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)

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.

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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