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

Filing 430

Declaration of Francis Ho in Support of #424 Apple's Reply in Support of its Motion for a Preliminary Injunction, filed by Apple Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F-1, #7 Exhibit F-2, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J-1, #12 Exhibit J-2, #13 Exhibit K, #14 Exhibit L-1, #15 Exhibit L-2, #16 Exhibit M, #17 Exhibit N, #18 Exhibit O, #19 Exhibit P, #20 Exhibit Q, #21 Exhibit R, #22 Exhibit S, #23 Exhibit T, #24 Exhibit U, #25 Exhibit V, #26 Exhibit W, #27 Exhibit X, #28 Exhibit Y, #29 Exhibit Z, #30 Exhibit AA, #31 Exhibit BB, #32 Exhibit CC, #33 Exhibit DD, #34 Exhibit EE, #35 Exhibit FF, #36 Exhibit GG, #37 Exhibit HH, #38 Exhibit II, #39 Exhibit JJ, #40 Exhibit KK, #41 Exhibit LL)(Related document(s) #424 ) (Bartlett, Jason) (Filed on 11/29/2011) Modified text on 11/30/2011 (dhm, COURT STAFF).

Exhibit Q

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE, INC., a California
corporation,

)
)
)CASE NO.
Plaintiff,
)11-CV-01846-LHK
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vs.
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SAMSUNG ELECTRONICS, CO., LTD.,)
A Korean business entity;
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SAMSUNG ELECTRONICS AMERICA,
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INC., a New York corporation; )
SAMSUNG TELECOMMUNICATIONS
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AMERICA, LLC, a Delaware
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limited liability company,
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Defendants.
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***ATTORNEYS' EYES ONLY***

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VIDEOTAPED DEPOSITION OF
ITAY SHERMAN
New York, New York
Thursday, September 15, 2011

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Reported by:
JOMANNA DeROSA, CSR
JOB NO. 41963
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Thursday, September 15, 2011

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9:23 a.m.

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Attorneys Eye's Only Videotaped Deposition

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of ITAY SHERMAN, held at the

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offices of Morrison & Foerster,

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1290 Avenue of the Americas, New York,

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New York, before Jomanna DeRosa, a

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Certified Shorthand Reporter and

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Notary Public of the States of

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New York, New Jersey, California

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and Arizona.

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A P P E A R A N C E S:

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MORRISON & FOERSTER

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Attorneys for Plaintiff

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425 Market Street

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San Francisco, California 94105

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BY:

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JENNIFER LEE TAYLOR, ESQ.
PATRICK ZHANG, ESQ.

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QUINN EMANUEL URQUHART & SULLIVAN

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Attorneys for Defendant

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865 South Figueroa Street

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Los Angeles, California 90017

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BY:

MICHAEL T. ZELLER, ESQ.

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QUINN EMANUEL URQUHART & SULLIVAN

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Attorneys for Defendant

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555 Twin Dolphin Drive

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Redwood Shores, California 94065

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BY:

ANNA T. NEILL, Ph.D., ESQ.

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ALSO PRESENT:
Henry Marte, Legal Video Specialist

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anything.

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MR. ZELLER:

-- I'm entitled to

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make my objections.

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witness now -- you ask him for a legal

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opinion.

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you pretend as though it is in his declaration

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that that's the same meaning of it.

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You have been asking this

You do so in a bald-faced way.

Then

Ask him about his declaration if

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that's what you want to do.

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like somehow, well, that --

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MS. TAYLOR:

But don't pretend

I was until you

interrupted me.

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MR. ZELLER:

You just interrupted

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me again, and you did so with an obnoxious

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gesture.

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MS. TAYLOR:

Let us move on.

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MR. ZELLER:

So that's -- do you

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think that's appropriate, counsel?

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MS. TAYLOR:

I think it's tiresome

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that you interrupt my questions halfway

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through.

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Mr. Sherman's declaration.

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Q.

I am reading a paragraph from

Paragraph 184 says:
"It is my opinion that (1) the

D'889, 'D677, and D'087 patents are invalid in

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light of the prior art described above."

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Do you see that sentence?

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A.

Yes, I see that sentence.

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Q.

Can you tell me what your

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qualifications are to offer that opinion.
A.

So first of all, I would say that

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that -- the term here that they are invalid is

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related to my assessment as a technical expert and

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not as legal advice.

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But the qualifications are

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obviously my experience in designing mobile

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phones, the fact that I had seen multiple of these

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designs as part of the work.

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So I could assess prior art, and

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also comment as to the capability of somebody who

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is skilled in the art to be able to combine these

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and be able to sort of define whether they're

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obvious or not.

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So these would be things that would

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be necessary for me in order to go and provide

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that opinion, and that is what I base it on.

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Q.

Have you ever done that type of an

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analysis before you were asked to do so in

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connection with preparing the declaration that you

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submitted in this case?

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to do with the manufacturing process which makes

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creation of rounded corners the -- I would say the

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preferred alternative versus sharp corners in

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terms of -- both in terms of manufacturing as well

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as the mechanical strengths of that structure.

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Q.

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called the MODU-1 --

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A.

Yes.

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Q.

-- seemed to have very sharp

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Now, the phone we looked at earlier

corners to me.

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Were you not concerned about these

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functionality issues that you have just described

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when you were designing that phone?

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A.

So on the -- specifically on the

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MODU-1, the corners are not very sharp.

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rounded.

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corners have cost MODU significantly.

In fact, the need to round these metal

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They are

If you want, I can refer you to the
image itself.
Q.

Yeah.

Let's refer to the image,

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and maybe you can show how they're rounded,

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because they look square to me.

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A.

Again, on the form here the metal

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is curved, but this is not a 90-degrees curving.

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It is -- it has some radius on the turnaround,

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both here and in that size.

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There is also rounding of the metal

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when -- again, you can't see that here, but on the

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top and bottom, these parts, when they basically

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end, it doesn't end as a sharp corner, but rather,

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the metal was bended over all through in order to

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not create sharp corners.

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Q.

So are they rounded, like, as --

from the front towards the back; is that the edge?
A.

From the front internally, the

whole part was basically bent over itself.
Q.

So the front looks -- because the

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front -- it looks -- it looks straight in this

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photo we're looking at.

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A.

In the photo, again, I'm saying --

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Q.

So where --

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A.

-- the left and right here, this

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one is basically bending over the sides.

And

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again, I'm saying it doesn't bend in 90 degrees.

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There is some radius there.

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And if we're referring to the top

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part when this one ends, the metal here again is

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not cut straight, but rather folds over in.

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Q.

When you say it folds over, are you

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talking over the top?

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A.

It's over the top of itself.

If

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you would like, I can sort of make that if you

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want to sketch that.

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Q.

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Is it over the top, like, towards

the back of the phone?

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A.

It doesn't go through to the other

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Q.

So why don't we look at the MODU-T.

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A.

Sure.

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Q.

If you'd look at the design on the

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side.

MODU-T on the next page.

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A.

Sure.

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Q.

MODU-T phone design.

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A.

Yeah.

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Q.

Does this demonstrate in any way

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what you were describing on the MODU-1?
A.

No.

That is a different design.

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This one is mostly made of plastic.

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was metal.

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different.

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The other one

So the whole construction is slightly

So here on this one, you can see

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the bottom part here.

You have the corners

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rounded on both sides.

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simply -- you don't have sharp corners here

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because that basically -- this part itself is not

On the upper part, it's

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Let me see if there are other

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elements mentioned here.

Again, the other

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statement is regarding the fact that black usually

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is perceived -- when you take something in black,

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it's usually perceived as slimmer, but that's, I

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would say, a very general thing that I think most

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people are aware of.

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Q.

So are you saying that the phone

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shown on the first page of Exhibit 207 does not

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achieve the functionality that you describe in

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Exhibit 109 -- I'm sorry -- in paragraph 109 and

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in the following paragraph in your declaration?

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MR. ZELLER:

Mischaracterizes the

witness' testimony.
A.

Again, what I'm saying is if I read

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each one of these, obviously it does not achieve

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being black since it's white.

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that it's not targeting the most popular color by

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consumers.

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So that would mean

As for its ability to -- again,

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since black makes things look slimmer, since it's

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white, it does not enjoy that specific advantage.

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And as I said, in terms of the looks, when the

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screen is switched off, then you will have

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contrast versus the exterior, just because the

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display is not white.

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I'm saying.

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Q.

So that's basically what

One of the items you have in the

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paragraph following 109 is -- with reference to

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the title that you have is "Blackness of Surface."

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You state:

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"It efficiently hides the wiring
and electronic components underlying it."

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Do you think that doesn't work --

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that that's not the case with the white iPhone

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shown on the first page of Exhibit 207?

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MR. ZELLER:

Do you -- do you want

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him to comment on the construction of it?

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First of all, if Apple actually

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would agree that he can see Apple's internal

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documents and provide an opinion.

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No. 2, as far as I know, we have

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repeatedly asked and Apple has hidden its

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documents as to the development of the white

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iPhone, which, by the way, common sense, as

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well as public knowledge, state that there

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were a whole variety of technical,

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manufacturing and engineering challenges in

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the development of that phone.

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known.

It is widely

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So is Apple going to produce those

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documents?

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instructing this witness on this, because if

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you want an opinion on it, we're happy to give

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it.

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documents relating to it, particularly from

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this witness.

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I mean, I'm going to start

But Apple needs to stop concealing the

Q.

Mr. Sherman, I think you can look

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at the photograph on the front page of Exhibit 207

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and tell me if you personally believe, looking at

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that photograph, that the white hides the wiring

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and electronic components underlying it.

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If you are not able to answer that

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question based upon looking at the front of

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Exhibit 207, let me know.

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MR. ZELLER:

Do you have the phone?

Why don't you give him the phone?

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MS. TAYLOR:

I don't have the

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MR. ZELLER:

Well, I think it's

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your responsibility to bring it.

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phone.

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Also, I mean, what is the

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construction of this?

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white."

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piece?

You keep on saying "the

Is that -- is that some sort of solid
Is it some sort of painting over it?

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Is it a coloring?

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I mean, what is it?

MS. TAYLOR:

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photograph.

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I'm asking him about a

unable --

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If he is unable -- if he is

MR. ZELLER:

Counsel, if you

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provide the information for him to answer your

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question --

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MS. TAYLOR:

Mr. Zeller, I've

asked -- let me finish -MR. ZELLER:

Why are you

interrupting me?
MS. TAYLOR:

Because you

interrupted me.
MR. ZELLER:

No, I did not

interrupt you.
MS. TAYLOR:

I am asking him if he

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is able to tell me if it hides the components.

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If he cannot look at this and tell me if he

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thinks it hides the components based upon this

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picture, that's fine.

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That's all I'm asking.

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MR. ZELLER:

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misleading.

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He can tell me that.

Counsel, that's still

That is not --

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And you know it's misleading.

MS. TAYLOR:

That's all I'm asking.

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MR. ZELLER:

You are -- you are

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refusing to provide him a phone or other kinds

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of information to provide that.

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you're going to pretend, because of your

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refusal and Apple's refusal to comply with

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discovery, that somehow that is an appropriate

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criticism of this expert.

And then

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So provide the white iPhone so we

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can see it, or explain what is covering it.

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MS. TAYLOR:

What is covering what?

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MR. ZELLER:

Does Apple produce

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that information?

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MS. TAYLOR:

What is covering what?

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MR. ZELLER:

You keep on asking,

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does the white perform the same function.

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What is the white made of?

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material?

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Is it paint?
MS. TAYLOR:

Is it solid

Is it a coating?
We need to move on

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because you're not going to be permitted to

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answer questions on that picture.

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Q.

So please look at the following

picture, which is a phone.

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A.

This one?

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Q.

Okay.

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page of Exhibit 207.

If you'll go to the second

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the device shown in Exhibit G has a completely

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flat surface?

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A.

Based on what is shown in the

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design patent here, the answer would be yes, it

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does have a flat surface.

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And that is -- can be understood

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based on the -- there's a diagram which is titled

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A minus A dash, which is basically a cut-through

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of the device, which basically shows that the

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device face is completely flat.

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Q.

So I understand you looked at F and

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A.

As well as the other ones.

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Q.

And the other ones.

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G?

I'm not saying

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you didn't, but you highlighted F and G.

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we don't get an objection to the preamble, skip

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all that.

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And so

Is there a particular piece of

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prior art here that you think discloses the rim

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shown in the '889 patent?

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A.

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shows the exact rim?

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Q.

Yes.

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A.

Okay.

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I'm sorry.

You've asked whether it

I'm sorry.

It's a bit late.

I'm not completely focused.

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Q.

We understand.

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A.

So if you look at Exhibit -- if you

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look at Exhibit H, which is 172-8, the rim itself

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around the display here on the front face, which

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is what we were discussing, looks similar,

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excluding the extra feature that it has.

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But again, excluding of that would

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be trivial for somebody who is skilled in the art.

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But apart from that, it has an appearance that is

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very similar to what is shown in the '889 design

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patent.

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Q.

I'm going to ask you to do me a

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favor because there are two pictures on the front.

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Can you circle the one you're talking about so we

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know what you're talking about?

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MR. ZELLER:

He should probably

circle the actual exhibit.

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MS. TAYLOR:

Oh, circle the one

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that's in the exhibit.

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your copy of the declaration.

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Q.

There we are.

That's right.

Circle the one that

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has the rim that you're discussing.

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to put it back in here so it's safe.

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A.

Not in

And I'm going

And as I mentioned, after

reviewing --

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analyses that it's done for the relevant

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patents in this case.

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that, he'll answer the questions.

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don't you tell me?

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MS. TAYLOR:

Once you stipulate
So why

So in any event, if

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the Judge orders you to come back, we will see

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you again.

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If not, we won't.

THE VIDEOGRAPHER:

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end of today's deposition.

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But thank you.

This marks the
The time is

7:00 p.m., and we're going off the record.

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(Time Ended:

7:00 p.m.)

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__________________________

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ITAY SHERMAN

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Subscribed and sworn to

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before me this

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of

day
, 2011.

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________________________

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CERTIFICATE
STATE OF NEW YORK )

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)ss:
COUNTY OF NEW YORK)

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I, JOMANNA DeROSA, a Certified

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Shorthand Reporter and Notary Public within

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and for the States of New York, New Jersey,

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California and Arizona, do hereby certify:

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That ITAY SHERMAN, the witness

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whose deposition is hereinbefore set forth, was

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duly sworn by me and that such deposition is a

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true record of the testimony given by such

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witness.

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I further certify that I am not

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related to any of the parties to this action

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by blood or marriage, and that I am in no

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way interested in the outcome of this

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matter.

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In witness whereof, I have hereunto
set my hand this 16th day of September, 2011.

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_____________________
JOMANNA DeROSA

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