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

Filing 172

Declaration of ITAY SHERMAN IN SUPPORT OF SAMSUNG'S OPPOSITION TO APPLE'S MOTION FOR PRELIMINARY INJUNCTION filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M, #14 Exhibit N, #15 Exhibit O, #16 Exhibit P, #17 Exhibit Q, #18 Exhibit R, #19 Exhibit S, #20 Exhibit T, #21 Exhibit U, #22 Exhibit V, #23 Exhibit W, #24 Exhibit X, #25 Exhibit Y, #26 Exhibit Z, #27 Exhibit AA, #28 Exhibit BB, #29 Exhibit CC, #30 Exhibit DD, #31 Exhibit EE, #32 Exhibit FF, #33 Exhibit GG, #34 Exhibit HH)(Maroulis, Victoria) (Filed on 8/22/2011) Modified on 8/29/2011 cannot link entry-opposition has not been efiled (dhm, COURT STAFF).

EXHIBIT N

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 1
1
2
3
4

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
--o0o-APPLE INC., a California
corporation,

5

Plaintiff,
6

Vs.

Case No. 11-CV-01846-LHK

7

8

9

10

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,

11

12

Defendants.
_____________________________/

13
14
15
16
17

VIDEOTAPED DEPOSITION OF COOPER WOODRING
Redwood Shores, California
Friday, August 5, 2011
(HIGHLY CONFIDENTIAL ATTORNEYS' EYES
ONLY PORTIONS BOUND SEPARATELY)

18
19

Reported By:

CAROL S. NYGARD, CSR No. 4018
Registered Merit Reporter

20
21
22
23
24
25

TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 7
1

MS. WHEELER:

2

VIDEOGRAPHER:

3

Cindy Wheeler, Apple.
Will the Court Reporter please

swear in the witness.

4

(Thereupon the oath was administered to the

5

Witness by the Court Reporter.)

6
7
8

EXAMINATION
BY MR. ZELLER:
Q.

9

Good morning.
Please tell us your full name.

10

A.

Cooper Coolidge Woodring.

11

Q.

And what is your current business address?

12

A.

131 Highland Avenue, Wakefield, Rhode Island

13

02789.

14

Q.

And where do you currently reside?

15

A.

At that same address.

16

Q.

Currently do you -- do you have a company or a

17

firm that you work with?

18

A.

No.

19

Q.

You're out on your own as a consultant?

20

A.

Yes.

21

Q.

When is it that you were first contacted by

22

anyone about potentially being engaged in connection

23

with a dispute with Samsung?

24

A.

I think it was early May of this year.

25

Q.

Who did you hear from?
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 27
1

THE WITNESS:

I'm sure there are, you know,

2

many variations on that that would allow the shape of a

3

touch screen to be proprietary to a particular maker.

4

BY MR. ZELLER:

5
6

Q.

touch screen proprietary to Apple?

7
8

MR. MONACH:
question.

9
10
11
12

Is the shape in the form of a rectangle of a

Incomplete hypothetical.
THE WITNESS:

Q.

In connection with smartphones what's the most

common shape of display screens?
MR. MONACH:

14

THE WITNESS:

16

Unto itself, probably not.

BY MR. ZELLER:

13

15

Object to the form of the

Object to form.
Probably some form of rectangle.

BY MR. ZELLER:
Q.

Is there anything about the rectangular shape,

17

the particular rectangular shape of the screens used on

18

the iPhones, that you believe is proprietary to Apple?

19

MR. MONACH:

20

THE WITNESS:

21
22

Object to form.
Well, again, it's hard to answer

that question.
If a -- if a rectangular display screen were

23

being claimed in a design patent in combination with

24

other visual elements, yes, it could be a part -- it

25

could be a part of the patent's claim.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 28
1
2
3

BY MR. ZELLER:
Q.

I'm asking about the particular shape of the

rectangular display screen alone.

4

In your view is that particular shape of the

5

rectangular display screen alone as used in connection

6

with the iPhones proprietary to Apple?

7

MR. MONACH:

8

THE WITNESS:

9
10

Objection to form.
I would think not.

BY MR. ZELLER:
Q.

You, of course, know that touch screens have

11

been used in a rectangular form, a generally rectangular

12

shape, going back to at least the 1990s; right?

13

MR. MONACH:

14

THE WITNESS:

15

number of years.

16

Objection to form.
I know they have been used for a

BY MR. ZELLER:

17

Q.

I don't know the specific time frame.

You know that at least as early as 1997 that

18

cell phones used generally rectangular-shaped displays;

19

correct?

20

MR. MONACH:

21

THE WITNESS:

22
23

Objection to form.
Yes.

BY MR. ZELLER:
Q.

Generally speaking, in connection with the

24

design patents that -- that you reviewed, what was your

25

impression of them when you first reviewed them?
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 29
1

MR. MONACH:

2

THE WITNESS:

3

Object to form.
Help me understand what -- what

do you mean by what was my impression?

4

They -- they looked like rather conventional

5

design patents,

6

BY MR. ZELLER:

7

Q.

8
9

Well, let's focus on the 889 design patent.
Did you think that design that was depicted

there was a -- extremely simple design?

10

Did you think it was ornate?

11

What was your overall impression of it?

12

A.

The 087?

13

Q.

The 889 design patent, that's the Tab 1?

14

A.

Right.

15
16

I thought it was -- rather typical of
Apple-designed products.

17

Q.

And what do you mean by that?

18

A.

They tend to be -- what has been described by

19
20
21

other designers as "minimalist designs."
Q.

simplicity?

22
23

Another way of describing it to be defined by

MR. MONACH:

Object to form.

BY MR. ZELLER:

24

Q.

In its design.

25

A.

You could substitute that term, yes.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 30
1

Q.

And was that also true of the two other design

2

patents that you reviewed pertaining to the surface of

3

the -- of the phones?

4

A.

In general.

5

MR. MONACH:

6

THE WITNESS:

7
8
9

In general, yes.

BY MR. ZELLER:
Q.

And it's true that when a design is reduced to

a level of simplicity little things mean a lot?

10

MR. MONACH:

11

THE WITNESS:

12

Object to form.

Object to form.
They can.

BY MR. ZELLER:

13

Q.

You, yourself, have said that; true?

14

A.

I have.

15

Q.

Was it true when you said it?

16

A.

Yes, of course.

17

Q.

It's something you still believe today?

18

MR. MONACH:

19

THE WITNESS:

20

Object to form.
I -- I said that in a certain

context that may not apply to every situation.

21

In general it -- it's true that a -- small

22

nuances would be less noticeable on a highly-complex

23

design than they would on a -- a more simple design.

24

BY MR. ZELLER:

25

Q.

And in terms of designs for electronic
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 31
1

devices, the design patents that bring us here today are

2

on the side of simplicity rather than complexity; right?

3

MR. MONACH:

4

THE WITNESS:

5
6

Object to form.
In general, yes.

BY MR. ZELLER:
Q.

Now, it's true that informed users of

7

electronic products pay more attention to differences of

8

necessary features; right?

9

MR. MONACH:

10
11

THE WITNESS:

Object to form.
Well, that's a -- a standard

that is -- utilized in the European community.

12

I don't know that it's a standard that is

13

appropriate here.

14

BY MR. ZELLER:

15
16
17
18
19
20
21
22
23

Q.

Well, you've said that you agree with that

standard; true?
MR. MONACH:

Object to the form.

Taking a

statement out of context.
He's not here to testify about a European
proceeding.
But, if you can answer the question in the
abstract as it's phrased, go ahead.
THE WITNESS:

I'm not going to argue with the

24

-- the European community design registration's legal

25

standards, no.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 120
1

THE WITNESS:

Not only am I not aware that it

2

is an advantage, I would disagree that it is an

3

advantage.

4

I would think having a one inch wide border on

5

either side would be detrimental.

6

BY MR. ZELLER:

7

Q.

And when you say "a one inch order size,"

8

you're referring to the actual product that we marked as

9

Exhibit 65; right?

10
11

MR. MONACH:
question.

12
13

Object to the form of the

THE WITNESS:

I wouldn't care if you applied

it to the product or the design shown in the patent.

14

Having an extremely wide border on either side

15

of the display screen, I would think, would be

16

detrimental, not advantageous.

17

BY MR. ZELLER:

18
19

Q.

disadvantageous and not advantageous?

20
21

In what way do you believe it is

MR. MONACH:

Object to the form of the

question.

22

Incomplete hypothetical.

23

THE WITNESS:

Vague.

Well, it would either reduce the

24

display down to about half inch in vertical width or it

25

would increase the size of the iPhone by a couple of
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 121
1

inches, neither one of which would seem to be

2

advantageous.

3

BY MR. ZELLER:

4

Q.

And you would agree with me that generally

5

speaking for iPhones -- or excuse me -- for smartphone

6

and computer tablet design, the same is true, when you

7

talk about what the size of those side borders are;

8

right?

9

MR. MONACH:

10
11

THE WITNESS:

14

I didn't understand your

question.

12
13

Object to form.

I -- with regard to iPhones and tablets what?
BY MR. ZELLER:
Q.

Well, you told me that you think that there

15

are certain disadvantages in having to have a wider

16

border around the display?

17

A.

Of having a too wide border, yes.

18

Q.

And you talked about that specifically in

19

context of the iPhone; right?

20

A.

Yes.

21

Q.

And so my question is now a more general one.

22

Is it true that you also believe that it would

23

be disadvantageous for smartphones in general and

24

tablets in general to have to have wider as opposed to

25

more narrow borders?
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 122
1
2
3
4
5
6

MR. MONACH:

Vague.

BY MR. ZELLER:
Q.

For those same reasons that you discussed in

connection with the iPhone?
A.

Your -- your question is -- is so vague I

can't give you a definitive answer.

7
8

Objection.

In other words, wider -- wider than what and
up to what width?

9

In other words, it's -- it's all conditional.

10

These are the choices designers make that makes products

11

successful.

12
13
14

It could be too narrow.
Q.

We're talking about a particular design

aspect.

15
16

It could be too wide.

We're talking about the borders around the
display screens; right?

17

A.

Of?

18

Q.

On smartphones.

19

A.

Okay.

20

Q.

Right?

21

A.

Okay.

22

Q.

You'll agree with me that it is a design

23

disadvantage to have to have borders around the display

24

screen of a smartphone that are so wide that it would

25

either mean that the screen -- the active display screen
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 123
1

area is reduced or the phone size has to be increased;

2

right?

3
4

MR. MONACH:

Objection.

Vague and incomplete

hypothetical in light of his prior testimony.

5

THE WITNESS:

6

would agree with that.

7

BY MR. ZELLER:

8
9

Q.

In -- in general terms, yes, I

And the same is true with respect to tablet

computer design; right?

10

MR. MONACH:

11

THE WITNESS:

Same objection.
Yes, but to a lesser degree,

12

because there's a little more freedom in a tablet

13

computer just because of its size and the fact that it's

14

probably not designed to go in a pocket and whatnot.

15

BY MR. ZELLER:

16

Q.

The scale of it is -- is larger when you're

17

working with a tablet computer than you are with a

18

smartphone, so at least the space that you have to work

19

with is larger in the tablet computer arena?

20

A.

The -- the matte, if you will, around --

21

between the frame and the display screen, yes, you'd

22

have a little more leeway there, be less constrained.

23

Q.

In your view is it important to compare the

24

products to the -- the designs and the design patents

25

using the same scale?
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 124
1
2

A.

I think it helps in the analysis, and I did

that in my exhibits.

3

If you -- if you look, the photographs of the

4

products and the patent drawings are as close to being

5

the same scale as we could achieve.

6
7
8
9
10

Q.

it does help in the analysis?
A.

Q.

15

And please tell me, why do you say that?
Why do you think it makes it more

apples-to-apples?

13
14

Well, it's just more of an apples-to-apples

comparison -- excuse the pun.

11
12

And why is it you think it's most helpful or

I'm just trying to understand that part of it.
A.

Design patents have no dimensions, so they

know no specific size.

16

So to scale the drawings in a design patent to

17

the same scale or size as an accused product simply

18

makes the comparison an easier one to make.

19

Q.

Directing your attention back to Exhibit 65,

20

do you know whether as of the time that that product was

21

designed and manufactured as to whether or not there was

22

a minimum-sized border on the side that had to be used?

23
24
25

MR. MONACH:

Objection.

Form.

BY MR. ZELLER:
Q.

On the phone?
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 149
1

Q.

You've never worked in a carrier storefront?

2

A.

No.

3
4
5

I testified earlier that I hadn't.
Q.

You have no expertise at all with carrier

storefronts; right?

6

A.

I wouldn't agree with that.

7

Q.

Please tell me your expertise with carrier

8
9

storefronts?
A.

A carrier storefront is a retail operation,

10

and I wouldn't want to limit my testimony to say I don't

11

have any experience in retail operations in that in my

12

decades with J.C. Penney we were involved in -- in

13

designing stores, and storefronts, and interiors, and

14

point of purchase displays, and architecture.

15
16
17

So I wouldn't want to say I have no -- no
expertise in retail environment.
Q.

So please tell me your full basis for

18

believing that purchasers of smartphones through carrier

19

storefronts are the same types of purchasers who went to

20

J.C. Penney as of 1986 when you left?

21

MR. MONACH:

Object to the form of the

23

THE WITNESS:

Consumers are consumers.

24

There's certain generalities that we can make

22

25

question.

about them.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 150
1
2

In -- in the mid-eighties we had over a
million people a day going through J.C. Penney stores.

3
4

I'm sure some of those same people are -- are
buying smartphones in carrier storefronts today.

5

I'm not saying there's a direct correlation.

6

I'm just saying that they're not mutually

7

exclusive.

8

BY MR. ZELLER:

9
10

Q.

Do you believe that consumers have become more

sophisticated about technology since 1986?

11

MR. MONACH:

12

THE WITNESS:

13

I could answer "yes," and give you reasons why

14

Objection.

Vague.

That's a double-edged sword.

I believe that.

15

I could also answer that they've become less

16

sophisticated because of the advent of -- of products

17

like the iPhone that reduce our need for the

18

understanding of the -- of technology by providing a

19

simple easy to use product.

20
21
22

There's an argument on both sides of that
coin.
Q.

23
24
25

Well, I'm not asking for arguments.
Tell me, what empirical data do you have to

support that answer you just gave?
A.

Having designed products where we reduced
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 151
1

complexity against a background of more complex products

2

simplified the need for knowledge about technology on

3

the part of the consumer and resulted in a -- what often

4

became a, quote, "best seller" in that category of

5

consumer electronics at J.C. Penney, so there's a basis

6

-- a proven logical analytical basis for my statement.

7

Q.

If I -- if I'm hearing you correctly, simply

8

filing the design can increase the ease of -- of use of

9

technology for the consumer; is that right?

10

A.

Sure.

11

Q.

And is that something you generally believe is

12

true?

13

A.

I know it's true.

14

Q.

It makes the technology more accessible and

15

easier to use from the consumer perspective?

16
17

MR. MONACH:

Objection.

Vague and incomplete

hypothetical.

18

THE WITNESS:

19

understand.

20

All of those plus easier to

BY MR. ZELLER:

21

Q.

And you believe that those are all -- all have

22

been advanced by the iPhone design and the iPad design

23

that's embodied in these design patents; right?

24

MR. MONACH:

25

THE WITNESS:

Object to form.
I believe both of the products

TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 152
1

you've just mentioned make the technology more

2

accessible and more transparent and easier to use, which

3

is partly conveyed through the ornamental design.

4

BY MR. ZELLER:

5

Q.

Well, whether you call the design "ornamental"

6

or not, just to be clear, what we're talking about is

7

when you say "both the products make the technology more

8

accessible and easier to use," you're talking about the

9

fact that by simplifying the design of the products

10

that's been achieved; right?

11
12

MR. MONACH:

Object to the form of the

question.

13

THE WITNESS:

Yeah, but we have to be careful

14

when we say "simplifying the design" what we're talking

15

about.

16

I'm not talking about simplifying the --

17

manufacture or something like that, which can also be

18

considered "design."

19

I'm talking about simplifying the ornamental

20

design or the types of design that are protectable by

21

design patent.

22

BY MR. ZELLER:

23

Q.

Right.

24

I think we're on the same page.

25

What you're saying is that by simplifying the
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 153
1

appearance of the design, one -- that helps advance the

2

accessibility of the -- of the technology and makes it

3

also easier to use from the consumer perspective?

4
5

A.

That's the goal and purpose, and, if it's done

properly, it accomplishes that.

6

If it's done improperly, as it was done, for

7

example, on BMW's iDrive, then it makes it so complex

8

nobody can figure it out and they won't even buy the

9

car, which is a good case, an example of attempting to

10

simplify it, but having to go through so many steps to

11

turn the radio on that it became ridiculous.

12

Q.

To make sure we're still on the same page,

13

because I think I understand what you're saying, because

14

when you say it was the goal and the purpose here, is it

15

true that from your perspective the -- the appearance of

16

the iPhone designs and the appearance of the iPad

17

designs makes the technology itself more accessible to

18

people and makes it easier for them to use?

19
20

MR. MONACH:

Object to the form of the

question.

21

THE WITNESS:

Yes,

again, with the caveat

22

being that it's the ornamental appearance that I'm

23

referring to that -- that allows this to happen.

24

BY MR. ZELLER:

25

Q.

Right.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 154
1

When you say "the ornamental appearance,"

2

again, we're talking about really your bailiwick here,

3

which is the -- the design of the product just simply

4

from an aesthetic point of view, and that it still has

5

-- it still reaches these goals and has this purpose you

6

mentioned of making the technology more accessible and

7

the technology easier to use?

8

A.

I would agree with that.

9

Q.

And you would also agree with me that the

10

three design patents that bring us here today, the 677

11

design patent, the 087 design patent, and the 889 design

12

patent, also have this kind of simplified design that

13

makes the technology easier for consumers to understand

14

and increases the ease of use; true?

15

MR. MONACH:

16

THE WITNESS:

17

Q.

22

Now, as part of your -- your field of study

and design, do you look at ergonomics?

20
21

Yes, that's true.

BY MR. ZELLER:

18
19

Object to form.

Is that something you -- you have a background
in?
A.

Sure.

23

All products are used by humans, and

24

ergonomics defines the interface between the product and

25

the user.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 155
1
2

Q.

Is there anything about the iPhone design that

you believe makes it easier to hold in the human hand?

3

MR. MONACH:

4

As compared to what?

5

THE WITNESS:

6
7

Object to the question as vague.

Easier than a brick?

BY MR. ZELLER:
Q.

Easier than other --

8

Well, let me ask this.

9

Are rectangular shapes something that -- that

10

are easy to hold for people?

11
12
13
14

MR. MONACH:

Object to form.

BY MR. ZELLER:
Q.

Is there ergonomic value to having a

rectangular shape to a phone?

15

A.

Easier than what shape?

16

Q.

I'm not even comparing it to anything.

17

Is it --

18

Is a rectangular shape something that you

19

believe is pleasant and easy for ordinary humans to hold

20

in their hand to use as a phone?

21
22
23

MR. MONACH:

Objection.

Vague and incomplete

hypothetical.
THE WITNESS:

No, no.

There's no hard rule

24

that this shape is better than that shape from an

25

ergonomic point of view.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 156
1

It's the goal of every designer designing

2

every cell phone that they want them to be comfortable

3

in their hand.

4

So ergonomics is always a consideration of the

5

designer, and yet we have a hundred different cell phone

6

designs all trying to achieve the same ergonomic goal.

7

BY MR. ZELLER:

8
9

Q.

I'm not asking you to compare.

I'm not asking

you for alternatives.

10

I'm asking you a very simple question.

11

Do you think that people find it comfortable

12

to hold a cell phone or a smartphone that is in the

13

shape of a rectangle?

14

MR. MONACH:

15

THE WITNESS:

16

Objection.

Vague.

Generally.

BY MR. ZELLER:

17

Q.

You agree with that generally; right?

18

A.

Uh-huh.

19

Q.

That's a "yes"?

20

A.

Generally.

21

Q.

That's a yes, generally; right?

22

A.

Yes.

23

Q.

And the same is true of using a rectangular

24
25

shape for a tablet computer; right?
A.

Again, it's -- it's hard to answer your
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 157
1

question specifically without comparison to other

2

shapes.

3
4
5

It's not an uncomfortable shape, but it may
not be more comfortable than some other shape.
Q.

Do you think that a rectangular shape for a

6

tablet computer is something -- a kind of shape that

7

people find easy and pleasant to hold -- as a product

8

shape?

9

A.

Easy and pleasant.

10

Maybe convenient.

11

I don't know if it's easy, or I don't know if

12

pleasant is sort of a personal attribute.

13
14

I don't know if people find it pleasant.
Q.

So you're more comfortable and you do agree

15

with the idea that -- and you do agree that having a

16

rectangular shape for a tablet computer is something

17

that people find more convenient to hold as -- as a

18

product shape?

19

MR. MONACH:

20

It's more convenient than what?

21

THE WITNESS:

22

I don't know that it's more convenient than

23

Vague.

They find it convenient.

something else.

24

Objection.

BY MR. ZELLER:

25

Q.

And why do you think it's a convenient shape
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 158
1

for tablet computers, just from a -- again, we're

2

talking now in the context of ergonomics.

3
4

A.

ergonomics.

5
6

I don't think its convenience stems from

I think it's convenient because throughout
history documents have been rectilinear in shape.

7

Whether they're magazines, or newspapers, or

8

any printed material is -- is usually in some form of

9

rectilinear shape.

10

So to -- have a hand-held device where you're

11

examining documents seems to be reasonable to mimic the

12

shape that history has predicated those documents.

13

Q.

In other words, just from a design

14

perspective, if you're going to design a product that

15

people are going to use to view documents and view other

16

things on one logical design choice would be put it in a

17

rectangular type form, something that people would be

18

used to holding and looking at?

19

A.

That would be one logical conclusion, yes.

20

(Thereupon the following portion of the

21

transcript has been designated "Highly

22

Confidential - Attorneys' Eyes Only" and

23

continues on page 149, line 1.)

24
25

TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 159
1
2

Q.

Directing your attention back to Exhibit 14,

would you please turn to page number 10809.23.

3

A.

Okay.

4

Q.

And you'll see that there's some bar graphs on

5

here, and it's called "Reason for Purchase, Ownership,"

6

and then you'll see that there are various -- colored

7

bars in the upper righthand quadrant?

8

A.

Uh-huh.

9

Q.

Do you see that?

10

And you'll see that the heading for that, it's

11

the label, is actually underneath it, but it says

12

"Reason for Choice by OS Ownership Share in Q410."

13

Do you see that graph?

14

A.

That's the upper righthand graph?

15

Q.

Yes.

16

A.

Yes, I see that.

17

Q.

Now, you'll see that the bar or the stack

18

there that is second from the left is IOS?

19

Do you see that?

20

A.

Yes.

21

Q.

Now, again, I'll represent to you that "IOS"

22

stands for Apple's operating system.

23
24
25

And do you see where there's a blue figure of
"1 percent"?
A.

Yes.
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 211
1
2

MR. ZELLER:
objection.

3
4

No, you can have a standing

MR. MONACH:

I'll say "objection," but it

includes all the elements previously stated.

5

MR. ZELLER:

6

MR. MONACH:

Okay.

7

MR. ZELLER:

I'll absolutely agree that you

Understood.

I appreciate that.

8

have a standing objection, as well that that's an

9

appropriate shorthand.

10

MR. MONACH:

11

THE WITNESS:

Okay.
If we assume that what I had

12

previously characterized in my declaration -- I called

13

them the "major design elements" that are listed on the

14

top of page 5, the A, B, C, D, if those major design

15

elements that conspicuously depart from the prior art

16

are considered not limited to those, but considered and

17

in combination, no, the -- the movement of that little

18

slot quarter of an inch one way or another is not -- not

19

going to make it a different design.

20

BY MR. ZELLER:

21
22

Q.

Let me -In fact, maybe we can -- do this a little bit

23

more efficiently then by relying on your declaration.

24

Directing your attention to paragraph 16 of

25

your declaration, as you mention -- you lay out what you
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 212
1

consider to be the four major design elements of the 677

2

design patent; right?

3

A.

Right.

4

Q.

And in your view all the elements that are

5

listed there in that paragraph under A through D are

6

present in the 6 -- in the design that we've marked as

7

Exhibit 67?

8
9

A.

I can't tell if this is black, for example.

10

Q.

11
12

Well, you've already testified we can't tell.

Well, okay.
Then setting aside the black portion of it, do

you agree that all the other --

13

A.

14

Q.

Well --- what you call "major design elements" that

15

listed here in A through D are present in the design we

16

marked as Exhibit 67?

17

MR. MONACH:

18

Objection.

Lack of foundation.

Vague.

19

Incomplete hypothetical in light of the

20

witness' prior testimony that he can't tell what this

21

is.

22

Go ahead.

23

THE WITNESS:

I -- it's an analysis I haven't

24

made previously, so let me attempt to answer your

25

question, and it appears -TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 213
1

Although, again, I can't tell if it's flat, I

2

can't tell if it's clear, I can't tell if it's

3

black-colored.

4
5

I can tell that it's a rectangular front
surface with four evenly rounded corners.

6
7

I can't tell if it has an inset rectangular
display screen.

8

I can tell if it's centered on the front

9

surface, and that it leaves very narrow borders on

10

either side of the display screen and substantial

11

borders above and below the display screen.

12

I can tell that it has a rounded horizontal

13

speaker slot centered on the front surface above the

14

display screen, and I can tell that where the

15

rectangular front surface is otherwise substantially

16

free of ornamentation outside of an optional button area

17

centrally below the display.

18

So, if it has most of those major visual

19

characteristics, excusing the ones that we can't make a

20

determination about, then I would have to conclude that

21

it's substantially the same in the eyes of the ordinary

22

observer.

23

BY MR. ZELLER:

24
25

Q.

And just to make sure I heard everything that

you said here, the -- you agree that the major design
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 214
1

elements that you list in paragraph 16 in A through D

2

are all present in the design that we marked as Exhibit

3

67 except for the part where it says a flat clear black

4

color, those elements you're not sure about, but the

5

rest of them you do see there?

6

A.

7

No.

I didn't say that.

MR. MONACH:

8

Mischaracterizes

prior testimony.

9

Objection.

BY MR. ZELLER:

10

Q.

11

What are the other ones you can't tell then?
That's why I want to make sure I heard you

12

correctly.

13

A.

14
15
16

Apparently you didn't.
In B it's impossible to tell from this that it

has an inset rectangular display screen.
Q.

So you don't know whether it's inset or not,

17

you can see it's a rectangular display screen that's

18

centered on the front surface?

19

A.

It could be protruding.

20

Q.

So --

21

But the rest of it you do agree is present in

22

the design that's Exhibit 67 except for the inset part

23

in B?

24

A.

Yes.

25

Q.

So, again, just -TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 227
1

insufficient evidence.

2
3

Calling for speculation given the lack of
foundation.

4
5

THE WITNESS:
more time.

6
7
8
9

Repeat the question just one

I just want to get it clear, and I -BY MR. ZELLER:
Q.

I've been trying to find out if you think that

the design that's in Exhibit 67 is substantially the

10

same in the eyes of the ordinary observer and purchaser

11

to the 677 design patent; right?

12

MR. MONACH:

Objection.

13

MR. ZELLER:

You're following along so far?

14

MR. MONACH:

Objection.

15

You're asking that question -- it's been asked

16

and answered multiple times.

17
18
19

Asked and answered.

THE WITNESS:

I understood what you said.

BY MR. ZELLER:
Q.

So my question is, that -- and you've

20

testified so far that you're not certain as to whether

21

or not the 67 -- the Exhibit 67 design has a -- is flat,

22

clear, black-colored, and whether the rectangular

23

display screen is inset; right?

24

A.

Correct.

25

Q.

Is it true that if those four elements are not
TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 228
1

present in the design that we marked as Exhibit 67, it

2

would no longer be substantially the same as the 677

3

design patent to the ordinary observer?

4
5
6

MR. MONACH:

Objection.

Vague and ambiguous.

BY MR. ZELLER:
Q.

Or would it still be substantially the same?

7

MR. MONACH:

8

Incomplete hypothetical.

9
10

Misstates prior

substantially the same.
Calling for improper opinion testimony without
adequate factual basis being provided.

13
14

Vague and ambiguous.

testimony to the extent you said it would still be

11
12

Objection.

THE WITNESS:

May I repeat your question in my

answer to be sure that I have it straight?

15

MR. ZELLER:

16

THE WITNESS:

Uh-huh.
You're asking me if Exhibit

17

67 -- if the design depicted in Exhibit 67 would be

18

substantially the same as the 677 design if it were not

19

flat, not clear, not black-colored, and did not have an

20

inset rectangular display screen?

21

Q.

22
23
24
25

Right.
In other words, it still has a rectangular

display screen, but just not inset.
A.

And the answer is I don't know, and the reason

for the answer is, if it weren't flat, but it were -TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 229
1

almost flat, differing only by the thickness of a piece

2

of paper, I could say to an ordinary observer that's

3

flat.

4

If it weren't clear but translucent, pretty

5

close to clear, again, all of these subjective issues

6

come in to play here, because I don't know what the

7

design is you're asking me to compare to the 677.

8
9

Just not being flat is not good enough to make
an opinion on.

10

It's not black-colored?

11

Well, is it 90 percent black?

12

Not inset display screen?

13

If it protrudes an inch, I'd say it's a

14

different design.

15

If it's close, it could be close.

16

I just can't answer the question, and I'm

17

trying to explain to you the basis for my inability to

18

give you a definitive answer.

19

Q.

Isn't it true that as of the time that the 677

20

and the 087 design patents were conceived of that it was

21

obvious to a designer of ordinary skill that the surface

22

of an electronic device would be clear?

23
24
25

MR. MONACH:
hypothetical.

Objection.

Incomplete

Lacking foundation.

THE WITNESS:

Obviously, if you're going to

TSG Reporting - Worldwide

877-702-9580

Contains Highly Confidential - Attorneys' Eyes Only Portions

Page 230
1

read a display screen, it has to be clear, however, the

2

clear surface does not have to extend beyond the

3

display.

4

So if you're asking me is -- is the Apple

5

approach to covering its entire front surface of a

6

smartphone with a clear surface -- is that obvious to a

7

designer of ordinary skill in the art, I'd say, no, it's

8

highly nonobvious.

9

BY MR. ZELLER:

10

Q.

You are unaware of any prior art to the 677

11

and the 087 design patents that teach having a flat

12

clear surface extending over the front of the entire

13

face of an electronic device; is that true?

14

A.

I didn't say that.

15

Q.

Well, you are aware that --

16

A.

But let me --

17

MR. MONACH:

Let him finish.

18

THE WITNESS:

Let me finish the question.

19
20

BY MR. ZELLER:
Q.

You said you didn't know.

That's your answer.

21

MR. MONACH:

22

Go ahead and finish your answer.

23

THE WITNESS:

24

What I did say, however, is that in

25

No, you interrupted.

No, I didn't say that.

combination with these other major visual differences
TSG Reporting - Worldwide

877-702-9580