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

Filing 2126

Declaration of Susan Estrich in Support of 2013 MOTION for Judgment as a Matter of Law, New Trial and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59, 2054 Brief, 2053 Opposition/Response to Motion, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Exhibit 1 to the Estrich Declaration, # 2 Exhibit 2 to the Estrich Declaration, # 3 Exhibit 3 to the Estrich Declaration, # 4 Exhibit 4 to the Estrich Declaration, # 5 Exhibit 5 to the Estrich Declaration, # 6 Exhibit 6 to the Estrich Declaration, # 7 Exhibit 7 to the Estrich Declaration, # 8 Exhibit 8 to the Estrich Declaration, # 9 Exhibit 9 to the Estrich Declaration, # 10 Exhibit 10 to the Estrich Declaration, # 11 Exhibit 11 to the Estrich Declaration, # 12 Exhibit 12 to the Estrich Declaration, # 13 Exhibit 13 to the Estrich Declaration, # 14 Exhibit 14 to the Estrich Declaration, # 15 Exhibit 15 to the Estrich Declaration, # 16 Exhibit 16 to the Estrich Declaration, # 17 Exhibit 17 to the Estrich Declaration, # 18 Exhibit 18 to the Estrich Declaration, # 19 Exhibit 19 to the Estrich Declaration, # 20 Exhibit 20 to the Estrich Declaration, # 21 Exhibit 21 to the Estrich Declaration, # 22 Exhibit 22 to the Estrich Declaration, # 23 Exhibit 23 to the Estrich Declaration, # 24 Exhibit 24 to the Estrich Declaration, # 25 Exhibit 25 to the Estrich Declaration, # 26 Exhibit 26 to the Estrich Declaration, # 27 Exhibit 27 to the Estrich Declaration, # 28 Exhibit 28 to the Estrich Declaration, # 29 Exhibit 29 to the Estrich Declaration, # 30 Exhibit 30 to the Estrich Declaration, # 31 Exhibit 31 to the Estrich Declaration)(Related document(s) 2013 , 2054 , 2053 ) (Maroulis, Victoria) (Filed on 11/9/2012)

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Estrich Declaration Exhibit 4 931 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 6 APPLE INC., A CALIFORNIA CORPORATION, 7 8 9 10 11 12 13 PLAINTIFF, VS. 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, 14 DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C-11-01846 LHK SAN JOSE, CALIFORNIA AUGUST 6, 2012 VOLUME 4 PAGES 931-1296 15 16 17 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE LUCY H. KOH UNITED STATES DISTRICT JUDGE 18 19 20 APPEARANCES ON NEXT PAGE 21 22 23 24 25 OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595 IRENE RODRIGUEZ, CSR, CRR CERTIFICATE NUMBER 8074 932 1 A P P E A R A N C E S: 2 FOR PLAINTIFF APPLE: 3 4 MORRISON & FOERSTER BY: HAROLD J. MCELHINNY MICHAEL A. JACOBS RACHEL KREVANS 425 MARKET STREET SAN FRANCISCO, CALIFORNIA 94105 5 6 7 8 FOR COUNTERCLAIMANT WILMER, CUTLER, PICKERING, APPLE: HALE AND DORR BY: WILLIAM F. LEE 60 STATE STREET BOSTON, MASSACHUSETTS 02109 9 BY: MARK D. SELWYN 950 PAGE MILL ROAD PALO ALTO, CALIFORNIA 10 11 FOR THE DEFENDANT: 12 13 94304 QUINN, EMANUEL, URQUHART, OLIVER & HEDGES BY: CHARLES K. VERHOEVEN ALBERT P. BEDECARRE 50 CALIFORNIA STREET, 22ND FLOOR SAN FRANCISCO, CALIFORNIA 94111 14 BY: VICTORIA F. MAROULIS KEVIN P.B. JOHNSON 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CALIFORNIA 15 16 94065 17 BY: MICHAEL T. ZELLER WILLIAM C. PRICE JOHN B. QUINN 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 18 19 20 21 22 23 24 25 FOR INTERVENOR REUTERS: RAM, OLSON, CEREGHINO & KOPCZYNSKI BY: KARL OLSON 555 MONTGOMERY STREET, SUITE 820 SAN FRANCISCO, CALIFORNIA 94111 933 1 2 3 4 INDEX OF WITNESSES PLAINTIFF'S 5 6 7 JUSTIN DENISON AS-ON DIRECT EXAM BY MR. QUINN AS-ON RECROSS-EXAM BY MR. LEE AS-ON REDIRECT EXAM BY MR. QUINN P. 946 P. 977 P. 997 PETER BRESSLER DIRECT EXAM BY MS. KREVANS CROSS-EXAM BY MR. VERHOEVEN REDIRECT EXAM BY MS. KREVANS P. 1002 P. 1098 P. 1236 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1040 1 WHOLE POINT OF THE PROCESS WAS TO EXCHANGE 2 OBJECTIONS SO THAT THIS DOESN'T HAPPEN, AND THEY 3 DID NOT OBJECT. 4 SAYING ABOUT THESE ORDERS AND -- 5 6 WE STRONGLY DISPUTE WHAT THEY'RE THE COURT: LET ME JUST -- THE ONLY ONES THAT I HAD AN ISSUE WITH IS THE LG KE850. 7 NOW, IF THIS WAS IN YOUR INVALIDITY 8 CONTENTION INTERROGATORY RESPONSE, THEN LET ME SEE 9 THAT. 10 11 MR. VERHOEVEN: WHAT WAS THE NUMBER, YOUR HONOR? 12 13 I'M SORRY. THE COURT: CHOCOLATE. 14 THE LG KE850, THE TOUCHABLE IT'S IN THE BACK OF, I THINK, VOLUME 1. MS. KREVANS: AND WHILE HE'S LOOKING THAT 15 UP, YOUR HONOR, I HAVE IN MY HAND THE WRITTEN 16 OBJECTIONS THAT WE SERVED UPON THEM AND FILED WITH 17 THE COURT THAT INCLUDED THE EXACT OBJECTIONS -- 18 THE COURT: 19 MS. KREVANS: IS THIS DOCUMENT NUMBER 1571? IT IS 1571, YOUR HONOR, AND 20 THIS IS ON PAGE -- NUMBERED PAGE 4 AT THE TOP OF 21 THE PAGE. 22 I THINK MR. VERHOEVEN MAY SIMPLY HAVE 23 OVERLOOKED THIS, BUT WE HAVE OBJECTED. 24 TOP OF THE COLUMN WHERE -- 25 THE COURT: IT'S AT THE THAT'S THE ONE THAT YOU'RE -- 1041 1 THAT'S THE ONE THAT YOU'RE -- 2 MR. VERHOEVEN: YOUR HONOR HAS ALREADY 3 RULED ON THEIR OBJECTION TO THE LG PRADA IN 4 CONNECTION WITH MR. DENISON'S TESTIMONY AND YOU 5 OVERRULED THE OBJECTION. 6 THE COURT: 7 MS. KREVANS: 8 9 I DISAGREE WITH THAT. OKAY. THIS EXHIBIT IS THE LG KE850. THE COURT: RIGHT. I DISAGREE WITH THAT. 10 I'M GOING TO SUSTAIN THAT OBJECTION. 11 OKAY? I'LL GET BACK TO YOU ON THE F700. 12 THE LG KE850, THE OBJECTION IS SUSTAINED. 13 AND -- 14 MR. VERHOEVEN: YOUR HONOR, JUST SO I 15 CAN -- YOU HAVE AN ORDER ON APPLE'S MOTION IN 16 LIMINE NUMBER 3 ON THIS ISSUE, AND I CAN HAND THIS 17 UP IF YOU'D LIKE, YOU GRANTED THE MOTION -- APPLE'S 18 MOTION ON MOTION IN LIMINE NUMBER 3 IN PART AND 19 DENIED IT IN OTHER RESPECTS, AND IT SAYS, QUOTE, 20 "THE MOTION IS DENIED IN ALL OTHER RESPECTS. 21 OTHER WORDS, THE LG KE 750 MAY BE ADMISSIBLE AS A 22 PRIOR ART REFERENCE UNDER 35 U.S.C. SECTION 102." 23 THE COURT: 24 A DIFFERENT PRODUCT. 25 MS. KREVANS: THIS IS THE LG KE 850. AND, YOUR HONOR, THE IN IT'S 1042 1 SUBJECT OF THE TESTIMONY ARE -- 2 THE COURT: 3 4 5 6 THIS IS A DIFFERENT PRODUCT. THIS IS TOUCHABLE CHOCOLATE. OKAY. KE 850. WELL, I WILL TAKE A LOOK AT THE F700 ISSUE THAT YOU'VE RAISED AND -MR. VERHOEVEN: YOUR HONOR, I THINK THAT 7 IS ACTUALLY THE SAME PRODUCT. 8 VERIFY THAT. 9 TERMINOLOGY FOR IT. 10 11 THE ARTICLE USES A SLIGHTLY DIFFERENT THE COURT: ALL RIGHT. LOOK AT THIS LAST ONE. ALL RIGHT. 13 MR. MCELHINNY: 15 16 AND I'LL TAKE A OKAY. 12 14 ON THE BREAK, WE CAN THANK YOU. DO YOU STILL WANT US BACK IN TEN MINUTES, YOUR HONOR. THE COURT: NO. TAKE A 15-MINUTE BREAK. UNFORTUNATELY, LET'S THANK YOU. 17 MR. MCELHINNY: 18 (WHEREUPON, A RECESS WAS TAKEN.) 19 (WHEREUPON, THE FOLLOWING PROCEEDINGS 20 21 22 THANK YOU, YOUR HONOR. WERE HELD OUT OF THE PRESENCE OF THE JURY:) THE COURT: ALL RIGHT. WELCOME BACK. I APOLOGIZE FOR THE DELAY. 23 THE F700 IS -- OH, PLEASE TAKE A SEAT -- 24 IT'S NOT ADMISSIBLE FOR OBVIOUSNESS OR INVALIDITY. 25 JUDGE GREWAL DID STRIKE THAT AND I DID AFFIRM HIS 1043 1 ORDER, BUT IT WILL BE ADMISSIBLE FOR ALTERNATIVE 2 DESIGN. 3 I'M GOING TO ASK MR. VERHOEVEN PLEASE NOT 4 TO CROSS THE LINE INTO INVALIDITY AND OBVIOUSNESS 5 SINCE THAT'S BEEN EXCLUDED. 6 THE DEMONSTRATIVES, I'M GOING TO RESERVE 7 AND GIVE YOU A RULING ON THAT LATER, SO IF YOU 8 COULD MAKE THAT TOWARDS THE END OF YOUR CROSS, I'D 9 APPRECIATE IT. 10 NOW, WITH REGARD TO THE LG CHOCOLATE, 11 IT'S NOT PRIOR ART, BUT IT CAN BE USED FOR OTHER 12 PURPOSES. 13 NECESSARY. 14 WE CAN HAVE A LIMITING INSTRUCTION IF THE LG PRADA, THAT WAS RAISED IN APPLE'S 15 MOTION IN LIMINE NUMBER 3, AND THERE IS A FACTUAL 16 DISPUTE AS TO WHETHER IT WAS, IN FACT, SOLD IN THE 17 U.S. OR NOT AND WHETHER, IN FACT, IT IS OR IS NOT 18 PRIOR ART. 19 SO SAMSUNG CAN USE THAT. MS. KREVANS: YOUR HONOR, WITH RESPECT TO 20 THE SPECIFIC DOCUMENT THAT RAISED THIS ISSUE, THIS 21 DOCUMENT HAS NEVER BEEN PRODUCED OR DISCLOSED 22 BEFORE, SO INDEPENDENT OF WHETHER THEY CAN TALK 23 ABOUT THOSE DEVICES, WE DON'T THINK THEY CAN USE 24 THIS DOCUMENT BECAUSE -- 25 THE COURT: OKAY. WELL, THEN, LET ME 1044 1 HEAR FROM SAMSUNG. 2 NUMBER. 3 4 GIVE ME THE DOCUMENT PRODUCTION I DON'T SEE THAT THIS IS BATES LABELED AT ALL. 5 MR. VERHOEVEN: YES, YOUR HONOR. THIS 6 IS -- THIS IS SIMPLY POTENTIALLY GOING TO BE USED 7 FOR IMPEACHMENT, OR TO REFRESH THE WITNESSES 8 RECOLLECTION. 9 YOUR HONOR HAS DIRECTED US THAT FOR ANY 10 POTENTIAL IMPEACHMENT EXHIBITS, WE NEEDED TO 11 EXCHANGE THEM WITH THE OTHER SIDE. 12 SO THIS KIND OF FALLS UNDER THAT. 13 THE COURT: 14 EXCLUDED. 15 THEN. OKAY. OKAY. THEN IT'S LET'S GO FORWARD THANK YOU. (WHEREUPON, THE FOLLOWING PROCEEDINGS 16 17 ALL RIGHT. ALL RIGHT. WERE HELD IN THE PRESENCE OF THE JURY:) 18 THE COURT: I APOLOGIZE FOR THE DELAY. 19 IT'S NOW 11:19. GO AHEAD, PLEASE. 20 BY MS. KREVANS: 21 Q 22 JX 1040 IN YOUR BINDER, YOU SHOULD FIND IT 23 SOMEWHERE NEAR THE BACK. MR. BRESSLER, I'D LIKE YOU TO TURN TO EXHIBIT 24 25 FOR THE RECORD, 1040 IS ALREADY IN EVIDENCE. 1045 1 WHAT IS JX 1040, MR. BRESSLER? 2 A THIS IS THE '889 PATENT. 3 Q AND COULD YOU TURN TO THE FIRST PRINTED PAGE, 4 WHICH IS SHOWING ON THE SCREEN, AND TELL US, GOING 5 TO THE SECTION HEADED CLAIM, WHAT IS CLAIMED BY 6 APPLE'S D'889 DESIGN PATENT? 7 A 8 AN ELECTRONIC DEVICE, SUBSTANTIALLY AS SHOWN AND 9 DESCRIBED," AND THE SUBSEQUENT DESCRIPTION. WHAT IS CLAIMED IS "AN ORNAMENTAL DESIGN FOR 10 Q OKAY. AND HOW MANY FIGURES DOES THE '889 11 PATENT HAVE THAT SHOW AND DESCRIBE WHAT IS CLAIMED? 12 A 13 PATENT. 14 Q TELL US ABOUT THE NINE FIGURES. 15 A THE FIRST, AS -- THE FIRST EIGHT ARE REALLY 16 THE NORMAL FIGURES THAT YOU WOULD EXPECT TO SEE IN 17 A DESIGN PATENT. THERE ARE, IN FACT, NINE FIGURES IN THIS 18 THE NINTH FIGURE IS EXPLAINED AT THE 19 BOTTOM OF THE LIST ACTUALLY AS "AN EXEMPLARY 20 DIAGRAM OF THE USE OF THE ELECTRONIC DEVICE THEREOF 21 THE BROKEN LINES BEING SHOWN FOR ILLUSTRATIVE 22 PURPOSES ONLY AND FORM NO PART OF THE CLAIMED 23 DESIGN." 24 Q 25 OKAY. COULD WE LOOK AT FIGURE 9, MR. LEE? I TAKE IT, MR. BRESSLER, THAT THAT TEXT 1046 1 YOU READ MEANS THAT APPLE WASN'T TRYING TO DISCLAIM 2 THE MAN SHOWING THIS PICTURE ACTUALLY HOLDING THE 3 DEVICE? 4 A CORRECT. 5 Q BUT THE DEVICE AND THE UTILITY IS WHAT'S 6 CLAIMED? 7 A YES. 8 Q OKAY. 9 THIS THE FIRST -- IN FACT, THIS IS ALL OF THE LET'S LOOK AT YOUR SLIDE PDX 26.6. IS 10 FIGURES OF THE '889 PATENT? 11 A 12 FIGURES. 13 Q 14 CAN YOU WALK THE JURY THROUGH THE DESIGN THAT IS 15 CLAIMED AND SHOWN IN THESE FIGURES? 16 A 17 DEVICE THAT HAS A FLAT, TRANSPARENT, AS YOU CAN SEE 18 BY THE DIAGONAL LINES, AND SHINY, FLAT SURFACE THAT 19 GOES IN A RECTANGULAR FORM AS SHOWN IN THE DRAWING 20 FROM EDGE TO EDGE ACROSS THE FRONT OF THE DEVICE. YES. OKAY. YES. THIS IS A SLIDE INCLUDING ALL THE USING THESE FIGURES OF THE '889 PATENT, THIS DESIGN INCLUDES AN ELECTRONIC 21 IT MEETS A THIN EDGE AT THE BORDER AND 22 YOU CAN SEE THROUGH THAT CLEAR MATERIAL A BORDER 23 THAT GOES AROUND THE DISPLAY THAT IS OF EQUAL WIDTH 24 ALL THE WAY AROUND. 25 AND THEN IF YOU LOOK -- I WAS LOOKING AT 1098 1 BEEN PASSED OUT? 2 3 YES. THE COURT: IT'S 1:23. 4 ALL RIGHT. WE'RE ALL SET. PLEASE GO AHEAD. MR. VERHOEVEN: 5 THANK YOU, YOUR HONOR. CROSS-EXAMINATION 6 BY MR. VERHOEVEN: 7 Q GOOD AFTERNOON, MR. BRESSLER. 8 A GOOD AFTERNOON. 9 Q GOOD TO SEE YOU AGAIN. 10 A AND YOU. 11 Q WE'RE ALL ON THE CLOCK HERE, SO I'M GOING TO 12 ASK YOU A PRELIMINARY QUESTION, AND THAT IS, AS I 13 GO THROUGH MY QUESTIONING, IF YOU CAN MAKE AN 14 EFFORT, IF MY QUESTION IS FAIRLY ANSWERABLE WITH A 15 YES OR A NO, I'D ASK YOU TO ANSWER IT IN THAT 16 MANNER. 17 A YES. 18 Q NOW, MR. BRESSLER, IN FORMING YOUR OPINIONS, 19 IT'S CORRECT THAT YOU DID NOT RELY ON ANY APPLE 20 CONSUMER SURVEYS THAT IDENTIFIED WHAT APPLE 21 CUSTOMERS CONSIDERED TO BE IMPORTANT WITH RESPECT 22 TO IPHONES; TRUE? 23 A YES. 24 Q YOU DON'T HAVE ANY FIRST-HAND KNOWLEDGE OF ANY 25 SURVEYS THAT APPLE HAS CONDUCTED WITH RESPECT TO OKAY? 1099 1 IPHONES; RIGHT? 2 A 3 I HAVEN'T EXAMINED THEM. 4 Q 5 KNOWLEDGE OF ANY SURVEYS APPLE CONDUCTED WITH 6 RESPECT TO ITS IPHONES; TRUE? 7 A NOT TRUE. 8 Q OKAY. 9 ANOTHER HEARING ON MAY 31ST, 2012. I BELIEVE I HAVE SEEN A COUPLE, BUT I DON'T -- THE ANSWER IS YOU DON'T HAVE ANY FIRST-HAND 10 NOW, YOU TESTIFIED FOR APPLE BEFORE IN DO YOU REMEMBER THAT? 11 A YES. 12 Q AND YOU TESTIFIED UNDER OATH; CORRECT? 13 A YES. 14 Q AND SO YOU TOOK JUST AS MUCH CARE WITH YOUR 15 ANSWERS TO QUESTIONS DURING THAT HEARING AS YOU ARE 16 TODAY; RIGHT? 17 A YES. 18 Q OKAY. 19 HEARING ON MAY 31ST, 2012, PAGE 705, LINES 6 20 THROUGH 10. LET'S PUT UP WHAT YOU SAID AT THAT 21 MS. KREVANS: 22 MR. VERHOEVEN: 23 24 25 OBJECTION, YOUR HONOR. MR. FISHER, IF WE COULD DO THAT. MS. KREVANS: IT'S IMPROPER TO SHOW TESTIMONY UNTIL THE JURY -- UNTIL IT'S BEEN SHOWN 1100 1 THAT IT'S IMPEACHING TO SOMETHING THE WITNESS HAS 2 SAID AND THAT SHOWING HAS NOT BEEN MADE. 3 4 MR. VERHOEVEN: YOUR HONOR, THIS IS EXACTLY WHAT COUNSEL IN EXAMINING MR. DENISON DID. 5 THE COURT: OVERRULED. 6 GO AHEAD, PLEASE. 7 MR. VERHOEVEN: PULL THAT UP, MR. FISHER. 8 AND PULL OUT LINES 7 THROUGH 10, AND I'LL READ IT 9 INTO THE RECORD. 10 "QUESTION: YOU DON'T HAVE ANY FIRSTHAND 11 KNOWLEDGE OF ANY SURVEYS APPLE'S CONDUCTED WITH 12 RESPECT TO ITS IPHONES, CORRECT? 13 "ANSWER: CORRECT." 14 Q 15 IN MAY? 16 A IT WAS TRUE THEN, YES. 17 Q OKAY. 18 WAS THAT TRUTHFUL TESTIMONY WHEN YOU GAVE IT THANK YOU, MR. FISHER. IN FORMING YOUR OPINIONS, YOU DID NOT 19 HAVE ANY INFORMATION ABOUT WHAT PERCENTAGE OF 20 PURCHASERS OF IPHONES PURCHASED THOSE PRODUCTS 21 EITHER FROM AN APPLE STORE OR A WEBSITE; RIGHT? 22 A CORRECT. 23 Q YOU DID NOT TALK TO CONSUMERS ABOUT THEIR 24 PERCEPTIONS OF PRODUCTS IN AN APPLE STORE; RIGHT? 25 A I DID SPEAK TO A FEW CONSUMERS IN SOME VERY 1101 1 BRIEF DISCUSSIONS I HAD WITH THEM. 2 Q 3 PERCEPTIONS OF PRODUCTS AT AN APPLE STORE, DID YOU? 4 A AN APPLE STORE, NO, I DID NOT. 5 Q OKAY. 6 CONVERSATION WITH MR. STRINGER; RIGHT? 7 A YES. 8 Q BUT YOU SPOKE WITH NO ONE ELSE AT APPLE IN 9 FORMING YOUR OPINIONS, DID YOU, SIR? SIR, YOU DID NOT TALK TO CONSUMERS ABOUT THEIR YOU DID HAVE A 20-MINUTE PHONE 10 A NO, I DIDN'T. 11 Q AND YOU HAVE NO DIRECT EVIDENCE TO SUGGEST 12 THAT ANY CONSUMER HAS EVER PURCHASED A SAMSUNG 13 SMARTPHONE OR AN APPLE SMARTPHONE BELIEVING IT WAS 14 ACTUALLY A DEVICE MANUFACTURED BY THE OTHER, DO 15 YOU? 16 A 17 18 MR. VERHOEVEN: CAN WE HAVE THE QUESTION READ BACK, PLEASE? (WHEREUPON, THE RECORD WAS READ BY THE 19 20 WOULD YOU REPEAT THAT, PLEASE? COURT REPORTER.) 21 THE WITNESS: I DO NOT. 22 BY MR. VERHOEVEN: 23 Q 24 CONFUSED AT ANY TIME WHEN PURCHASING APPLE DEVICES 25 OR SAMSUNG DEVICES INTO THINKING THEY ARE DEVICES YOU DON'T KNOW WHETHER CONSUMERS HAVE BEEN 1102 1 FROM THE OTHER MANUFACTURER; CORRECT? 2 A 3 YOU REPEAT THE QUESTION? 4 MR. VERHOEVEN: 5 I BELIEVE THAT'S CORRECT. CAN WE HAVE IT READ BACK (WHEREUPON, THE RECORD WAS READ BY THE COURT REPORTER.) 8 9 COULD FOR MR. BRESSLER? 6 7 I'M SORRY. THE WITNESS: THAT'S CORRECT. BY MR. VERHOEVEN: 10 Q YOU DON'T KNOW WHETHER CONSUMERS CONFUSE APPLE 11 AND SAMSUNG DEVICES DURING THE COURSE OF THEIR 12 PURCHASING DECISIONS, DO YOU? 13 A 14 SUGGEST THAT PEOPLE DO GET CONFUSED. 15 Q 16 TESTIFIED, YOU ALSO HAD YOUR DEPOSITION TAKEN. I BELIEVE I HAVE SEEN SOME ARTICLES THAT WELL, IN ADDITION TO THIS HEARING IN WHICH YOU 17 DO YOU REMEMBER THAT IN THIS CASE? 18 A YES, I DO. 19 Q AND THAT HAPPENED ON APRIL 24TH, 2012? 20 THAT SOUND ABOUT RIGHT? 21 A SOUNDS ABOUT RIGHT, YES. 22 Q AND A DEPOSITION, YOU UNDERSTAND, IS A 23 PROCEEDING JUST LIKE IN THE COURT HERE WHERE YOU'RE 24 SWORN UNDER OATH AND YOU GAVE TRUTHFUL TESTIMONY; 25 RIGHT? DOES 1103 1 A YES. 2 Q LET'S LOOK AT WHAT YOU SAID AT YOUR DEPOSITION 3 AT PAGE 145:24 THROUGH 146, LINE 7, THE DEPOSITION 4 DATED APRIL 24TH, 2012. 5 CAN WE PLAY THAT? 6 (WHEREUPON, A VIDEOTAPE WAS PLAYED IN 7 OPEN COURT OFF THE RECORD.) 8 BY MR. VERHOEVEN: 9 Q THAT WAS TRUTHFUL TESTIMONY WHEN YOU GAVE IT 10 AT THE DEPOSITION IN APRIL OF THIS YEAR; RIGHT, 11 SIR? 12 A I BELIEVE SO. 13 Q TO THE BEST OF YOUR KNOWLEDGE, SMARTPHONE 14 CONSUMERS EVALUATE DIFFERENT MODELS, COMPARE THEM 15 TO ONE ANOTHER, EVEN BEFORE GOING INTO THE STORE; 16 RIGHT? 17 A YES. 18 Q SMARTPHONE CONSUMERS CONSIDER A NUMBER OF 19 FACTORS, SUCH AS PRICE, PERFORMANCE, AS WELL AS 20 APPEARANCE; RIGHT? 21 A I GUESS. 22 Q DO YOU BELIEVE THAT'S TRUE? 23 A I SUSPECT THEY DO. 24 Q YOU WOULD EXPECT THAT IF THE PURCHASER WAS 25 ENTERING INTO A MULTI-YEAR CONTRACT, THEY WOULD 1104 1 KNOW WHAT BRAND OF PHONE THEY WERE BUYING; RIGHT? 2 A YES. 3 Q YOU BELIEVE, BY THE END OF THE SMARTPHONE 4 PURCHASING PROCESS, THE ORDINARY CONSUMER WOULD 5 HAVE TO KNOW WHICH PHONE THEY WERE BUYING; RIGHT? 6 A YES. 7 Q GIVEN THE ENVIRONMENT IN WHICH THESE PHONES 8 ARE BEING SOLD AND THE DEGREE OF ADVERTISING 9 BRANDING, YOU DON'T KNOW WHETHER ANYBODY WOULD EVER 10 BE DECEIVED INTO THINKING THEY WERE BUYING A 11 SAMSUNG PHONE WHEN THEY WERE BUYING AN APPLE PHONE 12 OR VICE-VERSA; ISN'T THAT TRUE, SIR? 13 A COULD YOU REPEAT THAT AGAIN, PLEASE. 14 15 MR. VERHOEVEN: PLEASE. (WHEREUPON, THE RECORD WAS READ BY THE 16 17 CAN WE READ IT BACK, COURT REPORTER.) 18 THE WITNESS: YES. 19 BY MR. VERHOEVEN: 20 Q 21 ANALYSIS THAT YOU'VE TESTIFIED TO EARLIER TODAY, 22 YOU DID NOT ENDEAVOR TO DETERMINE WHETHER THE 23 SIMILARITY BETWEEN TWO DESIGNS WAS DECEPTIVE, DID 24 YOU? 25 A AND WHEN YOU PERFORMED YOUR INFRINGEMENT YES, I DID. 1105 1 Q OKAY. 2 2012, PAGE 659, LINES 6 THROUGH 14. 3 LET'S GO TO YOUR TESTIMONY ON MAY 31ST, CAN WE PUT THAT UP, MR. FISHER? 4 PAGE -- LINES 6 THROUGH 14. 5 2012. "QUESTION: DID YOU APPLY THIS TEST THAT I HAVE ON THE SCREEN ON RDX-49C, PAGE 20? 8 9 IT'S THE MAY 31ST, THERE WE GO. 6 7 659, "ANSWER: I CERTAINLY APPLIED THE ISSUE OF THE EYE OF THE ORDINARY OBSERVER GIVING AS MUCH 10 ATTENTION AS A PURCHASER USUALLY GIVES TO THE TWO 11 DESIGNS, FINDING THEM SUBSTANTIALLY THE SAME. 12 "IT WAS MY UNDERSTANDING, FROM COUNSEL, 13 THAT IT WAS NOT NECESSARY THAT THE SIMILARITY BE 14 DECEPTIVE." 15 Q DO YOU SEE THAT? 16 A I SEE THAT, YES. 17 Q AND THAT'S THE TESTIMONY YOU GAVE ON MAY 31ST, 18 2012; RIGHT? 19 A IT IS. 20 Q AFTER YOU SUBMITTED YOUR OPINIONS IN THIS 21 CASE? 22 A YES. 23 Q SO AT THE TIME YOU SUBMITTED YOUR OPINIONS IN 24 THIS CASE, IT WAS YOUR UNDERSTANDING IT WAS NOT 25 NECESSARY TO LOOK INTO WHETHER A SIMILARITY WAS 1106 1 DECEPTIVE; ISN'T THAT TRUE, SIR? 2 A 3 MEASUREMENT WAS DIFFERENT THAT YOU'RE DESCRIBING. NO. 4 IT WAS MY UNDERSTANDING THAT THE MS. KREVANS: YOUR HONOR, MAY I ASK, FOR 5 COMPLETENESS, THAT I BE PERMITTED TO READ AN 6 ADDITIONAL PORTION OF THE TESTIMONY? 7 THE ITC TRIAL. 8 9 THE COURT: NO. THIS IS FROM YOU'LL HAVE AN OPPORTUNITY IN REDIRECT. 10 BY MR. VERHOEVEN: 11 Q 12 DESIGN PATENTS, '087 AND '677 MORE SPECIFICALLY, 13 OKAY? 14 A YES. 15 Q WHEN YOU PREPARED YOUR OPINIONS WITH RESPECT 16 TO THOSE DESIGN PATENTS, YOU WERE ASKED TO APPLY 17 CERTAIN PRINCIPALS OR RULES OF THE ROAD FOR YOUR 18 ANALYSIS BY THE ATTORNEYS; CORRECT? 19 A YES. 20 Q AND IF WE COULD JUST GO TO, MR. BRESSLER, YOUR 21 OPENING EXPERT REPORT DATED MARCH 22, 2012 AT 22 PARAGRAPH 21. 23 YOU'D LIKE TO LOOK AT IT. 24 THE SCREEN AS WELL. 25 A NOW, I WANT TO SWITCH TO TALKING ABOUT THE I THINK THAT'S IN YOUR BINDER IF WE'RE GOING TO PUT IT ON COULD YOU TELL ME WHERE IT WAS IN MY BINDER, 1107 1 PLEASE. 2 3 4 MR. VERHOEVEN: IF I COULD APPROACH, YOUR HONOR? 5 THE COURT: 6 MR. VERHOEVEN: 7 YOU HAVE MY BINDER, SO -- THERE SHOULD BE 8 GO AHEAD, PLEASE. THANK YOU. AN EXHIBIT IN THERE. 9 THE WITNESS: 10 MR. VERHOEVEN: 11 THE WITNESS: THANK YOU. SURE. AND WHAT PAGE WAS THIS 12 AGAIN, PLEASE? 13 BY MR. VERHOEVEN: 14 Q IT'S PARAGRAPH 21, SIR. 15 A YES. 16 Q OKAY. 17 RIGHT? 18 A THAT'S CORRECT. 19 Q BUT YOU WERE GIVEN, BY THE LAWYERS, CERTAIN 20 PRINCIPLES THEY ASKED YOU TO APPLY IN CONDUCTING 21 YOUR ANALYSIS; CORRECT? 22 A YES. 23 Q AND THIS WAS IN THE PART OF YOUR REPORT WHERE 24 YOU DELINEATE WHAT THOSE PRINCIPLES WERE; CORRECT? 25 "I, THEREFORE, HAVE BEEN ASKED TO APPLY THE ARE YOU THERE? SO OBVIOUSLY YOU'RE NOT A LAWYER; 1196 1 OPEN COURT OFF THE RECORD.) 2 MS. KREVANS: YOUR HONOR, THAT DOES NOT 3 IMPEACH ANY TESTIMONY THAT THE WITNESS HAS GIVEN 4 HERE IN COURT. 5 THE COURT: OVERRULED. 6 BY MR. VERHOEVEN: 7 Q 8 AT YOUR DEPOSITION; RIGHT? 9 A THAT WAS YOUR UNDERSTANDING WHEN YOU TESTIFIED I GUESS. I GUESS I SAID THAT IN ANSWER TO 10 THAT QUESTION, YES. 11 Q AND LET ME ASK IT ONE MORE TIME? 12 A I WAS CONFUSED. 13 Q LET ME ASK ONE MORE TIME. 14 EXTENT YOU CAN FAIRLY ANSWER MY QUESTION YES OR NO, 15 I WOULD APPRECIATE IT. AND, AGAIN, TO THE ARE YOU AN EXPERT IN THE FUNCTIONALITY OF 16 17 PHONES? 18 A IN TERMS OF THEIR OPERATION FUNCTIONALITY, NO. 19 Q OKAY. 20 TOUCH DISPLAY TECHNOLOGY; CORRECT? 21 A THAT IS CORRECT. 22 Q IN FACT, YOU'RE NO MORE EQUIPPED THAN ANY 23 ORDINARY OBSERVER TO OPINE ON THE FUNCTIONALITY OF 24 A SMARTPHONE? 25 A YOU'RE NOT AN EXPERT WITH RESPECT TO DEPENDS ON WHETHER YOU MEAN FUNCTIONALITY 1197 1 RELATIVE TO A DESIGN PATENT OR THE GENERAL 2 FUNCTIONALITY OF HOW IT OPERATES. 3 Q 4 AND SCIENTIFIC FUNCTIONALITY, YOU DON'T HAVE ANY 5 KNOWLEDGE; RIGHT? 6 A THAT'S CORRECT. 7 Q IN FACT, YOU BELIEVE THAT YOU ONLY NEED A 8 THIN, TOP LEVEL KNOWLEDGE TO BE ABLE TO PASS 9 JUDGMENT ON THE COMPARABLE FUNCTIONALITY OF THE IN TERMS OF THE SPECIFIC TECHNICAL KNOWLEDGE 10 DIFFERENT PHONES? 11 A 12 THAT'S TRUE. 13 Q 14 DISPLAY ELEMENT IS NOT NECESSARY OR FUNCTIONAL FOR 15 A SMARTPHONE? 16 RIGHT? 17 A NO. 18 Q OKAY. 19 TESTIMONY, AGAIN, WAS TAKEN APRIL 24TH, 2012; 20 RIGHT? 21 A THAT'S CORRECT. 22 Q IT WAS UNDER OATH? 23 A YES. 24 Q AND YOU ANSWERED QUESTIONS AS CAREFULLY AS YOU 25 COULD; RIGHT? AS IT RELATES TO DESIGN FUNCTION, I BELIEVE IT'S YOUR TESTIMONY, SIR, THAT HAVING A THAT'S YOUR TESTIMONY TO THIS JURY; WELL, LET'S -- YOUR DEPOSITION 1198 1 A YES. 2 Q LET'S PLAY AN EXCERPT FROM YOUR DEPOSITION, 3 PAGE 210, LINES 14 THROUGH 24. 4 (WHEREUPON, A VIDEOTAPE WAS PLAYED IN 5 OPEN COURT OFF THE RECORD.) 6 BY MR. VERHOEVEN: 7 Q THAT WAS TRUE TESTIMONY WHEN YOU GAVE IT? 8 A THAT WAS PART OF THE TESTIMONY THAT I GAVE 9 THAT IT TURNS OUT WAS, WAS GOING BOTH DIRECTIONS 10 DEPENDING ON -- BECAUSE I MISUNDERSTOOD THE USE OF 11 THE TERM "FUNCTION" AND THE QUESTION AT THAT TIME. 12 Q SO THAT TESTIMONY IS NOT TRUE? 13 A THE TESTIMONY IS TRUE. 14 FUNCTION AS IT RELATES TO A DESIGN PATENT, WHICH 15 MEANS THEY CAN BE ANY SHAPE AND LOCATION AND SIZE. I WAS REFERRING TO THE 16 AND IN THAT SENSE, IT'S NOT FUNCTIONAL IN 17 THAT SHAPE, LOCATION OR SIZE ARE NOT REQUIRED BY AS 18 FUNCTIONS. 19 Q 20 WE JUST WATCHED, PAGE 210, LINES 14 THROUGH 24. 21 22 23 CAN WE PUT UP THE HARD COPY TRANSCRIPT OF WHAT SO THIS IS 210, LINE 14 THROUGH 24. APRIL 24TH, 2012 DEPOSITION. SIR, DO YOU SEE THE QUESTION, IT DOESN'T 24 TALK ABOUT THE DESIGN PATENTS, IT TALKS ABOUT 25 SMARTPHONES. 1199 1 DO YOU SEE THAT, SIR? 2 A I SEE THAT'S WHAT IT SAYS. 3 Q THAT'S WHAT YOU WERE ASKED; RIGHT? 4 A I BELIEVE IT WAS ASKING ME ABOUT AS IT RELATED 5 TO DESIGN PATENTS. 6 Q BUT IT DOESN'T SAY THAT, DOES IT? 7 A I DON'T SEE IT SAYING THAT. 8 Q USING YOUR DEFINITION OF FUNCTIONAL, ISN'T IT 9 TRUE THAT YOUR OPINION TO THIS JURY IS THAT THE USE 10 OF A TRANSPARENT COVER OVER A DISPLAY IS NOT 11 NECESSARY FOR FUNCTIONAL? 12 A 13 BY THE SHAPE AND LOCATION AND IT NOT BEING -- I 14 BELIEVE THAT'S TRUE. 15 CLEAR ON A SMARTPHONE NEEDS -- YES, THAT'S 16 FUNCTIONAL. 17 Q 18 LINES 9 THROUGH 21. IN DEFINING "FUNCTIONAL" AS NOT BEING DRIVEN I THINK THE FACT THAT IT IS LET'S PLAY PAGE 209 FROM THE SAME DEPOSITION, (WHEREUPON, A VIDEOTAPE WAS PLAYED IN 19 20 OPEN COURT OFF THE RECORD.) 21 BY MR. VERHOEVEN: 22 Q DO YOU STAND BY THAT TESTIMONY? 23 A I BELIEVE THAT'S WHAT I MAY HAVE JUST SAID A 24 MOMENT AGO. 25 Q SO IT'S YOUR TESTIMONY TO THIS JURY THAT 1200 1 HAVING A CLEAR COVER OVER THE DISPLAY ELEMENT IS 2 NOT SOMETHING THAT'S FUNCTIONAL? 3 A 4 STANDPOINT, I BELIEVE IT'S ABSOLUTELY FUNCTIONAL. 5 Q BUT JUST NOT IN YOUR ANALYSIS? 6 A IF IT'S CLEAR THAT IT'S A -- IF IT IS CLEAR IN 7 THE DESIGN PATENT THAT IT'S A DISPLAY, THEN ONE 8 WOULD EXPECT IT TO BE TRANSPARENT OVER THAT 9 DISPLAY. FROM A PERFORMANCE STANDPOINT AND OPERATIONS IS THAT RIGHT? 10 Q BUT YOUR CONCLUSION, WHEN YOU WERE ASKED UNDER 11 OATH ABOUT WHETHER USE OF A COVER THAT IS 12 TRANSPARENT OR A DISPLAY IS FUNCTIONAL, IS THAT 13 IT'S NOT FUNCTIONAL AS YOU'VE DEFINED IT; RIGHT? 14 A 15 SIZE AND THE DESIGN PATENT DEFINITION OF 16 FUNCTIONALITY. 17 Q 18 ASK YOU, IN YOUR VIEW, IS LOCATING THE SPEAKER IN 19 THE UPPER PORTION OF THE FRONT FACE OF A SMARTPHONE 20 SOMETHING THAT'S NOT FUNCTIONAL AS YOU USE THAT 21 TERM IN YOUR EXPERT REPORTS? 22 A 23 AESTHETIC STANDPOINT, IS NOT DRIVEN BY FUNCTION. 24 Q SO THAT'S NO, IT'S NOT FUNCTIONAL? 25 A WITH THE CONDITIONS THAT I JUST SAID, YES, I WAS TALKING ABOUT ITS SHAPE AND LOCATION AND AND YOU ALSO TESTIFIED THAT -- WELL, LET ME DEFINING THE PRECISE LOCATION FROM AN 1201 1 IT'S NOT FUNCTIONAL. 2 Q 3 4 OF YOUR APRIL 24TH DEPOSITION. LET'S PLAY PAGE 212, LINE 25 THROUGH 213, LINE 4 (WHEREUPON, A VIDEOTAPE WAS PLAYED IN 5 OPEN COURT OFF THE RECORD.) 6 BY MR. VERHOEVEN: 7 Q 8 ANSWERED THAT AT YOUR DEPOSITION, DID YOU, SIR? 9 A YOU DIDN'T HAVE ANY QUALIFICATIONS WHEN YOU BECAUSE I UNDERSTOOD IT TO BE THE WAY I JUST 10 SAID IT. 11 Q DO YOU STAND BY THAT TESTIMONY? 12 A YES. 13 Q NOW, YOU TESTIFIED ON DIRECT EXAMINATION THAT 14 YOUR AN INDUSTRIAL DESIGNER; CORRECT? 15 A THAT'S CORRECT. 16 Q BUT, IN FACT, YOU'VE NEVER DESIGNED A 17 SMARTPHONE, HAVE YOU? 18 A NO, I HAVE NOT DESIGNED A SMARTPHONE. 19 Q IS IT FAIR TO SAY THAT YOU HAVE NEVER DESIGNED 20 A SMARTPHONE AT ANY STAGE? 21 A I'M NOT SURE WHAT YOU MEAN BY "ANY STAGE." 22 Q WELL, LET ME ASK IT THIS WAY: 23 WHETHER OR NOT THE DESIGN WAS ACTUALLY IMPLEMENTED 24 OR MANUFACTURED OR PRODUCED IN ANY WAY, YOU NEVER 25 HAVE NOT DESIGNED ANY SMARTPHONES AT ANY STAGE IN REGARDLESS OF 1202 1 THAT PROCESS? 2 A 3 SMARTPHONES. 4 Q 5 DESIGNS ARE ONLY CONCEPTS; RIGHT? 6 A THAT'S CORRECT. 7 Q AND NONE OF THOSE CONCEPTS WERE EVER PRODUCED 8 OR MANUFACTURED; CORRECT? 9 A I DON'T KNOW FOR SURE. 10 Q WELL, AS FAR AS YOU KNOW, THOSE CONCEPTS WERE 11 NEVER EVEN MADE INTO MODELS OR PROTOTYPES, WERE 12 THEY? 13 A YES, THEY WERE MADE INTO MODELS. 14 Q OKAY. 15 TIME LET'S JUST PUT UP THE WRITTEN DEPOSITION, 16 PLEASE, MR. FISHER, DATED APRIL 23, 2012. NO. I'VE DESIGNED CELL PHONES, NOT YOU HAVE DESIGNED SOME CELL PHONES, BUT THOSE LET'S LOOK AT YOUR DEPOSITION, THIS 17 JUST ONE SECOND, YOUR HONOR. 18 (PAUSE IN PROCEEDINGS.) 19 MR. VERHOEVEN: I'M SORRY, MR. FISHER. 20 CAN WE GO TO THE ITC TRANSCRIPT, PAGE 219, LINES 13 21 THROUGH 24. 22 Q 23 ATTENDED AND GAVE TESTIMONY TO RELATED IN ANOTHER 24 PROCEEDING. 25 A DO YOU SEE THIS IS FROM THE HEARING THAT YOU DO YOU REMEMBER THAT, IN WASHINGTON? IT LOOKS FAMILIAR, YES. 1203 1 Q AND YOU WERE ASKED, WITH RESPECT TO OTHER CELL 2 PHONE DESIGNS THAT YOU WORKED ON, DID YOU WORK ON 3 ANY OF THOSE PRIOR TO 2006? 4 A YES. 5 Q AND DOWN AT THE BOTTOM, IT SAYS QUESTION, THIS 6 IS LINES 21 THROUGH 24? 7 "QUESTION: DO YOU SEE THAT? DID ANY OF THEM BECOME MODELS 8 OR PROTOTYPES OR WERE OTHERWISE EXPRESSED IN 9 THREE-DIMENSIONAL FORM?" 10 WHAT WAS YOUR ANSWER? 11 A APPARENTLY I SAID "NOT THAT I KNOW OF," AND 12 I'D APPARENTLY FORGOTTEN THAT MODELS AND MOCK-UPS 13 WERE MADE. 14 Q 15 MADE, AND NOW YOU'RE TESTIFYING THAT SOME WERE 16 MADE? 17 A 18 I REMEMBERED THAT THERE WERE MODELS MADE. 19 Q SO IT THIS TESTIMONY NOT TRUE? 20 A AT THAT POINT, I DIDN'T REMEMBER THAT. 21 Q THAT TESTIMONY WAS GIVEN UNDER OATH, SIMILAR 22 TO THIS TESTIMONY; CORRECT? 23 A TO THE BEST OF MY ABILITY, YES. 24 Q ISN'T IT TRUE THAT IN ALL YOUR TIME AS AN 25 INDUSTRIAL DESIGNER, YOU ONLY WORKED ON CONCEPTS SO IN MAY OF THIS YEAR YOU TESTIFIED NONE WERE IS THAT RIGHT? YES. I MEAN, IT WAS A LONG TIME AGO. I THINK 1 2 3 CERTIFICATE OF REPORTERS 4 5 6 7 WE, THE UNDERSIGNED OFFICIAL COURT 8 REPORTERS OF THE UNITED STATES DISTRICT COURT FOR 9 THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH 10 FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY 11 CERTIFY: 12 THAT THE FOREGOING TRANSCRIPT, 13 CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND 14 CORRECT TRANSCRIPT OF OUR SHORTHAND NOTES TAKEN AS 15 SUCH OFFICIAL COURT REPORTERS OF THE PROCEEDINGS 16 HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED 17 TRANSCRIPTION TO THE BEST OF OUR ABILITY. 18 19 20 /S/ _____________________________ LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595 21 22 23 /S/ ______________________________ IRENE RODRIGUEZ, CSR, CRR CERTIFICATE NUMBER 8074 24 25 DATED: AUGUST 6, 2012

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