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)

Exhibit 7

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

APPLE INC., a California corporation,

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Plaintiff,
v.
SAMSUNG ELECTRONICS CO. LTD., a
Korean corporation; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; and SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
Defendants.

Case No. 11-cv-01846-LHK

EXPERT REPORT OF ROBERT JOHN ANDERS, IDSA

PREFACE

This Expert Report is divided into twelve parts.
Part A contains:
I.

Introduction

II.

Background, Education and Qualifications

III.

Working Knowledge of Applicable Laws

IV.

Drawing Requirements for Design Patents and The Language of Lines Used in
Design Patent Drawings

V.

My Infringement Analysis Methodology
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V.

MY INFRINGEMENT ANALYSIS METHODOLOGY
1.

As noted above, I understand that for a design patent, an infringement analysis
consists of the “ordinary observer” test.

2.

Additionally, I understand that one must examine all of the claimed Figures of the
patent, and compared the accused product to each one.12

3.

Furthermore, I understand that the decision of the U. S. Court of Appeals for the
Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir.
2008) (en banc) modified the hypothetical ordinary observer test found in Gorham
to include one “who is conversant with the prior art.” I further understand that
infringement cannot be premised on similarities between functional aspects of the
asserted design and the accused product.13
3.1.

Accordingly, I have reviewed all of the cited prior art in this matter, and
have selected examples of the prior art to compare to the asserted patents.

4.

As a result of my understanding of the requirements for an infringement analysis,
my methodology in the instant case has four parts:
4.1.

first, to present each view of the asserted patent;

4.2.

second, to present comparable views of an appropriate prior art example;

4.3.

third, to photographically document and present the representative accused
product(s) from the same viewpoints taught by the patented design; and

4.4.

fourth, to comment about the three images, to assist the trier of fact in this
matter.

5.

My photographs of these products were taken from the same views (perspective,
front, top, left side, right side, bottom, and rear views) as contained in the patents.
However, I am aware that a photograph of a three dimensional product built from
technical two dimensional orthogonal drawings (such as those used both in
manufacturing and in United States patent drawings) will not translate into an
exact replication of a drawing produced by this methodology, since orthogonal
drawings assume the viewer is at infinity and the lines of sight are parallel to each

12

Contessa Food Products, Inc. v. Conagra, Inc. 282 F.3d 1370 (Fed. Cir. 2002)

13

Richardson, 597 F.3d at 1293.
14

other and perpendicular to the plane of projection, while a photographic image is
obtained from a close proximity using one point perspective.
6.

Additionally, I have the backgrounds of the photographs eliminated digitally,
silhouetting the subjects so they appear comparable to the drawn images of the
patent.

7.

The foregoing limitations notwithstanding, I believe the photographs are a good
indicator of the design elements found in the patent drawings.

8.

While this Expert Report includes multiple thumbnail photographs, I have
attached as Exhibits to this report, larger images of the photographs and drawings
contained within the body of this report, to assist the fact finder in comparing the
design patent drawings with the photographic images of the accused product(s).

VI.

DEFINITION OF A PERSON OR DESIGNER OF ORDINARY SKILL IN THE
ART
1.

In my opinion, a person of ordinary skill in the art or a designer of ordinary skill
in the art is a designer of ordinary capabilities in the field of the design of
consumer, commercial or industrial products. It is my opinion that such a person
would have at least an undergraduate degree in engineering or industrial design,
and about 1-2 years of experience in designing electronic devices. Alternatively,
a designer in academia who conducted research of the interface of products to
people and taught industrial design students the design of electronic devices
would also be identified as a designer skilled in the art.

VII.

THE ORDINARY OBSERVER DEFINED
1.

In my opinion, the ordinary observer relevant to the patents-in-suit is a consumer
or purchaser of electronic devices such as computers, monitors, portable digital
assistants, and/or cell phones.

VIII. THE EXPERT REPORT OF PETER W. BRESSLER, FIDSA
1.

I have read the Expert Report of Mr. Bressler, and disagree with its conclusions.

2.

There are numerous flaws in the Bressler report. For example:
2.1.

the report treated all of the differently designed iPhones as though they
were of a single all-encompassing design, which they are not;

2.2.

the report failed to label any of the tables for adequate identification;
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2.3.

the report failed to account for significant relevant prior art;

2.4.

the report repeatedly used at least three photographic images of the
original iPhone that depicted a dark line adjacent to the product’s edge on
the images of the top, bottom and side views, that closely replicated the
single solid line depicted in the D’087 and D’677 patents, but which in
fact does not exist when viewing the actual product. I found this
presentation to be misleading and deceptive.

2.5.

I have reviewed Sections XIV. to XVI. of the Bressler report, which
conclude that Apple practices the claims of the D’889, D’087, and D’677
patents, respectively. In my opinion, the report does not accurately report
all of the differences between the Apple products and the claimed designs,
nor does it acknowledge that the drawings in the patents are ambiguous
and unclear. The Bressler report claims that Apple practices their patents,
yet fails to point out significant discrepancies between the patented design
and the Apple products. For example, on page 115, the Bressler report
depicts Fig. 1 of the D’889 patent but fails to point out that the proportions
of the dark frame area of the product are substantially different from the
patent. Similarly, the Apple product does not conform to the drawing in
Fig. 2. Fig. 3 has the same change of scale and proportion that Fig. 1 had.
Most egregious are Figures 5, 6, 7, and 8 which represent a design totally
distinct from that of the actual product, having a different thickness and
edge detail. Moreover, I find the differences between the Apple products
and the claimed designs to be significant, particularly in light of the prior
art, such that an ordinary observer would not find any of the Apple
products to be substantially the same design as either the D’889, D’087, or
D’677 patent designs. Therefore, in my opinion, Apple does not practice
the claims of the D’889, D’087, or D’677 patents.

X.

REMARKS
1.

I currently hold the opinions expressed in this Expert Report. As my study of the
case continues, I may acquire additional information and/or attain supplemental
insights that that result in added observations. I reserve the right to supplement
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