Apple Inc. v. Samsung Electronics Co. Ltd. et al
Administrative Motion to File Under Seal Apple Inc.s Administrative Motion To File Documents Under Seal Re Apples Motion To Exclude Testimony Of Samsungs Experts filed by Apple Inc.. (Attachments: #1 Apple Inc.s Notice Of Motion And Motion To Exclude Testimony Of Samsungs Experts, #2 Declaration Of Jason Bartlett In Support Of Motion To Exclude Testimony Of Samsungs Experts, #3 Exhibit 1, #4 Exhibit 2, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 9, #9 Exhibit 12, #10 Exhibit 14, #11 [Proposed] Order Granting Apples Motion To Exclude Testimony Of Samsungs Experts, #12 Proposed Order Granting Apple's Admin Motion to File Under Seal)(McElhinny, Harold) (Filed on 5/18/2012)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
APPLE INC., a California corporation,
EXPERT REPORT OF PETER W.
SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
**CONFIDENTIAL – CONTAINS MATERIAL DESIGNATED AS HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY PURSUANT TO A PROTECTIVE
EXPERT REPORT OF PETER W. BRESSLER
Case No. 11 cv-01846-LHK
L.A. Gear v. Thom McAn Shoe Co., 988 F.2d 1117, 1123 (Fed. Cir. 1993). I understand that “[a]
design is not dictated solely by its function when alternative designs for the article of manufacture
are available.” See Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1566 (Fed. Cir. 1996)
(citation omitted). “When there are several ways to achieve the function of an article of
manufacture, the design of the article is more likely to serve a primarily ornamental purpose.”
L.A. Gear, 988 F.2d at 1123. And “if other designs could produce the same or similar functional
capabilities, the design of the article in question is likely ornamental, not functional.” Rosco, Inc.
v. Mirror Lite Co., 304 F.3d 1373, 1378 (Fed. Cir. 2002).
I also understand that that the use of labeling or logos cannot be used to escape
design patent infringement. L.A. Gear, 988 F.2d at 1126.
MY UNDERSTANDING OF THE ORDINARY OBSERVER
I have been informed by counsel that the “ordinary observer” is a person
possessing “ordinary acuteness, bringing to the examination of the article upon which the design
has been placed that degree of observation which men of ordinary intelligence give.” Gorham
Co. v. White, 81 U.S. 511, 528 (1871). Accordingly, it is my opinion that the ordinary observer
for the designs in question is a member of the general consuming public that buys and uses
smartphones or tablets. In the context of smartphones and tablets, the ordinary observer may be
observing and purchasing the devices in a retail environment, such as a carrier store or electronics
store, or in an online environment, such as a carrier website or an electronics store website. In
order to add to my understanding of how the ordinary observer would see and evaluate
smartphones and tablets, I have visited carrier stores and on-line retailers for purposes of this
MY UNDERSTANDING OF THE LAW ON TRADE DRESS FUNCTIONALITY
I have not been asked to offer an opinion on the law; however, as an expert
opining on trade dress functionality, I understand that I am obliged to follow existing law. I have
been informed by counsel that product design trade dress is entitled to protection only if it is
nonfunctional. A trade dress is functional “if it is essential to the product’s use or if it [favorably]
EXPERT REPORT OF PETER W. BRESSLER, FIDSA
Case No. 11 cv-01846-LHK
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