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

Filing 940

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)

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Exhibit 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 APPLE INC., a California corporation, 13 14 15 16 17 18 19 Plaintiff, Case No. 11-cv-01846-LHK EXPERT REPORT OF PETER W. BRESSLER, FIDSA v. 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, Defendants. 20 21 22 **CONFIDENTIAL – CONTAINS MATERIAL DESIGNATED AS HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY PURSUANT TO A PROTECTIVE ORDER** 23 24 25 26 27 28 EXPERT REPORT OF PETER W. BRESSLER Case No. 11 cv-01846-LHK 1 L.A. Gear v. Thom McAn Shoe Co., 988 F.2d 1117, 1123 (Fed. Cir. 1993). I understand that “[a] 2 design is not dictated solely by its function when alternative designs for the article of manufacture 3 are available.” See Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1566 (Fed. Cir. 1996) 4 (citation omitted). “When there are several ways to achieve the function of an article of 5 manufacture, the design of the article is more likely to serve a primarily ornamental purpose.” 6 L.A. Gear, 988 F.2d at 1123. And “if other designs could produce the same or similar functional 7 capabilities, the design of the article in question is likely ornamental, not functional.” Rosco, Inc. 8 v. Mirror Lite Co., 304 F.3d 1373, 1378 (Fed. Cir. 2002). 9 29. I also understand that that the use of labeling or logos cannot be used to escape 10 design patent infringement. L.A. Gear, 988 F.2d at 1126. 11 V. 12 MY UNDERSTANDING OF THE ORDINARY OBSERVER 30. I have been informed by counsel that the “ordinary observer” is a person 13 possessing “ordinary acuteness, bringing to the examination of the article upon which the design 14 has been placed that degree of observation which men of ordinary intelligence give.” Gorham 15 Co. v. White, 81 U.S. 511, 528 (1871). Accordingly, it is my opinion that the ordinary observer 16 for the designs in question is a member of the general consuming public that buys and uses 17 smartphones or tablets. In the context of smartphones and tablets, the ordinary observer may be 18 observing and purchasing the devices in a retail environment, such as a carrier store or electronics 19 store, or in an online environment, such as a carrier website or an electronics store website. In 20 order to add to my understanding of how the ordinary observer would see and evaluate 21 smartphones and tablets, I have visited carrier stores and on-line retailers for purposes of this 22 Report. 23 VI. 24 MY UNDERSTANDING OF THE LAW ON TRADE DRESS FUNCTIONALITY 31. I have not been asked to offer an opinion on the law; however, as an expert 25 opining on trade dress functionality, I understand that I am obliged to follow existing law. I have 26 been informed by counsel that product design trade dress is entitled to protection only if it is 27 nonfunctional. A trade dress is functional “if it is essential to the product’s use or if it [favorably] 28 EXPERT REPORT OF PETER W. BRESSLER, FIDSA Case No. 11 cv-01846-LHK 9

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