27
28

Jeremy Caplan, “Gadget of the Year: iPod touch,” Time, Oct. 29, 2008,
http://www.time.com/time/specials/packages/article/0,28804,1852747_1852746_1852745,00.html.
44

Tim Gideon, “Apple iPod touch,” PC Mag, Sep. 12, 2007,
http://www.pcmag.com/article2/0,2817,2179699,00.asp.
45

Bobbie Johnson, “Farewell to a classic design as Jobs unveils the iPod touch: Apple ditches
emblematic look with media player based on iPhone,” Guardian, Sep. 6, 2007 at 13.
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

103

1
2

c.
259.

Initial Skepticism

iPad 2. There was considerable of pre-launch initial skepticism of the iPad design

3

by industry experts. For instance, one commentator criticized the iPad as “not so pretty,”

4

explaining:

5
6
7
8
9
10

A hallmark of all Apple products is design. More often than not, the devices the
company releases are far more beautiful than any competing product. But the iPad
is different. The device’s bezel is huge, making the screen look smaller than it
really is. Worst of all, a quick comparison between the iPad and its competition
reveals that some products, especially HP’s Slate, are actually on equal footing, if
not better looking than Apple's iPad. Unfortunately for HP, few people know
that.46
260.

Another media report predicted failure of the iPad:

13

Like a moth to a hot trend, Apple (AAPL) will fly into the netbook flame and get
burned. The company will unveil a 10-inch touchscreen tablet computer sometime
this year, say analysts. Not only does Apple want to showcase its design prowess,
the company desperately needs a new hit to revitalize its computer line-up. . . .
[B]eyond the core fan base, Apple will discover what other PC makers have
known for a while: Consumers find big tablets hard to swallow.47

14

261.

11
12

15
16
17
18
19

Others criticized the iPad’s lack of physical keyboard.48 And others complained

that the “iPad is a heavy, bulky piece of gear and uncomfortable to hold for long periods.”49
262.

The iPad 2 incorporated many of the design features of the iPad of which the

industry was skeptical.
263.

iPhone. There was initial skepticism of the iPhone design around the time of its

release. Many media reports predicted that the iPhone would fail.50 One industry observer

20
46

21
22
23
24
25
26
27
28

Don Reisinger, “10 Reasons Why the iPad Would Fail Without the Apple Logo,” eWeek.com,
Jan. 28, 2010, http://www.eweek.com/c/a/Mobile-and-Wireless/10-Reasons-Why-the-iPad-Would-FailWithout-the-Apple-Logo-428320/1/ (APLNDC-Y0000238570-72).
47

Scott Moritz, “Apple’s Netbook Foray Will Flop,” The Street, Mar. 24, 2009,
http://www.thestreet.com/print/story/10476593.html (APLNDC-Y0000238577-79, APLNDCY0000238580-82).
48

Jeremy Muncy, “5 Reasons Why the iPad Fails to Impress,” WebProNews, Feb. 1, 2010,
http://www.webpronews.com/5-reasons-why-the-ipad-fails-to-impress-2010-02 (APLNDCY0000238554-69).
49

Rick Broida, “How to hold an iPad comfortably in one hand.” CNET, Mar. 7, 2011,
http://reviews.cnet.com/8301-31747_7-20040287-243.html (APLNDC-Y0000238764-68).
50

See, e.g., Bill Ray, “Why the Apple Phone Will Fail, and Fail Badly,” The Register, December
23, 2006, http://www.theregister.co.uk/2006/12/23/iphone_will_fail/page2.html; Matthew Lynn, Apple
(Footnote continues on next page.)
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

104

1

available to Apple and that a variety of design factors were to be considered. Other witnesses

2

testified that the design of the iPhone was ultimately determined based on aesthetic

3

considerations.

4

386.

Indeed, based on testimony of Apple product designers, it is my understanding

5

that there were manufacturing challenges associated with the splined (i.e., curved) surfaces of the

6

iPhone design. (See, e.g., T. Tan Dep. at 56:10-61:18 (Mar. 2, 2012).) This further undermines

7

Mr. Sherman’s claim that the rounded corners of the D’677, D’087 or D’270 patents are purely

8

functional.

9
10

387.

Accordingly, it is my opinion that the rounded corners of a smartphone or media

player are not dictated by function.

11

c.

12
388.

The Display Screen on a Smartphone or Media Player
Need Not Be an Elongated Rectangle

Mr. Sherman asserts that “[a]vailable display screen options [that might exist]

13
other than an elongated rectangle would be less efficient for use in a modern mobile electronic
14
device and would be considerably more expensive.” (Sherman Report at 98.) However,
15
Mr. Sherman offers no factual basis for this assertion and, in fact, many commercialized
16
smartphones have screens that are more square than rectangular. For example, the display
17
screens of the Nokia X5-01 and the Palm Centro (shown below) are more square than
18
rectangular.
19
20
21
22
23
24
25
26
27
28
REBUTTAL EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK

151