In fact, I'll do that first, because the media reported that the jury barely could stay awake this day. The judge even offered them coffee. But to me, this day is fascinating. I'll try to show you why. And you'll see some of the finest lawyering you could ever hope to watch play out before your very eyes.

The irony is that two of the experts testified this day about how Samsung allegedly infringed Apple's '915 and '381 patents, both of which have since been preliminarily ruled by the USPTO as invalid, the '915 patent just this past week, the '381 patent a bit earlier. But this is a trial transcript from August, and no one knew that was going to happen. One can't help but wonder though, how could experts not know whether there is prior art that seems to invalidate a patent?

Jump To Comments

But as you will see, that's not actually so. Samsung did argue noninfringement of the '381 patent, based on something called the hold still routine. In fact, he got Apple's expert to concede it. You'll find that in the cross examination of Apple expert Ravin Balakrishnan by Samsung lawyer Kevin Johnson. And after you read it, while the jury was reportedly barely following along that day to anything, see if you don't understand what the Samsung attorney was heading for as his goal when you read Samsung's JMOL motion [PDF]:

No reasonable jury could have found infringement of the ‘381 patent either. The Court previously found the claims of this patent to require the electronic document to always snap back. Dkt. 452 at 58-60. Samsung’s products do not do so, using instead a “hold still” feature which Apple’s expert admitted does not infringe. RT 1792:16-1793:7; 1796:22-1797:7 (Balakrishnan non-infringement testimony). This feature does not translate the electronic document into a second direction, as required by the last limitation of Claim 19. RT 1791:14-1799:4. Samsung’s products also exhibit a “hard stop” behavior, wherein they do not display an area beyond the edge of the electronic document at all. Apple admits this “hard stop” behavior does not infringe the ‘381 patent. RT 1785:19-1787:3 (Balakrishnan non-infringement testimony). Accordingly, judgment of non-infringement should enter.

A new trial is also necessary due to inconsistencies in the jury’s verdict on the ‘915 patent. The jury found that the Ace, Intercept, and Replenish devices do not infringe the ‘915 patent but the remainder of the accused devices do. These verdicts are irreconcilably inconsistent, for the Ace, Intercept and Replenish exhibit the same behavior as devices found to infringe, including the Droid Charge, Indulge, Epic 4G, Infuse 4G, Transform and Prevail. The same Android version found in the non-infringing Ace (Android 2.2.1) and the Intercept and Replenish (Android 2.2.2) are found in these other devices which the jury found to be infringing. A new trial is therefore warranted under Fed. R. Civ. P. 49. Los Angeles Nut House v. Holiday Hardware Corp., 825 F.2d 1351, 1356 (9th Cir. 1987).

If you'd like to see some fabulous lawyering, take a look at William Price, for Samsung, and Michael A. Jacobs for Apple. It's around page 76 and onward. First, you have Price making the witness, Hal Poret, look like his second study was tilted all Apple's way, with stickers removed that gave clues to people whether a phone was or was not an Apple phone, to skew the results. He also puts it into evidence that after a first study, Apple had Mr. Poret do another, and that one, with what seemed like less carefulness with the stickers, was more positive for Apple than the first survey had been. When Price finished with the witness and sat down, I thought the witness had been turned into mincement.

But then watch how Jacobs rehabilitates his witness, not only with a single question to the witness but especially in the initial questions to the next Apple witness, Kent Van Liere, regarding steps taken in surveys to negate guesswork by those being questioned or other flaws in confusion and association surveys. It's very subtle on Jacobs' part, but I'm guessing the jury found it enough to rehabilitate Mr. Poret's survey. I didn't, but I'm guessing they did.

And another example is near the end, when John Hauser takes the stand. Samsung was running long on time in cross examination of the previous witness, so Apple played a trick on them by putting Mr. Hauser on the stand for direct lasting only a couple of minutes, leaving it to Samsung to run out their precious time asking questions to draw out the details that normally you'd expect to hear on direct.

But the laugh was on Apple in part, because Mr. Price makes the study this witness was there to present look so ridiculous, after he sits down, you see Mr. Jacobs trying to fix it, to the point he starts to go beyond the kind of questions you can ask in redirect, as Mr. Price successfully points out to the judge. It's a master class in dealing with a sudden, awful circumstance, and turning it into a positive to the extent possible. I think litigating requires kind of the same qualities and skills as stand up comedy. The most important thing, as one comedian once said, is confidence. And Mr. Price has that in full. He's natural and funny and relaxed seeming, even under stress, and it's quite a performance.

And Apple's trick worked too, because at the end of the day, Samsung had used more time than Apple, and it hadn't even begun to put its own case on.

You'll see the lawyers mention Rule 26 and Rule 408 in some of their objections, so the links will take you to what they are referring to.

The part about the '381 patent begins on page 87. That's the bounce back patent or rubber banding patent. And notice on page 102, the expert is asked:

Q: Did anyone solve it before Apple?

A: No, it did not.

On page 141, there begins a disturbing incident, where Apple's expert, Dr. Balakrishnan, has provided some slides that allegedly prove infringement of the '381. But Samsung's lawyer Kevin Johnson, on cross examination, shows that some of the slides Apple prepared are simply incorrect. At first, the expert tries to say that he didn't rely on the slides that day in earlier testimony, but Mr. Johnson didn't ask about "that day". He asked about earlier, when Apple provided a copy of the slides to Samsung. Didn't this expert look them over before sending them? Well, yes, the expert eventually says grudgingly, but he didn't rely on the slides today:

THE WITNESS: So the question is did I rely on this slide? The answer is no, I did not rely on this slide today.

By MR. JOHNSON:

Q: Because this slide is incorrect; right?

A: I didn't say that. I said I did not rely on this slide.

Q: I'm asking you, this slide is incorrect, isn't it?

A: I'm not sure why it would be incorrect.

Q: Well, let's look at both the contact list and the browser that appears on this slide.

We're talking about element number 5.

Let's start on the left, the contact list. This yellow box here shows the area beyond the edge as this yellow box at the bottom of the contact list.

Now, that cannot be the area beyond the edge because the user hasn't reached the edge here; correct?

A: I'd have to look at that image very closely. There may be a mistake in the image.

Q: Well, this is a slide, again, that you approved and you reviewed; right?

A: I did not rely upon it today.

Q: I didn't ask you that, sir. I asked you, this is a slide that you reviewed and you approved before it was sent over to Samsung as part of your demonstrative exhibits?

A: I reviewed my slides. I'm not sure at what point, what version was sent over to Samsung, so I just want to make that clear, that there were many versions of these slides that I've worked on in the last week.

Q: You would agree with me that this is -- this cannot be the area beyond the edge for the contact list of the Samsung Galaxy S II; right?

MR. JACOBS: Your Honor, I'm sorry. I have to interject. We've now had a chance to chase down what's going on. This is a video, and when you conflate a video into a pdf, when you put it all together in a single image, this is how it appears. but it's actually a video.

MR. JOHNSON: Your Honor, this is the slide that was provided to us by Apple and I'm just asking him questions about it, whether he agrees it or not.

THE COURT: The objection is overruled. You'll have a chance to redirect.

THE WITNESS: So in this particular image on the left-hand side, it appears that it's not yet beyond the edge. But I believe the video would have shown that it went beyond the edge.

By MR. JOHNSON:

Q: What about on the right-hand side for the browser? That's -- what's delineated here in yellow is shown as the area beyond the edge but, in fact, that is not the area beyond the edge, is it?

A: In that particular image, that is not the area beyond the edge. I did not rely on this slide.

Q: Okay. let's look at PDX 27-30. This is the next element, element 6 of claim 19; right?

A: Yes.

Q: Okay. And for this, again, this refers to the Galaxy S II for the contact list and the browser applications; right?

A: Yes.

Q: And look at the figure on the left for contact list, and do you see it says it's labeled the fourth portion, no area beyond the edge?

A: Okay. I believe this was a still from a video. The image doesn't show the right thing. again, I did not rely on this slide today > that was shown to the jury.

Q: Sorry about that. This is incorrect; right?

A: The image is incorrect.

Mr. Johnson asks the guy how much Apple was asking for infringement of the '381 patent, and the expert says he doesn't know. It's an even more painful, and relevant, question today, after the USPTO has preliminary ruled that the patent is not valid. One of the Apple experts is even asked, by Apple's lawyer, if anyone had done the '381 patent's functionality prior to its invention by Apple's employee, and the expert says, no. This was a first. We now know that this appears not to be so.

How can experts not look for prior art before answering such a question in such a black and white fashion? I mean, if you are going to make a company pay over a billion dollars for infringing, shouldn't *someone* other than the accused have at least checked thoroughly? Why is it the defendant's burden to pay for that?

And then on page 156, the expert has been shown some videos, Apple videos, of various Samsung phones, and at one point he then admits that what he sees in the video doesn't infringe claim 19 of the '381 patent, if what he saw was what Samsung calls the hold still routine, as opposed to the bounce back effect. And then Mr. Johnson asks him if he's ever looked at the hold still routine code, which is part of Samsung's defense against this patent, and amazingly, the expert says he might have "encountered" it, but he doesn't "recall analyzing it in detail". To which an objective observer would naturally ask, why in heaven's name not? He seems, from his answers, if they are straightforward and not just dancing around, not to even be particularly familiar with the existence of the hold still routine until Mr. Johnson points it out to him in the video he plays for him. He certainly doesn't recognize it on sight. Yet, he does not hesitate to opine that Samsung infringes.

And it's like pulling teeth to get him to agree to anything. Lots of super careful phrasing and independently introduced thoughts. Here's an example of the former:

By MR. JOHNSON:

Q: Now, Dr. Balakrishnan, I think you said earlier, this isn't the first time that you've served as an expert for Apple; correct?

A: That's correct.

Q: It's not the second time, either?

A: No.

Q: You've served as a technical expert for Apple in at least nine different cases in the last couple years; right?

A: I think I've testified in four other cases prior to this one.

Q: You've served as a technical expert for Apple in at least nine cases in the last couple of years; right?

A: I probably have been retained in nine, but I haven't testified in all nine.

I mean, if he's testified four times, he surely knows you are supposed to answer the precise question you are asked, not make up a new and different one, particularly if you don't share that you are answering your own different question instead of the one you were just asked.

The lawyer then asks him how much money Apple has paid him for all these instances of expertise, and it's half a million dollars and counting. The figure is only to the end of April. And the trial is in August, so there's more billing to come. He thinks it's about another hundred thousand. When he says half a million, Mr. Johnson acts like he didn't hear the figure, saying, "I'm sorry?" And Dr. Balakrishnan repeats the figure. The intent, of course, is to get the jury to start wondering if experts will say absolutely anything to keep the cash flowing. I mean, if he said on the stand, "You know, I see that the hold still routine doesn't infringe, and I didn't really pay attention to that detail, so I should probably go back and analyze that," obviously Apple wouldn't be likely to hire him again.

Not to mention all the lawyers in the room who would faint dead away on the spot from shock. Hmm. That might get the jury's attention, now that I think of it.

Mr. Johnson tries to introduce the fact that in another, earlier case, Mr. Balakrishnan's views had been criticized by an administrative judge, but Mr. Jacobs is on his feet before the sentence is completed, objecting, and the judge promptly sustains the objection. As Mr. Johnson maybe knew she would, since she had already excluded that information, she says. He says he thought the question was allowed, but he withdraws it. But it's in the air. And now the judge is hopping mad and threatening to let the jury in on all kinds of pretrial exclusions if he'd like her to do that.

Personally, I wish she had. Samsung had asked to supplement its invalidity materials with some more prior art, but they were not allowed [PDF] to do so, having asked too late. Wouldn't one hope that the issue would be decided on the merits, not on scheduling etiquette?

The media reported all this as boring patent stuff, by the way. Here's what San Francisco Bay reported on the day:

In front of a jury barely following along with the expert testimony, Apple continued its trade dress and patent infringement case against Samsung in court Friday.

Once again, Judge Lucy Koh needed to interrupt witness testimony to remind the jury they could get caffeine if they needed it.

Your US patent system at work. How do you like it? Does it look like it's working swimmingly? Or do you see room for improvement?

Well, here's Judge Posner's view, in case you imagine it's just little old me noticing these problems:

"Our patent law is a failed system," he declared on Wednesday. He cited a laundry list of problems, including an under-staffed and poorly managed patent office and expert witnesses whose credibility is undermined by fees paid by litigants.

Striking closer to home, Posner accused the Federal Circuit—the court Michel headed until 2010 and a sister court to Posner's own Seventh Circuit—of being too favorable to patent holders. A specialized court like the Federal Circuit, he said, tends to take a "promotional view of the activity it regulates." That "promotional view" has caused the court to become "too welcoming to patents," watering down the standards for patent validity.

Finally, we read at the time in media reports about this judge being grumpy. But I have to say, I can't see it at all in this day's transcripts. Quite the reverse, actually.

Here is the day's transcript, as text, although I must caution you that I tried all kinds of ways to get it from all caps to normal text, and some of my attempts made things worse, and I'm still cleaning it up. I'll keep working on it, but it's at least readable. I've been struggling with it for days, literally, and I didn't want you to have to wait any longer. Meanwhile, for anything that matters, please reference the PDF:

*************************

United States District Court
Northern District of California
San Jose Division

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,

Defendants.

____________

C-11-01846 LHK

San Jose, California

August 10, 2012

Volume 6

Pages 1638-1988

_____________

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
UNITED STATES DISTRICT JUDGE

APPEARANCES ON NEXT PAGE

1639

FOR PLAINTIFF APPLE:
MORRISON & FOERSTER
BY: HAROLD J. MCELHINNY
MICHAEL A. JACOBS
RACHEL KREVANS
[address]

FOR COUNTERCLAIMANT APPLE:
WILMER, CUTLER, PICKERING,
HALE AND DORR
BY: WILLIAM F. LEE
[address]

BY: MARK D. SELWYN
[address]

FOR THE DEFENDANT:
QUINN, EMANUEL, URQUHART,
OLIVER & HEDGES
BY: CHARLES K. VERHOEVEN
[address]

BY: VICTORIA F. MAROULIS
KEVIN P.B. JOHNSON
[address]

BY: MICHAEL T. ZELLER
WILLIAM C. PRICE
[address]

BY: EDWARD J. DEFRANCO
[address]

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1640

INDEX OF WITNESSES

HAL Poret
CROSS-EXAM BY MR. PRICE (RES.) - P. 1665
REDIRECT EXAM BY MR. JACOBS - P. 1687

KENT VAN LIERE
DIRECT EXAM BY MR. JACOBS - P. 1690
CROSS-EXAM BY MR. PRICE - P. 1702

RAVIN BALAKRISHNAN
DIRECT EXAM BY MR. JACOBS - P. 1723
CROSS-EXAM BY MR. JOHNSON - P. 1769
REDIRECT EXAM BY MR. JACOBS - p. 1806
RECROSS-EXAM BY MR. JOHNSON - P. 1813

KARAN SINGH
DIRECT EXAM BY MR. JACOBS - P. 1815
CROSS-EXAM BY MR. DEFRANCO - P. 1848
REDIRECT EXAM BY MR. JACOBS - P. 1909

JOHN HAUSER
DIRECT EXAM BY MR. JACOBS - P. 1914
CROSS-EXAM BY MR. PRICE - P. 1917
REDIRECT EXAM BY MR. JACOBS - P. 1945
RECROSS-EXAM BY MR. PRICE - P. 1948

BORIS TEKSLER
DIRECT EXAM BY MR. MUELLER - P. 1951
CROSS-EXAM BY MS. MAROULIS - P. 1964

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INDEX OF EXHIBITS

PLAINTIFF'S	MARKED	ADMITTED
.	24	1692
-	24.5	1697
-	24.6	1699
-	24	1699
-	1045	1729
-	64	1755
-	46	1758
-	57	1763
-	1023, 1024, 1028, 1036	1768
-	27.9, 27.12, 27.14, 27.16, 27.18 27.20, 27.22, 27.24, 27.33 27.34 - 27.39	1811
-	UNDER SEAL 31	1811
-	UNDER SEAL 27.31	1812
-	1044	1817
-	1014, 1009	1831
-	29.4, 29.5, 29.6, 29.10, 29.12	1844
-	UNDER SEAL 29.13, 29.14, 29.36	1844
-	29.16, 29.18, 29.20 - 29.28, 29.32, 29.34 - 29.37, 29.39, 29.41 - 29.45	1844
-	38	1845
-	30	1915
-	52	1959

DEFENDANT'S	MARKED	ADMITTED
-	2534	1669
-	2528	1671
-	2529	1686
-	2526	1722
-	3918.105	1795
-	66-A, 66-B, 751-A	1795
-	3918.104, 3918.105, 3918.106	1798
-	29.29, 27.30	1813
-	2557	1912
-	586	1975

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1642

P R O C E E D I N G S

THE COURT: All right. So I just filed the revised ruling on the Teksler and Chang Objections -- were you able to get that? -- based on the additional proffers that Apple filed this morning.

Okay. And I also issued a ruling request to seal portions of the IBM/Apple license. Did you get that as well?

MR. JACOBS: Yes, Your Honor.

THE COURT: Okay.

THE COURT: As you probably saw from my ruling last night, the only things that will be actually sealed are the payment termes, compensation terms.

With regard to Apple's request for an interim jury instruction on confusion, that request is denied.

I prefer not to do any interim instructions other than limiting instructions. I don't want to overemphasize any one particular instruction over the other, so the jury will just

5

1643

Let's talk about the stickers on the phones.

What I'd like to do is to have -- once the exhibits are admitted in evidence is I'd like the court to take control of them and have us have them overnight, and if either side needs them, you're going to have to talk to -- call our chambers to get them.

Any objection to that? I think that just may -- I don't want this to be a continuing issue.

MR. VERHOEVEN: That's great, Your Honor. The only one thing I'd mention -- this is Mr. Verhoeven -- is they need to be charged so that they can be turned on.

THE COURT: Okay.

MR. VERHOEVEN: So we could probably work something out off the record to make sure that happens, but -- if they just remain -- we just need to make sure that whatever particular phone we may need to use on a given day, if we need to turn it on, that it's charged.

THE COURT: Okay. Then can you give us instructions about which ones you need us to

6

1644

MR. VERHOEVEN: We'll meet and confer and see if we can figure out a process, Your Honor, and present it to you.

THE COURT: Okay.

MR. VERHOEVEN: I think that's the best thing is for the Court to hold on to them.

THE COURT: Okay. The other -- yes.

MR. JACOBS: We're fine with that as well, Your Honor.

THE COURT: All right, great.

Now, I guess what is the volume? Is it just that one cart with the red wells, or is it more than that? I mean, I'm assuming this doesn't apply to non-physical exhibits, right, like the documentation?

MS. MAROULIS: Yes, Your Honor, this only applies to physical exhibits where the actual labels are affixed, and it's about two different carts because some of them are in the custody of Samsung and some are in the custody of Apple. So we're talking about 120 exhibits.

THE COURT: So about three carts? Is that right?

MS. MAROULIS: Two and a half carts.

7

1645

THE COURT: Two and a half full carts, okay. So how have you all divided up who has possession of what?

MS. MAROULIS: We have the prior art, Samsung has the prior art, and Apple has the accused devices.

THE COURT: I see. Okay. Well, why don't -- at the beginning and at the end of each day -- Ms. Parker Brown actually is going to be gone next week, so Mr. Rivera will just take possession of the carts and we'll bring them in each morning and then you give us instructions about what you want us to do with them.

I think during the trial, I'd like to have the official sticker that has the Northern District of California, the official court one.

But we'll let the jurors know that when they're deliberating, they can take off whatever stickers they like, but that we want them to hopefully put it back on at the end of their deliberation. But they can remove the stickers.

MR. JACOBS: And that turns out, I think, to be a little difficult just because of the nature --

8

1646

THE COURT: The gummy issue.

MR. JACOBS: -- of the nature of the sticker.

Our feeling is that because the phone may get separated from the box and may get separated some day from the court file, it's important that the sticker have the full information about the case.

That's why we -- that's in addition to thinking that that was Your Honor's predisposition after our discussion the other day, that the official sticker should be on them.

The looking ahead reason to have the official sticker is that we'd like to make sure the phone stays with the case.

MS. MAROULIS: Your Honor, our proposal is to put a sticker on a post-it and tape it on and off so it can be taken off.

The problem with the stickers, as it stands, is that they cover large portions currently of the devices for trade dress purposes.

THE COURT: Well, I looked at the photos in your filing and I still think you can see the shape and you can see the texture of the back. I mean, I think you can certainly -- I

9

1647

My concern about using something other than the official court sticker is that we may have a problem like we had with 1019, which I don't want that ever to happen again, where there was another exhibit that was not a joint exhibit that ends up getting shown to the witness, and if we just have one small number sticker, I'd like to have the official sticker keep the official exhibit just for the record to be clearer. Well --

MS. MAROULIS: Your Honor, may we confer additionally to determine that, because it's very important to Samsung that the devices be shown to the jurors as they're sold in the stores and not in any way changed by stickers or otherwise.

THE COURT: Um-hum.

MS. MAROULIS: So we understand the importance of keeping track of the devices and making sure they have appropriate identification information. We suggested smaller stickers, but maybe there's another way of having a full sticker, affixed in a removable way.

10

1648

THE COURT: Well, I guess the removable problem is going to create an issue. You know, I suspect that regardless of what happens in this case, it's going to be reviewed on appeal, and my only concern is if we're taking stickers on and off, there could be a confusion as to what was admitted or what was not, what was the correct name, if the correct number was on that particular device.

Why don't you see if perhaps there's a smaller official label that satisfies both parties that can be placed on there?

Otherwise for now I'd like to have the official court sticker that identifies, you know, that it's the Northern District of California and that it's our court. I'd like to keep those on all the devices and have us not take them off.

MS. MAROULIS: We're going to see if we can reduce the font so the same information is on the label that's smaller.

THE COURT: Sure. I don't care about the ones that have not been admitted yet, but if it's actually been admitted into evidence, we'll start holding those only for physical exhibits, not full documents.

11

MR. JACOBS: Understood.

THE COURT: So that was all that was on my list. Was there anything else?

MS. MAROULIS: Your Honor, Apple filed two additional motions that Samsung intends to oppose. We'll file the oppositions later today. One of them is exclusion of a witness, and the other one is proffer of evidence. It happened in the past day and a half, so the oppositions you'll be getting on file later today.

THE COURT: Okay. what's the exclusion of witnesses issue?

MR. MCELHINNY: The exclusion of witnesses is that there are two -- we have their will call list, the list of people that they're going to call.

THE COURT: Yes.

MR. MCELHINNY: And they have two witnesses on there that we are anticipating -- and we're giving this so that Your Honor has it in advance and you see it coming -- one of whom is a gentleman, his name is Dale Sohn, who's the president of STA.

THE COURT: Okay.

12

1650

MR. MCELHINNY: And Mr. Sohn was the subject of an Apex motion in which Samsung took the position that he has no knowledge of the case, he's a high level executive.

We were given a very short deposition of him, but we were not given a full deposition, and now it turns out that he's going to come and testify about the substance of the case, the merits of the phones, and all the stuff that Samsung took the position he had no personal knowledge about, and we wanted to raise that in advance.

The other one is they are -- they want to call a woman who apparently is the original designer of the F700 phone, and the F700 phone, as Your Honor knows, has a large history here, and Your Honor has excluded all of the design evidence, the history of the design of the F700.

Your Honor allowed the F700 to be shown to our experts as a potential alternative design.

But we can't imagine why the designer of the F700 -- well, we know because they say in their disclosure that they want to bring her to talk about the history that led up to the design, the alternative designs that she considered. This is the witness who was supposed to

13

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THE COURT: What is her name?

MR. MCELHINNY: Parker, Your Honor.

THE COURT: All right. So that's been briefed on Apple's side.

MS. MAROULIS: And Your Honor, we'll file an opposition. I just wanted to raise it that we're filing an opposition shortly on that.

THE COURT: Okay, all right. When -- in terms of timing, when do you need a ruling on these two?

MS. MAROULIS: Your Honor, we're not calling either of these witnesses on Monday, so we don't need a ruling until Tuesday or Wednesday.

MR. MCELHINNY: We don't have their order of witnesses, Your Honor, so we didn't know when it was coming up.

MS. MAROULIS: It's premature right now, but we'll brief it today.

THE COURT: Is your affirmative case concluding on Monday?

MR. MCELHINNY: Either today or Monday, Your Honor.

THE COURT: I see. So we probably need

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1652

Quickly. Can you file your responses today, please?

MS. MAROULIS: Yes, Your Honor.

THE COURT: Okay. Was there anything else or were those two outstanding --

MR. MCELHINNY: I've got one really technical issue.

THE COURT: All right.

MR. MCELHINNY: Which is as Your Honor knows, if we get to them today, we're going to be playing some deposition designations. You have now ruled on the objections to those designations.

In the designation itself, for some of them, the witness identifies particular documents and actually testifies, in one case, about a page of a document, which is why we have designated the deposition.

THE COURT: Um-hum.

MR. MCELHINNY: In the normal course, after the deposition clip is showed, we would move the document into evidence.

What we would like to do, however, obviously so that the jury understands the designation, we would like to publish the document

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And so either if there's going to be objection -- I think Your Honor has ruled on these, so I think all the -- I think all the exhibits do come in, but the way we're doing the clips, they'll actually be published before Your Honor actually makes that technical ruling.

Do you see what I'm talking about?

THE COURT: And what are the exhibits?

MR. MCELHINNY: One of them is the Apple presentation that --

THE COURT: The PX 58?

MR. MCELHINNY: I believe so.

THE COURT: Okay.

MR. MCELHINNY: 52, Your Honor. And the other two are PX 89 and 69.

MS. MAROULIS: Your Honor hasn't ruled on those objections yet, so it's premature and Samsung objects to those two.

THE COURT: Well, 52 was Mr. Teksler; right.

MS. MAROULIS: Correct.

MR. MCELHINNY: In the context of

16

1654

THE COURT: That's fine. That's going to be admitted.

So I was not -- you know, I think that we of these objections were filed around 4:00 o'clock yesterday. I think we need more lead time if you're suddenly going to file objections on 11 witnesses the day before.

So you anticipate actually getting through everyone on your list today?

MR. MCELHINNY: It's all subject to the cross, Your Honor, and we don't know how long the cross will be.

THE COURT: Okay.

MR. MCELHINNY: We keep thinking that because Samsung is using all its time that the crosses are going to get shorter. So far that hasn't happened and we can't anticipate whether they will.

THE COURT: Who do you need a ruling on this morning? Let's actually go through this.

MR. MCELHINNY: I think the only two that Your Honor hasn't ruled on specifically, Your Honor, are the Benner clips and the PX 89 and PX

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THE COURT: Well, I -- so you have rulings on Van Liere, Balakrishnan, Singh, Lee, Teksler and Chang, so 1 through 6.

MR. MCELHINNY: That will get us through lunch, Your Honor, without any problem whatsoever.

THE COURT: But you think that Benner, Sheppard, Sittler, Hauser and Musika will be going on today?

MR. MCELHINNY: Samsung has told us that they're going to do crosses and these people won't get on today, but obviously we're not going to rest if they stop crossing.

THE COURT: Okay. All right. Well, I mean, you have the rulings on the first six exhibits -- the first six witnesses today, plus I don't know how long you have on Mr. Poret, so the first seven witnesses you have rulings on. We'll prioritize -- are they going to be called in this order? Because we'll prioritize them in this order, Benner first, then Sheppard, then Sittler.

MR. MCELHINNY: I would prioritize Sittler over Sheppard, Your Honor.

THE COURT: Okay. So Benner, and then

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MR. MCELHINNY: Yes, Your Honor.

THE COURT: Who else? Give me the order so we can --

MR. MCELHINNY: Then Hauser and then Musika. I would put Mr. Sheppard last at the moment.

THE COURT: So Benner, Sittler, Hauser, Musika, and then put Sheppard last?

MR. MCELHINNY: Yes, Your Honor.

THE COURT: Okay. All right. Well, we'll get those out as soon as we can. Maybe we'll do it piecemeal. But we probably won't be able to get most of these to you until, at the earliest, lunch time.

MR. MCELHINNY: That would be perfectly fine for us.

MS. MAROULIS: Your Honor, can we do one more clarification?

In yesterday's order, Your Honor sustained an objection to DX 2557, which is a video of a joint exhibit. We have since, several days ago, replaced that DX exhibit with another one that Apple has not objected to to my knowledge.

So we respectfully request that that

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THE COURT: Do you have any objection to the new DX 2557?

MR. JACOBS: I'll have to check, Your Honor. It's not going to come up for a bit, so I'll check at the break and get back to you.

THE COURT: All right.

MR. JACOBS: I want to make sure I've seen that. We have one quick issue on Teksler, Your Honor.

MR. MUELLER: Good morning, Your Honor. Joe Mueller.

For defendant's cross exhibits, one of them is DX 51/DX 586. It's the same document. We objected to it, Your Honor, on Rule 408 grounds and in last night's order, you overruled that. The basis for the order, as I understand it, is that the document, because it was stamped Rule 408, does not per se become Rule 408 protected, and respectively, our position is not that the mere stamping of the document makes it 408.

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THE COURT: All right. I'm charging your time, so hang on.

MR. MUELLER: I'll make it very brief, Your Honor.

THE COURT: It's 9:04. Go ahead.

MR. MUELLER: Sure. Pages 12 through 18 specifically contain terms offered in an attempt to compromise and to reach a resolution. So we would respectfully suggest that those pages are protected by 408, and to the extent that Samsung uses the document, those particular pages, pages 12 through 18, should be redacted.

There's no connection between those pages and the valid purpose that Samsung has in using those, namely, notice of Apple's patnes.

So we would request that those pages be redacted, Your Honor.

MS. MAROULIS: Your Honor --

THE COURT: So the order wasn't just based on how it was stamped. I mean, you're seeking to -- it seems like your position is inconsistent. You're seeking to introduce some of the documents that were part of your various meetings and saying, "oh, but this one is, you know, particularly just for the purposes of

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MR. MUELLER: Respectfully, we're not, Your Honor.

The first presentation contains no terms to resolve the dispute.

The second presentation, which is plaintiff's exhibit 51, defendant's exhibit 586, does contain terms, so it squarely falls under Rule 408, and in particular pages 12 through 18.

THE COURT: Unfortunately, I don't have --

MR. MUELLER: I have a copy for Your Honor.

Your Honor, may I approach?

THE COURT: Yes, please. Do we have the -- did I get the binders for the witnesses today? I just have Mr. Poret's.

MR. MUELLER: And, again, it's pages --

THE COURT: What are the pages that you are --

MR. MUELLER: 12 through 18, Your Honor. We -- we'd withdraw our objection as to the remainder.

THE COURT: So 12 through 18 is what you're objecting to?

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MR. MUELLER: Correct, Your Honor. Those contain terms for resolution of a dispute, plainly 408 protected, and it has nothing to do with notice of Apple's patent claims, which is the purpose that Samsung identified for using this document.

THE COURT: All right. Let me hear from Samsung.

MS. MAROULIS: Yes, Your Honor.

The plaintiffs are trying to reargue the objection that you already overruled. This document is relevant to notice, and also relevant to Apple's licensing practices which we understand to be the subject of Mr. Teksler's testimony from the proffer.

In particular, page 13 of this exhibit, they refer to the distinctive industrial designs, and we have -- we need to have an opportunity to question the witness about what notice, if any, was given as to design patents, and also as to Apple's licensing policies.

Your Honor already ruled that there's going to be a limiting instruction that this cannot be considered for any damages amount and such. So we believe that limiting instruction is sufficient and it would be inappropriate to

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MR. MUELLER: Your Honor, licensing practices is a substantive issue. that's precisely the sort of issue that rule 408 prohibits.

THE COURT: Show me the other presentation, the one that you're trying to get in, because it looks like the first half of those two seem virtually identical.

MS. MAROULIS: Yes, Your Honor. They're actually part of the same licensing negotiations, and as we explained in our briefs, the licensing negotiations are outside the context of rule 408 because no litigation was had at the moment. It was an attempt to resolve the litigation.

MR. MUELLER: May I approach, Your Honor?

THE COURT: Go ahead.

MR. MUELLER: This is plaintiff's exhibit 52, and I think you'll see in plaintiff's exhibit 52, there's no identification of any terms at all. So in that sense, it's the same as pages 1 through 11 of plaintiff's exhibit 51. And that's why our position is entirely consistent. the first identification of terms is

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THE COURT: All right. So you have no objection to pages 1 through 11. Your objection is just to 12, 13, 14, 15, 16, and 17?

MR. MUELLER: And 18, Your Honor. All those pages relate to specific terms for resolving a dispute which, again, is what 408 prohibits the introduction of.

MS. MAROULIS: And again, Your Honor, in our briefs we cited the case law that states that licensing discussions outside the context of litigation are not covered by Rule 408, and this presentation is not within the gambit of Rule 408 in the first place.

MR. MUELLER: Your Honor, if the suggestion is there needs to be an ongoing case for Rule 408 to apply, that's wrong as a matter of law.

THE COURT: All right. Well, let me -- I'm inclined at this point to grant it, but I want to take a look at what -- tell me what your best

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MR. MUELLER: Your Honor, Your Honor. if we could submit a case on the next break before -- Mr. Teksler won't testify for several hours and we can resolve this at lunch.

I would note that Magistrate Judge Grewal's order --

THE COURT: You just said it's wrong as a matter of law and you don't have a case?

MR. MUELLER: I don't have a case at my fingertips, but it is wrong, Your Honor.

THE COURT: You must have a case in your brief.

MR. MUELLER: This wasn't raised, Your Honor. This is a new argument that was just mentioned for the first timing. But I would note that Magistrate Judge Grewal's decision on the spoliation motion expressly found that there was a dispute as of August of 2010, which was precisely when we said there was a dispute.

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THE COURT: I'm more interested in whether 408 applies when there's no lawsuit pending. So give me a case.

MR. MUELLER: We will, Your Honor.

MS. MAROULIS: Our case is the Sandisk case cited in our briefs. a couple points. One is Apple is taking a position before Judge Grewal that they did not have an obligation to preserve.

THE COURT: I understand.

MS. MAROULIS: One more point, as Your Honor pointed out, if we include PX 52, in fairness, we have to include PX 51 because they're very similar in terms of discussion.

THE COURT: All right. I'm going to return these to you. I think, Mr. Mueller, those are both yours?

MR. MUELLER: Yes, thank you.

THE COURT: Okay. It's now 9:11. That cost Apple eight minutes. All right.

(Whereupon, the following proceedings were held in the presence of the jury: )

THE COURT: All right. Welcome back. Please take a seat.

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HAL Poret,

THE COURT: All right. The time is now 9:13. And Mr. Poret, you are still under oath.

THE WITNESS: I understand.

THE COURT: Go ahead, please.

CROSS-EXAMINATION (RESUMED)

Q: Good morning, Mr. Poret.

A: Good morning.

Q: When we left, we were talking about controls, and just so we can understand, if we put up PDX 30.3, which is one of your documents here, and you see that the control is something you subtract from the figure you get for association. Right?

A: Yes.

Q: And the idea is to get a control which is -- which doesn't have the same trade dress that's alleged by Apple, but which otherwise might be similar; correct?

A: I think that's generally fair to say.

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Q: And so you chose -- if we look at 3705.107, you chose as the control, one of them is the Blackberry Storm; is that right?

A: Yes.

Q: and Blackberry has been in the market for quite a few years?

A: I believe so.

Q: It's -- do you watch many movies on the Blackberry?

A: Do I?

Q: Yeah.

A: Not personally.

Q: You kind of understand the Blackberry is kind of seen as an e-mailing phone?

A: I don't -- there are a variety of Blackberries. I think this one is obviously a smartphone with a touchscreen.

Q: How is it doing in the market? Blackberry, RIM, is kind of off the market right now, isn't it?

A: I don't know.

Q: Then how did you select this -- first, did you select this phone or did someone give it to you?

A: I looked at a lot of phones. Some of them were ones that I came across on my own and some were ones shown to me by Apple, and I'm not sure

1667

Q: Okay. So it may have been shown to you by Apple, it may not have been, you just don't remember; right?

A: Right.

Q: It's not in your report, is it, one way or the other?

A: No.

Q: That's correct, what I said?

A: You are correct.

Q: If you look at 3705.108, you used this Sanyo, is it -- do you remember the name of it?

A: Zio.

Q: Zio, which has this kind of a Bart Simpson head here if we look at the top with the silver and it's got this thing across the top. do you see that?

A: I see the picture.

Q: And certainly you can tell by looking at that, even with that blurred out, that's not an Apple?

A: That's not fair to say.

Q: Well, in the phones that you looked at, I'm going to ask you, did you look at -- I'm going to show you what's been marked as exhibit 2534 for

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If I may approach, Your Honor ?

THE COURT: Please, go ahead.

BY MR. PRICE:

Q: And this looks like a Motorola phone. Did Apple give you that phone or a phone like that to perhaps use as a control?

MR. JACOBS: Objection, Your Honor. That's quite a vague question.

THE COURT: Sustained.

BY MR. PRICE:

Q: Did Apple give you that phone, that Motorola, to use as a control? Is that one of the possibilities?

A: I don't know. I don't remember. I looked at a lot of phones. I don't remember if this was one of them.

Q: Do you see exhibit 2534 is a Motorola smartphone?

A: Yes.

Q: Not a phone that's accused of infringing Apple's trade dress as far as you know; correct?

A: As far as I know.

MR. PRICE: Your Honor, I move exhibit 2534 into evidence.

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THE COURT: Any objection?

MR. JACOBS: No objection, Your Honor.

THE COURT: All right. That's admitted. (whereupon, defendant's exhibit number 2534, having been previously marked for identification, was admitted into evidence.)

BY MR. PRICE:

Q: And I'm going to show you what's been marked as exhibit 2528 for identification, which is an LG phone, made by LG. Here we have the LG phone. Looking at that, is that a phone that Apple showed you to use as a possible control?

A: Again, I'm sorry, I can't remember. I looked at a lot of phones. I can't remember if this is one of them.

Q: And you can't tell from anything that you put in writing what phones you looked at; correct?

A: Correct.

Q: And what you have in front of you appears to be an LG smartphone, T-Mobile?

A: Yes, it does.

MR. PRICE: Move 2528 into evidence, Your Honor.

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MR. JACOBS: Your Honor, I think a limiting instruction would be appropriate here.

These are being offered to challenge the control that Mr. Poret used and they should not be used for any other purpose.

MR. PRICE: Well, I think that's inappropriate. It can be used for other purposes as well if it's in evidence.

I don't know the improper purpose that counsel is talking about, but perhaps we could talk about that off --

THE COURT: Why is it being offered?

MR. PRICE: At this point, it's being offered to show that there were other phones out there in the market that were closer looking to the Apple, which could have and should have been used for this study if it was going to be a fair study.

THE COURT: All right. Are these phones going to be admitted for any other purpose later in the case?

MR. PRICE: To show what was in the marketplace.

THE COURT: All right.

MR. JACOBS: Your Honor, there's no date, there's no indication of what these phones, what

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THE COURT: All right. I'm going to give a limiting instruction that these are to be considered for the purpose of evaluating how Mr. Poret chose his control devices for this.

(Whereupon, defendant's exhibit number 2528, having been previously marked for identification, was admitted into evidence.)

THE COURT: Go ahead, please.

MR. PRICE: Thank you, Your Honor. And may I hand those out to the jury?

THE COURT: Yes.

BY MR. PRICE:

Q: Now, let me switch topics and look at your report. I'd like to talk about some of the things you did to make sure that you were focussing just on the trade dress issues.

And if we look at your report at page 5, paragraph 11 -- if we can put that up, please?

Do you see you say that "in a secondary meaning trade dress survey, it's standard procedure to obscure or remove anything on the product that

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A: Yes.

Q: And "For example, brand names, logos or other features that might indicate the source of a product are typically obscured or removed. This allows the survey to measure the extent to which the trade dress specifically serves as a source identifier apart from other marks that might, on their own, signal the source of the product to respondents."

That's the purpose of obscuring these sorts of things; correct?

A: Yes.

Q: And if we look at page 6 at paragraph 13 -- paragraph 13 of the same exhibit, page 6 -- same exhibit, 2544, page 6, paragraph 13. There we go. And if you can blow up the phone and the paragraph that would actually be great. So it says, "as can be seen from the preceding image, several other features of the iPhone were also removed or obscured to safeguard against the possibility that those features could

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A: Yes.

Q: And that's, again, the nature that you're focussing on the issue that you're testifying about, which is secondary meaning; correct?

A: Yes.

Q: And you've already discussed in your report how the icons were blurred because, for example, if you see iTunes on something, clearly people are going to think Apple; right?

A: That was the reason for doing that, yes.

Q: And then you mention that the indented button at the bottom center of the phone, which respondents might associate with Apple, was covered with a label. right?

A: Yes.

Q: And that's why you have item C here on the button, because that covers the home button, and your understanding is Apple's not saying the home button is part of the trade dress; right?

A: Right, that's right.

Q: And so you don't want something that's not part of the trade dress indicating to someone, oh, this is an Apple because that would distort your

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A: Yes, I think that's basically accurate.

Q: And for the same reason, you would obscure something that said AT&T because that's where only -- the only carrier where Apple sold its phones at the time; right?

A: Yeah. I don't know that that was necessary since AT&T has other phones, but in theory, it's possible that somebody could see AT&T and think Apple, so I did it just to be safe.

Q: And so the -- the phones you used in this survey were blurred and the home button was covered; right?

A: Yes.

Q: And by the way, if the home button's -- not just on your test, but on your control phones, you also put a sticker that would hide if there had been a home button there; right?

A: Yes.

Q: Even if there wasn't a home button there; right?

A: Yes.

Q: And that's because the absence of the home button might suggest it's not an Apple; right?

A: That may be one way of putting it. It was

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Q: And you don't want the lack of a home button indicating something is not an Apple for a control because that will reduce, might reduce that number you're subtracting from the association number; right?

A: I think that genereally sounds right.

Q: So now let's switch to your study about the tablet, the iPad.

And you used a couple of pictures for the Apple iPad. If we can look at 2544 at page 22.

So in your study -- I might have the wrong one here. Is that 22, page 22? 2544, page 22. Going once -- that's page 19. I can tell because it says 19.

Okay. Here we go.

So what you did for the Apple product is you, again, you blurred out the icons and you put that sticker over the home button; right?

A: Yes, for this group.

Q: And next page, if we can get to it, it says the same thing. It does the same thing. You used two of these; right? Again, it's covered; right?

A: a so you're asking if the home button is

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Q: Yes.

A: Yes, for this group it was also covered.

Q: And then we have the control, and for the control, if we look at exhibit -- let's go to -- and to remind the jurors, we'll go to 30.5, SDX 30.5 to show what we're doing here. It should be SD -- there we go.

We're now in this study and we're talking about the first study you did of the iPad, okay, because you did two; right?

A: There were multiple parts of it. I considered it all part of the same survey, but yes, there were multiple parts of it.

Q: I want to remember that, that it's all part of the same survey. That's what you're saying to the jury. Right?

A: Yes.

Q: So you do an association with the iPad, and you subtract the control, so again, you've got to see if the control has indicators that might scream "not Apple" that might distort the results, correct, because you're subtracting that?

A: That's not really how I would put it, but I -- I mean, you generally have the gist right, that,

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Q: Okay. I'm glad I'm not totally wrong this time.

So if we look at that control, you see you used this -- and we can get it bigger, I think, at 2544, page 32.

This is the control from your report?

A: Yes. this was a control for the head-on views of the iPad that we showed.

Q: So let me ask you, do you know of any tablets that only have three icons across? I mean, this --

A: I don't -- I can't speak for how many icons all the tablets have. Like I was talking about before, I think most of these tablets can have, you know, any number of icons depending on what people put on on them.

Q: I mean, even the small iPhone has four across, right?

A: I don't know how many icons. It varies depending on what people have on them.

Q: Well, so you're aware of a tablet that, that has only three icons instead of four?

A: I'm not saying that. I'm just saying I think the number of tablets varies -- the number of icons

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Q: Well, having three here screams "not Apple"?

A: No.

Q: But this isn't actually icons on a real screen, this is something done with CGI or -- I mean, you kind of created this looking screen on your computer; right?

A: I didn't personally, but the control was created to appear to be a tablet with a field of icons.

Q: Now, when you talked to the jury and showed them 30.5, exhibit 30.5 -- if we can show that again -- do you see this here, what you showed the jury has the sticker where a home button would be?

A: Yes.

Q: But in your report that you were just looking at, which is 2544, page 32, in your report, that sticker is up on the screen, and so the person could see that there is no home button and, therefore, know it's not an Apple?

A: No, that -- that's not right. Maybe this image got messed up somehow. but the sticker was over the black part.

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A: I -- I don't know. I mean, I'm -- I'm seeing this up here now. I'm pretty sure that the actual digital images were, were provided as the exhibits to the report. This was something that was shown in the body and perhaps something got messed up in pasting that exhibit into the body.

But I know that's not what was shown.

Q: Well, on page -- I'm sorry. On page 31, just the page before this, you've got paragraph 4. You say "the control images are shown on the following pages," and that's on the very next page; right?

A: Yes.

Q: And your results, which we've seen at 30.5 again of the study that you did that is -- you ended up with a 40.3 using this control; correct?

A: Yes.

Q: And you -- you've graduated from law school; right?

A: Yes.

Q: And you have an understanding that for secondary meaning, there's kind of a, a threshold that is about 50 percent? That's the number you want to get above?

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Q: Well, when you did this and got the 40.3 percent number, you thought that your job was over and you actually started writing the report?

A: I -- I think that's correct, that at that point I, I thought that that was going to be the end of the research.

Q: And then Apple came to you and said, "We need you to do another study."

A: No, that's not -- that's not exactly accurate.

Q: You did another study because Apple came to you and asked you to do another study; correct?

A: I certainly did more aspects of the survey at Apple's request.

Q: Okay. So the answer is correct, at Apple's request, you did more work after showing them the results of this study; correct?

A: Yes.

Q: And let's talk about that study then.

So on your next go-round -- let's look at exhibit 2544-24. If you can blow up the top here.

Now, this isn't the clearest blow up, but on your next study, you didn't put a sticker over that home button as you previously said was necessary to get a fair study and make sure that

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A: I don't agree with how you just characterized that, but you're correct that there was no label over the button in this part of it.

Q: And also, if we look at the next page, which is 25, another part of the study, and again, this isn't the clearest view, but you see not -- the home button is not covered; right?

A: Right.

Q: And the icons are not blurred, either, whereas previously in your report, you said that was necessary to make sure you were getting a response that was meaningful to trade dress. Right?

A: You're correct that that's what's shown here.

I don't think you're correct that at this point it was necessary to do those things given that I had already done them and had already seen that there was secondary meaning even with those things covered.

Q: With the 40 percent figure that you got?

A: It's not just the 40 percent figure that's relevant. The 57 percent figure is the primary figure as well.

Q: So basically for this second study that Apple asked you to do after getting the 40 percent

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A: No.

Q: Well, in fact, you got comments from participants like "the bottom button at the bottom is a dead give away that this is an Apple."

A: I do recall there were some respondents who mentioned the home button as one of the things they recognized. I think it was a pretty small number, but there were definitely some.

Q: And then as the control -- if we can put up 2544-33 -- you used a Nook, an e-Reader; right?

A: It's -- it's a tablet.

Q: And with the Nook, you showed the "n" here that identifies it as a Nook to people who know Nooks?

A: No, that's not true.

Q: Isn't that what that is right there?

A: Well, I don't know exactly what that is, but I know that barely anybody -- only a very small number of people in the survey said that they thought this was a Nook. So it clearly did not give away that it was a Nook to most people.

Q: It did give away that it wasn't an Apple?

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Q: Well, but not many. You kind of made sure of that.

A: No. You're just wrong. 10 percent, I believe, I think that was the number, I think 10 percent said that this was an Apple, and it was a lot less than that that said anything about a Nook, so that's just not true.

Q: So only 10 percent said that it was an Apple, and that couldn't be, of course, because Apple doesn't have a home button like that?

A: Certainly it's possible that one -- that that's one of the reasons that people didn't think this was an Apple.

Q: And then if we can look at 34, 2544-34, we've got -- you showed them also a version of this that has that Nook button and then has unblurred icons; right?

A: Yes, just one group.

Q: And these don't look anything like Apple's? again, it screams "I'm not an Apple"?

A: Again, that's not what the survey results show.

Q: Because you think 10 percent is a big number?

A: I'm not saying it's a big number, but 10

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Q: And it's a lot clearer in the actual, what you showed them, but up here also it has this thing that says "apps" and it says "archive." Is that correct?

A: Yes.

Q: And tell me Steve Jobs wouldn't have fired somebody that had put "archive" up there on a home screen?

A: I couldn't speak to that.

Q: And then there are other alternatives you could have used. For example, let me show you exhibit 2529 for identification.

This is a Motorola tablet. Do you recognize that as a Motorola tablet?

I'm sorry. Do you want to see it?

THE WITNESS: Yes.

MR. PRICE: And I forgot to show it to Mr. Jacobs. Let me do that.

(Discussion off the record between counsel.)

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MR. PRICE: Since the witness recognizes this as a Motorola, I'll move it into evidence for the purpose of challenging his methodology.

MR. JACOBS: So, Your Honor, this was actually disclosed to us as a demonstrative, along with 2528 and 2534. I was a little slow on the uptake when they were presented, but they are not on the exhibit list for admission as exhibits.

THE COURT: Are they on your --

MR. PRICE: They are on the exhibit list for the case. What we gave them for the witness, I think we did list them as demonstratives because I didn't know if he would be able to say, "Yes, I see this is a Motorola tablet," and now that they're going in for that limited purpose, I'd ask that that be admitted. There's no prejudice to demonstratives going into evidence.

MR. JACOBS: I think there is, Your Honor. If it had been exhibit, it might have changed the way we approached objections.

MR. PRICE: Mr. Jacobs can't say --

THE COURT: Was it timely on the exhibit list?

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MR. PRICE: Oh, yes.

THE COURT: All right. That's going to be admitted with a limiting instruction that this is solely for purposes of challenging Mr. Poret's study.

Correct?

MR. PRICE: Yes.

THE COURT: Okay. It's admitted.

(Whereupon, defendant's exhibit number 2529, having been previously marked for identification, was admitted into evidence.)

BY MR. PRICE:

Q: And let me show you 2538 for identification. This is an LG tablet. Do you see this is an LG tablet as well?

A: Yes, it is.

Q: And then if we can go back to 30.5.

And so given what we just went through as to how you changed your procedures, contrary to the way you said a survey should be done in this case, you expect the jury to accept these numbers in deciding a case where Apple is asking for about $2.7 billion?

A: Well, you just said a lot of things there.

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So that's not a fair way to put it.

And, you know, to answer your second question, yes, those were good controls and they showed that those much larger numbers are not guessing or the product of any problem with the survey.

So I think they clearly would be accepted as showing secondary meaning.

MR. PRICE: Your Honor, if I may approach and pass to the jury the tablets?

THE COURT: That's fine. Go ahead, please.

MR. PRICE: No further questions.

THE COURT: All right. The time is now 9:38.

Go ahead, please, with any redirect.

REDIRECT EXAMINATION

MR. JACOBS:

Q: Can I have the Elmo, please.

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A: Yes.

Q: Can you turn to page 245 where you have the, the questions that you're presenting to the survey takers.

A: Yes. 282 -- Oh, yes, Okay.

Q: Nope, go back. I'm sorry. I'm wrong.

May I have the Elmo? Does this show the sticker on the control in the place that you indicated it was, Mr. Poret?

A: Yes. This is the actual screen shot from how the survey screen appeared to people on their computers.

Q: And the "Item H" is located where on this control?

A: It's over where the home button would have been.

MR. JACOBS: Thank you. No further questions, Your Honor.

THE COURT: All right. It's 9:41. May this --

MR. PRICE: No further questions.

THE COURT: All right. May this witness be excused and is it subject to recall or not?

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MR. PRICE: He can be excused.

THE COURT: All right. You are excused.

MR. JACOBS: Subject to recall, Your Honor.

THE COURT: Oh, you are excused subject to recall. You're free to leave, sir.

THE WITNESS: Thank you, Your Honor.

THE COURT: All right. Please call your next witness.

MR. JACOBS: Your Honor, Apple calls Kent Van Liere.

THE COURT: Okay.

THE CLERK:

Would you raise your right hand, please. Remain standing.

Kent Van Liere,

THE WITNESS: I do.

THE CLERK: Would you have a seat, please.

THE COURT: All right. The time is 9:42.

Go ahead, please.

MR. JACOBS: Thank you, Your Honor.

THE CLERK: Excuse me. We need to get

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If you could state your name, please, and spell it.

THE WITNESS: My name is Kent Van Liere, the last name is v-a-n l-i-e-r-e. It's two words.

THE CLERK: Thank you.

DIRECT EXAMINATION

MR. JACOBS:

Q: Sir, can you tell the jury what you do?

A: Yes. I'm a vice-president with Nera Economic Consulting. I have a Ph.D. in sociology from Washington State University. I started my career teaching at the University of Tennessee. I spent many years as a president and a partner in a market research firm, and now for the last six years, I've been doing expert work with Nera, primarily in litigation.

Q: Is one of your fields of expertise survey research?

A: Yes.

Q: Can you describe that background briefly for the jury, please?

A: Yes. My training was in survey research and statistics, along with other things, and I've spent

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MR. JACOBS: Your Honor, we offer Dr. Van Liere as an expert qualified to testify about survey research and consumer --

THE COURT: Any objection?

MR. PRICE: No objection.

THE COURT: All right. So certified. Go ahead, please.

By MR. JACOBS:

Q: Now, what surveys did we ask you to conduct, Dr. Van Liere?

A: Yes. I was asked to conduct two surveys for this matter, one survey to measure the extent to which consumers associate the look and the design of Samsung Galaxy phones with iPhone; and one survey to measure the extent to which consumers who view the Samsung Galaxy Tab lets in a post-sale environment are confused and believe that they are seeing an iPad or Apple product.

Q: How did you conduct the surveys?

A: The association study was conducted as a web-based survey and the, the confusion study was

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Q: All right.We'll explain that briefly in a minute. Let's take a look at exhibit 24 in your binder. What is exhibit 24?

A: Exhibit 24 is photographs of the images that were used in the association survey, and then a place holder for the videos that were used as the test and control stimuli in the confusion survey.

MR. JACOBS: Your Honor, we offer PX 24 into evidence.

THE COURT: Any objection?

MR. PRICE: No objection.

THE COURT: All right. It's admitted.

(Whereupon, plaintiff's exhibit number 24, having been previously marked for identification, was admitted into evidence.)

THE COURT: Go ahead, please.

By MR. JACOBS:

Q: Let's take a look at PX 24.2 and 24.3, please, Dr. Van Liere. What do these slides show us?

A: So in the association survey, we were testing the degree to which the Samsung Galaxy phones, that

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Q: And let's look at 24.2. That's -- 24.2 is the Fascinate and 24.3 is the Galaxy S II Epic 4G Touch. Do you see that, sir?

A: I do.

Q: Okay. Now Let's go to 24.4, and what is 24.4?

A: So as you've heard discussed this morning, I also used a control device in the association survey, and the Blackberry Storm was my control device.

Q: And what's the purpose of a control in this kind of study?

A: Well, in both trademark infringement and false advertising and the range of these kinds of surveys, we typically use controls for the same purpose that Mr. Poret identified.

The amount of confusion measured or association measured in the test condition may be partly influenced by the way the survey was conducted, by whether respondents are guessing.

So we use a control stimuli to measure

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Q: Once a respondent saw an image of a phone, what did the survey ask?

A: In the association survey, the primary question was, does the look and design of this phone bring to mind or create any association for you with any other phones? basically that was the wording.

Q: So these questions were asked of people looking at the Samsung phones and the controls?

A: Yes.

Q: And then if someone answered yes, what were they asked?

A: So if they said it brought to mind or created an association yes to that question, then they were asked, what phone or phones do you associate with this look?

Q: Let's go to 31.4. Is that the -- are those the questions you were just referring to, Dr. Van Liere?

A: Yes, for the association survey. So this is the basic first question they were asked after they had looked at the image of the phones that we

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Q: Let's go to 31.5. Okay. what does this slide show?

A: So this is basically a summary of the results from the association survey. So the first two columns are the results for my test stimuli, and then the third column is my results for the Blackberry Storm, which was my control stimuli.

and what this is basically showing in the first row is that for the Samsung Galaxy Fascinate, about 52 percent of the respondents said that the Samsung Galaxy, they associated it with Apple or the iPhone; and the second comments showing that for the Samsung Galaxy S II Epic 4G , about 51 percent associated it with the iPhone or an Apple product.

Q: Do you have an opinion about these results?

A: Yes. Basically what the results suggest -- so we netted off the control, or guessing, the same way what you saw this morning, and so the net associations in my study were 38 percent and 37 percent for the two Samsung products. So those percentages would suggest that it is likely that consumers will associate the look and design of the Samsung Galaxy phones with Apple

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Q: Let's talk about your tablet survey now. What were you designing -- what did you did -- how did you -- what was the purpose of that survey?

A: So the tablet survey was a likelihood of confusion survey, so my goal was to measure the extent to which consumers, when they view the Samsung Galaxy Tablet in a wholesale environment, did they believe they've seen an iPad or Apple product.

Q: And you said this is a mall intercept survey. Can you explain what that was?

A: Yes. So there's a variety of ways to collect data for these kinds of surveys. One way to do it is in malls. There's a network of malls around the U.S. that have research facilities at them. The market research is often done in these kind of facilities.

The idea is to go out into the mall, intercept consumers, ask them a series of screening questions to make sure they qualify for the study, and then bring them back to the interviewing area or the research facility and conduct the actual

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Q: And what did you actually -- can we go dark, Mr. Lee?

What did you actually test in this survey? What tablets did you test?

A: So the, the three -- the two tests and controls were a Samsung Galaxy 10.1 with a brand on it; a Samsung Galaxy 10.1 tablet without a brand on it; and then a Barnes & Noble Color Nook was the control device.

Q: And you mentioned you used videos for the survey. lLet's take a look at one. Let's take a look at actually -- let's take a look at PX 24.5.

Is this one of the -- before you run it, Mr. Lee -- is PX 24.5 one of the videos you showed your respondents?

A: I believe so.

MR. JACOBS: Your Honor, we offer PX 24.5 into evidence.

THE COURT: It's admitted.

(Whereupon, plaintiff's exhibit number 24.5, having been previously marked for identification, was admitted into

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THE COURT: Go ahead, please.

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: So which Galaxy Tab are we looking at in 24.5?

A: I believe this is the unbranded version.

And then we tested -- the same exact video was done with a branded version.

Q: And so someone would be at the research facility in the mall and they would be shown this video and asked questions?

A: Yes, that's correct. So the basic idea was to simulate a post-sale confusion environment where a consumer in the relevant market is observing somebody else using the device, as you would if you went to a coffee shop or you were on the light rail or walked through this room and see these devices in use. So that was the idea. And so we were going to use a video to simulate that, so that's why we did these in the mall.

Q: And let's take a look at your control video. Is 24.6 your control, sir?

A: I believe so.

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MR. JACOBS: We offer 24.6 into evidence, Your Honor.

MR. PRICE: No objection.

THE COURT: All right. That's admitted.

(Whereupon, plaintiff's exhibit number 24.6, having been previously marked for identification, was admitted into evidence.)

MR. JACOBS: I move all of 24 in.

THE COURT: Any objection? you want all of 24 in?

MR. PRICE: No objection.

THE COURT: All right. It's in.

(Whereupon, plaintiff's exhibit number 24, having been previously marked for identification, was admitted into evidence.)

THE COURT: Go ahead, please.

(Whereupon, a videotape was played in open court off the record.)

MR. JACOBS: Thank you. Let's put up PX 31.2, please.

Q: So what question did you ask if your survey?

A: So the primary question was, what's shown on the screen here, which is, in your opinion, what

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Q: And let's go to 31.3. What is this slide showing, sir?

A: So this is also a summary of the results from the likelihood of confusion survey. Similar to the other one, the first two columns show the results for the two test videos, and then the far right column shows the test for the Barnes & Noble color Nook control.

And what it shows is for the branded version of the Samsung Galaxy 10, the first column, approximately 30 percent of the respondents identified it as an iPad or Apple device.

In the Samsung Galaxy 10.1 unbranded version, approximately 43 percent identified it as an iPad or Apple device.

And then if you simply combine the results from those two, just to be -- just to explain, so each respondent only saw one video, and they were randomly assigned to the video that they saw.

And there were approximately 200 respondents who saw the first video, 200 who saw the second, and 200 who saw the control video.

So if you combine the 400 people who saw

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Q: And what about the control results? A: So in this particular study, we found that 24 percent identified the Barnes & Noble Nook Color as an Apple or an iPad, and so that's our estimate of guessing and the effects of our survey process, similar to what we've discussed.

And so when we net that off, we get a net rate of confusion between 6 and 19 percent.

Q: And the combined rate?

A: The combined rate would be 12 percent for that study.

Q: What do you believe the results of this survey show, sir?

A: Well, the results suggest that there's a, a substantial portion of the consumers who are likely to be confused when they see a Samsung Galaxy Tablet in a post-sale environment, that they're actually viewing an iPad or Apple product.

MR. JACOBS: Thank you, Dr. Van Liere. No further questions.

THE COURT: All right. Time is now 9:55. Please go ahead with your cross.

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MR. PRICE: Thank you, Your Honor.

CROSS-EXAMINATION

Q: Is it Mr. Van Liere or doctor?

A: Dr. Van Liere. you can call me either.

Q: I'll call you doctor. We're in court.

So first of all, let's talk about what you did not do with that confusion study.

You did not do a study that measured confusion of consumers at the time they buy an iPad or a tablet; correct?

A: Yes. I believe you're referring to a point of purchase study, and I did not do a point of purchase study.

Q: Now, have you done point of purchase studies in your career?

A: Yes.

Q: About how many?

A: I don't know exactly. Probably somewhere between 5 and 15.

Q: And when you were asked by Apple to do a study, did they kind of explain to you what the case was about?

MR. JACOBS: Your Honor, I think this line of questioning potentially invades Rule 26.

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MR. PRICE: Let me withdraw that.

Q: Well, let me ask you this: did -- given your experience in doing, you know, point of sale studies, did Apple ask you to do one to see whether or not there's any empirical evidence that a consumer buying a Samsung tablet would be confused into thinking it's an iPad or vice-versa?

A: Apple did not ask me to conduct a point of purchase survey. They asked me to conduct a post-sale confusion survey.

Q: Okay. So let's talk about the post-sale confusion survey. It's my understanding, is it not, that until this case, you had never done a post-confusion survey.

A: I think this is the first case that I've put in a survey that is publicly available in which we were testing a post-sale environment. I think this is the first time for that for sure.

Q: So let's see what you did on your first time out on this thing.

By the way, did you say to Apple, "this is the first time I've done one after sale"?

A: I don't recall if Apple asked me that question or not.

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A: The survey, as it's designed, does not test point of purchase, and it does not test the extent to which the confusion affects future purchase behavior, that's correct.

A: Now, so in the survey you did, you didn't show these people in the mall an actual iPad or an actual Samsung tablet; correct?

A: No, I don't think you said that correctly. Q: Okay. Maybe I didn't. You didn't -- this was the one in the mall, right, the one with the iPad and the Samsung?

A: The tablet confusion study was the study done in a mall, yes.

Q: Okay. And you didn't show these folks -- you didn't actually hand them an actual iPad or a Samsung tablet; right?

A: That's correct. We showed the videos that you've seen two examples of.

Q: And why not show them the tablet?

A: You say "show them the tablet." Just to be clear, they did see the tablets. The tablets were

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Q: Well, if we look at joint exhibit 1004, this is an actual iPad, you know, three-dimensional iPad.

Is this already in evidence? It is, okay.

So I'm just asking you, did you actually hand one of these out, an actual one?

A: No, we did not hand them a physical device.

Q: Or hand them a, a -- the Samsung tablet either; correct? You didn't hand them that?

A: That's correct. We did not hand them the Samsung tablets, either.

Q: Now, if we could look at the video you showed them, the 24.5, could we play that?

(Whereupon, a videotape was open court off the record.)

BY MR. PRICE:

Q: That was the full video that you showed them, right?

A: That's correct.

Q: Okay. Now, was there any budget limitation that you had to stop the video there?

A: Well, two comments. one, the -- No, I didn't

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But two, as I was commenting in these kinds of studies, we also let the respondents view the video twice.

Q: Okay.

A: So they saw it once, then they saw it again, and then they answered the questions.

Q: I'm just wondering, you've been in cafes or places where you've seen people, for example, with Apple computers; right?

A: Yes.

Q: And you've seen, for example, on Apple computers that they have that big neon Apple at the top of the computer? You can see that pretty easily when you're looking at somebody with their Apple computer; right?

A: Maybe. It depends on the point of view that you have as you observe the person using their computer.

Q: It's actually back lit in the computers; right?

A: I'm not completely certain, but part of an Apple computer -- are you talking about the one

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Q: When it's -- when an Apple computer is open, you wouldn't see the big neon Apple on it? A: If you're looking -- I'm maybe misunderstanding what you're asking me. But if I have the computer, I open it, and I'm observing over the shoulder, I don't see the neon device that's on the top. I believe that's what you're asking me.

Q: Ah, I see. and here, I guess, is the problem. So let me ask you this: so why didn't you, you know, in your video, just run it a little bit longer and have the person walk around so that the person you're studying could see the back of the device?

A: The way we created the stimuli was to test the allegedly infringing conditions that were outlined in the complaint.

And it was my understanding, at the time I designed this study, that the back of these devices was not at issue, that it was the front and the side views.

So when we set up the videos, we set them up to show a real product that's in the real

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So that's why we did not show the back.

Q: Okay. So you were told that if the product had something on the back which would tell any consumer that it's an Apple or a Samsung, that you were to ignore that and not test it? That was your understanding as given to you by Apple's counsel?

A: It was my understanding that the front of the device and the side view of the device were part of the alleged infringement and the back was not.

Q: But don't you understand that to show confusion, you look at the product and not just what the alleged trade dress is?

A: No, I don't agree with the way you've stated that.

Q: Okay. So if that actually is the test, that is, that you're supposed to look to see whether the product as seen by a consumer would confuse them, if that's the test, you didn't test for that, did you?

A: No. In fact, I did test for that.

Q: Well, you said you didn't test, for example, if the consumer just walks a little further and saw the person looking at -- this is exhibit 1004 like

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A: No, I did not -- well, there's two issues. One, I did not test Apple devices. I tested Samsung devices.

But no, we did not show all views of the product. We showed views that would represent typical post-sale observations of these products being used in the marketplace, and those post-sale views were designed to represent the allegedly infringing trade dress, not the whole device.

Q: Let me show you what's been marked as exhibit 1038 for identification. Apparently this is in evidence. So this is a -- the Samsung tablet -- and by the way, given what you know about the market, if someone sees a tablet that doesn't have that big Apple on it, they know it's not an Apple; right?

A: I don't know that specifically.

Q: But if they were looking at the Samsung tablet and they walk around and saw it, you see it says Samsung. It doesn't say says Samsung; right?

A: My eyes aren't good enough to see that from

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Q: Okay. Let's say it's as close as the video would have been, say.

Okay. So looking at it here, you walk around and, instead of stopping the video here, you actually continue it just a few seconds to see whether or not the product is actually confusing.

Do you think you'd get a different result?

A: I don't know. I didn't test that. But I didn't also understand that to be the alleged infringement here.

Q: Okay. So if -- so you designed your study based upon what you were told by Apple's counsel?

A: And what I understood from reading the complaint.

Q: Okay. And so your study was designed to ignore the entire product and just show the back? I mean the front and side?

A: Yes. My study was designed to create a post-sale confusion-like interaction for a consumer and show that in a version in which they would see the front and the side of the device. That's what I did, yes.

Q: Okay. as a matter of fact, at the time you

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A: I knew that Samsung was on the front. But I didn't know for certain if the Samsung was on the back of all the devices.

Q: And now you know -- you called these branded versus unbranded phones, tablets.

You know now that all the Samsung tablets, in fact, are branded because they have the Samsung on the back; right?

A: I'll understand that from what you've just told me. I didn't know that for sure.

Q: Okay. And now let's talk about the control you used. What you used was the Nook; right?

A: The Nook Color.

Q: Okay. The Nook Color. And if we can show 3900.107.

So this is an iPad and this is a Nook.

Now, this is the number you subtract from the association you got from showing just the front and side of the Samsung tablet.

And you subtract the number of people who say this is an Apple iPad; right?

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A: Yes. I think as you're describing it, that's correct.

Q: Okay. and this has this little screen thing here which screams "I'm not an iPad," right? Would you agree?

A: No.

Q: Okay. And it has -- it actually has the Nook trademark on it and the Nook button there; right?

A: It has those things on there, yes, that's correct.

Q: And the Nook is an e-Reader; right? it's basically known as an e-Reader for reading books on?

A: The Nook Color, which is the device we used in our study, is marketed as a tablet and it has the same basic functionality as the iPad and the Galaxy.

Q: Let me show you exhibit 2526 for identification.

This is the Nook tablet that was used in your study, or one just like it -- I mean Nook Reader, Color; right?

A: I'll understand that to be just like it. I don't think that's the one we actually used.

Q: Okay. And there were other controls you could

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A: No, I don't agree with that.

Q: Okay. So have you seen other tablets in the market and what they look like?

A: Yes.

Q: Okay. And you don't agree that the Motorola and LG, which we've seen already here in court and passed around, you don't think they look more like the iPad than this?

A: Yes, I think, in fact, they do look more like the iPad in the sense that they have more elements of the allegedly infringing trade dress. So in choosing the control, the idea is to get a product that's in the same market that has the same basic functionality, but does not include the allegedly infringing trade dress.

Q: Well, actually -- so are you saying that Apple is contending that Motorola and LG, that those tablets infringe Apple's trade dress and that's why you didn't use them?

MR. JACOBS: Your Honor, this is asking for a legal conclusion from this witness and lacks

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THE COURT: Sustained. BY MR. PRICE:

Q: I'm asking your understanding as to why you didn't use them. Okay?

Is it your understanding, which would be the basis of you not using the Motorola and the LG, is it your understanding that you couldn't use them because Apple is saying that those infringe its trade dress?

MR. JACOBS: Your Honor, you just sustained an objection to this same question.

THE COURT: Sustained. BY MR. PRICE: Q: If we can look back at that 30.5, I think it was 30.5, 24.5. No, I'm sorry. 31.3. This is your study. I believe it's 31.3.

So is this the study -- this is your results showing that video, showing the Nook, and you got 6 percent is post-confusion with the branded, 19, and you averaged those to get 12.

Now, if you really wanted to come up with an average that meant anything as far as the real world, you'd have to weight those numbers; right?

A: Well, I think I understand your question, and

1715

Q: So let me stop you there.

So this is not an opinion you have as to net confusion rate in the market; right?

A: No. I believe the confusion -- the opinion I offered in my report is that it's somewhere between 6 percent and 19 percent were actually confused by my test.

Q: And the 19 here, you don't know how many, quote, "unbranded" tablets were in the market compared to the branded ones; right?

A: Well, two comments. One --

Q: Can you answer yes or no? because I'm on the clock.

A: I'm sorry. I understand.

Q: Do you know how many --

A: Ask me the question again.

Q: Do you know in the marketplace how many unbranded versus branded there were?

A: No, I don't know how many unbranded versus branded there were.

Q: Now let's talk about your phone association

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And, again, this is not a survey that shows consumer confusion at all; correct?

A: Let me just mentally shift gears. so you're talking about now my phone association study?

Q: Yes.

A: Yes, that study was not designed to measure likelihood of confusion. That study was designed to measure association.

Q: Okay. So if we can look at your study and look at 3900.153, this is the question you asked. 3900.153. You showed the picture of one of the Samsung phones and said, "Does the look and design of this phone bring to mind or create any association for you with any other phones?"

Do you see that?

A: Yes.

Q: In the demonstrative you showed the jury, which was the question you asked, you didn't underline "other," but "other" was underlined in the actual survey?

A: Yes.

Q: The people who read this knew they were supposed to think of some other phone for

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A: It suggests that -- we're asking them, first, yes, no, or don't know, does it bring to mind any association? At this stage we're not telling them there is an association.

Q: Now, I want to ask you, if someone asked you, for example, showed you a picture of a coke and said, "Does this bring to mind or create any association with any other soft drink," you'd think a lot of people might say Pepsi; right? Because they're the two biggest players in the market?

A: I haven't done that study, so I wouldn't have an opinion on how that might turn out.

Q: Well, if someone asked you, you know, showed a picture of a Burger King, you know, restaurant and said, "Does the look and design of this restaurant bring to mind or create any association with you of any other restaurant," they're quite likely to say McDonald's; right?

A: Again, I haven't done that survey. I don't know that to be the case.

Q: You don't know that from common sense?

A: I don't know that from common sense as you've described it.

Q: Well, if you did find that, hypothetically,

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A: Again, you're asking me about a hypothetical study that I haven't conducted, so --

Q: Well, in this case, you understand that Samsung and Apple are the two largest competitors in this market; right?

A: I understand they're two large competitors in this market.

Q: And you understand from knowing the market that if someone showed you a Samsung phone and said "What other phone does this remind you of," people are likely to say Apple, and vice-versa, because they're the two biggies, just like Burger King and McDonald's and Coke and Pepsi?

A: Perhaps. But to the extent that that's true, that's also happening in the control. so if this was creating a demand characteristic as you suggest, then it would be netted out in the control condition.

Q: So now let's talk about the control. The

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A: Yes.

Q: And you instead -- well, of the phones, you selected a Blackberry?

A: Yes, a Blackberry Storm.

Q: And if we could look at exhibit 24, I guess page 4. And again, a Blackberry, you said this control, the Blackberry control for the fact that Samsung and Apple just might be names on the tips of your tongue.

If someone showed you a picture of a can of Moxie, do you think people would associate that with Coke or Pepsi?

A: A can of what?

Q: Moxie. You don't know Moxie?

A: I don't know Moxie.

Q: Okay. Well, just as with the Blackberry -- and by the way, in the real picture, you can see Blackberry across the top here; right?

A: Yes. In all of the phones, the pictures are the actual products that are in the marketplace as they would look.

Q: And Blackberry and RIM are, are pretty much --

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A: I don't have that understanding during the period of time of the survey.

Q: You don't have it one way or the other?

A: That's correct.

Q: And is it just a coincidence that both you and Dr. Poret used a Nook and the Blackberry Storm for your controls? Did you guys get together and talk about this?

A: No. I have no knowledge of Mr. Poret's work before I came to trial and heard about it other than I knew he had done surveys.

Q: Did you -- were you given these phones and the Blackberry and the Nook to use as the controls?

A: No. I selected these phones and tablets with my staff from our review of the products that were available.

Q: So you intentionally selected the Nook as the tablet to use as a control; right?

A: Yes.

Q: You're saying that?

A: Yes.

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A: The Blackberry Storm.

Q: And you intentionally decided, in those videos, not to show the complete product, the Samsung tablet? That was your decision?

A: Well, it was my decision based on my understanding from the complaint, that -- and discussion with counsel, that the front and the side views was what mattered in the tablet setting.

Q: And with respect to the Samsung phones, you tested just two of the phones?

A: Yes, I tested two of the, whatever the number of phones is.

Q: So, for example, you didn't test the phone that Ms. Kare said had a chin, the Droid Charge?

A: No, I didn't test that specific device.

MR. PRICE: Thank you, Your Honor.

THE COURT: All right. The time is 10:19.

MR. PRICE: I'm sorry. I meant to move in the Nokia -- I mean the Nook.

MR. JACOBS: Your Honor, again, that is listed on the list of demonstratives.

THE COURT: Is that 2526?

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THE CLERK: I believe so.

MR. PRICE: Yes, 2526. It would be for the same purpose.

THE COURT: All right. It's admitted with a limiting instruction that it's admitted solely to assess Mr. Van Lier's survey. It's admitted.

(Whereupon, defendant's exhibit number 2526, having been previously marked for identification, was admitted into evidence.)

THE COURT: All right. The time is now 10:20.

Do you have any redirect?

MR. JACOBS: No, Your Honor.

THE COURT: All right. May this witness be excused?

MR. JACOBS: Subject to recall.

THE COURT: All right. You are excused subject to recall. You may leave.

THE WITNESS: Thank you, Your Honor.

THE COURT: All right. Call your next witness, please.

MR. JACOBS: The next witness is Dr. Ravin Balakrishnan.

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THE CLERK: Raise your right hand, please.

RAVIN BALAKRISHNAN,

THE WITNESS: I do.

THE CLERK: Would you have a seat, please.

THE WITNESS: Thank you.

MR. JACOBS: Your Honor, let's just take a moment to get settled with the binders.

THE COURT: That's fine.

(Pause in proceedings.)

THE CLERK: Could you state your name, please, and spell it.

THE WITNESS: My name is Ravin Balakrishnan. That is spelled r-a-v-i-n, last name is spelled b-a-l-a-k-r-i-s-h-n-a-n.

THE CLERK: It's 10:22. Go ahead.

DIRECT EXAMINATION

By MR. JACOBS:

Q: Dr. Balakrishnan, the jury has been hearing about trademark surveys. Are you here to talk about trademark surveys?

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Q: What are you here to talk about?

A: I'm here to talk about the utility patent known as the '381 patent.

Q: could you introduce yourself to the jury? They've heard your name, but can you describe for them what you do.

A: Sure. I'm a professor the computer science at the Department of Computer Science at the University of Toronto, where I also hold a Canada Research Chair in Human Center Interfaces, and I also codirect a user interfaces and graphics laboratory at the University of Toronto.

Q: Tell the jury a little bit about your training.

A: I hold three degrees in computer science, including a Ph.D. in computer science, graduated in 2001 from the University of Toronto. And I've since then been a professor at the University since 2001, so that would make it almost 11 years at this point.

Q: Tell the jury -- actually, pull the microphone a little bit closer to you, and then tell the jury just a little bit about the research that you do.

A: My research is broadly in the field of

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Q: On this slide PDX 27.1 showing some of your qualifications, patents are identified. Can you describe just a bit about the patents that you've been awarded?

A: Sure. The 14 patents that have been issued with me as a coinventor, are all in the area of user interfaces for different kinds of computing technologies.

Q: You mentioned this phrase "human/computer interaction." Can you briefly describe what that means?

A: Sure. I pointed at it a little bit earlier. It's a broad field that studies human interaction with technology.

One of the things that people in the field care about is can we make technology more accessible and usable to different user populations depending what that technology is.

So if it's a mobile device, for example,

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Q: You mentioned at the outset that we had asked you to take a look at the '381 patent. Have you served as an expert in other litigation and been retained by Apple?

A: Yes, I have served as an expert in other litigation retained by Apple and by Nintendo in the past.

Q: And what's the area that you have covered in those cases?

A: All of these cases have to do with different kinds of user interface technologies, broadly speaking.

Q: What's your compensation level for your work on this case?

A: I'm currently being compensated at my standard rate of $430 an hour.

Q: And approximately how much have you been compensated for your work on this case?

A: On this case, I've spent quite a bit of time. It started about a year and a half ago. I've

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So in all that work, I've billed approximately $150,000 over the year and a half.

Q: Now, we've been referring to the '381 patent. What are the, kind of the abbreviations we have been using to describe that patent? What do we call it?

A: The '381 patent goes by several abbreviations or nicknames. one of the terms is called a rubber banding patent. Other people call it a bounce back or snap back patent.

Other terms I've heard in the course of this case include the elastic effect or the latex effect. So these are essentially interchangeable terminologies for the same concept.

MR. JACOBS: Your Honor, we offer Dr. Balakrishnan as an expert in the field of computer science and human computer interaction.

MR. JOHNSON: No objection.

THE COURT: All right. So certified.

By MR. JACOBS:

Q: Now, you looked at claim 19 of this rubber

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A: Yes, I did.

Q: And what opinion did you form about whether Samsung mobile phones infringe this claim of this patent?

A: My opinion, formed after studying the patent and the phones, is that 21 Samsung mobile devices infringe claim 19 of the '381 patent.

Q: And how did you go about doing your work to make that, to reach that conclusion?

A: First of all, I analyzed the devices themselves, trying them out in the different applications, seeing which applications might infringe.

And then I -- in some cases, I also looked at the source code to confirm that the behavior was actually as was being seen on the screen for the accused devices.

Q: And what source code did you look at, sir?

A: I looked at four representative versions of source code, representative of the different phones, four of the different phones; that is, the Samsung version of the Android 2.1, Samsung version Android 2.2, 2.3, and 3.1 source code.

Q: And what was the source of that source code?

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Q: Did you encounter any differences between the various versions of the Samsung source code that you looked at with reference to the '381 patent?

A: With regards to the functionality of the '381 patent, I did not identify any logical inconsistencies at all. They were essentially the same as it pertained to the functionality of the patent.

Q: What else did you review in the course of doing your work on this patent?

A: In addition to the code and the devices themselves, I also reviewed several Samsung internal documents that pertained to the functionality of the '381 patent.

Q: So let's take a look at the '381 patent. It's JX 1045 in your binder, Dr. Balakrishnan.

Your Honor, we offer JX 1045 into evidence.

THE COURT: Okay. Any objection?

MR. JOHNSON: No objection.

THE COURT: It's admitted.

(Whereupon, plaintiff's exhibit number 1045, having been previously marked for

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By MR. JACOBS:

Q: So is this the '381 patent that you analyzed, sir?

A: Yes, it is. It's the front page of the '381 patent.

Q: And who is the inventor on this patent?

A: The inventor on this patent is listed as Mr. Bas Ording.

Q: And do you look at the question of when Mr. Ording conceived the invention in claim 19 in the course of his work?

A: Yes, I did.

MR. JOHNSON: Objection. Outside the scope of his report, Your Honor.

MR. JACOBS: Paragraph 42, Your Honor.

THE COURT: Overruled. Go ahead.

THE WITNESS: Yes, I did. I considered and reviewed Mr. Ording's -- portions of Mr. Ording's deposition testimony where he testified that he had been working with a prototype touchscreen device in around about 2005, February 2005, which is about two years before the iPhone

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And he also produced a source code file of his early prototype using a language called Macromedia Director that I briefly -- that I reviewed as well.

By MR. JACOBS:

Q: Now, let's go back to this, this patent, Dr. Balakrishnan.,P> And maybe we can put up 27. -- PDX 27.3, Mr. Lee.

So what is the problem that the '381 designed to solve, sir?

A: At a very high level, the focus of the '381 dealing with user interfaces for mobile devices, and as many of us know, mobile devices have relatively small screens compared to, for example, the big monitor I'm looking at here.

But the content we want to view on those mobile devices can be larger than would fit on the screen.

So, for example, what you see on the slide right now is just a simple photograph of a

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So if somebody wants to view the entirety of this photograph, one needs to provide an appropriate user interface to allow the user to move around this photograph to see the rest of it.

And in doing that, providing that kind of navigation user interface, there are two long-known problems that are encountered, and the '381 patent is focussed at solving those long-known problems with a very elegant solution.

THE COURT: I'm sorry. It's 10:31. Let's take our break now.

Let me ask, does the jury have the photos of Mr. Van Liere yet?

THE CLERK: I have them.

THE COURT: What about Mr. Balakrishnan?

THE CLERK: I have not yet gotten them. But I'm about to.

THE CLERK: Okay. So Ms. Parker Brown the photos of our last two witnesses.

THE CLERK: I can just leave them on their chairs.

THE COURT: She'll just leave them on your chairs.

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(Whereupon, a recess was taken.)

(Whereupon, the following proceedings were held out of the presence of the jury:)

THE COURT: As of this morning, you didn't have any objections filed as to Mr. Sheppard.

MS. MAROULIS: That's correct, Your Honor.

THE COURT: Okay. Are those going to be filed today?

MS. MAROULIS: No. It's just a very short deposition clip and we did not have objection to that.

THE COURT: Oh, Okay. And you didn't have any objections as to --

MR. MCELHINNY: No, Your Honor. But the reason we're putting him last is because we think we designated the wrong clip, so if we go over until Monday, we'll probably do a new designation.

THE COURT: At which point you might have an objection?

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MS. MAROULIS: That's correct.

Your Honor, this raises another issue we wanted to discuss briefly. Apple said they're not going to play our counter-designations as part of their clips and we wanted to make sure that was done, because otherwise our counter-designations will be not understandable to the jury if they're played at a later time.

There's only a few of them subject -- where the court overruled objections, but we can't have them played separately because they will not make any sense.

THE COURT: That's what we've required throughout this case. There are a number of times when Mr. Verhoeven played a video clip and Ms. Krevans jumped and up and said "rule of completeness," and I said nope, it's on your time and in your case.

So that's overruled. Okay? All right. Anything else? Let's bring in our jury.

MR. MUELLER: You asked for a case cite on the 408 issue.

THE COURT: Okay.

MR. MUELLER: Affiliated Manufacturers

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THE COURT: All right. Let me just make sure I have the dates -- the cites correct. 56 F.3d 521, the pin cite is 527, and 1998 Westlaw 827.

MR. MUELLER: 827596 at star 6 is the pin cite, Your Honor.

MS. MAROULIS: And Your Honor, we already cited the Sandisk case earlier, so I'm going to, if I can, hand up it the court and give opposing counsel a paper copy with highlighted text.

THE COURT: I know. It was in your brief.

MS MAROULIS: Would Your Honor like a copy, or not?

THE COURT: Sure, I'll take one. But I know that was in your brief.

MR. MUELLER: And if Your Honor would

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THE COURT: Okay. Thank you.

MR. MUELLER: Thank you, Your Honor.

THE COURT: All right. If there's nothing else, let's go ahead with Mr. Balakrishnan. We'll go until noon. All right. Let's go ahead and bring in our jury, please.

(whereupon, the following proceedings were held in the presence of the jury:)

THE COURT: All right. Please take a seat. Sorry. I keep forgetting.

All right. It's 10:49. Please go ahead.

By MR. JACOBS:

Q: Dr. Balakrishnan, let's continue where we left off.

I think you were talking about the problems the '381 patent is designed to solve.

A: Right. And I think I left off by describing the general problems faced, and I think I said the '381 patent solves two particular problems when we broke.

Q: Exactly. So let's focus on those two particular problems now.

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A: The first of those problems is what's known in the field as the frozen screen problem, and this occurs when the user is navigating about a document, or a photograph in this example, and when they reach the edge of the photograph, it simply just stops.

And the user is left wondering, have they reached the edge of the photograph or has the system just stopped reacting to them, in other words, frozen? And because they are unsure, they often try again just to make sure the system is not frozen.

I've prepared a little video, animation to illustrate this problem.

(whereupon, a videotape was played in open court off the record.)

THE WITNESS: The user hits the edge, tries again, and you see it's frozen, but the user is trying again.

And that's essentially the heart of the frozen screen problem. There isn't sufficient feedback to the user as to whether the system is still alive or they've hit the edge of the

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By MR. JACOBS:

Q: And that was PDX 27.24. What's the next problem that the '381 patent was designed to solve?

A: The second problem is known in the field as a desert fog problem. So this is a bit of the converse of the frozen screen problem in that one could manipulate the image such that it goes off, completely off the screen and you're left with a blank screen, what we would call the desert fog, and you have no idea where the screen is relative to where the photograph is outside the screen.

So I prepared a little animation for that as well.

As you can see, the photograph is taken off the screen, and now the user is manipulating the desert fog and it's unclear, essentially they pause for a moment, how to bring that photograph back on to the screen.

So these are of the two key problems that are found in this kind of navigation interface that the '381 patent is focussed on solving.

Q: And that was PDX 27.25. How does the '381 patent solve these two problem problems, frozen

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A: The '381 patent solves both these problems in one fell swoop. Essentially, a, it solves the desert fog problem by not allowing the photograph to go off the screen completely.

And the frozen screen problem it solves by when the document reaches the edge, it allows a certain amount of movement beyond the edge, shows an area beyond the edge, so the user knows, I've reached the edge of the document, and then when they release their finger, it bounces back.

It gives nice feedback saying "You've reached the edge. The system is still alive. It's not frozen."

I prepared an animation to illustrate that as well.

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: As you can see, you've reached the edge of the document. The black area below is shown.

Can we show that again if you don't mind?

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: And when the user releases

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By MR. JACOBS:

Q: Were these problems recognized in the field before the '381 patent?

A: The two problems were well recognized in the field. In fact, papers were published about it years back.

Q: Did anyone solve it before Apple?

A: No, it did not.

Q: Now, does the iPhone implement claim 19 of the '381 patent?

A: Yes, it does.

Q: And how do you know that?

A: I investigated the different iPhone devices and tried the functionality on the different devices.

I also looked at the iPhone source code to understand how it's implemented.

Q: So let's look at 27.7, Mr. Lee.

A: So this is a video of the functionality being showed in the photos application on the iPhone 3GS. This is the actual iPhone, the actual person doing

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(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: As you can see, you move to the right, you get to the edge, it shows beyond the edge, and then it bounces back.

By MR. JACOBS:

Q: Let's show that one more time, please.

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: The user is dragging, an area beyond the edge is shown, and then it bounces back.

By MR. JACOBS:

Q: Let's turn now to Samsung products and your analysis of how they -- whether they infringe claim 19 of the '381 patent, and let's start with the Samsung Galaxy S II AT&T. Does it infringe claim 19?

A: Yes. The Samsung Galaxy S II, AT&T version, infringes claim 19 of the '381 patent.

Q: Now, you've listed here on the slide the gallery application. What's the gallery application?

A: The gallery application in Samsung's product

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Q: So let's look at the gallery application in the Galaxy S II.

Mr. Lee, could we have 27.9, please.

What are we seeing here, Dr. Balakrishnan?

A: Here we're seeing on the Galaxy S II, AT&T version, the gallery application. We continue to use the same photograph we used in the earlier examples.

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: And as you can see, the same bounce back functionality as we've seen.

And if you can show that one more time, you can see the user is dragging the document, it reaches the edge, the area beyond the edge is shown, and it bounces back when they release the finger. Essentially it's the same as the way the iPhone works.

By MR. JACOBS:

Q: Let's break the requirements of claim 19 down into its various parts.

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So the first part of claim 19 discusses a device with a touchscreen display, a processor, memory, and a program for performing rubber banding of the bounce function.

Do Samsung's products meet these elements, requirements, or limitations as the patent lawyers call them?

A: Yes, they do.

Q: So let's go to 27.12. And can you just review this element, this first element of claim 19 briefly with the jury and why you find it present in the Samsung device?

A: Sure. This first element essentially says it has to be a competing device which has a touchscreen display. And what a touchscreen display is is a touch sensor that senses the user's touch inputs integrated with a display. And all these phones and tablets clearly have a touch sensor integrated with the display.

It also has one or more computing processors, which makes all the programs run; memory to install those programs and data; and one or more programs that actually give you the functionality that we use on these different

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Q: Can we have 27.14, Mr. Lee.

Now, this is element 2 of the claim -- of claim 19 of the '381 patent. What is it calling for?

A: Element 2 simply says it has to be instructions or computer code for displaying a first portion of an electronic document.

So the gallery application, the electronic document will be the photograph, and as you can see on this particular slide, I've illustrated it displaying a first portion, just a first part of that document.

Q: Let's go to the next slide, Mr. Lee, 27.16.

This is the third element of claim 19, and what is it looking for?

A: This element is looking for the detection of and movement of an object on a touchscreen display. Now, the object could be any object or it could be the finger, the user's finger as well, and the Samsung devices clearly detect the touch. As you can see in subsequent videos, and even the original video we showed, it clearly detects the movement of that object, a finger on the screen.

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A: This requires a translation or movement of the electronic document, in this example, the photograph, in a first direction, and then it subsequently displays a second portion of that same document where that second portion has to be different from the first portion.

As you can see here -- if you can show the video again, please?

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: That's the first portion.

A: Now, when you drag it in the first direction, a second portion of the same electronic document or photograph is shown.

As you can see, the second portion could overlap the first portion, but it's still different from the first portion.

Q: And just because it went a little fast, sir, when you were applying the phrase "translating the electronic document," you were looking for what?

A: I'm looking for movement. "Translation" simply means movement on a particular set of axes,

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Q: So now let's look at the fifth element on the screen, and we're looking at 27.20. What does this element call for?

A: This element is what happens when the user continues to drag the document, translate the document, and it reaches the edge of the document.

WHen the system recognizes that the edge of a document has been reached, in response to that edge being reached, an area beyond the edge is shown, what I've illustrated in the yellow box to the left of the actual document's edge there on the screen.

And the last part of this is that a third portion of the document has to remain on the screen where that third portion has to be smaller than the original first portion.

And that's pretty apparent from this image here. The third portion is not -- doesn't fill the full screen, whereas the first portion I originally showed fills the full screen.

Q: Does the Samsung Galaxy S II, AT&T, meet this limitation?

A: Yes, it does.

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A: This element deals with what happens when the object or finger is released from the screen, it's no longer detected by the touchscreen, and this requires that when that happens, the document is translated in a second direction, it's moved in a second direction, such that the area beyond the edge of the screen previously displayed is no longer displayed.

And finally, it displays a fourth portion of the electronic document, and that fourth portion has to be different from the original first portion that we saw at the start of this sequence of videos.

And for sake of illustration, just to remind us, I've asked to put up the fourth -- the first portion as a call out. If we can have that on the slide?

That is the original first portion. As you can see, it's different from the fourth portion that's ended up on the screen and of this interaction.

Q: So we've been looking at these elements in the context of the gallery application on the

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A: Yes, it does. The Galaxy S II, AT&T, meets the elements of claim 19 of the '381 patent in two other applications, in the contacts list and the internet browser applications.

Q: Let's take a look at those briefly.

(whereupon, a videotape was played in open court off the record.)

THE WITNESS: So on the left you have a video of the contacts list application. This is simply the list of people you have phone numbers and so forth for on the phone.

And if we can play that again, the user is dragging the list upwards, and when they reach the edge, it's hard to see, but you reach the edge, it's black on the bottom, the area beyond the edge, a black area is shown.

When the user lifts their finger up, it bounces back. It's the edge of the photograph, just in a different direction.

By MR. JACOBS:

Q: And how about in the browser application?

A: The browser application similarly works the same way. You can drag it beyond the edge, in this

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Q: Claim 19 discusses instructions that make this feature work. What are instructions in the context of a smartphone or a tablet computer?

A: Instructions in the context of phones and tablet computers that we're discussing here are really just computer code, computer program instructions, and this is lines of code that's in the computer that execute on the processor to make this functionality work.

Q: How do you know that these instructions are present on the Galaxy S II, AT&T?

A: As I testified earlier, I looked at the Samsung produced code and what I've done is I've excerpted just two small portions to illustrate some of the pertinent code for the gallery and for the browser applications on the screen.

It's not on the screen yet.

MR. JACOBS: So, Your Honor, we'd like to display this for you, for opposing counsel, and for the jury as is representative of the code of Samsung.

THE COURT: Okay. Go ahead.

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By MR. JACOBS:

Q: So we're looking at 27.31, sir, and is it on the jury's screen.

No, not on the public screen.

THE COURT: Take that down, please.

MR. JACOBS: Is it on the jurors' screens? No. Thank you Mr. Lee.

Q: So Dr. Balakrishnan, can you show us what we are seeing on this, in this source code?

A: Sure.

Q: Can you tell us what we're seeing on the source code?

A: On the left-hand side is the source code for the gallery application that we've been talking about. So this is a very small snippet of the overall code that runs. What I've done is illustrate just a portion that sets up the parameters for determining what happens at the edge of the document.

So it looks at the left extent or the right extent or the top or bottom. Those are four edges of the document. If it exceeds the threshold of that edge, it moves the document by the appropriate amount so you can see it.

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So I want to emphasize, this is just the relevant snippet of the overall code. There's much more code that makes this all really work in totality.

Q: So based on your review of the code and of the device, what is your conclusion as to whether the Samsung Gallery S II, AT&T, infringes claim 19 of the '381 patent?

A: Based on my review of the devices and the code, it is my opinion that the Samsung Galaxy S II, AT&T, infringes claim 19 of the '381 patent in all three applications.

Q: You analyzed other Samsung phones?

A: Yes, I did.

Q: And does your opinion extend to others of the phones that you examined?

A: Yes, 20 other phones also infringe the '381 patent.

Q: Can we show that to the jury?

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Q: Okay. So let's look at 27.32. I'm sorry, .33?

A: What I have here is the four other phones, Galaxy S i9000, Galaxy S II i9100, S4G, and the Vibrant, all showing the same functionality that I went through in detail earlier with the Galaxy S II, and you can see that all of them do the same kind of bouncing.

Q: And now let's look at PDX 27.34?

A: These are four more phones, the Ace, Captivate, Continuum, and the Droid Charge.

Again, each of them do the same functionality as I illustrated before in the gallery application.

Q: Let's just see that one more time since we showed all four together.

A: You drag to the right, reach the edge, you let go, it bounces back.

Q: And 27.35.

A: These are four more devices, exhibit 4G, the Epic 4G, the Fascinate, and the Indulge, essentially doing what you've already seen.

Q: And let's play that one more time.

A: Again, drag to the right, you reach the edge,

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Q: And 27.36.

A: This is another five phones, the Infuse, the Mesmerize, the Nexus S4G, the Prevail, and the Replenish . again, same functionality. You drag to the right, when you let go, it bounces back.

Q: And then 27.37.

A: And these are the two tablet devices running the gallery. They do the exact same functionality. You reach the edge, you let go, it bounces back.

Q: Now, did you also show -- look at some other Samsung products in connection with the contacts application?

A: Yes, I did. And I think I've illustrated four more of them here.

Q: 27.38?

A: Right. This is the Fascinate, the Galaxy S4G, the Gem, and the Vibrant, and they all do the same bounce back functionality in the contacts list. And in this case you drag up and down, you reach the edge, it shows an area beyond the edge, and it bounces back.

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A: Yes, they do. I believe there's a total of 16 of the 21 accused products that infringe in the contacts list application.

Q: And do you happen to remember what the others are?

A: I don't remember, but I have a list here and I can read them out if you want me to.

Q: That would be great.

A: So the ones that do infringe in the contacts list are the Captivate, the Continuum, the Droid Charge, the Epic 4G, the Exhibit 4G, the Fascinate, the Galaxy Ace, the Galaxy S i9000, the Galaxy S II i9100, the Galaxy S II, AT&T, which we've already gone through in detail, the Galaxy S 4G, the Gem, the Indulge, the Infuse 4G, the Mesmerize, and the Vibrant.

Q: Have you prepared additional videos depicting infringement in the browser application?

A: Yes, I have.

Q: Let's take a look at those, 27.39.

A: These are four Samsung devices, the Ace, Exhibit 4G, Galaxy S II i9100, and the Galaxy Tab 10.1, all of which are performing the '391,

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Q: Have you prepared a compilation of these videos for the jury?

A: Yes, I prepared a whole set of videos over the course of this that illustrate the different infringement.

Q: And are those videos in PX 64?

A: Yes, they are.

MR. JACOBS: Your Honor, we offer PX 64 in evidence.

THE COURT: Any objection?

MR. JOHNSON: No objection, Your Honor.

THE COURT: All right. They're admitted.

(whereupon, plaintiff's exhibit number 64, having been previously marked for identification, was admitted into evidence.)

By MR. JACOBS:

Q: Going back to the gallery application for a minute --

you can take that down, Mr. Lee, thank

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Going back to the gallery application for a minute, have you heard of something called the hold still behavior in some Samsung products?

A: Yes, I have.

Q: And what is your understanding of that behavior and how does it affect your infringement analysis?

A: This is behavior that seems to manifest itself in some Samsung products that are accused, but not all, in the gallery application. And I have not been able to reliably duplicate it, but it does occur in some of those products.

And what happens there is when you drag the image very, very slowly, very gingerly, very slowly from the edge into -- so the edge of the document is passed, and you let go, it simply freezes. It doesn't actually do the bounce. And in those situations, those gallery applications still do the bounce functionality most of the time.

So as a result, my opinion is that the gallery application, even on those devices that have the hold still behavior once in a while, they still infringe the '381 patent because the

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Q: And so just to clarify where this exists, what application did you learn of the hold still behavior in?

A: This was in the gallery application on some of the Samsung phones, but not all of the accused phones.

Q: And does it exist in contacts or the browser application?

A: No.

Q: Does the -- so just to sum up on the hold still behavior, does it affect your infringement analysis?

A: No, it doesn't.

Q: And the reason for that is?

A: Because the instructions for doing the bounce back functionality I already demonstrated continue to exist on those phones and, in fact, is the default behavior that one encounters in the use of those devices.

Q: You mentioned that you had studied certain Samsung documents in connection with your work on the '381 patent.

Was exhibit 46 one of those documents,

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A: Yes, it was.

MR. JACOBS: Your Honor, we offer PX 46 into evidence.

MR. JOHNSON: Your Honor, there hasn't been a foundation laid with this witness. Objection. It's also -- at least by looking at the demonstratives, he only refers to three pages out of the 94-page document. There's no foundation.

THE COURT: All right. oOverruled.

MR. JACOBS: Thank you.

THE COURT: Go ahead. What were you going to say.

MR. JACOBS: I was going to say you overruled it earlier.

THE COURT: I've already ruled on this objection. Go ahead.

MR. JACOBS: Thank you very much.

THE COURT: It's admitted.

(Whereupon, plaintiff's exhibit number 46, having been previously marked for identification, was admitted into evidence.)

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By MR. JACOBS:

Q: Dr. Balakrishnan, what is PX 46?

A: PX 46 is an internal Samsung document fairly created by the software verification group that is a usability evaluation analysis comparing the Behold 3 device, which is the code name for the Vibrant phone, comparing it to the iPhone.

So this is an evaluation comparing different features of the Behold 3, or Vibrant, to the iPhone.

Q: Let's take a look at the summary page in this document. And what did you understand this document to be describing by way of the purpose of the study that was done?

A: On this page, if you look at the background, if you can highlight that background area there, it basically says the -- this evaluation is to figure out the perceived quality of different applications in the Android model Behold 3 in comparison to the iPhone by evaluating it in the areas of ease of use for multimedia functions, overall aesthetics, p-i-m is personal information management, and web browsing.

So I consider this to be comparing these two devices, the iPhone to the Behold 3 in these

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Q: And this is page 14 of 94 of the document. Let's take a look at the evaluation opinions page, page 16 of 94. What did you understand this evaluation opinions page to be conveying?

A: Sure. If you look at the first bullet, you can highlight that, it very clearly says that the results show that the Behold 3 was shown to be inferior to Apple's iPhone in both the actions success rate, so this is a quantitative method where people do the tasks they were asked to do, and the satisfaction score, which appears to be more of a qualitative method. In other words, do people feel comfortable? Did they like it and so forth? So they evaluated at least two methods.

Q: So now let's look at aesthetics browsing in exhibit 46, this internal Samsung document. What did you see on this, on slide 47 of this analysis?

A: Sure. This analysis here is talking about evaluation of the web browser, and it says when the web page is dragged to its end point in the Behold 3, no visual effect is shown, only information is provided without any effect.

In other words, it just stops when you

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So this indicates to me that the people who did this study at Samsung clearly understood and recognized the value of the bounce functionality that was seen in the iPhone, which the Behold 3 did not have.

Q: So what was the recommendation in view of that finding?

A: The recommendation was that -- in the section at the bottom of the slide, you see there's direction of improvement. It says, "Provide a fun visual effect when dragging a web page."

And it goes on to say that the "corresponding effect is not supported currently."

And this is an issue shared by the browser, again, and it declares that -- and I'll note that subsequent versions of Samsung phones that fall within this study does implement a fun, visual effect which is, in fact, the bounce functionality that we have already seen on different videos and which is what they analyzed and found in the iPhone in this study.

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A: Yes. Sure. We can highlight that. It says -- and this is on Behold 3 -- the web browser is dragged beyond the edge and it says "The behavior is dull because no special effects are provided when dragging web page to the bottom-most or side edges."

And you can see -- hopefully you can see on this image on the left, the page doesn't go beyond the edge. It visually suffers from the frozen screen problem I talked about earlier.

Q: And then if you look on the right-hand portion of the page and the description of the iPhone?

A: And here you can see on the left-hand side, as well as the image going beyond the edge and showing an area beyond the edge.

On the right hand side, the commentary says "If a web page is dragged to the edge and the hand is released, a bouncing visual effect is provided." So that's exactly the '381 patent.

Q: Thank you, Dr. Balakrishnan.

Let's take a look at exhibit PX 57. Now, is PX 57 another document you studied in the course

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A: Yes, it is.

MR. JACOBS: Your Honor, we offer PX 57 in evidence.

MR. JOHNSON: Objection, Your Honor. No foundation.

MR. JACOBS: Just provided the foundation, Your Honor.

THE COURT: All right. Overruled. Go ahead. It's admitted.

(Whereupon, plaintiff's exhibit number 57, having been previously marked for identification, was admitted into evidence.)

By MR. JACOBS:

Q: what is PX 57, Dr. Balakrishnan?

A: PX 57 is another usability evaluation document created by Samsung Software Verification Group that in turn -- sorry -- internal Samsung document, and this is comparing a Samsung tablet to the iPad 2, again, for the same bounce functionality, or the lack thereof in the original tablet design in Samsung's case.

Q: So let's take a look at the overview. And what does the overview describe as

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A: One of the important points is, if you look at the second major bullet, it says "major usability problem areas," and the part that's relevant to the '381 patent is the last supplement of this paragraph. It states that "GUI," or graphical user interface, that's what the g-u-i stands for, "and visual effect are lacking in comparison to the iPad 2," and then it talks about four applications that's lacking for, and one of them is the gallery application.

Q: Let's take a look at Issue 51 in this document, this internal Samsung document.

What does this, the page of this report describe as an issue?

A: This is describing an issue with the browser on the phone, the Samsung tablet, and basically if you look at the next bullet, the first bullet point up there, it says "during the top-most/bottom-most diagonal movements, there is no springing bounce effect."

And you can see that on the left-hand side are the image and the commentary to the right of the left image where they've dragged it beyond the edge and nothing is happening. It doesn't

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So this then, this is the '381 functionality that Samsung has clearly seen in the iPad 2 and found that to be lacking in their own tablet.

Q: And what was this -- can we go back to the full page view?

And how was this labeled in terms of its level of importance by Samsung as an issue?

A: In a subsequent page I believe it was labeled as critical. On this page it was labeled as serious.

Q: So let's look at that subsequent page.

A: I don't --

Q: Visual effect compared to iPad 2.

A: So this is a continuation of that same discussion and they're talking about it lacking -- it lacks the fun or wow effect. That's the first bullet.

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And if you go back to the previous page, you'll see on the right-hand side, it says for browser, "the bounce effect is scheduled to be reviewed." In other words, they intend to look at that functionality in light of what they found.

Q: And how did this get labeled in terms of its level of importance to Samsung as an issue in its user interface?

A: This was labeled as critical as you can see on the top right corner of the slide.

Q: And so what do you observe as a technical expert when you look at these documents and you look at the Samsung products?

A: As a technical expert, when I look at these documents it is very clear to me from the documents that they have -- Samsung has, a, studied this problem, recognized the limitations of the current design in comparison to what the iPhone and the

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Q: Did you look at other internal Samsung documents in order to analyze the level of importance, the level of analysis Samsung did of the bounce back feature?

A: Yes. I looked at several other Samsung internal documents, including some e-mails that all point to the -- that they have analyzed this functionality and deemed it to be an important function.

MR. JACOBS: Your Honor, at this point I would like to move into evidence -- I've shown these to counsel -- JX 1023, the Nexus S 4G; JX 1024, the Replenish; JX 1028, the Exhibit 4G; and JX 1036, the Galaxy Tab.

MR. JOHNSON: No objection.

THE COURT: Okay. 1024 is the Replenish; 1028 is the exhibit 4G; and 1026 is the Galaxy Tab?

MR. JACOBS: 1036 is the Galaxy Tab; and 1028 is the exhibit 4G.

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THE COURT: The Galaxy Tab has already been admitted.

MR. JACOBS: This is a -- it's possible, Your Honor. This is the 7 -- sometimes called the 7.0.

THE COURT: Okay. 7.0. All right. So it's the 1023, 1024, 1028, and 1036. is that -- correct?

MR. JACOBS: Yes.

THE COURT: Those four.

MR. JACOBS: That's correct, Your Honor.

THE COURT: And there's no objection; correct?

MR. JOHNSON: Correct.

THE COURT: Those are all admitted.

(Whereupon, plaintiff's exhibit numbers 1023, 1024, 1028, 1036, having been previously marked for identification, were admitted into evidence.)

By MR. JACOBS:

Q: So Dr. Balakrishnan, you studied the '381 patent, you studied the Samsung devices, you studied the Samsung internal documents. The Samsung devices you identified infringe claim 19 of the '381 rubber banding patent?

A: Yes, the 21 devices I identified infringe

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Q: And the internal documents tell you what about how Samsung came to infringe that patent?

A: The internal documents indicate to me that they'd studied the problem, recognized a solution provided by the iPhone and the iPad 2 as being a good solution to the problem and the resulting devices themselves manifest -- they show that the solution that they implemented was, indeed, the bouncing functionality of the '381 patent.

MR. JACOBS: Thank you, Dr. Balakrishnan.

THE WITNESS: Thank you.

THE COURT: All right. The time is 11:23.

CROSS-EXAMINATION

Q: Hello, Dr. Balakrishnan.

A: Good morning.

Q: I am Kevin Johnson.

Good morning, ladies and gentlemen of the jury.

I want to start actually, Dr. Balakrishnan, with -- you began working as an expert for Apple back in May and June of 2011 timeframe; right?

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Q: Okay. Your work in this case began back in May and June of 2011; right?

A: Roughly, that's correct.

Q: And you were told, back when you were retained, that in this case, Apple had alleged that Samsung products infringed the '381 patent before you even began your own infringement analysis; right?

A: I don't know whether exactly I was told that. In fact, I believe I was told that they were alleging infringement and I was asked to analyze the devices to determine if, indeed, that was true.

Q: You were told by Apple's counsel that they were alleging Samsung's products infringe the '381 patent; right?

A: I was told by Apple's counsel that that was the allegation, that's right.

Q: And you then agreed with Apple's conclusion that there was infringement; right?

A: After my analysis, yes.

Q: And, again, that was after you were hired by Apple and after Apple's counsel told you what the allegations were in this case; right?

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Q: And-- a -- in the devices.

Q: And at that time, you concluded that there was infringement of the devices by looking at the operation of the devices; right?

A: I concluded there was infringement by looking at the operation of the devices, and I also subsequently looked at the source code as well.

Q: But at that time, I'm going back to last summer, you didn't look at the underlying source code; right?

A: My -- before my conclusions in my expert report, I had already looked at the underlying source code. so if you're asking for what I looked at when I concluded infringement, yes, I had looked at the source code.

Q: I'm talking almost a year ago, August 16th to be precise, that's when I -- do you remember I took your deposition way back then?

A: You've taken several of my depositions. That was in claim construction, perhaps, or something

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Q: Do you -- do you remember testifying that you did not need to analyze the underlying source code in order to determine that there was infringement of the '381 patent?

A: I might have said that, yes.

Q: Now, there's one inventor that's named on the '381 bounce back patent, right, Mr. Bas Ording?

A: That is correct, yes.

Q: And you are aware that Mr. Ording is still on employee of Apple today; right?

A: As far as I know, yes.

Q: And you have not spoken to Mr. Ording as part of your work in this case, have you?

A: I have not spoken to Mr. Ording.

Q: Now, Mr. Ording is a person of ordinary skill in the art; right?

MR. JACOBS: Objection, Your Honor. That's a legal term, legal concept. He may be ordinary. He may be extraordinary.

THE COURT: Can you rephrase the question, please?

By MR. JOHNSON:

Q: Mr. Ording understands the technology that's disclosed in his patent?

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Mr. Ording understands the general idea of bounce back, obviously, since he's the inventor; right?

A: I would assume he does. I have not spoken to him, so I can't speak to what he knows in his head.

Q: But you remember -- you reviewed his deposition transcript in this case?

A: Yes.

Q: And do you recall from reading his deposition transcript that he had a hard time understanding the meaning of the words of the '381 patent claims?

A: No, I do not recall that part of the deposition transcript.

Q: Let me show you -- let me go ahead and pass out the binders. So there should be a couple of binders up there in front of you?

A: I only have my direct binder here.

Q: Okay. Cross, please.

A: Oh, there's some others labeled for a different witness behind me.

Q: Those probably won't help.

A: Probably not.

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Your Honor, if we may approach?

THE COURT: Please, go ahead.

By MR. JOHNSON:

Q: And in the deposition -- in the -- in one of the binders, there you should find the ording deposition transcript from August 9th, 2011.

A: Can you point me to a tab?

MR. JOHNSON: May I approach, Your Honor, just to help him find it?

THE COURT: Please, go ahead. please.

THE WITNESS: Because they all have numbers on them.

MR. JACOBS: Where is it?

MR. JOHNSON: It's the August 9th.

MR. JACOBS: Which binder is it?

MR. JOHNSON: It should be in the second binder.

Q: And if I can turn your attention to page 28, line 23 through page 29, line 15.

A: So when you say page, do you mean the --

Q: The small pages.

A: The small pages. Okay. I'm at page 28.

Q: And if you look at line 23.

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Q: Do you see I was asking him questions there about claims 19 and 20?

MR. JACOBS: Your Honor, we object to this line of questioning.

THE COURT: What's the objection?

MR. JACOBS: The objection is this is hearsay by Mr. Ording, who is an available witness. The court has already ruled on similar source of uses.

MR. JOHNSON: Your Honor, he said he reviewed the transcript as part of his work in this case.

THE COURT: Overruled. Go ahead.

MR. JACOBS: It can't be impeaching testimony, Your Honor. There's no testimony that he's elicited from Dr. Balakrishnan.

THE COURT: Overruled. Go ahead, please.

MR. JOHNSON: Can we put it up, Your Honor?

THE COURT: Go ahead.

MR. JOHNSON: Ryan, 28:23.

Q: Do you see I asked the question, "If you look

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MR. JACOBS: Your Honor, we need you to rule on the objection because the witness was asked for a legal conclusion and a record was timely made.

THE COURT: I overruled the objection. which objection are you talking about?

MR. JACOBS: Now I'm talking about the objection that calls for a legal conclusion and expert testimony in the passage that is being displayed to the jury which should not be.

THE COURT: Overruled. Go ahead, please.

MR. JOHNSON: May we put it back up?

THE COURT: Yes.

MR. JOHNSON: "Question: and you'll see that they go through these one at a time, but I wanted to ask you if you have a similar problem with reading -- of understanding 'first,' 'second,' 'third,' 'fourth portion' in those terms. I just want to know if you have the same answer."

ANSWER BY THE WITNESS, MR. ORDING: "Yeah, I can -- legally, I'm not sure what that

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Q: Does this refresh your recollection that Mr. Ording had trouble understanding what the meaning of his claims were in the '381 patent?

A: Not completely, because what I'm seeing here is just a portion of the transcript, and I note that your question seems to refer to an earlier -- when you say "similar problem," I need to go back and understand what that similar problem he had earlier was, because this seems to be after a long line of questioning.

Q: Let's look at plaintiff's exhibit 27.29.

Before you put it up, Ryan -- you obviously reviewed the slides, the demonstrative slides in connection with your work in this case that were provided to Samsung's counsel; right?

A: My demonstrative slides --

Q: Yes.

A: -- that I used in my direct?

Q: The ones that you used in your direct and that were provided to us.

A: Yes.

Q: Okay. And you helped prepare those slides?

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Q: So let's go ahead and -- and you approved them ultimately?

A: Sure.

Q: Okay. Let's put up PDX 27.29.

Now, this is the slide that you're relying on to show that Samsung's Galaxy S II infringes the '381 patent; right?

A: So I'll just note, I think this slide wasn't actually used in my direct today. This is an earlier version.

Q: And I'm asking you about this slide that was provided to us, which you said you helped prepare and approved, and I'm asking you about -- this is a slide that you rely on to show that Samsung's Galaxy S II infringes the '381 patent. Right?

MR. JACOBS: Your Honor, I think the witness has already testified that we didn't use this demonstrative in his direct, so to say that he relies on it --

MR. JOHNSON: They addressed this very same element in his direct.

THE COURT: Overruled. Go ahead. Please answer the question.

THE WITNESS: So the question is did I

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By MR. JOHNSON:

Q: Because this slide is incorrect; right?

A: I didn't say that. I said I did not rely on this slide.

Q: I'm asking you, this slide is incorrect, isn't it?

A: I'm not sure why it would be incorrect.

Q: Well, let's look at both the contact list and the browser that appears on this slide.

We're talking about element number 5.

Let's start on the left, the contact list. This yellow box here shows the area beyond the edge as this yellow box at the bottom of the contact list.

Now, that cannot be the area beyond the edge because the user hasn't reached the edge here; correct?

A: I'd have to look at that image very closely. There may be a mistake in the image.

Q: Well, this is a slide, again, that you approved and you reviewed; right?

A: I did not rely upon it today.

Q: I didn't ask you that, sir. I asked you, this

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A: I reviewed my slides. I'm not sure at what point, what version was sent over to Samsung, so I just want to make that clear, that there were many versions of these slides that I've worked on in the last week.

Q: You would agree with me that this is -- this cannot be the area beyond the edge for the contact list of the Samsung Galaxy S II; right?

MR. JACOBS: Your Honor, I'm sorry. I have to interject. We've now had a chance to chase down what's going on. This is a video, and when you conflate a video into a pdf, when you put it all together in a single image, this is how it appears. but it's actually a video.

MR. JOHNSON: Your Honor, this is the slide that was provided to us by Apple and I'm just asking him questions about it, whether he agrees it or not.

THE COURT: The objection is overruled. You'll have a chance to redirect.

THE WITNESS: So in this particular image

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By MR. JOHNSON:

Q: What about on the right-hand side for the browser? That's -- what's delineated here in yellow is shown as the area beyond the edge but, in fact, that is not the area beyond the edge, is it?

A: In that particular image, that is not the area beyond the edge. I did not rely on this slide.

Q: Okay. let's look at PDX 27-30. This is the next element, element 6 of claim 19; right?

A: Yes.

Q: Okay. And for this, again, this refers to the Galaxy S II for the contact list and the browser applications; right?

A: Yes.

Q: and look at the figure on the left for contact list, and do you see it says it's labeled the fourth portion, no area beyond the edge? a Okay. I believe this was a still from a video. the image doesn't show the right thing. again, I did not rely on this slide today

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Q: Sorry about that. This is incorrect; right? A: The image is incorrect.

Q: And the image on the right-hand side under the browser application is also incorrect, isn't it?

A: In that that is not the full portion. That still shows an area beyond the edge.

Q: Okay. Thank you.

Do you know, how much is Apple claiming in damages for infringement of this particular patent?

A: I don't know the exact figure.

Q: Let's look at PDX 27.3, please.

Now, first, Dr. Balakrishnan, you would agree that not every bounce effect on a touchscreen is covered by the '381 patent; right?

A: Could you rephrase the question? I don't understand.

Q: Yeah. Not every bounce effect that you see on a touchscreen is covered by the '381 patent, is it?

A: If the bounce effect meets all of the limitations of claim 19, it would be covered.

Q: But there are bounce effects that do not meet the limitations of claim 19; right?

A: Can you give me an example?

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A: If it hasn't reached the edge, it is not in response to the edge as the claims require, then claim 19 would not be infringed.

Q: So there are bounce effects that don't infringe claim 19; right?

A: I don't see an example. If you provided a hypothetical -- are you saying in the Samsung devices there's a bounce effect that you want me to look at that doesn't infringe?

Q: I'm asking you more generally. Aren't there bounce effects that are not covered by claim 19?

A: Just generally out there?

Q: Yes.

A: Sure. You can have all kinds of things that bounce that don't --

Q: All right.

A: That don't meet the elements of claim 19.

Q: Well, during your direct testimony, you showed 27.3. Let's actually go to 14, 27.14. You showed 27.14 as a basis for infringement of the Samsung Galaxy S II; right?

A: I showed a slide similar to this. I'm not

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Q: Is this one correct?

A: It appears correct, but I -- I can't say for sure whether it's the exact same slide number.

Q: Well, the portion that's shown on the display is only part of the stick figure; right?

A: It looks to be, yes.

Q: And in all of the examples that you showed in your videos, even the ones that had the, the four-by-four, the user must first zoom in on the stick figure in order to meet the limitations of claim 19 of the '381; right?

A: In all of those, the image would have to be bigger than would fit on the screen, yes.

Q: And your videos, and even your demonstrative here, leaves out that step of where the user first zooms in on the image to get the enlarged image; right?

A: It doesn't -- you don't need to show that because claim 19 doesn't require that.

Q: Claim 19 doesn't require a set up move like that?

A: No.

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A: Not in -- not exactly, no. It didn't require that. You could have it, but it's not required.

Q: Well, you have accused the Galaxy Tab 7.0 of infringement; right?

A: That is correct.

Q: Okay. Now, I'd like to show you a video of the Galaxy Tab product.

Let's put up slide 3918.101 please, Mr. Fisher.

And you've seen this video before. It's a -- I'm going to show it to you, but it's from the Johnson report.

A: Maybe I could look at the video first.

Q: Let's take a look at it.

(Whereupon, a videotape was played in open court off the record.) By MR. JOHNSON:

Q: Now, Dr. Balakrishnan, what we just saw in the SDX 3918.101, that doesn't infringe the '381 patent, does it?

A: That functionality -- is my mike on? that functionality does not appear to meet the claims, but --

Q: Because it shows --

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Q: That application that we just looked at shows something we called hard stop; right? There's no bounce there?

A: That particular functionality you just showed is the hard stop, yes.

Q: Okay. And you originally accused the browser function of the tab 7.0, what we just looked at, of infringing the '381 patent; right?

A: That is correct.

Q: But it's your understanding that the browser application of the Galaxy Tab 7.0 does not infringe the '381 patent because it doesn't bounce back; right?

A: No, that's not correct. The Galaxy Tab 7.0 that I accused, in the version I looked at, the version I analyzed does do the bounce back.

Q: I just -- I just asked you about the browser.

A: Okay.

Q: So the browser application of the Galaxy Tab 7.0 that we just looked at doesn't infringe the '381 patent; right?

A: In that particular version --

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A: -- of the Galaxy Tab, I don't see an infringement.

Q: Okay.

A: But the version I looked at did have the infringement.

Q: Let's then look -- let's look at that version. Let's look at another one. Can we show -- let me ask you, you've heard of Dr. Singh? He's another expert in this case; right?

A: Yes.

Q: And he is -- you've known him for many years?

A: Yes, I have.

Q: He works down the hall from you at the University of Toronto?

A: Yes, he's a colleague.

Q: Okay. So he's in the same department as you?

A: Yes, he is. All right. Now, I want to show you a video that was prepared by Dr. Singh.

Can we look at PX 66-A, please. And this is a video of the Galaxy Tab 10.1 that Apple's expert prepared.

(Whereupon, a videotape was played in open court off the record.)

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Q: Now, right there, stop it, Ryan, thanks. What the user just did there doesn't infringe the '381 patent, does it?

A: What the user did there was a scroll. I'm not sure what this video is supposed to be showing. I did not create this video.

Q: Let me ask it again, doctor.

What we just saw on that video, the movement down and the lack of a bounce, does not infringe the '381 patent; right?

A: I did not see it reaching the edge, so I have no idea whether it is meeting the '381 patent.

Q: Mr. Fisher, can we play it again?

And I want to ask you, Dr. Balakrishnan, does this infringe the '381 patent, based on what you're seeing here?

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: Not what I'm seeing. But I can't tell, just from the video, whether it's reached the edge or not.

If you'd show me the device, I'm happy to check it out and verify that.

By MR. JOHNSON:

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I'm going to ask you the same question. If we can, put it up, Mr. Fisher. Does this device that you see in this particular video infringe the '381 patent?

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: I have not accused the Vibrant of infringing the '381 patent in the browser application.

By MR. JOHNSON:

Q: So the answer to my question is yes, it does not infringe the '381 patent; right?

A: In the browser application, it does not. But the Vibrant infringes the '381 in the gallery and the contacts application as I've already shown.

Q: Well, let's talk about that.

So you claim, I believe -- you understand that in order to show infringement of a claim, you need to show that each and every claim limitation has been met; right?

A: Sure.

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A: Yes.

Q: And it's not enough just to say it's, it's contained in one device. You have to show that each and every claim limitation is shown in each and every one of the 21 devices that you're accusing of infringement; right?

A: In each of the devices being accused, yes.

Q: Okay. And you also understand, given that you've got some of your own patents, that the claims must be read consistently for infringement purposes and for invalidity purposes; right?

A: That's correct.

Q: And said another way, you can't read a claim broader to establish infringement, but then read it narrowly in order to avoid the prior art; right?

A: That's true.

Q: Okay. Let's show DX 751-A, Mr. Fisher, and this is the Vibrant.

Okay. And actually, before we play it, let me just ask you, you're aware that Samsung believes it doesn't infringe the '381 patent because Samsung's phones exhibit something called the hold still behavior; right?

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Q: Okay.

A: -- only. But not all the Samsung phones, and even on the phones that do exhibit the hold still behavior in the gallery application, many of them infringe the '381 in other applications.

Q: In your view, to infringe '381 patent, must the image always bounce back?

A: To infringe claim 19 of the '381 patent?

Q: Yes.

A: It doesn't have to always bounce back.

Q: Let's look at DX 751-A, please.

Can we go ahead and play it.

(Whereupon, a videotape was played in open court off the record.)

By MR. JOHNSON:

Q: The video that we just showed there shows the hold still behavior; right?

A: Can you play that again, please?

Q: Sure.

A: I saw something going on at the end where the user is tapping their finger on some part of the screen.

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THE WITNESS: So I'm not sure what's going on with the tapping of the finger.

By MR. JOHNSON:

Q: I think the tapping is just to show that the video is still rolling.

A: The video is still rolling, not that it's still in contact with the screen?

Q: Right.

A: If you represent that.

Q: I'll represent that.

A: I'll have to check that out for myself, but --

Q: I'll represent that to you. You've -- let me ask it to you a different way.

What we just saw here in the hold still of the Vibrant, just the hold still, does not meet the limitations of claim 19 of the '381 patent; right?

A: If, indeed, that is the hold still behavior.

And I still have an open question as to what's actually happening at the end of that video with the finger tapping.

But if, indeed, the finger has left the screen and it's holding still, that hold still

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Q: Have you reviewed the source code for the hold still routine for the Vibrant phone?

A: I have not looked at source code for the non -- for any functionality that has nothing to do with claim 19.

Q: Have you looked at any of the hold still source code for any of the phones that are accused of infringement?

A: I may have encountered it, but I don't recall analyzing it in detail.

Q: Now, you understand that there's hold still behavior for many Samsung phones that are accused of infringement; right?

A: There appears to be, at least according to Samsung, similar hold still behavior only in the gallery application for some, but not all, of the 21 accused devices, and only in the gallery application.

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Q: I know there are things that you want to add to your answer, but I'm on the clock here, and if you can try and keep your answers to what I ask you, your counsel will have an opportunity to ask you some more questions.

So let me just show you SDX 3918.105. I'm going to show you some additional videos that exhibit the hold still behavior.

Mr. Fisher, can you pull that up?

(Whereupon, a videotape was played in open court off the record.)

By MR. JOHNSON:

Q: Have you seen the hold still behavior that's shown for each of these Samsung phones, the Captivate, the Continuum, the Droid Charge, and the Epic 4G like we just saw in DX 3918.105?

A: I believe I've seen some of them. I can't recall if I've seen all of them.

MR. JOHNSON: Your Honor, we'd ask that -- we move this into evidence.

MR. JACOBS: Objection, Your Honor. This

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THE COURT: Overruled. It's admitted.

(Whereupon, defendant's exhibit number 3918.105, having been previously marked for identification, was admitted into evidence.)

MR. JOHNSON: And while we're doing that, I'd asks that 66-A and B, and 751-A, the three other videos that I referred to earlier, be moved into objection.

MR. JACOBS: Objection, Your Honor. There's been no foundation for how they were prepared.

MR. JOHNSON: They were prepared -- two of them were prepared by Apple's expert.

THE COURT: 66-A is admitted, and 66-B is admitted.

And Mr. Johnson, I didn't catch the last one.

MR. JOHNSON: 751-A, which is the video we just looked at for the Vibrant.

THE COURT: It's admitted.

(Whereupon, defendant's exhibit numbers 66-A, 66-B, and 751-A, having been previously marked for identification,

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By MR. JOHNSON:

Q: Let me show you SDX 3918.104. These are other examples of the hold still behavior in the exhibit 4G, the Fascinate, the Galaxy Prevail, and the Galaxy S i9000. Have you seen these before -- are you aware that each of these accused phones demonstrates hold still behavior?

A: Can you -- if you don't mind, can you play that again, please?

Q: Sure.

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: It's really hard to tell from these videos exactly what is happening, so it's very hard to comment on whether it's doing the hold still or something else.

It would be much easier if I saw the devices.

By MR. JOHNSON:

Q: You would agree with me that the hold still behavior that's shown in each one of those phones in SDX 3918.104 does not infringe the '381 patent; right?

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But the gallery application on each of those phones does meet the claim of claim 19.

Q: Let's look at 3918.105. This is another video with more accused devices that demonstrate the hold still behavior, the Galaxy S 4G, the Indulge, the Infuse 4G, and the Mesmerize.

You would agree with me that the hold still behavior that's demonstrated in this exhibit does not infringe the '381 patent; right?

A: Again, just going by the video here, I can't confirm for certain whether it's doing the hold still behavior.

But if you represent that it is, I would say that that particular behavior doesn't meet all the claim elements of claim 19.

But the gallery application, which is the same application, does meet claim 19 as I've already demonstrated. And I'm happy to demonstrate it again if I'm given the opportunity to show the jury live.

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(Whereupon, a videotape was played in open court off the record.)

By MR. JOHNSON:

Q: The Nexus S 4G, the Replenish, the Vibrant, none of these applications showing -- running hold still here or demonstrating hold still infringe the '381 patent; right?

A: Again, I'm not verifying this on the devices themselves. Based on the videos, if indeed they're doing the hold still behavior, I would say that behavior, as I've said before, doesn't meet claim 19.

But the gallery application running on each of those phones, as I've already demonstrated, does meet claim 19.

MR. JOHNSON: Your Honor, we'd ask that DX 3918.104, .105 and .106 be admitted.

THE COURT: Any objection?

MR. JACOBS: Same objection as before, Your Honor.

THE COURT: They're all three admitted.

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THE COURT: Go ahead, please.

By MR. JOHNSON:

Q: Now, Dr. Balakrishnan, I think you said earlier, this isn't the first time that you've served as an expert for Apple; correct?

A: That's correct.

Q: It's not the second time, either?

A: No.

Q: You've served as a technical expert for Apple in at least nine different cases in the last couple years; right?

A: I think I've testified in four other cases prior to this one.

Q: You've served as a technical expert for Apple in at least nine cases in the last couple of years; right?

A: I probably have been retained in nine, but I haven't testified in all nine.

Q: And I heard you talk about what your hourly rate was and how much you've been paid so far for your work in this case. I think you said $150,000.

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Q: Right?

Now, if Apple pays you for all the work you've done for them across all these different cases, how much will it be?

A: The last time I checked, it was -- I think I billed on the order of about $500,000.

Q: I'm sorry?

A: In the order of about $500,000.

Q: $500,000. And that was as of April of this year; right?

A: Roughly, that's right.

Q: And you've done how much work since April of this year for Apple across all these different cases?

A: I'd have to look at my invoices and so forth, but I'd estimate a couple of hundred hours.

Q: A couple of hundred?

A: Hours.

Q: So, what, that's another hundred thousand?

A: Give or take.

Q: So is it fair to say, across all these cases, you will have made at least, to today, about $600,000?

A: Over three years, yes.

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MR. JACOBS: Objection, Your Honor.

By MR. JOHNSON:

Q: -- in another case for taking inconsistent positions, correct?

THE COURT: Okay. That is sustained. If you want us to start getting into things that I've already excluded, I'd be happy to do it. Do you really want me to do that?

MR. JOHNSON: Your Honor, I didn't understand this to be anything afar from what we've already discussed actually. But I'll withdraw the question.

THE COURT: Because I can certainly start getting into previous rulings if you want me to.

MR. JOHNSON: I was just --

THE COURT: Do you want me to do that? If I've ruled it to be excluded, which there was a motion in limine to exclude previous things from other cases and from this case, and they've been sustained. So please don't --

MR. JOHNSON: Understood.

THE COURT: -- violate previous rulings,

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MR. JOHNSON: No, Your Honor. That's fine.

THE COURT: Okay.

MR. JOHNSON: I'll pass the witness.

[THE COURT:] Okay. It's 11:59.

MR. JOHNSON: Thank you, Dr. Balakrishnan.

THE WITNESS: Thank you.

THE COURT: Okay. Let's go ahead -- it's 11:59. Let's go ahead and take our lunch break.

Again, please keep an open mind. Please don't discuss the case with anyone, and please don't do any of your own research.

And if you would please go ahead and leave your jury notebooks in the jury room. All right. Thank you. We'll see you back at 1:00 o'clock.

(whereupon, the following proceedings were held out of the presence of the jury:)

THE COURT: All right. I would like to -- you can step down.

I'd like to see DX 2557, both the one that I sustained the objection to that had the blue

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MS. MAROULIS: Do you want it on a CD or in what format do you want it?

THE COURT: Video. It's a video, I want to see both the one that I sustained the objection on and the new revised one.

MR. MUELLER: Your Honor, I have hard copies of those four cases if you would like.

THE COURT: Okay.

MS. MAROULIS: Your Honor, I understand that during the break counsel for Apple and Samsung conferred and they don't have objection to the new exhibit.

THE COURT: Is that correct?

MR. JACOBS: We'll just take a very quick look and maybe save Your Honor the time. We'll report back.

THE COURT: Well, you know, Mr. Singh is next. Is that right?

MR. JACOBS: Yes.

THE COURT: So I just want to see them. So let me see both the sustained objection version

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Do I have -- I don't have the Hauser direct -- who has the Hauser direct exhibits, please? I only have the cross.

And do I have Benner, Sittler, Musika? Do you have the direct on Hauser, please?

MR. JACOBS: We'll get it for you, Your Honor.

THE COURT: Okay. All right. Thank you.

(Whereupon, the lunch recess was taken.)

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AFTERNOON SESSION

THE COURT: Okay. Welcome back. Please take a seat. So I've issued an order on Sittler and Benner. I don't know if you've had a chance to get those. And I will keep working on the Hauser and Musika ones.

With regard to DX 2557, Apple has withdrawn its objection based on the amendment, right? So that's resolved.

MR. JACOBS: Correct, Your Honor.

THE COURT: With regard to the Teksler exhibit, I'm going to admit it, but with the limiting instruction that just says you may not consider this evidence to prove or disprove the validity or invalidity of a claim or the amount of a disputed claim. However, you may consider this evidence for some other purpose, for example, to establish that Samsung lacked notice. So there's going to be a limiting instruction.

MR. MCELHINNY: Your Honor, I think we

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THE COURT: Whether or not Samsung had notice. That's fine. Okay. So I think that was it. I'll wait to see Samsung's objections on Dale Sohn and the F700 designer.

Okay. Let's then please bring in our jury, Ms. Parker Brown.

(Whereupon, the following proceedings in the presence of the jury:)

THE COURT: All right. Welcome back. The time is now 1:06. Go ahead, please.

REDIRECT EXAMINATION

By MR. JACOBS:

Q: Dr. Balakrishnan, Samsung's counsel asked you about some slides and you weren't sure whether they accurately represented what you had prepared. Do you recall that exchange?

A: Yes, I do.

Q: Let's take a look, please, at PDX 27.29. And can you run it, please.

(Whereupon, a videotape was played in open court off the record.)

by MR. JACOBS:

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A: Yes, it is, as we can see.

Q: And is there anything in this video that's inconsistent with the testimony you gave earlier?

A: No. The video explains clear that it's doing the functionality I described in my earlier testimony.

Q: And then another slide that you were shown as kind of a still was 27.30.

Mr. Lee, could we see that?

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: Is 27.30, in fact, a video, Dr. Balakrishnan?

A: Yes, it is.

Q: And does it show any -- does it have any content inconsistent with your earlier testimony on infringement?

A: No, it doesn't. It's completely consistent with my earlier testimony.

Q: And what Samsung's counsel showed you was what, exactly?

A: They were just portions of the video which appeared to be an in-between still, halfway through

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Q: Now, let's look at another video that Samsung played in your cross-examination.

Can we see SDX 3918.101, please.

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: Now, this was a video of the Android tab in the browser configuration. Do you recall that, Dr. Balakrishnan?

A: That's correct.

Q: And I have exhibit JX 1036, the Galaxy Tab, sometimes known as the Galaxy Tab 7.0, on the Elmo.

Can you turn that off, Mr. Lee, and let's look at the Elmo. And Dr. Balakrishnan, is this the bounce functionality that you observed when you examined the tab device?

A: It is.

Q: Now, if I could, I'm not--I don't know if I can get this to hold still, but if I could, would that in any way call into question the presence of instructions for -- on the device for executing the bounce feature?

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Q: And what does claim 19 require in this connection?

A: Claim 19 requires instructions for the bounce back feature.

Q: Now, another video you were shown was of the Vibrant.

Can we see DX 751-a, please.

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: And in the Vibrant, the gallery application was shown to you and the hold still behavior was demonstrated in the video; correct, Dr. Balakrishnan?

A: Yes.

Q: And there was something -- you had a question about what was going on with the finger. I now have on the Elmo JX 1010, the Galaxy Vibrant. And what are we seeing as I move my finger on the Vibrant, JX 1010, Dr. Balakrishnan?

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Q: And did you personally observe the bounce functionality on all the devices that you categorized as infringing the '381 patent, claim 19?

A: Yes, I did examine every single one of those devices for the functionality.

MR. JACOBS: Your Honor, we would like to move into evidence the following videos that were shown in Dr. Balakrishnan's direct testimony. Can I just give them to you all at once?

THE COURT: Yes.

MR. JACOBS: 27.9, 27.12 --

THE COURT: Wait, wait. I'm sorry.

MR. JACOBS: Sorry.

THE COURT: All right. Go ahead. You said 27.9.

MR. JACOBS: 27.12, 27.14, 27.16, 27.18, 27.20, 27.22, 27.24, and then 27.33, .34, .35, .36, .37, .38, and .39.

All of these were shown during Balakrishnan's direct, Dr. Balakrishnan's direct.

THE COURT: These are PDX numbers; right?

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MR. JACOBS: Correct.

THE COURT: Okay. Any objection?

MR. JOHNSON: No, Your Honor.

THE COURT: All right. They're admitted.

(Whereupon, plaintiff's exhibit numbers 27.9, 27.12, 27.14, 27.16, 27.18, 27.20, 27.22, 27.24, 27.33, 27.34, 27.35, 27.36, 27.37, 27.38, 27.39, having been previously marked for identification, were admitted into evidence.)

MR. JACOBS: And then lastly we'd like to move into evidence under seal PX 31, which is the Samsung source code portions thereof that Dr. Balakrishnan examined.

THE COURT: All right. Any objection?

MR. JOHNSON: No, Your Honor.

THE COURT: That's admitted.

(Whereupon, plaintiff's under seal exhibit number 31, having been previously marked for identification, was admitted into evidence.)

MR. JACOBS: And then, Your Honor, one more, PDX 27.31, that's the slide that had the code snippets on it, and we'd offer that under seal as well.

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THE COURT: 27.31. All right. Any objection to that?

MR. JOHNSON: I missed the part -- are to -- is this going to be under seal?

MR. JACOBS: Yes.

MR. JOHNSON: No objection as long as it's under seal, Your Honor.

THE COURT: Both PX 31 and PDX 27.31 will be under seal because they are source code.

(Whereupon, plaintiff's under seal exhibit number 27.31, having been previously marked for identification, was admitted into evidence.)

MR. JACOBS: No further questions, Your Honor.

THE COURT: Okay. The time is now 1:12. Recross, please.

MR. JOHNSON:Just a couple questions, Your Honor.

THE COURT: Go ahead, please.

MR. JOHNSON: First, Your Honor, I'd like to move in the exhibits PDX 27.29 and 27.30, which is the still images that I discussed with Dr. Balakrishnan on cross.

THE COURT: All right.

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MR. JACOBS: Your Honor, we object. Now we've demonstrated that those were videos.

MR. JOHNSON: That was exactly how it was produced to us. That is exactly what was produced.

MR. JACOBS: They're highly misleading, Your Honor.

THE COURT: They're admitted.

(Whereupon, defendant's exhibit numbers 27.29 and 27.30, having been previously marked for identification, were admitted into evidence.)

THE COURT: Go ahead, please.

MR. JOHNSON: Just a couple questions. If I could ask you to put up, please, Mr. Fisher, PDX 27.10, which is just the claim, claim 19.

RECROSS-EXAMINATION

Q: Dr. Balakrishnan, this is claim 19, and during redirect, you were asked questions about hold still; right?

A: Sure.

Q: There's no requirement, no limitation in claim 19 that says that the finger has to move at a particular speed; right?

A: Speed of the finger movement is not described

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Q: It's irrelevant to claim 19; right?

A: It's not discussed in claim 19.

MR. JOHNSON: Thank you. No further questions.

THE COURT: All right. The time 1:14. Any re-redirect?

MR. JACOBS: No, Your Honor.

THE COURT: All right. May this witness be excused, and is it subject to recall?

MR. JACOBS: Yes, and yes.

THE COURT: All right. You are excused subject to recall. You may step down.

THE WITNESS: Thank you.

MR. JACOBS: Your Honor, we call --

(Pause in proceedings.)

THE CLERK: Would you raise your right hand, please.

KARAN SINGH

THE WITNESS: I do.

THE CLERK: Have a seat, please.

MR. JACOBS: Your Honor, I didn't

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THE COURT: All right. The time is now 1:15. Go ahead.

THE CLERK: Would you state your name, please, and spell it?

THE WITNESS: Karan Sher Singh, k-a-r-a-n, s-h-e-r, and my last name is s-i-n-g-h.

THE COURT: Thank you.

DIRECT EXAMINATION

By MR. JACOBS:

Q: Dr. Singh, what do you do for a living?

A: I'm a professor of computer science at the University of Toronto. I codirect the graphics and human/computer interaction lab. I teach. I do research and supervise graduate students. I'm also involved with a number of private companies in the area of graphics interface.

Q: How long have you been a professor, sir?

A: Ten years.

Q: Where did you go to school?

A: I have a number of computer science degrees. I have a bachelor's from the Indian Institute of Technology in '91, and a master's and a Ph.D., both

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Q: What did you do before you became a professor?

A: Well, after my Ph.D. in '95, I joined a Toronto company called Wavefront where I helped design an animation system called Maya.

Later I worked in California and I constructed a system called Paraform that converted physical objects into digital monitors.

Q: Were Maya and Paraform, were they a success?

A: Well, Maya has been the industry standard for commercial animation and movie special effects for the past decade. It won a technical Oscar for this in 2003, and Paraform also received an Academy Award for technology.

Q: You said a technical Oscar. Is this an Academy Award with the Oscar and all that?

A: That is correct.

Q: Now, Dr. Singh, would you say you're familiar with computer programming, and in particular, with human/computer interfaces and computer graphics?

A: Sure. For over 20 years it's been the focus of my education, my commercial work, my research and my teaching.

MR. JACOBS: All right. Your Honor, we

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THE COURT: Any objection?

Mr. DEFRANCO: No objection, Your Honor.

THE COURT: Thank you.

By MR. JACOBS:

Q: Dr. Singh, let's dive into some patents.

I'd like to talk first about the '915 patent. Could you turn to JX 1044 in your binder, please.

Your Honor, we would offer 1044 into evidence.

THE COURT: Okay. Any objection.

Mr. DEFRANCO: No, Your Honor.

THE COURT: Okay. That's admitted.

(Whereupon, plaintiff's exhibit number 1044, having been previously marked for identification, was admitted into evidence.)

By MR. JACOBS:

Q: Now, what is the '915 patent, Dr. Singh?

A: This is Apple's '915 patent which you might recall Mr. Forstall in his testimony described the challenge of viewing an image of a bicycle through

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Now, the '915 patent deals exactly with that problem and gives you access to these various view operations in a natural and fluid manner.

Q: Let's take a look at a demonstration of this on the iPhone 4. We're looking at PDX 29.4, and what are we seeing here, Dr. Singh?

A: So the '915 patent specifically draws a distinction between a very commonly used scrolling operation on an integrated touchscreen device, like a smartphone or a tablet, and once it makes the distinction between the common scrolling operation and a more general complex operation, such as a scale or rotate, it maps single finger input to, as we'll see over here, single finger input to scrolling and two or more fingers to this general gesture transformation, such as scaling, so that you can perform both of them kind of satisfactorily, intuitively, and at the same time they are distinguishable from each other.

Q: Now, did you study whether Samsung has infringed claim 8 of Apple's '915 patent?

A: Yes, I have.

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A: I concluded that 24 Samsung products infringe claim 8 of the '915 patent.

Q: And how did you reach that conclusion?

A: Well, for starters, I studied the patents, or the patent, its prosecution history to fully understand the claimed invention.

And then I personally tested each of these 24 products to observe that they, indeed, perform the functionality that's described by claim 8 of the '915.

Q: Did you do anything else?

A: Sure. I also reviewed all the source code Samsung made available in this litigation --

A: So let's look --

A: Sorry. -- that was relevant to the '915 patent.

Q: So let's look at the Samsung device. And you have up here the Samsung Galaxy S II, T-Mobile. And what does this device -- what behavior does this device demonstrate that is relevant to this claim in the '915 patent, claim 8?

A: Well, as you see in this video, very much along the lines of what you saw with the Apple iPhone, a single finger is used in the web browser

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And subsequently, you will now see two fingers being used to scale the, the content, the view, and the scale is an example of a gesture transform.

And what you've just seen describes, in effect, the claim language of the claim 8 of the '915.

Q: Well, let's go to that. Let's turn to the claim language of the -- of claim 8 of the '915 patent. And can you walk us through your analysis of that claim language against the Samsung device?

A: Sure. So the first piece of language that is the preamble of the claim over here essentially is describing a computing device, such as -- an example of which is a smartphone or a tablet. It's a machine readable storage medium, it has programs, and these programs do things.

So that's, that's what the first part describes.

Q: Let's go to the next slide, sir, and look at the first two elements of the claim.

What do they require?

A: So the, the first element, element A, the operative words there are that the device receives

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The user input is in the form of one or more input points, and it is applied to a touch sensitive display.

And we've seen that with the Samsung devices. Tablets and smartphones are, in fact, touch sensitive displays that are integrated. The touch surface is integrated to the screen and further integrated with the actual computing device.

So that, that meets the claim element A.

Claim element B actually requires a peek into the Samsung source code, and I'll walk you through this.

So here we see the example resulting from claim element A where, as I've already described, user input is, is received in response to this user input within Samsung code, and what you see --

Q: Okay. Can we have it on the jurors' screen and the court's screen and opposing counsel? Great.

A: So what you see on this slide is essentially,

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And within this function, that information is encapsulated, it, it creates -- it is used to create what's known as a motion event object, and this motion event object is what is being referred to as an event object in claim B. To give you some more sense of what this motion event object actually is, just below the motion event object, you see Android documentation describing the motion event object, and the documentation goes on to say that the motion event object reports on movements and movement events and it holds movement data regarding fingers and pens and other forms of input, the locations, the times of the input and so on.

Q: And so do you find elements A and B met in the Samsung devices and code that you examined, Dr. Singh?

A: Yes, I do.

Q: Let's go on to the next elements of the claim.

A: So--

Q: Sorry. Let me just introduce -- we're looking at 29.12, and both 29.11 and .12 are being seen

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A: Okay. So these elements, again, are -- sort of describe in some sense what's happening below in the, in the Samsung code.

And the operative words in the big one are determining whether the event object invokes a scrolling operation, which I've described before, which is moving content, or the small complex gesture operation, such as scaling, by distinguishing between whether a single input point is applied to the screen or two or more inputs, in which case a gesture operation is made.

so to understand this -- to understand this element, what you see below is a schematic. it's, it's just a schematic showing the Samsung smartphone and tab phone.

Again, what you see over there are excerpts taken from the Samsung source code and laid out just to make things very clear.

And upon receiving input, there is a -- there's a function in the web view. The web view is the browser program, the internet browser program on the Samsung device.

Web view has a function called on touch

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When you go into that code, that code is called and caused by this motion event object that is being passed into this piece of code and it's -- it's sent into this code as a parameter.

I've kind of illustrated it on top just so you can clearly see the flow that is taking place in the code.

And there's a very important line in this code where a simple test is made. The motion event object has a pointer count. The pointer count tells you whether one input is one input touch, two input touches, or more.

So all you're doing over here is making this quintessential test, and then based on the test, when a single input touch is on the screen, you go down a one finger part, that results in a scroll operation.

So that takes you to this claim element C where you're distinguishing and you're going down this scroll bar, and I'll go one step further into claim element D, which says issues at least a scroll call or a gesture call, depending on which part you go down, and a scroll call, an example of

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Very similarly, if you go down the gesture part, which is two or more fingers, you go down in the code and you perform a gesture operation which results in a gesture call being made.

In this example, the gesture call is a the touch event of a scale gesture, something that results in the scale operation.

So what we've just seen over here is a run through through the Samsung source code to give you a sense of two important things.

One, that the motion event object causes a very important test to be made, one finger or two or more fingers; and then based on that test, there's a fork in the code and you either go down a scroll box where a scroll call is made and a scroll operation results, or down the gesture part and a gesture call is made and a gesture results.

So that's these two elements.

Q: Now, which devices does this analysis that you just provided apply to?

A: It applies -- this specific schematic applies

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The Samsung Galaxy Tab 10.1 also infringes this claim, but for the purposes of claim -- for elements C and D, it's structured a little bit differently.

Q: Do you want to just spend a minute explaining that with 29.14?

A: Sure. So as you can see on this slide, the schematic of the source code, it's virtually -- it's very similar. And for the purposes of these claims, it's actually identical.

You still have the motion event object causing this all-important test of one finger input or two or more fingers with inputs, so you still have the logical test.

You still have the branching taking place in the code, and going down the scroll part results in a scroll call. Eventually it results in a scroll operation.

Going down the gesture box essentially results in a gesture call and then the corresponding gesture operation. This logic that you see actually allows the Galaxy Tab 10.1 to perform what you can think of as a more complex gesture transform where it

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But you also want to move it so that your fingers remain on to the bicycle. If you don't move with it, simultaneously, all of a sudden your bicycle is off in space and it's bigger, but it doesn't have that direct feel. And that direct feel is what the Apple products provide.

Of the 24 infringing devices, only the -- over here with this code, only the Samsung Galaxy Tab 10.1 kind of provides this, this -- it makes it more like the Apple products.

Q: Okay. Let's march through the rest of the claim limitations.

A: Um--

Q: We're looking at 29.16.

A: So claim element E, once -- now that we've spent, we've been through the slightly more difficult part in the Samsung code, this is -- this is a lot simpler.

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I'd just like to clarify what we mean by a view associated with the event object.

The event object was the motion event object that we saw in the last couple of slides, and the view was the web view, web view from which the program that runs the -- that is the browser that we are seeing this functionality being performed in.

So that essentially explains element E.

Q: Great. Let's go to element F. What does it require?

A: Element F is, is actually very analogous to element E. Element E describes what happens when you go down the scroll bar.

Element F simply tells you what happens if you go down the gesture bar. So if you play this video, you notice again over here, based on

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Q: Dr. Singh, can you show the jury -- I'm sorry. Let's go to the next slide.

Dr. Singh, are each elements -- are each of the elements of claim 8 met by the Samsung devices that you have determined infringe?

A: Yes, they have. We've just been through all the elements in sequence, and indeed, all the devices actually meet these claim elements.

Q: Okay. Now let's show the jury the devices, and can you show all 24 of these as they demonstrate the infringing behavior?

A: Sure. We'll start with the Galaxy S II, AT&T, the Galaxy S II, T-Mobile, the Galaxy S II i9100, and the Galaxy T 4G.

You just noticed the one finger scroll followed by a two finger scale gesture operation.

Q: And that was 29.20?

A: Here we see another set of six devices, the Ace, the Captivate, the Continuum, the Droid Charge, the Epic 4G, and the Exhibit 4G.

Once again, one finger, scroll; two fingers, stay or gesture.

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A: Another set of six, the Fascinate, the Galaxy S i9000, the Gem, the Indulge, Infuse 4G, Intercept.

Q: And that's 29.22.

A: Another set of six, Mesmerize, Nexus S 4G, Prevail, Replenish, Transform, Vibrant.

And finally, the tablets, the Galaxy Tab 7.0 and the Galaxy Tab 10.1.

As you can see, one finger performs the pure scrolling operation, two or more fingers performs a general gesture operation, such as the scale.

Q: So based on your analysis of these devices that you've enumerated, Dr. Singh, as well as the source code that Samsung provided you, what is your opinion as to whether these products infringe claim 8 of the '915 patent?

A: It's my opinion that these 24 products that I've just received infringe claim 8 of the '915 patent.

MR. JACOBS: And Your Honor, I would like to offer into evidence just a couple more phones. 1014 is the Transform; and 1009 is the Intercept, both joint exhibits.

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THE COURT: All right. Any objection?

Mr. DEFRANCO: No, Your Honor.

THE COURT: They're admitted.

(Whereupon, plaintiff's exhibit numbers 1014 and 1009, having been previously marked for identification, were admitted into evidence.)

By MR. JACOBS:

Q: Now let's turn to the '163 patent, which is 1046 in your binder.

Your Honor, we offer -- it's already in evidence.

What is the '163 patent about, Dr. Singh?

A: Once again, you might remember Mr. Forstall describing this problem of viewing a document, such as a newspaper, on a small smartphone screen. Now, with -- as you can see, with the -- with the newspaper largely or entirely visible on the screen, you can, at most, sort of see the layout of stories and perhaps read some headlines.

But the '163 invention, what it brings to the table is that it allows a user to simply tap on a story or a region or a box of interest and the, the program, the browser itself, uses the structure to determine what that story is and then enlarges

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(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: And we'll see this in an example on the Apple iPhone 4.

And once you've done this, of course the '163 then allows you to tap on a second box of content while you are -- while the document is enlarged, and it moves that over so that you can read the second story, and so on. And you can continue in this fashion.

By MR. JACOBS:

Q: So why don't you just demonstrate that one more time?

A: So maybe we can look at it again.

(Whereupon, a videotape was played in open court off the record.)

THE WITNESS: The first tap enlarges and positions the document. Again, the second tap repositions the document on the second box.

By MR. JACOBS:

Q: Did you conclude one way or the other whether the Apple patents, the Apple products, in fact, practice claim 50 of the '163 patent?

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Q: Why not just use the scrolling and pinching of the '915 patent to address this problem?

A: Of course you can use scrolling and pinching.

But for this specific problem, you would spend a lot of time adjusting your view to make sure the font was a readable size and so on.

The '163 instead just makes a key insight. It realizes that in documents, such as web pages, there's already an inherent structure that the program can exploit, so that when you simply tap on a location of the screen, the program uses that information of that location and figures out what that piece of content is that you're interested in and then it resizes it, enlarges the document and positions it as best it can to make that piece of information readable.

So it's much more direct in that aspect.

Q: Do you have an example of a Samsung product practicing claim 50?

A: Yes, I do.

(whereupon, a videotape was played in open court off the record.)

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THE WITNESS: Here is an example of the Galaxy S II, T-Mobile, and very similar to the Apple device, you will see the first touch enlarges the document and substantially centers the first box, the first story.

And now the second box, once it's tabbed on, is substantially centered.

Let's look at that once more can see it without my talking over it.

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: And that's 29.26 for the iPhone, .27 for the first tap for the Samsung Galaxy S II, and 29.28 for the second tap; correct?

A: That is correct.

Q: Okay. Did you study the claim language of claim 50 of the '163 patent?

A: Yes, I did.

Q: So let's go over those elements in order to analyze how the Samsung products align with that claim.

And first we have, again, kind of a preamble, right, Dr. Singh?

A: That's right. Well, in this case, it -- it is

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Samsung smartphones and tablets are essentially -- they are touchscreen displays integrated with a computer that has memory and programming.

Q: So let's go to the first of the more substantive limitations. Let's go to element E.

A: Okay.

Q: We're looking at 29.32.

A: Right. So element E actually describes instructions for displaying at least a portion of a structured electronic document on the touchscreen display.

So what we're talking about here is a structure of electronic document, such as a web page. In this particular scenario, you see the New York Times web page. It is a web page written in a language called hypertext markup language, html. It's a very common language used for altering web pages.

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The last few operative words describe comprising a plurality of boxes of content.

Now, these web pages, in fact, do have a number of visually salient regions, visually distinct regions that you see that are these boxes of content, and I have illustrated these by drawing sort of dotted lines around them and labeling them first box and second box, but that is simply to illustrate what the program actually sees.

Q: And how does the underlying document get structured? What's the source of the structure in html?

A: Well, html actually has a number of what they call tags. These are just -- these are special constructs that html uses to -- that you can use to annotate your content, annotate your text, your images and so on.

And these tags are designed such that the viewer doesn't see them. They're not designed for visual consumption.

But what they are designed for is that the program uses these tags to figure out how it

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Q: Let's look at the next element, element F on PDX 29.34.

A: Okay. So these two claim elements are sort of -- they sort of require an understanding of what we see on the screen, and perhaps what the program sees.

So i'll try and explain this in a way that hopefully will be understandable. In claim element F, we see instructions for detecting a first gesture at a location of the displayed portion of the electronic document.

So that one is easy. Detecting a first gesture, clearly we saw in the video a gesture is made. Based on that gesture, the device responds, so that gesture is, is being detected.

On the -- and then based on that, instructions for determining a first box among the plurality of boxes. That's sort of element G. So what you see on the left-hand side are a number of boxes. I've sort of labeled them schematically 1 through 9.

Box 6 is particularly interesting, and what you see on the right-hand side is sort of a

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THE COURT: I'm sorry. Does anyone need any caffeine? I'm more than happy if you want to take a little minute break or two. Would that be good now? Or if you would like to bring a caffeinated drink in, that's fine, too. Would you like to do that? We can take a couple minute break to do that. No? Is everybody okay? All right. Go ahead.

THE WITNESS: When a gesture is made within the Samsung code, a double tap function is called when you tap on there. And then once you do that within the code, you will see that it uses the location of that tap to essentially traverse down this tree structure and find which box in that tree structure corresponded to the location. In this case, it happens to be box 6.

So that takes care of elements F and G.

By MR. JACOBS:

Q: Because what you have just illustrated is instructions for doing what?

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Q: Okay. Let's go to the next element of claim 50.

THE COURT: Okay. what was the number of that one?

MR. JACOBS: That one was 29.36.

THE COURT: Okay. Thank you.

By MR. JACOBS:

Q: And now we're on 29.37.

A: So element H sort of brings us back out of the, out of the nitty gritty of the Samsung source code and here again we're looking at the device.

If you play this video, you've already seen this video before where, upon receiving that, that first gesture and determining the box, you can see that that information is being used to enlarge the entire document and then move it such that the box is enlarged and substantially centered on the display.

Q: And just to remind us, this is a video of the --

A: This is a video of the Samsung Galaxy S II,

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Q: Now let's go to the next element, the next two elements, I and J.

A: So elements I and J essentially relate to the second gesture. So once you have performed what you just saw, you can see that the first box is still enlarged, and you will see in the video detecting a second gesture on a second box, and you can see that the second box is distinct from the first box. And then the instructions in response to that gesture essentially translate the document so that now the second box is substantially centered on the web screen display.

Q: And that's PDX 29.39.

So have you now gone through all of the elements, all of the limitations of claim 50 of the '163 patent, sir?

A: Yes, I have.

Q: And you find them -- do you find them present in the Samsung devices you're about to enumerate?

A: Yes, I do, and I have.

Q: Okay. Let's look at the devices.

A: Okay.

Q: This is 29.41.

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The Galaxy S II, T-Mobile, which is a video that we've already seen.

The Galaxy S II i9100, second gesture.

Galaxy S II 4G, first gesture, and now the second gesture.

Okay. Here is a set of six other devices, the Ace, the Captivate, the Continuum, the Droid Charge, the Epic 4G, and the Exhibit 4G. Maybe that ran by a little quickly. Perhaps we can play that one again.

(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: And we're up to 29.42.

A: Another six devices, the Fascinate, the Galaxy S i9000, the Gem, the Indulge, the Infuse 4G, and Intercept.

Q: That's 29.43.

A: The Mesmerize, Nexus Transform, and Vibrant.

Q: That's PDX 29.44.

A: And then finally the 7.0, there you see the first gesture, and the S 4G, Prevail, Replenish, tablets, the Galaxy Tab

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(Whereupon, a videotape was played in open court off the record.)

By MR. JACOBS:

Q: And that's 29.45.

Your Honor, the demonstratives -- sorry.

The videos that we've shown prepared under Dr. Singh's direction we would offer into evidence.

THE COURT: And which ones? There have been quite a few videos.

MR. JACOBS: Yes.

THE COURT: Why don't you go through the numbers, please?

MR. JACOBS: 29.4, 29.5, 29.6, 29.10; then three that would be under seal, 29.12, .13, .14; 29.16, 29.18, 29.20, .21, .22, .23, .24, .25, then 29.26, .27, .28, .32, .34, .35; the next one would be sealed, that would be 29.36, .37, .39, 29.41, .42, .43, .44, and .45.

THE COURT: I didn't see on the screen 29.23, 29.25, 29.35. I was mostly catching even numbers.

MR. JACOBS: Let's take a quick look.

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THE COURT: Are those part --

MR. JACOBS: 29.23, Mr. Lee.

THE COURT: Is that -- all right.

MR. JACOBS: '915 infringing smartphones. What was the next one, Your Honor?

THE COURT: For the sealed, I had 29.11, 29.12, and 29.13. It could be these are intermediary ones that I didn't catch.

MR. JACOBS: So .12 is the first one, .13 is the next one, and .14, those are all the source code. Oh, yes.

THE COURT: Okay. 29.11, .12, .13, .14.

MR. JACOBS: 11 doesn't need to be under seal. Actually, I didn't list -- let's go back to 11. That's just the claim language, Your Honor. We don't need that in.

THE COURT: Okay. So that's 29.11 is not coming in.

MR. JACOBS: Correct.

THE COURT: So .12, .13, .14, .16, .18, .20, .21, .22, .23, .24, .25, and then 29.26, .27, .28, .30, .32, .34, .35, .36. Is that right?

MR. JACOBS: .32, .34, .35, .36 is sealed.

THE COURT: Yes.

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MR. JACOBS: Then .37 is the video. .39 --

THE COURT: .41, .42, .43, .44, .45.

MR. JACOBS: Exactly, Your Honor.

THE COURT: All right. They're admitted.

(Whereupon, plaintiff's exhibit numbers 29.4 - 29.6, 29.10; under seal 29.12, 29.13, 29.14, 29.36; 29.16, 29.18, 29.20, 29.21 - 29.28, 29.32, 29.34 - 29.37, 29.39, 29.41 - 29.45, having been previously marked for identification, were admitted into evidence.)

MR. JACOBS: Thank you very much.

THE COURT: Go ahead.

By MR. JACOBS:

Q: Now, Dr. Singh, did you look at Samsung documents to determine what interest Samsung had in this feature in Apple -- in the Apple iPhone?

A: Yes, I did.

Q: Was PX 38 one of the documents you looked at?

A: Yes, it was.

MR. JACOBS: Your Honor, we'd offer PX 38 into evidence.

Mr. DEFRANCO: Objection, foundation, Your Honor.

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By MR. JACOBS:

Q: Did you study this document, sir?

A: Yes, I did.

MR. JACOBS: Your Honor, we've laid a foundation.

Mr. DEFRANCO: Same objection, Your Honor.

THE COURT: Okay. It's admitted.

(Whereupon, plaintiff's exhibit number 38, having been previously marked for identification, was admitted into evidence.)

THE COURT: I don't have any binders for Mr. Singh.

(Pause in proceedings.)

MR. JACOBS: Your Honor, we have one here if you like.

THE COURT: Okay, I have it.

(Pause in proceedings.)

By MR. JACOBS:

Q: Dr. Singh, what is the title of this document, PX 38?

A: Well, the title is "Browser Zooming Methods UX," that's user experience, "Exploration Study."

It's a document from Samsung

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Q: And what is the -- what was the purpose of this document as you understood it based on your review?

A: So this document was an exploration study comparing a number of different methods for zooming on browsers and it looked at a number of different alternative techniques, including sort of the double tap to zoom functionality.

Q: Now, let's advance to I believe it's slide 47 in the document.

A: So this, this page of the document essentially is, it's summarizing the results of the, of the document, that the exploration found that, in fact, the double tap zooming functionality in general was superior to their other alternatives that they studied, and that this functionality should be adopted as a supplementary zooming method.

And, further, that the user experience of the iPhone could be used as a design benchmark in whatever functionality that they, that they used.

Q: Now let's take a look at plaintiff's exhibit 44, which is already in evidence and that's in your binder.

The jury has seen this document. It's

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Does this document have any relationship to the patents that you studied?

A: Yes, it does.

Q: Let's go to slide 49, please. And what does this document show? Or what does this page show?

A: So this, this document is, again, a relative evaluation report, in particular, it's comparing the S1 phone, which was a phone in development, I believe it was -- it represented the Galaxy S family of phones -- and comparing the S phone with the iPhone functionality.

Now, in the iPhone, as you've seen, you perform a double tap to, to sort of zoom in on content and then you perform a double tap and it takes you to a second piece of content and so on.

In the older Samsung phones, the second gesture was performed -- actually in all of the Samsung phones, but also in the older phones, the second gesture was performed with a short press, and if you double tapped, it would sort of zoom in and out.

So this document finds that that zooming

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Q: And in the newer devices did you, in fact, see supplementation that corresponded to what this document was seeing in the iPhone?

A: Yes, indeed. The newer Samsung devices did, in fact, supplement their double tap to zoom functionality, and the way they supplemented it was to work, essentially, the way it is described and it takes place on the iPhone.

MR. JACOBS: Thank you very much, Dr. Singh.

THE COURT: All right. The time is now 2:00 O'clock.

CROSS-EXAMINATION

Q: Good afternoon, Dr. Singh.

A: Good afternoon.

Q: My name is Ed DeFranco. I'm one of the lawyers representing Samsung. We haven't met before, obviously.

A: No.

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A: Yes.

Q: Let's do a little background first. This is the first time you're testifying in court as a technical expert; is that true, sir?

A: That is correct.

Q: You've worked for Apple -- you're working for Apple on other cases, though; is that correct?

A: I'm not sure what you mean.

Q: Is this the only litigation in which you're working for Apple as an expert?

A: I have done some work for Apple in an ITC case, and some work on another -- a Northern District of California case. But at the moment, this is the only case that I'm actively working on.

Q: And is this the first time your work for Apple generally, is this the first -- is this the first time that you've analyzed infringement of a patent like you showed us earlier today?

A: Yes.

Q: First time you've analyzed a specification of a patent, prosecution history of a patent as you

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A: Well, I've read patent specifications before. I've had patent applications of my own.

Q: Right. But in terms of analyzing them and performing a full-blown infringement analysis of a set of accused products, the first time you've done that is your work for Apple; isn't that true, sir?

A: Yes, that is the first time.

Q: It came out this morning -- were you in the room for Dr. Balakrishnan's testimony?

A: Yes, I was.

Q: You two are friends, of course. You work together at the University of Toronto; is that right?

A: Yes, we do.

Q: You've known each other for ten years at the university, and you knew each other even before that when you both worked for the same company; is that correct?

A: That is correct.

Q: As a matter of fact, it came about through Dr. Balakrishnan's consulting with you that you actually became an expert in this case; is that true?

A: You'd have to rephrase that question. I'm not

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Q: Well, for example, you're getting paid an hourly rate to testify here by Apple; isn't that correct?

A: I'm getting paid for my time as an expert.

Q: By Apple?

A: By Apple.

Q: And you consulted with some people about what rate you should charge, and one of those people was Dr. Balakrishnan; isn't that true, sir?

A: Yes.

Q: You talked about -- on direct examination, you talked about some of your achievements in your particular field. Do you remember that, sir?

A: Yes, I do did.

Q: Just a few quick questions about that. You won an Oscar; right?

A: The software that I worked on won an Oscar.

Q: Okay. A couple questions I need to ask you, sir. If you look on the web, for example, and surf for some information relating to that Oscar, there's a list of people who worked for the company that you worked for at the time who actually are credited with contributing to that, isn't there?

A: Perhaps. I haven't -- I don't know of what

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Q: Well, I saw on the web a list of about 15 people that were associated with the work that went into the Oscar that was obtained.

A: Perhaps.

Q: And my point is, I just need to make clear for the record, that that wasn't an Oscar that you as an individual obtained; is that true, sir?

A: I never said it was. I said the -- I said the software won an Oscar.

Q: You talked about a couple of other projects that you worked on at Alias, Wavefront, and some other companies, Paraform. Do you remember that, sir?

A: Sure.

Q: That work wasn't specifically directed to cell phones or other portable devices like tabs. Is that fair?

A: It's fair.

Q: And if you look on your web page on the internet, an awful lot of information there, certainly discussing some of the things you told us about on direct based on your work experience.

But I didn't see any particular mention of your work or expertise related to cell phones,

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A: It's not fair.

Q: I didn't see any specific call out, mention of your particular expertise or work experience in the area of tab devices. Is that fair to say, sir?

A: It's not fair to say.

Q: I didn't -- was there something mentioned on your website relating to tabs like we're seeing in this case?

A: Absolutely. I -- one of my main areas of research is an area called sketch-based interfaces, which is very much applicable to touchscreen devices where you, you, you provide direct input and you sketch and perform other kinds of direct manipulation operations.

So I've just chaired the main conference in that area in Annecy about a month back, Annecy, a-n-n-e-c-y, France.

Q: And you're talking about touchscreen devices generally, not tab devices in particular?

A: I'm talking about general stroke-based input that could come from the fingers, that could come from a pen, but is clearly distinct from traditional windows, mouse, keyboard interfaces.

Q: Let's talk about that technology.

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A: Yes.

Q: You talked about Mr. Forstall and some of his testimony that he gave in this case. Do you remember that?

A: I do.

Q: Were you here in court for his testimony?

A: I was here for, I believe, for at least a part of it.

Q: Let's put up one of your slides. It's claim 8 of the '915 patents. It's PDX 29.8. This is one of your slides, Dr. Singh; right?

A: Yes.

Q: Now, you said, if I have this right, on direct examination, that -- you mentioned Mr. Forstall a bit, you talked generally about the invention in the '915 patent, and you said it relates to how to position and resize, with your fingers, items on a small screen, like the size of a postcard.

Do you remember that?

A: I gave that example actually before this slide showed up as a general understanding to people as to what the patent dealt with. When we came to this slide, we were

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Q: Okay. Let's talk about some of the claim language. One of the things that -- your title, by the way, is scroll versus gesture; right?

A: Sure.

Q: Do you see that?

A: Yes.

Q: And those are actual words that are used in claim 8; isn't that right?

A: Yes.

Q: Now, a scroll generally, as we've seen in the case, is you can use two fingers or you can move two fingers to move content up on the devices that we're talking about. Is that fair?

A: You'll have to be a little more precise with a question like that if you expect an answer.

Q: What's a scroll, doctor?

A: A scroll -- in the context of the '915 patent, a scroll is moving or sliding content on the screen.

Q: Okay. Moving or sliding content on the screen. Is that right?

A: Yeah.

Q: That concept alone, scroll, the '915 inventors

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A: That's fair.

Q: Gesture, a gesture, we've heard also, is a scale. That word is used in the claim, right, a scale?

A: Yes.

Q: They're interchangeable in your view; right?

A:: No, they're not interchangeable. Scale is an example of a more general gesture operation.

Q: Better put. Thank you. But a scale is a gesture; isn't that true?

A: A scale is a gesture operation in the context of the '915.

Q: And a scale, is that pretty much the same thing as a zoom? You're taking two fingers and zooming in or out?

A: Yes.

Q: Is that fair?

A: That's fair.

Q: The inventors of the '915 patent, they didn't invent a gesture, a scale, a zoom, or detecting those on the devices we're talking about. iIsn't that fair, sir?

A: Absolutely not. The concept of scaling goes

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Q: I think as you put it--later on in your testimony when we got to the determination step, I think you used the words the "all-important test." Do you remember that? Do you remember using that phrase?

A: I may have said that, yeah, sure.

Q: And by that, didn't you mean that this claim is not talking about just using a scroll and the device figuring out if a scroll is there, because certainly that's not what they invented. Fair?

A: Fair.

Q: The claim is not about some -- a user using a gesture operation like a zoom and the device figuring out if there's a gesture that has been performed; right? because that was there, as you said; correct?

A: It is about the device figuring out whether it's a gesture based on two or more finger inputs.

Q: But as you said, it's the all-important test in the claim as to whether it's a one finger scroll versus a two finger gesture. That's what this invention is about. Fair?

A: Sure.

Q: Okay. Now, you said you looked at the

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A: Yes, I did.

Q: Let's put up a slide that's been prepared. It's slide SDX 3912.007.

now, Dr. Singh, have you seen this slide before today?

A: Yes, I have.

Q: You've seen -- this is one of our slides we prepared for cross. You saw it before you took the stand today; right?

A: Yes.

Q: You know what this slide is? It's showing on the left-hand side an early version of the claim and the prosecution history. Is that right?

A: That is correct.

Q: And prosecution history, again, is the back and forth between the patent office. It's the dialogue that ultimately, if successful, results in a patent being issued. Is that fair?

A: Absolutely.

Q: And on the right-hand side is the actual claim. Do you see that?

A: Yes.

Q: And there's -- you can tell just by looking at

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A: Very fair.

Q: And it's true, isn't it, sir, that for there to be infringement -- you're an expert on infringement, right? -- for there to be infringement, each and every claim element must be found in the accused device; is that right?

A: That is right.

Q: If one is missing, one, only one is missing, there's no infringement; right?

A: That is right.

Q: Now, this reflects, doesn't it, that as originally filed, that all-important test that you mentioned was not in the claim; right?

Do you see that highlighted, "by distinguishing between a single input point," and then it goes on to talk about two or more input points? That notion was not in the claim as it originally filed. Is that fair?

A: Absolutely not.

Q: Now, why -- that language is -- do you see that language in the claim as originally filed, sir?

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Q: Okay. now, is it your understanding, sir, that one of the reasons that patent examiners insist on additions being made to claims is because they've seen something that says to them, unless that's added, this claim may not be valid, for example?

A: Perhaps.

Q: And by the way, if a claim -- we're going to talk about invalidity later in the case, but if a claim is invalid, then you can't infringe that claim. Is that fair? You're here to talk about infringement today; right?

A: Right.

Q: Now, you showed some demonstratives on direct examination. You showed some actual products. Do you remember that?

A: That is correct.

Q: You showed some instances where there's a, a one finger scroll. Is that fair?

A: Yes.

Q: Let's put back up on the screen, please, Ryan , PDX 29.8.

Now, with respect to the scroll versus a gesture, the claim as it ultimately came out of the

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A: It uses the language of the claim that you see.

Q: But it's pretty specific, isn't it? It doesn't just say "a scroll." It says "a single input point." Do you see that?

A: Yes. It says using a, a single input point as a way of distinguishing between a scroll and a gesture operation.

Q: And a single input point, according to the claim, is interpreted as a scroll operation; isn't that correct, sir?

A: Absolutely correct.

Q: Two or more input points are interpreted differently; right? Those are specifically interpreted, according to this claim, as a gesture operation; is that right?

A: That is right.

Q: And the claim requires that distinction. One is a scroll, two is a gesture or zoom or scale; correct?

A: Yes.

Q: And if you don't have both of those, if you're

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A: If you're not applying that test and, and the rest of the, of the claim elements, yes, in the appropriate context, then, yes.

Q: But the test is one, scroll; two, gesture. That's the test that the claim very clearly lays out, isn't it? It says one, one is a scroll; two is a gesture; right?

A: Absolutely.

Q: Okay. But you'll agree, though, that there are at least some products, like the Tab 10.1 -- you inow the Tab 10.1. You can scroll with two fingers; is that correct?

A: That is not correct.

Q: Oh, you cannot scroll with two fingers in the Tab 10.1?

A: Absolutely not.

Q: Why is that?

A: I've never been able to do it. Maybe you can show me on a device.

Q: Well, let's take a look at video DX 2557.

(Whereupon, a videotape was played in open court off the record.)

By Mr. DEFRANCO:

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A: That is what I described in my own direct testimony as a simultaneous scale and translate.

If you look at that video carefully, you will, you will notice that the content is, is sort of jittering spasmodically because it's scaling while it's, it's translating. And perhaps if you try really hard, you might be able to get it to get close to steady.

But the bottom line is there are instructions, as I showed you, and the claim is about the instructions in the claim language. Technically the instructions infringe the claim.

Q: I'm sorry. Are you done, sir?

A: Sorry.

Q: Okay. Let me -- let me -- let's play it one more time, please.

(Whereupon, a videotape was played in open court off the record.)

By Mr. DEFRANCO:

Q: Maybe, maybe we just see this differently. I see it jittering back and forth, but I don't see -- I see that as -- wouldn't you say that's more of a scroll than a zoom, sir?

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Q: Well, let me ask you this, and I want to talk to you about your source code analysis.

But if it were -- if it was two fingers, if two fingers were a scroll, then that wouldn't neatly fit the test in the claim, right? Because the claim, as we said, is one finger is a scroll, two fingers is a gesture; right? If it were two fingers as a scroll, it wouldn't fit that test; isn't that true, sir?

A: But that's not what you're showing me.

Q: That's not my question at this point. I'm just asking you generally, so we can get away from the debate you and I are having about what's actually shown there, you'll agree with me, won't you, that if there's a two finger scroll, assuming some product did that, that wouldn't fit within the test that you pointed out in the claim 8 of the '915 patent; is that true?

A: You would have to qualify what you're saying,

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It's -- the key is distinguishing between a scroll and a gesture operation. And, yes, in that context, a single input is used for scrolling and two or more inputs is used for the general gesture operation.

Q: Now, you said you analyzed software, is that correct, the software that is used in Samsung's phones?

A: Yes.

Q: Now, you did an expert report in this case. Do you remember that?

A: Yes, I did.

Q: You gave some detailed claim charts for analysis of a couple of products, two products, I believe, right, where you reference source code? Do you remember that?

A: I believe I referenced source code for four products.

Q: You -- in detail, you did it for two, and then you had some shorthand referring to two other products in the chart?

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Q: Okay. That's fine. I'll take it. For four products, then, you did source code analysis; is that correct?

A: That is not correct.

Q: Well, at least in your expert report where you had detailed charts, you did that for four products; is that correct?

MR. JACOBS: Your Honor, objection. I fear we're treading on one of the court's orders about cross-examination relating to the source code that Samsung did or did not provide.

MR. DEFRANCO: Your Honor, this is all within the source code -- all I'm asking about is the source code that Dr. Singh actually analyzed.

I'm not asking him about source code that was not provided. He said he analyzed 24 products.

THE COURT: All right. Go ahead. Just please be aware of my order.

MR. DEFRANCO: Yes, Your Honor.

THE COURT: And Judge Grewal's order. Thank you.

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Q: Now, you said something to me a moment ago, sir --

THE COURT: I think that was sealed. Can you take that off?

Mr. DEFRANCO: Okay.

THE COURT: I mean, if you want to have it open, that's fine. This is Samsung source code, so it's up to you.

Mr. DEFRANCO: Just on these screens, Your Honor.

THE COURT: That's fine.

MR. DEFRANCO: So I don't get in trouble.

THE COURT: That's fine. Whatever you wish.

By MR. DEFRANCO:

Q: Now, we're looking -- you presented, doctor, a couple of demonstratives like this where you depicted what's happening in the source code; is that correct?

A: That is correct. They're excerpts.

Q: Well, it's not really -- an excerpt to me is something where you've taken something out and shown it. This is a depiction of your analysis of

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A: Yes.

Q: And you didn't actually show us -- we're going to look at a little bit, but you didn't actually present actual source code as it exists in the products and, like sometimes happens, show us where certain things are being done. sometimes happens, show us where certain things are being done.

You showed us a depiction of your view of what's happening in the source code; is that fair?

A: I analyzed it in detail in my, in my report. I -- I've shown it in -- to a level of detail that I felt was necessary and understandable to, to the jury.

But if you would like, I'll be happy to dig into it with you.

Q: That's the last thing I want to do, sir.

A: Okay.

Q: I just don't have time.

A: Okay.

Q: My point is simple. You analyzed four products in your expert reports, you had this dEpiction, but when you talked about the source code you presented on your direct examination, it's this depiction that you were talking about. You didn't actually show the actual source code and how

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A: Well, I'd like to correct you first. I analyzed all 24 products, not four products.

And what you see, yes, is a ddpiction showing the important portions of the code and showing it in the degree of detail that is necessary for the claim language.

Q: Well, let's -- well, as long as we're here, let's take a look at a little bit of the analysis that you prepared, okay, in your expert report. Is that fair?

A: Sure.

Q: Let's put up Dr. Singh's opening report. It's exhibit 17 at page 3, please.

Now, do you see there, in that section of your report, sir, you're talking about -- at the bottom you talk about the Galaxy S II.

Do you see that?

A: Yes.

Q: And if you scroll down to the next page where it continues, Ryan, please. Go back to the top a little bit. You've got -- and can you juxtapose the two of them?

You've got a reference in the middle

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A: Yeah, Okay.

Q: And I'd like to pull up that code, 5758, that you referenced in your expert report. If we take a look at line 7479, do you see there it's got something called mscaledetector.touchevent.

Do you see that, sir?

A: Yes, sure.

Q: You had something in your graphic called m scale gesture detector, but that's not actually what's shown in the code, is it, sir?

A: That is correct.

Q: That's an error in your citation?

A: No, that's not an error.

Q: But that's not shown in that particular portion of the source code; is that correct, sir?

A: The various products, the code -- the actual names of variables and actual, you know, the precise lines of code may have some, some minor differences. But logically, it is the same code. What I showed you was representative of that.

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A: In my report. But I did analyze all 24 products.

MR. JACOBS: Your Honor, I'm sorry, he's implying that there was more to analyze.

THE COURT: Overruled. Go ahead, please.

By MR. DEFRANCO:

Q: Now, let's go back for a second, doctor. I think you may have misspoke. Let's go back and put on the confidential screen exhibit 29, PDX 29.12.

you know what, Ryan? I'm sorry. Let's start with 29.8 just to put this in context.

We're going to finish up with this patent and turn to the other one in a second, doctor.

But you talked about an event object, right? That's one of the limitations in the claim.

Do you see that?

A: That's correct.

Q: And again, if the event object is not present in an accused device, there's no infringement; right?

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Q: Okay. And an event object, is it fair to say, is that a piece of programming code that holds information about the touches that a user makes on a touchscreen?

A: It does that at least, yes.

Q: Okay. And you showed a slide on direct examination -- now we'll go to PDX 29.12 by way of example on the confidential record -- and you've got what you pointed to as the event object in Samsung's code, you pointed to the motion event, EV, that thing in the circle at the top; is that correct?

A: That is correct.

Q: And like any event object, as that collects or holds information made on a screen; is that correct?

A: And other information.

Q: And, again, that sort of thing was out there before this invention. This invention isn't about an event object that holds information based on touches on a screen; correct?

A: Well, it's about the -- the claim elements are about the entire invention. We've seen this

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You really have to look at all the claim elements together.

Q: Absolutely. Absolutely. I didn't mean to cut you off. Absolutely. I don't disagree with that.

All I'm suggesting is if this were an invention about an event object item that holds or stores informations, that wouldn't be an invention. There's more to it than that. Isn't that true, sir?

A: There's much more to it, yes.

Q: And being able to take information that results from a user touching a screen and storing it someplace, like something called a motion event object, that was not new?

A: The notion of the event object, yes, was not new. But using it within the context of the '915 patent, you know, may and could pose certain challenges that the '915 patent has to overcome to produce that.

Q: And that's getting into validity and we'll talk about that later on in the case.

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Q: But for now, though, I think -- I thought you said that the motion event object calls or causes certain things to be happening. The motion event object doesn't do what's known in computer parlance as effectuating a call, does it?

A: I f what you're referring to is the use of the word "invoke" in claim language, the court has already ruled that the word "invoke" in this context means causes or causes something to happen.

It's plainly evident to anybody who's a person of ordinary skill in the art that the motion event object is, indeed, the construct that is causing this entire chain of events, including the test that you see, because there's a get pointer count event -- sorry -- get pointer count function that gets called, a logical branch is made and then you go down either the scroll or gesture path. So absolutely the motion event object causes everything.

Q: Okay. And I'm sorry, Your Honor, I have to move to strike. The question was, does it -- was your testimony on direct that it calls for causes, and

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MR. JACOBS: Your Honor, I --

THE COURT: Overruled. Go to the next question.

THE WITNESS: Sorry.

By MR. DEFRANCO:

Q: Let me ask again. Maybe my question wasn't clear. Let me try again. I thought on direct examination you said the motion event object calls for causes. You just told us about causes. I don't want to talk about causes for the moment.

I want to focus on calls. Calls is something specific in computer parlance; right?

A: Yes.

Q: Is it your testimony here that motion event object performs a call operation?

A: No. The motion event object causes --

Q: Does it perform a call operation? Yes or no, sir? I need a yes or no to that.

MR. JACOBS: Your Honor, that was an answer.

THE COURT: Overruled. Go ahead, please. You can answer.

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Q: Please, sir, just yes or no, call operation?

A: When you say "perform a call operation," a call is not an operation. A call is some -- is a function.

Q: Let me try it this way, sir.

A: Yes.

Q: Would you agree with me that motion event object doesn't make a scroll call, for example?

A: The motion event object itself does not. But it causes the code that results in a scroll call to be made, yes.

Q: It doesn't do it itself?

A: It is responsible for it.

Q: It doesn't do it itself is what you just said, sir?

A: I said it is responsible for it.

Q: Did you -- were not here with me, sir? Did you just say it doesn't do it itself? Yes or no?

A: I believe the answer to this question needs to be completed, so I said, yes, it doesn't do it itself, but it causes it.

Q: And there's nothing in the motion event object that calls a gesture operation; isn't that true,

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A: Once again, it causes it.

Q: There's nothing, though, that calls it? Is that true?

A: Once again, it causes it.

Q: Let's move on. Let's move on to the '163 patent.

That's the second patent that you testified on direct examination about infringement; correct?

A: Yes.

Q: Now, I think on direct examination you said something to the effect that in the '163 patent that was a result, in your view, of a key insight, those particular words I wrote down, key insight in realizing that there's an inherent structure in web pages that can be exploited for use in the invention. Is that fair?

A: That's fair.

Q: Okay. There are nine patents -- nine inventors on the, on the '163 patent; is that correct?

A: I haven't counted them, but there are many.

Q: You haven't spoken to these inventors about,

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A: I read their deposition testimonies.

Q: You haven't spoken to them about any insights they may have had. Is that true, sir?

A: I read their deposition testimonies where they talk about insights they may have had.

Q: And -- by the way, are you aware that many of the inventors are working for Apple and they're readily accessible to you if you wanted to speak to them and ask them about the invention and what led to it and their insights and that sort of thing? Were you aware of that that, that's available to you as an expert for Apple?

A: Perhaps.

Q: Now, let's pull up the slide that you prepared for the '163 patent. This is PDX 29.29. Now, you took us through this on direct examination. I just want to point out a few things. Again, this claim -- this is the -- you called it tap to zoom and substantially center.

Do you see that?

A: Yes.

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A: That's fair.

Q: You weren't trying to say that's what this invention is all about; right?

A: No. just, as you said, a shorthand describing.

Q: Because, of course, tap to zoom was, was out there in this field before this patent; right? You wouldn't say these inventors invented tap to zoom; right?

A: That is correct.

Q: And substantially centering content, whatever that means -- well, let's talk about centering content on a mobile device, a phone or an iPad.

These inventors of the '163 patent, they certainly didn't invent substantially centering; is that right?

A: In a very general context, maybe not.

Q: Okay. But again, you would say -- I know it's coming -- you would say, well, you've got to put all the elements together into this particular claim, that's what describes the invention. That's fair; right? Not any one element; right?

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Q: Even though, as you take apart the elements, they may have been out there individually, certainly like tap to zoom and centering; is that true?

A: Well, when you say tap to zoom, you have to, again, talk about it in what context you're talking about it. Simply zooming, quite often zooming or tapping to zoom without -- with no structure for a document without structure is, is a completely different piece of functionality. It's completely -- it's something that's quite different.

So just because you share some technical words doesn't mean that, you know, something is very common.

Q: Absolutely. But tap to zoom, again, alone, that concept was not -- these inventors did not come up with that concept?

A: In a hyper technical general sense, yes.

Q: When you say the key insight is they realized there's an inherent structure in web pages that can be exploited, the patent, the claim, 50, uses the phrase "structured electronic document." Do you see that?

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Q: That's another limitation element that must be present in the accused device or feature in order for there to be infringement; correct?

A: What, that a structured electronic document must be present?

Q: Yes, yes.

A: No, absolutely not.

Q: Okay. It's got to be -- it's got to be doing something to a structured electronic document? There's got to be a display, and then the claim continues on; right? So there's got to be a structured electronic document present; is that true?

A: No, it's not true.

Q: Okay. Structured electronic document, sir, they were out there; right? I mean, web pages use HTML. That's the code that, as you say, with tabs will structure an electronic document; is that right?

A: With tags.

Q: I'm sorry. I said tabs. with tags, those are the little characters; right? Is that right?

A: Yeah.

Q: So any programmer knows that certain

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A: Yeah, that's fair.

Q: Now, this claim talks about instructions. Do you see that, sir?

A: Yes.

Q: All the way down?

A: Yes.

Q: Now, instructions are actual lines of code; is that correct?

A: Yes.

Q: Now, that means that somewhere in the source code, there are very specific instructions for performing those operations; is that correct? Is that right?

A: Yes.

Q: And can you determine infringement just by operating an accused device, regardless of what may or may not actually be in the source code?

A: It depends on what the, what the claim language is, is stating. If the claim language is describing a visual operation and you clearly observe that

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It's a computational device. It's not a little man sitting in the box performing the, the actions.

Q: Well, Okay. So let's talk about this claim then.

Could you analyze infringement of this claim without looking at the particular code to see what specific instructions there were?

A: Well, you would want to see that, in fact, a first box was being determined based on the location. The reason for that is that the box is actually an HTML box that exists in code and not, not necessarily what you are, are seeing -- it is not something that you're necessarily seeing visually.

So that's probably the only element that really requires to you dig in deep.

Q: Okay. And again, you looked -- at in your expert report, you analyzed in detail four of the 24 products in the code; is that correct?

A: I once again -- sorry.

I once again analyzed all relevant

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I provided instructions for four devices. Those four devices represented major releases of the Samsung source code 2.1, 2.2, 2.3, and 3.1.

Q: And that's all I'm asking. In your expert reports prepared in the course of the case, you specifically mapped the code for four devices; fair?

A: That's right. but I also --

Q: And today you showed graphical depictions, but not actual code in your direct examination; is that right?

MR. JACOBS: Your Honor, now I think we really have crossed the line.

MR. DEFRANCO: It's the exact same question.

MR. JACOBS: He's implying that there was more code to analyze when we know why there were only four releases and sets of code.

MR. DEFRANCO: Your Honor, it's the same cadence that I had for the other patent. He had it available, one version for each product. That's all I'm asking about, whether he looked at each of the code produced, produced by

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MR. JACOBS: The court's order specifically notes that this would come up in cross-examination of Apple's experts and that it is unfair to imply any kind of limitation on the scope of the inquiry when the scope of the inquiry was limited by Samsung's conduct.

MR. DEFRANCO: Your Honor, I'm not going beyond the scope.

THE COURT: I'm going to say this has been asked and answered about six or seven times. We're going in a circle here. Can you please move on? I don't know how many times you can ask whether he's looked at all 24 code or not. So please move on.

On 403, I'm going to sustain the objection.

By MR. DEFRANCO:

Q: You analyzed the prosecution history for this patent, too; is that correct?

A: Yes, I did.

Q: and we're talking about claim 50 in the '163 patent; is that right? a That is correct.

Q: Let's take a look at a slide, SDX 3912.1.

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A: Yes, I do.

Q: You saw the slide before you took the stand to testify on direct; is that right

A: That is correct.

Q: And again, this shows what we saw for the other patent, an early draft claim submitted by Apple to the patent office on the left side; is that true?

A: That's correct.

Q: And the claim that was actually issued on the right-hand side; is that correct?

A: Yes, that is correct.

Q: And there's more information that was required to be added by the patent office so that the claim would ultimately issue; is that right, sir?

A: No, I don't believe that that was exactly what it was. It was the result -- the language that you see is the result of a phone interview between the prosecuting lawyers, or counsel, and the patent examiner where they agreed on adding this, this claim language. It's unclear whether this language was

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Q: Well, let's look the -- the language that was added relates to detecting a second gesture; is that right?

A: That's right, and that's what we've been observing.

Q: And that's required in this claim in order for there to be infringement; is that true?

A: Certainly.

Q: And that was required in order for this claim to issue from the patent office. You can say that much, can't you, sir?

A: That was something that the patent office and the prosecuting counsel agreed on adding. It's speculative that had, had they -- had prosecuting counsel wanted to stick with their original claims, they would have gone back and argued the validity of those claims with the patent examiner. But there's -- just the fact that they exist over there doesn't tell you whether they were necessary.

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A: Yes.

Q: That came about after some action was taken, some communication was received from the patent office; is that right?

A: That is correct.

Q: And that shows the second gesture; is that true, sir?

A: That it does.

Q: Now, you talked about a Samsung document, it was exhibit 44, but in the interests of time, you, you explained how that document showed that in Samsung -- in the Samsung product at issue when there was a double tap, there was zooming in, and when there was more tapping, it was zooming out. Is that correct?

A: In older Samsung devices, yes.

Q: Right. And that, that did not infringe claim 50 of the '163 patent; is that correct?

A: That is not correct.

Q: Oh, you thought that old, that Samsung technology, the double tap and just zooming in and double tap and zooming out, that -- is that covered by claim 50?

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Q: That specific feature that I described, double tap to zoom in, double tap to zoom back, is that covered by claim 50 of the '163 patent?

A: That is not covered. But the existing functionality --

Q: So then -- I'm just asking about that functionality. That functionality is not covered; right?

A: But those devices still infringe.

Q: And if -- if a device only had that functionality, then it wouldn't practice claim 50 of the '163 patent?

A: If the earlier functionality that was already infringing, in the event that that functionality was removed, then, yes, it would not infringe.

Q: Let's go to slide, back to slide 29.29. PDX 29.29.

THE COURT: It's 2:45, so why don't you go ahead and ask the next question.

MR. DEFRANCO: This is a new topic.

THE COURT: So what would you prefer? You want to talk go a little bit longer and then take a break?

MR. DEFRANCO: Could we take a break now?

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THE COURT: That's fine. It's 2:45 now. We're going to take a 20-minute break because there's something that I want to talk to the lawyers about.

So if you would please keep an open mind, don't talk about the case with anyone, and please don't do any of your own research. If you could go ahead and leave your books in the jury room. Thank you.

THE WITNESS: Do I have to stay here?

THE COURT: No. If you could just stay seated until our jurors go into the jury room, and then once they're out of the courtroom, then you're free to step down and you can go wherever you'd like.

THE WITNESS: Sure, Okay.

(Whereupon, the following proceedings were held out of the presence of the jury:)

THE COURT: All right. The record should reflect the jurors have left the courtroom.

You're free to step down and you don't have to stay. You can go wherever you'd like.

I just had a quick question on this issue that you all are raising with regard to the source

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I was only aware of the source code regarding design-arounds for the '163 and the '381, not having -- I'm sorry, please take a seat -- not having been produced by December 31st of last year.

I was not aware of this other issue that you seem to be raising. So if you can point me to the ECF numbers, I'll take a look at them over the break because I'm not aware of what this issue is. Is it the same issue as the design-arounds, or no?

MR. JACOBS: It was in the order that affirmed, that --

THE COURT: My order is ECF 1545 filed on August 2nd.

MR. JACOBS: Right.

THE COURT: that one?

MR. JACOBS: I believe it was either in that one or in the immediately preceding order by Judge Grewal in which he said that the scope of the prohibition on Samsung introducing design-around information was broader than just the question of what source code, and in either that one or in yours, there's a reference to cross-examination. And I'll find it.

THE COURT: I guess what I don't

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Mr. DEFRANCO: Your Honor, somebody will jump up and correct me if I'm wrong.

THE COURT: Okay.

Mr. DEFRANCO: Since it's my witness, let me state my understanding for the record.

There was at least one version, one version of source code, let's say, for each accused product.

THE COURT: Okay.

Mr. DEFRANCO: Some of that -- if you look at a list, it's the same version for different products in a couple instances. But there was at least one body of source code for each accused product.

So my questioning was going to -- he said he analyzed all the source code for 24 products. We don't have that in his expert report.

We have him doing two in detail and two in less detail, but he didn't do all 24. That's all I'm getting to. I'm not going beyond to say what source code he didn't have. He had at least one for each product. He

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THE COURT: That's what I understood your point to be, so that's why I don't understand how the design-around is even relevant. He's not saying he didn't review all the versions of the code for each product. His point is your report only addressed four out of the 24.

So that's why I overruled your objection, because I look at my order that's document number 1545 and I just don't think it's relevant to the dispute at hand.

But you can correct me if I'm wrong on this.

MR. JACOBS: So it's factually incorrect. There was not code produced for each product. The AT&T Galaxy S II, for example, there was no code produced for that. And we can get you a list of all the code in question. The point I want to flag for you, in your order, which I understand you may be a little bit beyond now, Your Honor, is on page 5.

THE COURT: And that's document number 1545?

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MR. JACOBS: Yes. "Indeed, it was a reasonable finding that Samsung's failure to fully comply with the order to compel source code necessarily prejudiced Apple's ability to build its case as to each infringing product and to defend itself against cross-examination of its expert witnesses. See June 19, 2012 hearing transcript at 20 to 21 (Apple's experts vulnerable on cross-examination to attacks that they had not thoroughly analyzed the source code)." That's what I was driving at.

MR. DEFRANCO: May I respond, Your Honor?

THE COURT: Well, my understanding on that is more geared towards the design-around and whether there were subsequent versions of this same code that were not produced. Does that make sense? I never interpreted this to mean that there are actually products for which no version of code was ever produced. I understood this to mean there are later iterations of the code that was produced that may show a design-around in a different functionality.

MR. JACOBS: I think maybe the nuance here is that the code that was produced, we

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THE COURT: All right. Well, I think I'm not going to be able to -- why don't -- whatever you have, I need to see it because I'm not persuaded just, you know, based on my own order. My own order was really just directed at subsequent iterations of produced code and whether they showed any design around or different functionality. It was not intended, because that issue was not before me, of whether code had not been produced for some of these products, period.

MR. JACOBS: I understand your concern, Your Honor.

THE COURT: Okay. All right. Well, if you have anything else on that score, you need to, I guess, file it or provide it to both sides. Otherwise I'm going to continue to overrule those objections. Okay? Thank you.

MR. JACOBS: Understood, Your Honor.

THE COURT: All right. Let's go ahead

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MR. JACOBS: One quick thing. We have a witness scheduling issue, so we're going to put Mr. Hauser on briefly next.

THE COURT: Oh, Okay. Then I need to get the rulings on those objections out as soon as possible.

MR. VERHOEVEN: Your Honor, Mr. Price is going to be handling that witness and he's not even here because we haven't been told that Mr. Hauser would be next. So I'll have to see if he's in the building.

THE COURT: What -- are you not calling Junwon Lee at all?

MR. JACOBS: It's by deposition, Your Honor.

THE COURT: Okay. So that's relatively quick?

MR. JACOBS: Exactly.

MS. MAROULIS: There was also Mr. Teksler who's going to go before Mr. Hauser.

MR. VERHOEVEN: And he'll easily be on and off. He'll be on and off today.

THE COURT: Mr. Teksler will be on and off quickly?

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MR. VERHOEVEN: I can't imagine he wouldn't be.

MR. JACOBS: We have to put the Lee deposition on first and then Teksler, and this cross looks like it's continuing to go and it's ten of 3:00 and Mr. Hauser has an ironclad scheduling conflict. We have to get him on and off today.

I don't think we had any idea these crosses of our technical experts would go this long, Your Honor.

THE COURT: Well, I'm not sure that in the next 15 minutes I can get you rulings on Mr. Hauser's objections. I'll do what I can.

MR. VERHOEVEN: A nd we would also object, Your Honor. The whole point of us having the witness order was so that we could be prepared and have some advanced notice of when witnesses are going to be called.

So we'll have to go back and see if Mr. Price is here. Hopefully he is. But switching order like this at the last second --

THE COURT: Mr. Hauser can't come back on Monday?

MR. MCELHINNY: In fairness, Your Honor ,

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THE COURT: Well, let's -- if Mr. Lee and Mr. Teksler are fairly quick, then it sounds like we should be able to get to Mr. Hauser. Correct?

MR. JACOBS: It's just one of those things, Your Honor. He has to testify today.

MR. VERHOEVEN: Your Honor, I doubt very much we couldn't get him an and off today.

THE COURT: You mean after Lee and Teksler?

MR. VERHOEVEN: I'm not sure how long the deposition designations are, but Mr. Teksler is -- they haven't told us how long his direct is going to be, but I don't think it'll be very long.

MR. LEE: Very, very brief, ten minutes.

MR. VERHOEVEN: And then Mr. Hauser is next.

MR. MCELHINNY: So in terms of your schedule, Your Honor, it's -- I mean, the objections are coming this afternoon.

THE COURT: All right. Well, let me see

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MR. MCELHINNY: Thank you, Your Honor.

THE COURT: All right. Thank you.

MR. VERHOEVEN: Thank you, Your Honor.

THE COURT: Thank you.

(Whereupon, a recess was taken.)

THE COURT: Okay. Welcome back. Please take a seat.

I filed the Hauser objection rulings.

All right. Let's bring the jury in, please.

(Whereupon, the following proceedings in the presence of the jury:)

THE COURT: All right. Welcome back. It's 3:12. Please go ahead, Mr. DeFranco.

By MR. DEFRANCO:

Q: Welcome back, Dr. Singh. A few follow-up questions. You started your work in about December of last year?

A: More or less about January of this year, maybe late December.

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A: That's correct.

Q: And at your deposition in April, my memory is you couldn't recall at that time about how many hours you had spent on this case.

Could you estimate for us now about how many hours you've spent working on this case?

A: Maybe somewhere between 150 and 200.

Q: Let's go back -- thank you, sir. Let's go back to PDX 29.29, please.

I'd like to shift gears -- we're back -- we're still in the '163 patent, one of the two patents you analyzed, claim 50, one of the two claims you analyzed, one for each patent; right?

A: Yes.

Q: We mentioned substantially centered briefly. I'd like to go back to that.

That term, that content, that limitation appears twice in claim 50; is that correct?

A: Yes.

Q: And there -- the claim requires there to be instructions for substantially centering some first bit of information and instructions for substantially centering a second bit of

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A: That is correct.

Q: Now, you analyzed whether or not the accused products substantially centered content in your work on infringement; is that correct?

A: Yes.

Q: Now, there's no -- other than that phrase, "substantially centered," there's no -- there's no definition or explanation about what those terms mean in the claim; right?

A: Not in the claim, no.

Q: And the specification talks about those terms, but there's no explicit definition in the specification; isn't that right?

A: Well, there's talk in the specification about padding and so on with regards to, to the document.

But by and large, it's something that a person of ordinary skill in the art will have no problem understanding.

Q: So is it your testimony, sir, that if I had 50 people lined up who were skilled in the art, they would all give me the exact same answer If I showed them something and asked them if it was substantially centered?

A: By and large, given the context for the '163

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There's usually a good reason in the, in the interface design for, for things appearing the way they do.

Q: So two people might disagree about whether something is substantially centered, but that may be key to the design goal for the specific device? Is that what you're saying?

A: No, that's not what I'm saying.

Q: Okay. Let me ask you this. There's no -- in terms of giving those 50 hypothetical people some tools, there's no specific parameters set forth in the claim; is that true?

A: There doesn't need to be specific parameters set forth in the claim.

Q: There are none set forth in the claim, sir; isn't that true?

A: Well, there's the term "substantially centered."

Q: Right. It doesn't show any -- it doesn't give any more indication. it doesn't give you measurements or distance or any other indication

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A: In the claim taken with the patent, a person of ordinary skill in the art will understand what it means.

Q: There are no -- there are no specific parameters. You've seen claims that have parameters, right, specific measurements detailed exactly in the claim? You've seen that, right, before sir? That's not the situation, is it, here, sir?

A: Not for this particular --

Q: I'm sorry. Everybody is rushed. I apologize for talking over you. That's also not the situation with respect to the '163 specification. There are no specific parameters for each of those 50 individuals to come to the same conclusion, to see whether those parameters are met. That's fair, isn't it, sir?

A: That's why you need to be a person of ordinary skill in the art.

Q: Now, you analyzed, for infringement of the '163 patent, one web page. Is that true, sir?

A: That is not true.

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A: Yes, the browser application, yes.

Q: And in your report, you didn't analyze other applications, like e-mail, the music player, or gallery, or any other application. you focussed on the gallery application; is that true?

A: No, I did not.

Q: I'm sorry?

A: I did not focus on the gallery application at all.

Q: I apologize. I misspoke. I'm rushed. Let me slow down.

You focussed on the web browser application in your analysis; is that true?

A: That is true.

Q: There are many other applications out there, higher order applications like gallery and e-mail and things like that, and hundreds of other more detailed applications you can download from the web, for example. You didn't analyze other applications?

A: I didn't need to.

Q: Now -- and the web page, you also -- within analyzing the web browser, you picked out a

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A: As part of my testing, I tested it on a number of web pages. I just chose the New York Times as a good representative web page for my illustrations. But the design works on, on an innumerable number of web pages.

Q: In the interests of time, sir, do you recall testifying at your deposition that you could not recall testing, performing any tests on any other web page other than the newyorktimes.com web page? Do you recall that?

A: I recall saying at my deposition that I did not conclusively remember very precise websites that I tested on.

As part of my testing, I spent a lot of time just browsing around generally on the web page. When one does that, you don't necessarily keep a clear track of every web page that you might happen to visit.

Q: So you don't disagree, at your deposition, you couldn't identify any other web page other than the New York Times?

A: No. I believe I did give an example or two.

Q: You didn't remember exactly what you tested;

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A: Are you asking me to remember what I said at the deposition three months back? Or I don't know however long back? You'd like to know what web pages I tested on, I'd be happy to give you a list.

Q: Let's keep going. The -- there are other -- there are certain types of content web pages that are not of use for the '163 patent; is that true, sir?

A: Can you be more precise with that question?

Q: There are certain types of, like, mobile websites? Isn't it true, sir, that mobile websites are not useful in the context of the '163 patent?

A: Mobile websites are sites that are specifically designed as an alternative, as an alternative solution to browsing on a small screen device.

The '163 patent sort of obviates the need for people to go and rewrite their entire web page.

So it's -- it doesn't matter -- it's not designed for it, I will agree. But it doesn't matter for the case -- for the sake of infringement.

Q: Well, wouldn't you agree that it goes against the teaching, mobile websites go against the

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A: Of course.

Q: Now, generally, you don't have any idea -- you analyzed the browser -- you looked at the New York Times web page.

Do you remember that?

A: And other web pages.

Q: And you specifically at your deposition -- I can play it for you, sir -- you couldn't, at deposition, identify other specific ones you remembered looking at.

Do you remember that?

A: You're welcome to play my deposition testimony, but I said I did not conclusively give any names, but I did very clearly say that I looked at other web pages.

Q: Okay.

A: I'm -- at this point, I'm happy to give you a list if you want.

Q: Now, I just want to cover your memory at your deposition.

You don't know, sir, do you, sitting here, what percentage of people who own a Samsung product have actually used the browser application? That's not part of your testimony? Is that true?

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Q: And you -- you're not providing any survey estimate of usage to back up your testimony on infringement here. Is that true?

A: No, it's not relevant to infringement at all.

Q: And, in fact, isn't it true, sir, that you've never seen anyone use a Samsung smartphone or tablet computer in a way that would demonstrate the results of steps -- of the steps in claim 50 of the '163 patent, outside of the testing that you've done?

A: It's not relevant to this claim of the patent. This is a claim that specifically talks about having instructions on a device. If the instructions for this claim language exist on the device, it doesn't matter whether anyone ever uses that device or even does anything about it. The fact is it's the device that infringes because it possesses these instructions.

Q: You didn't -- my question was, you didn't speak to anybody who actually uses this functionality, sir?

A: No.

Q: And that would include the inventors; is that

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A: I didn't speak to the inventors of --

Q: Thank you.

THE COURT: All right.

MR. DEFRANCO: Thank you.

THE COURT: All right. The time is 3:22.

MR. JACOBS: Just a couple of questions for Dr. Singh. Could we have the claim language up, Mr. Lee.

REDIRECT EXAMINATION

By MR. JACOBS:

Q: There was a moment of possible confusion. You were asked whether a structured electronic document has to be present in the accused device in order for there to be infringement, and I believe you answered no, and I wondered if you could explain your answer.

A: That's right. What the claim language requires is that your program has instructions that are capable of dealing with a structured electronic document, displaying it and then performing all these actions. The actual sort of -- the specific

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Q: And when we're observing the devices in action, are we observing those actions operating on a structured electronic document?

A: Yes.

MR. DEFRANCO: Your Honor, we're leading the witness now through his testimony.

THE COURT: Yes. Sustained.

By MR. JACOBS:

Q: Can you explain whether or not, when we're observing the device in action, we are observing the instructions operating on a structured electronic document?

A: Yes, exactly. When we observe the device in action, these instructions are, in fact, operating on a structured electronic document. In particular, we saw them operating on the New York Times web page.

Q: You were asked about some source code extracts and the word gesture in your slide versus the presence of gesture in the actual code.

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A: Well, as I said, I provided sort of a schematic, or an illustration of what was in the Samsung source code. Samsung, I believe, was asked to provide all -- its entire universe of all possible source code. In this litigation what was provided was just a subset. I think at most one for -- one piece of source code for every device. And I found that these instructions were largely identical on all these pieces of source code, not just the four that I've been -- that I've presented as representative. And so similarly on the slide that you you saw, what you saw was just a representative of that, that -- of that function.

Perhaps in the other piece of code that I was shown, you know, the variable name might have been changed or there could be a minor typographical change. But instructionally, logically, the code was identical. .

MR. JACOBS: Thank you very much, Dr. Singh.

THE COURT: All right. The time is 3:25.

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MR. DEFRANCO: Your Honor, we just have one exhibit.

THE COURT: Okay. go ahead, please. It's 3:25. Go ahead, please.

MR. DEFRANCO: 2257, 2557. Excuse me, Your Honor.

MR. JACOBS: That's fine, Your Honor.

THE COURT: I'm sorry?

MR. JACOBS: That's fine. I think you were -- I didn't object.

THE COURT: I didn't know -- what just happened?

MR. DEFRANCO: I'm sorry. That's my fault. We're offering exhibit 25 -- DX 2557 into evidence, and there's no objection.

THE COURT: Oh, Okay. That's admitted.

(Whereupon, defendant's exhibit number 2557, having been previously marked for identification, was admitted into evidence.)

THE COURT: Okay. All right. It's 3:26. All right. Now, do you have more?

MR. JACOBS: No.

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THE COURT: Okay. May this witness be excused?

MR. JACOBS: Subject to recall.

THE COURT: Okay. You're excused subject to recall. You can step down. Call your next witness, please.

MR. JACOBS: We would like to call Dr. Hauser, Your Honor.

THE COURT: Okay.

(Pause in proceedings.)

THE COURT: May I have the Hauser direct exhibits?

MR. JACOBS: Yes, Your Honor.

THE CLERK: Raise your right hand, please.

JOHN HAUSER,

being called as a witness on behalf of the plaintiff, having been first duly sworn, was examined and testified as follows:

THE WITNESS: I do.

THE CLERK: Would you have a seat, please.

THE COURT: It's 3:28. Go ahead.

THE CLERK: State your name, please, and spell it.

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DIRECT EXAMINATION

By MR. JACOBS:

Q: State your name and spell it, please, sir.

A: My name is John Hauser, h-a-u-s-e-r.

Q: Dr. Hauser, are you a faculty member at M.I.T. Sloan School of Management?

A: Yes, I am. I'm the Kirin professor, k-i-r-i-n, professor of marketing at the M.I.T. Sloan School of Management.

Q: And what is your field of expertise?

A: My field of expertise is marketing research and analysis.

Q: What is your formal training in?

A: I have a doctorate of science from M.I.T. in operations research. Operations research is basically mathematics applied to business problems.

Q: We're going to be talking in a minute about a survey called a conjoint survey. Have you published in that field?

A: Yes, I have. I've published over 70 professional articles in marketing and marketing research.

MR. JACOBS: Your Honor, we offer Dr. Hauser as an expert in the field of marketing surveys and analysis.

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MR. PRICE: No objection.

THE COURT: All right. He's certified.

By MR. JACOBS:

Q: Now, we asked you in this case to conduct a survey; correct, sir?

A: Yes, that's correct.

Q: what did we ask you to do?

A: I was asked to conduct two surveys to determine how much money, if any, Samsung consumers would pay for the features associated with the patents that are at issue in this litigation.

Q: I'd like you to turn to PX 30 in your binder, please.

A: Yes, I have it.

Q: What is PX 30?

A: PX 30 is an exhibit that I prepared to summarize my findings.

MR. JACOBS: Your Honor, we'd offer PX 30 into evidence.

MR. PRICE: No further objections.

THE COURT: All right. That's admitted.

(Whereupon, plaintiff's exhibit number 30, having been previously marked for identification, was admitted into evidence.)

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By MR. JACOBS:

Q: What conclusions did you draw from the survey that you conducted?

A: I concluded that Samsung consumers are willing to pay a substantial price premium for the features that are associated with the patents that are at issue in this case.

Q: And what do the results of your survey reflect regarding consumer demand for those patented features?

A: The results reflect that there is substantial demand for the features associated with the patents at issue in this case.

MR. JACOBS: Thank you, Dr. Hauser. I have no further questions.

THE COURT: All right. The time is now 3:30.

Go ahead, please.

MR. PRICE: Your Honor, I move to strike the entire testimony. There's no foundation for the jury to conclude how it was done or what was done. This is, in the interests of time, game playing. I will have to explain the entire survey, so I move to strike it in its entirety.

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MR. JACOBS: Your Honor, Dr. Hauser, in PX 30, shows his conclusions and gives a brief explanation of the survey that he conducted and counsel has had ample opportunity to study the work that he did in the form of his expert report.

MR. PRICE: The point, Your Honor, is if I ask him questions, the jury has no idea whatsoever what he did and I would have to explain it and that's not my burden.

This is inappropriate, so I strike the entire testimony.

THE COURT: It's overruled.

CROSS-EXAMINATION

Q: Good afternoon, Dr. Hauser.

A: Good afternoon.

Q: I take it you could have told us to what you did to reach your conclusions?

A: I answered the questions that I was asked.

Q: And I appreciate that and I'm sure counsel does, too.

My question is different. You have a lot more to say as to exactly what it is you did to reach this conclusion; right?

A: Yes, I prepared an expert report and there's

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Q: And that expert report goes on for how many pages, including exhibit, would you estimate?

A: Oh, I don't recall. 20, 30.

Q: 20 or 30 pages, including exhibits?

A: Oh, no. There's a lot of exhibits. I've got a number -- a list in there that's quite long. I'm sure you can provide the number.

Q: You've got probably at least a couple hundred pages if you include the data and the description of exactly what it is you did; correct?

A: Well, yes. It's -- I mean, if you include the data, sure.

Q: And I take it -- do you think that, given what you've said in your direct, which is that you did a conjoint survey, and you came to a couple of conclusions, do you think you've given the jury enough information to understand what a conjoint survey is?

MR. JACOBS: Your Honor, this calls for speculation from this witness. Your Honor overruled his objection.

THE COURT: Overruled.

BY MR. PRICE:

Q: You can answer, sir.

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Q: Yeah.

A: Well, I've answered the questions. I'm confident in the numbers. I hope that they're sufficient, that it's a sufficient explanation.

Q: My question -- are you a teacher, professor?

A: Oh, yes. I teach a number of courses at M.I.T.

Q: I'm just asking you, do you think you've, you've made any attempt to teach this jury how you did your survey so that they could come to a conclusion whether or not it was fair or not?

A: Well, indeed, it's a survey and there's some complicated analysis in there. We asked consumers questions and these questions related to their willingness to pay and this is a summary of their answers.

Q: No. My question was -- I know I can ask you questions about the details. I'm wondering if you think, in your direct exam, you gave this jury enough information to be able to evaluate whether or not what you did was reasonable? Or did you just tell them, "I'm a professor, here's my conclusions, thank you very much."

A: I'm not sure how to answer that.

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A: Well, I don't think I -- you know, I look at the jury and I'm sure they're quite, quite intelligent and, you know, if they came to class, I could teach this method. It's the type of thing I would teach to M.B.A.'s.

Q: So it's a -- you said it's an intelligent jury, so they would actually be able, you think, to understand, at least in broad terms, what you did so they can evaluate whether or not these numbers mean anything; right?

A: Well, I did explain. I answered all the questions I was asked and, you know, to the best of my ability. I think it's a good survey. I think the numbers make sense.

Q: Well, let me ask you a few, because I guess I'd like to -- I'd like the jury to know a little bit about what you did. And so this survey that you were talking about is people would take a survey on the Internet, right? On the Internet?

A: Yes, this is an Internet-based survey.

Q: And they -- you tell them at the beginning --

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A: Well, I actually can't read that. My eyes are getting old. But, yes, I think it says about 25 minutes. Is this in my binder?

Q: It should be in your binder. And you don't pay them if it takes any more, if they take longer time; right? A: No, no. We -- we do -- they do receive basically an honorarium for completing the survey, which is standard in the field, and it's not at all tied to their answers in any way.

Q: My question was, if they -- if they take longer, they don't get paid more?

A: No, no, they don't get paid more if they take longer.

Q: So you start the 20, 25 minutes, and you show them 12 videos; right?

A: Yes, we showed them videos that the -- well, actually, they're animations. But we describe -- we showed them animations that describe the features associated with the patents that are at

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Q: And you're not an expert in the features associated with the patents in this case, are you?

A: No, I'm not. I'm relying on other experts.

Q: So you can't tell this jury whether or not the videos you showed them, this is from your own professional opinion, actually reflect the patents in this case? You don't have that expertise; correct?

A: That's right. I'm relying on other experts in this case that I believe just testified.

Q: Okay. And so you've given the jury -- did those experts see the videos?

A: I think they have, but I can't answer for sure.

Q: Well, did those experts look at your videos that you showed these folks and say, "Yes, what you are showing these folks is the same thing as what is required for our patent"? Did that happen or not?

A: I believe they did, but --

Q: Okay. Then could you show me in your report where it says that the video you showed them was something which their experts, Apple's, looked at and said "this accurately describes what our

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A: That's not in my report. I relied on them to, to look at the descriptions and that is in my report.

Q: I'm asking you about the videos you showed the folks. Where in your report do you say anything that you validated with any expert, checked with any expert to say these videos actually accurately show what the patent requires?

A: I don't recall the exact words in my report, but it does say that I did rely on other experts, actually Doctors Singh and Balakrishnan, that the descriptions were accurate.

Q: No.

A: My job is a marketing researcher.

Q: I'm on a clock here. My question was different. I'm talking about the videos, and I'm asking you, were those videos -- did you go to an expert and say, "do these videos accurately represent what the patents do?" Yes or no?

A: To the best of my recollection, they did look at those videos.

Q: That's not my question.

A: Oh, did I personally show the videos?

Q: Did you talk to them and have them say --

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Q: Okay. And where in your report does it say that any expert looked at those videos to see that they were accurate?

A:: I believe I've answered that to the best of my ability.

Q: Which means you can't point me to a place, because you said it's a short report. You told us that.

A: I didn't say it was a short report.

Q: I think you said 20 pages. So if you could tell me then, where -- where -- it didn't happen, did it? You didn't check the videos with any experts to see if the videos accurately portrayed the patents?

A: If you're asking did I personally show those videos, no, I did not.

Q: Now, after showing them about -- and by the way, four videos had to do with touchscreens; right?

A: Again, they're animations, but yes, four animations.

Q: And then there were four for two other areas that you looked at at the same time; right?

A: Yes, there were four for two other areas, yes,

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Q: And let's look at -- this is, I think, 5680. I think PDX 5680. No, that's not it. In that case, let's try -- oh, let's try PDX 33.6.

So in this 20 to 25 minutes after looking at four animations, there then -- there's a screen at some point here which has one, two, three, four, five, six, seven kind of features; right?

A: Well, yes. There's six features plus price, that's correct.

Q: So you're -- you've got price at the top row; right? Number of apps; size and weight; connectivity; touchscreen; and each of those boxes has different features on those touchscreens, right, like reliable touch, auto switch, this one has something different. Right?

A: Well, yes. I mean, these are descriptions of the product features. Now, of course they've already seen videos and they've seen pictures and they've had a description of these features by the time they got here. But that's correct, yes.

Q: And 28 different then kind of choices here, boxes with different types of, of information, like

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A: No, that's not correct.

Q: Well, it looks like -- am I wrong, it's not on the screen?

A: That's a correct screen. But that's not 28 choices. That's four choices.

Q: Okay. It's -- I see. So you choose one column here; right?

A: Yes. Each consumer sees 16 choice sets like that, about 7,000 total across consumers. All they're asked to do, after we make sure they understand these, is to choose one, and then we infer, basically, the price premium they're willing to pay.

Q: And in connection with that -- so they look at screens where these choices are jumbled up different ways and then make their choices?

A: As is standard valid practice, yes, we do randomize the features so that there's no bias due to order.

Q: So I'm just wondering, like if someone is looking at this on a computer screen and they're

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A: Well, do you want me to answer -- are they spending money here? No, they're not spending money.

Q: And you don't know if they have enough time to think, do I want to pay an extra 30 bucks for that or should I pay my gas bill? You believe they have enough time to make all those comparisons when they're doing this?

A: Yes, they do.

Q: Hm. And do they have enough time to say, you know, if I'm going to spend 50 bucks for this, maybe I should ask my spouse and see if she'd rather instead buy, you know, something for her? Does that happen during this on screen activity?

A: I'm not sure what you're asking, but no, they do not have time to go call their spouse. But they certainly have sufficient time to make choices and, you know, we've been able to validate that their choices are accurate.

Q: By the way, there's different types of validations, internal validations, external

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A: Yes, sure. I mean, I love this. This is great. Internal validation, we did that here.

Q: No, no. I was asking --

A: Oh.

Q: I'm on the clock. I know you love talking about this, and I bet you would have liked to have talked about it with the jury while your attorney was up.

A: I had to answer the questions.

Q: Well, you can tell me that you put in all of these different types of parameters, do you want a screen with 4.3 inches, 3.5, right? They're making all these choices. And let me just figure out what goes on now. So then you put that information into a software program. What's the name of the software?

A: This is known as hierarchical-based, choice-based conjoint analysis. And, yes, we put in the answers. I think there were 455 consumers times 16 times four choices. You can multiply that out. But it's quite a lot of data.

Q: I can't. But what's the name of the software program?

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Q: Yes.

A: Oh. This is Sawtooth Software, Incorporated.

Q: And you showed us some numbers that you had come up with by doing this, and I'd like you to look, if you could, at -- let's go to 3920.015.

And at the top here are, are some calculations you did about what someone would be willing to pay in addition to get whatever the videos showed about these patents; right?

A: Yes. For example, the $39 says that if a consumer is paying $199, plus the 24 months fees, they would be willing to pay an extra $39 for the '915 patent and an extra $100 for the combinations of the '915, '163, and '381 patent.

And then we have similar numbers for tablets.

MR. PRICE: Just a second.

(Pause in proceedings.)

BY MR. PRICE:

Q: So let me understand then. After you get these sets of data, you then put that data into the software and it simulates about ten thousand choices per person? Is that right?

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Q: Close? How many -- it's a simulation that's run of thousands and thousands and thousands of choices?

A: No, that's not quite right.

Q: What does the simulation do? And can you say this in less than 15 seconds?

A: Not in less than 15 seconds.

Q: Okay. So there's some program that crunches a lot of numbers?

A: Well, there's a program that estimates the parameters. There's a program that uses the parameters. There's a program that checks the data. There's a lots of programs involved. This is a carefully done study.

Q: And by the way, you said each person taking has to make 16 choices; right?

A: Yes, correct. Each person, they see four and choose one smartphone -- they're Samsung consumers -- they choose one smartphone out of four and they do this 16 times.

Q: And the -- there's something called an external test where you can look into the market and see whether or not this makes any sense; right?

A: I'm really just doing the demand side. I'm

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Q: When you say "what consumers are willing to pay," if I say they're willing to pay -- I mean, this is an additional $139 for a $199 phone.

You'd like to look to see whether or not what is crunched here really makes sense when you look into the marketplace to see whether that's really true; right?

A: Well, yeah. I mean, if you look at the $39 over a 24 month contract, that's about a buck 60.

So the question is, yeah, did I do some internal validation, absolutely.

Q: I was asking external. External. Wouldn't you want to look in the market and see whether or not this makes sense as kind of a sanity check?

A: I'm not sure what you mean, because I really want to explain what I'm getting to here.

Q: If the answer is no, you can tell me no, because I'm on the clock.

A: The answer is not no. You know, you've asked me -- I'm trying to help you.

Q: Oh, I don't know about that. Let's -- (laughter.)

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Q: Now, these are -- camera, weight and size, storage and memory, connectivity, number of apps, these are all choices that were part of that four-by-seven graphic, that is, they're making all these choices at the same time; right?

A: Yes.

Q: Yes is good. I like yes.

Okay. Now, so you got data from this that didn't just give you numbers for these, what you have identified as patent numbers, but you also got data as to what these folks would pay for an extra bit of memory, for better cameras, different cameras.

You got all of that data so that you could have filled in numbers for those as well, camera, weight and size, storage, memory, et cetera. right?

A: Oh, absolutely. It's a complicated set of computations, but the data I collected could have been used to compute the willingness to pay if it's done correctly.

Q: Okay. So, for example, you actually got results, or -- amongst all this data, if you wanted to, you could have, you could have looked at, for

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A: Certainly the data would allow one to do that, that's correct.

(pause in proceedings.)

BY MR. PRICE:

Q: So, for example, if you had shown us the number for storage and memory and you were asking the consumers here how much they would pay for, like, an extra 8 -- what was it, do you recall what you were asking them for? Maybe we can put back up 3.6. When you look, you've got 64 gigabytes, 8 gigabytes, 16, 32. Do you see that?

A: Do I see that?

Q: Yeah.

A: Yes, I do.

Q: So you could have shown the jury the number that you came up with to see what these folks, in doing this study, this test, were -- what your numbers turned out for what the consumer would be willing to pay for the one with 8 gigabytes, the 16, the 16 to 32; right?

A: Well, these were distraction features meant to --

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A: Oh. Okay, yeah.

Q: you could have -- you could have -- let's go back to what I was showing you, which is 3920.015.

You could have put down here what a consumer on this thing said they were willing to pay for an extra 8 gigabytes of memory; right?

A: Indeed, one can do those computations with the data.

Q: And that would be nice to have because you can go on Apple's web page and you can see that, for example, to go from 16 to 32 gigabytes, you have to pay $100 more, and from 32 to 64, you've got to pay another hundred dollars more? Right? You can actually see what people are paying in the market for that; right?

A: Well, let's a little complicated. I mean, some people are willing to pay this. But the average consumer may not. Some purchase it. Some don't purchase it.

Q: So my question is, you can do a reality check, though, and that is if you put these numbers in, you can actually go and see how much these things are selling for in the real world and compare them

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A: That's a little bit more complicated than you're making on, because, you know, let's take memory. It's an interesting comment. But some people will pay more than others, and so the question is, what will the average person pay?

Well, you've got to average the people who do buy the memory for that and the people who don't.

But it's an interesting question.

Q: If it's complicated, I guess you -- you chose not, in your direct, to explain it to the jury; right?

A: I answered the questions I was asked.

Q: Do you believe that if you'd put these numbers here that you, that you crunched, would that have put the jury in a better position to look at this and use their common sense to determine whether the numbers made any sense in the real world?

A: If we put those numbers up, we'd have to under -- I mean, we'd have to explain what they mean. They're a demand slide. It's what people would be willing to pay. It's not what they actually pay in the marketplace.

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A: That --

Q: Yes or no?

A: What?

Q: Is that correct? Yes or no? Isn't that what you just said?

A: This relates to it, but it's not it, no.

Q: And so let me get back to my question. Do you think it would give the jury a little bit more of an ability to judge what you're telling them if they, if they were able to see these other numbers so they could just see, relatively speaking, how these things rank and how much you're saying people are willing to pay? Do you think that would help them any?

A: You're asking me, you know, what do they believe. But these numbers --

Q: You're a teacher. That's why I'm asking.

A: Right.

Q: Instead of saying, "I'm a teacher, I'm smart, these are my numbers," do you think it would have helped them any to give them the data so that they

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A: I can the question I can't answer yes or no because it's got to be done correctly. You can't just put the numbers up. They have to be explained.

Q: well, and you believe you did a sufficient explanation of those numbers in your direct examination? Becaue you can't just put them up, they have to be explained? Did you do a sufficient explanation in your direct examination of the numbers you did show?

A: I put up the numbers, yes, and, in fact, I just explained them and I'll be happy to explain them again.

Q: No, no. My question is, in your direct examination, did you put up the numbers and give a sufficient explanation so that these jurors would know what it means? Yes or no?

A: I -- I believe -- yeah, I'm confident in those

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Q: I'm not asking whether you're confident in them. You just said it takes a lot of explanation. I'm asking whether you explained it to these folks in your direct examination.

A: I'm trying to help you here.

Q: Well, then, answer the question.

A: The question is, I believe, yes, the direct examination got the numbers across.

Q: Okay. If you look at 2578 in your binder, you see it's a book by Bryan Orme called Getting Started with Conjoint Analysis.

A: I'm sorry. 2 --

Q: It's 2578.

A: 2578, okay.

Q: And you know Mr. Orme?

A: Yes, I know -- I've known Bryan for a number of years.

Q: He's the President of the software company, the -- what was it called?

A: It's Sawtooth Software. Yes, I know Bryan.

Q: And he's the president of Sawtooth Software; correct?

A: Yes. Well, I think he is. I -- he might be president now.

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A: I read parts of the book, yes.

Q: You recognize it as being fairly authoritative?

A: It's -- it's, you know, fairly authoritative, sure.

Q: And is it true that -- is the following true, that "the idea of converting utilities to dollar values" --

A: Excuse me. where are you reading from?

Q: Sure. This is page 85 where it says "monetary scaling trap." And it says "the idea of converting utilities to dollar values can be appealing to managers. But some approaches to converting utilities to dollar equivalents are flawed. Even when computed reasonably, the results often seem to defy commonly held beliefs about prices and have limited strategic value for decision making."

Do you agree with that, yes or no?

A: Of course, because what he says is there's some ways that are flawed, and I was very careful not to use the flawed methods.

Q: Ah. And you've explained those sufficiently so the jury can trust you on it?

A: Have I given them a complete class in some

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Q: Have you done anything to explain it to them?

A: I'm doing the best I can.

Q: Okay. On page 86, do you see it says in the third paragraph, "even when accurate price sensitivity has been estimated for each individual, an examination of average values will often reveal that respondents are willing to pay much more for one feature over another than is suggested by market prices."

Do you agree with that?

A: Yes, I do.

Q: And you agree that, that one of the fundamental problems with analysis based on these dollar values is that the approach assumes no competition because the product purchased usually constitutes a choice among specific alternatives, but competitive context is a critical part of the purchase situation.

Do you agree with that?

A: That's correct.

Q: On page 87, you see it gives the example of asking someone their willingness to pay for a color monitor for your laptop computer versus a monochrome screen, and it says "assuming we conduct

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Do you agree with that?

A: Are you asking me do I agree with what Bryan is trying to make the distinction here between the demand side over a demand and supply, yes, I agree with Bryan.

Q: That -- these numbers may not have any relationship to what people actually pay in the market; right?

A: No, that's -- I don't agree with that.

Q: Well, let me ask you this: if you had been asked to do a conjoint analysis on -- let me give you an example. If we can go to 3920.016 -- hold on one second. Yes, 016.

So if we had -- if you had been asked to do a conjoint analysis on slide to unlock, or just up and down scroll, or, you know, side scroll or

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A: One could do that study, yes.

Q: And you'd get a value for every one of those; right?

A: Right, sure. I mean, you would -- you would get an accurate measure of how much people would be willing to pay.

Q: Go to the next page. And then if you did the same thing for screen quality, like how good, how bright, how many pixels in the green, the operating system, GPS location services, battery life, headphones, being able to move the tablet so it orients to you, I mean, all of these features, if you did the conjoint study, you're going to get a number; right?

A: Yeah, we could do that study, although I wouldn't do all of these features at the same time, but you could do that study.

Q: And if you did that, you'd be paying thousands of dollars for a phone if you just did that independently with each of those -- if you did

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A: Well, it's getting a little bit complicate here, because people do, over the life of the contract, pay more, anywhere from 2,000 to $5,000 if you include how much they're paying.

But, yes, some of these features can be valuable.

Q: And just so we're clear, if you go back to 3920.015, you chose not to give the jury any numbers here to let them independently use their common sense to see whether or not your numbers made any sense; right?

A: Well, I was really focussed on the question I was asked, which was the value of the patents, that's correct.

Q: But you have to use common sense when you looked at these things to see if they really make any sense in the real world. Would you agree with that?

A: In fact, I -- yeah, I think I looked at common sense. But these numbers make sense to me based

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Q: Well, you might have even more than that many years of experience as a consumer in this box here -- oops, I pointed this at them -- and it would have been nice if you would have put them in a position where they could have used theirs.

MR. JACOBS: Objection, Your Honor.

MR. MCELHINNY: That's not a question.

BY MR. PRICE:

Q: Is that correct?

THE COURT: I'm sorry. Let me look at the question. Let's just move on. Go ahead, please.

MR. PRICE: I'm sorry, Your Honor. I couldn't hear you.

THE COURT: What was the question? Can you read it please, Ms. Shortridge?

MR. PRICE: Let me ask it again. It'll be quicker.

THE COURT: Go ahead.

By MR. PRICE:

Q: You said you'd use your common sense. You're not an expert in common sense; right?

A: No, I'm not an expert in common sense.

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MR. JACOBS: The form of the question is improper.

THE COURT: Overruled. Go ahead.

THE WITNESS: Let me see if I understand the question.

MR. PRICE: If you don't understand the question, that's fine.

THE COURT: Okay. It's 4:04.

REDIRECT EXAMINATION

By MR. JACOBS:

Q: Dr. Hauser, can you explain to the jury why you believe your results are valid?

A: Yes, I can. This is conjoint analysis. We've been -- this has been used in marketing research since 1971. We've done a lot of validation studies. We've actually had people make choices. Having given them real money, they make choices. We designed the study as carefully as

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Q: And what are the validation methods for this particular survey that you conducted?

A: Okay. In this particular survey, we did what are referred to as hold out tasks.

For example, we asked the consumer to make some choices. Then we crunched the data, we analyzed the data, and then we predict what they would actually say in the next questions, and then we compared what they would say to what they would actually do.

And the statistics we got were definitely within the range in the literature and what one would normally consider quite high.

Q: And what kind of validation is that? Is there a term for that?

A: That's an internal validation, yes.

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A: I believe it's a sufficient validation because in many other studies, including a number I've published, there's internal validation and an external validation, what people actually do with real money. And in all cases, when studies are done carefully, the internal validation lines up with the external validation.

Q: Did you have an understanding of the reason we asked you to do this survey?

A: Yes. I was asked to obtain a valuation of what people would be willing to pay, the demand side, for the features at issue in the case.

Q: And to what purpose did you understand your survey would be used?

MR. PRICE: Objection. This is beyond of cross at this point.

THE COURT: Sustained.

MR. JACOBS: Thank you. No further questions.

THE COURT: All right. It's 4:06. Any recross?

MR. PRICE: Just one second.

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THE COURT: Please.

(Pause in proceedings.)

RECROSS-EXAMINATION

Q: I forgot to ask you, you're being paid about $800 an hour?

A: That's my standard going rate, yes.

Q: And how much do you think you're going to end up getting?

A: I don't know.

Q: Do you have any idea how much you've billed?

A: Prior to coming here? I'd have to ask my wife.

Q: Sometimes you have to check with your spouse before making these marketing decisions; right? You really can't tell us? I mean, really?

A: Well, it's -- I'm trying to visualize the spreadsheet. I'd have to call my wife.

Oh, I don't know. To actually do the study, it's a complicated study. 30,000, 40,000.

Q: The tests you talked about, those are internal tests within the -- well, those were internal tests; right?

A: Well, absolutely. These were what's known as

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Q: That was my question.

A: Okay.

Q: And as, as Mr. Orme said, that sometimes doesn't really line up with reality if you did external tests; correct?

A: No, no. It almost always does. When you compare --

Q: Okay. You said it almost always done. We could have been able to tell that instead of just trusting you if you'd actually given us those numbers, right, on how much people are willing to pay for memory?

A: I think you're getting a little confused. An internal validity check is the ability to predict what people are going to do, so people behave the way they say they're going to behave. That's different than looking at these numbers.

MR. PRICE: Okay. Thank you.

THE COURT: All right. It's 4:08. Any more questions.

MR. JACOBS: No, Your Honor.

THE COURT: All right. May this witness be excused and is it subject to recall.

MR. JACOBS: He may, and he is.

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THE COURT: All right. So you're excused subject to recall. You may step down.

THE WITNESS: Thank you.

THE COURT: Call your next witness, please.

Do we have a photo for Mr. Hauser?

All right. Thank you. Who's your next witness?

MR. LEE: Your Honor, we're going to call Mr. Teksler at this time. Mr. Mueller will present him if that's all right.

THE COURT: All right. I don't have any direct exhibits for Mr. Teksler. I have the cross.

MR. LEE: I think they're on the way, Your Honor.

THE COURT: Okay.

MR. MUELLER: Your Honor, may I approach with the photos?

THE COURT: Yes. Thank you.

MR. MUELLER: Your Honor, we call Boris Teksler.

THE COURT: All right.

THE CLERK: Would you raise your right hand, please, before you sit down. ///

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Boris Teksler,

THE WITNESS: Yes, I do.

THE CLERK: Would you have a seat, please.

THE WITNESS: Thank you.

DIRECT EXAMINATION

By MR. MUELLER:

Q: Good afternoon. Would you introduce yourself to the jury?

A: Certainly. Hello, my name is Boris Teksler.

THE CLERK: Could you spell your name, please?

THE WITNESS: Certainly. b-o-r-i-s, t-e-k-s-l-e-r.

By MR. MUELLER:

Q: Mr. Teksler, where do you work?

A: I work at Apple.

Q: What is your position at Apple?

A: I'm the director of patents and licensing strategy.

Q: For how long have you worked at Apple?

A: For a little over three years now.

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A: So I have two key areas. The first one is patent acquisitions where we acquire patents in the company.

The second one is patent licensing where we deal with cross-licensing with third parties.

Q: Mr. Teksler, could you explain to the jury, please, what it means to license a patent?

A: Certainly. So to the extent that I have a patent that describes, let's say, a technology or a feature, and if you want to build a product that uses that technology or feature, then I can sell you a license to practice that patent and you can go ahead and practice that within your product.

Q: Could you please give us an overview of how Apple approaches licensing?

A: So I guess from a strategic perspective, we have three distinct areas when we think about patent licensing and we treat them differently.

Q: Could you please list those three.

A: Certainly. So I'll start with standards-related patents.

MS. MAROULIS: Your Honor, objection per your prior ruling.

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THE COURT: Sustained.

MR. MUELLER: Your Honor, I was about to ask Mr. Teksler to pause on standards questions.

Q: I'm not going to ask any questions about those. But if you could just list for us the next two categories, please.

A: Certainly. The next one is Apple computing patents, or computing patents, and the third one is Apple's unique user experience, I.P.

Q: So let's take, if we could, those last two categories one by one. Computing patents, what does that refer to?

A: So Apple has had a long legacy of computing innovation. It started with personal computing, and since then I would describe it this way, which is we've been on over a two decade history of innovation with building a variety of mobile products, and it started with notebook computers. As technology was maturing with the processor technology getting better, miniaturization technology getting better, and batteries keep getting better, we were able to build a multitude of different products and we

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MS. MAROULIS: Your Honor, objection. Move to strike. It's beyond this witness's expertise. He started out in 2001.

THE COURT: Overruled.

By MR. MUELLER:

Q: Continue, please.

A: And with that said, we built a portfolio, a patent portfolio along the way and have done a lot of innovation to build those products out to market.

Q: Mr. Teksler, could you explain to the jury, please, how this category of computing patents relate, if at all, to wireless devices?

A: Certainly. So any modern smartphone that has a operating system built into it that you want to download third party applications to, that's an example of core computing I.P. that we've really

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Q: What is Apple's position on licensing this portion of its patent portfolio?

A: So unlike standards where we have to license, this is an area where we don't have to license.

MS. MAROULIS: Objection. Beyond the court's order on standards.

MR. MUELLER: Your Honor, he's just describing the second category, non-standards patents.

THE COURT: All right. Overruled.

THE WITNESS: So with respect to the computing portfolio, it's not one that we have to license, but we're certainly willing to discuss licensing. We do that with two primary goals. The first one is that we want to get fairly compensated for the work that we've done; and the second -- and the second one is we want to make sure that we safeguard Apple's differentiated user experience.

By MR. MUELLER:

Q: Mr. Teksler, let's turn, if we could, to the third category in the Apple portfolio. Would you remind us what that is?

A: Certainly. That's Apple's unique user

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Q: what does that refer to?

A: So I would describe that in a couple different ways. From a top level, it's that which makes our brand identity and keeps us unique in the marketplace, and it's what we don't wish to share and other people to make.

So with that, I would say from a technical perspective, it includes trademarks, trade dress, all the design patents, and a small set of utility patents that really deal with user interface elements, and maybe a couple of associated features.

Q: And how does this category relate to wireless devices?

A: Well, I guess you don't really need a license to this. From our perspective, unless you're trying to build an iPhone knock-off or a clone or an iPad clone, you wouldn't need a license to this set of I.P.

Q: And to be clear, what is Apple's position on licensing this portion of its portfolio?

A: We strongly desire not to license it. It's not an area that we license, and our goal in licensing is to enable people to design their own

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Q: Has Apple ever licensed any of the patents within this category?

A: Certainly over time we have, but I can count those instances on one hand quite easily. And we do so with rare exception and we do it consciously knowing that we're not enabling somebody to build a clone product.

Q: Mr. Teksler, I want to shift gears, if I could, and turn back the clock to the beginning of the Apple/Samsung dispute. Do you know when that dispute began?

A: Yes. It began in the summer of 2010.

Q: And what happened in the summer of 2010?

A: So Samsung introduced their Galaxy S phone, and with this, we were quite shocked for a couple of reasons.

First, they were a trusted partner of ours and we didn't understand how a trusted partner would build a copycat product like that.

And the second one was that the product was just way too close to our product. So we took it so serious that Steven Jobs and Tim Cook contacted Samsung executives and met

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MS. MAROULIS: Your Honor, I move to strike for lack of foundation on that response.

THE COURT: You're going to have to lay a foundation how he knows that.

By MR. MUELLER:

Q: Sure. Mr. Teksler, were you at Apple at that time?

A: I was.

Q: What was your position at that time?

A: I was the director of Apple I.P. and strategy.

Q: Yes or no, were you privy to conversations involving Samsung?

A: Yes, I was.

MR. MUELLER: Your Honor, I've laid a foundation.

Q: Could you please turn to tab 1 in your binder, that's plaintiff's exhibit 52.

THE COURT: I don't have the direct exhibits to Mr. Teksler. I thought they were coming.

MR. MUELLER: I'm sorry. I thought you had a binder. I apologize, Your Honor. This is tab 1, plaintiff's exhibit 52.

Q: Mr. Teksler, do you know what this document

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A: I do.

Q: What is it?

A: It's a presentation that was given to Samsung in August of 2010. It's one that I helped author and create.

MR. MUELLER: Your Honor, I offer it.

MS. MAROULIS: Your Honor, no further objection, but Your Honor ruled that the witness would not be allowed to testify about the meeting itself.

THE COURT: And I'll continue that ruling. It's admitted.

(whereupon, plaintiff's exhibit number 52, having been previously marked for identification, was admitted into evidence.)

THE COURT: Go ahead.

By MR. MUELLER:

Q: Mr. Teksler, we're putting plaintiff's exhibit 52 on the screen. This is titled "Samsung's use of Apple patent in smartphones." And could you remind us what this document is? It's a presentation?

A: Yes, it's a presentation given to Samsung in

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Q: Who delivered the presentation?

A: Chip Lutton did.

Q: Who is Chip Lutton?

A: Chip Lutton was the chief patent counsel and my manager at that time.

Q: Mr. Lutton is still at Apple?

A: No, he's not.

Q: Now, were you at this presentation?

A: I was not.

Q: But you now when it was given?

A: I do.

Q: What was that date?

A: August 4th, 2010.

Q: Let's turn, if we could, to page 17 of the presentation and put it on the screen.

what do we see here?

A: So this was really a chapter that was entitled "Samsung Copying iPhone," and what we were -- what we were relaying with this content was really about the remarkable similarity of the two products, all the way from the overall appearance of the product down to the arrangement, the four-by-four arrangement of the icons, the similarity of the icons, the persistent dock that you have at the

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Q: Let's turn --

MS. MAROULIS: Your Honor, I move to strike. This was a lay opinion on infringement issues and, again, the witness was not disclosed.

MR. MUELLER: Your Honor, I'm simply asking Mr. Teksler about a document that he helped author.

THE COURT: Overruled.

By MR. MUELLER:

Q: Let's put page 14 on the screen if we could. What do we see here?

A: So in this page what we were describing -- this was part of the chapter where we talk about the architecture of Samsung phones, and specifically here we're referring to the Android application framework that's highlighted in the left architecture diagram there.

And we were communicating to Samsung by this slide that these are some of the, some of the patents -- it's just representative of a list of

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Q: I'd like to direct your attention, if I could, Mr. Teksler, to U.S. patent number 7,469,381 on this list.

Are you familiar with that patent?

A: I am.

Q: What is it?

A: So this patent relates to scroll bouncing and, I guess put simply, it's a user interface element when you're panning through a list, when you get to the bottom of the list, how do you know that you got to the bottom?

Well, we have a rubber band like effect that happens when you get to the bottom of the list. If you didn't have something like this, you wouldn't know, is the computer hung up? So you need to have some kind of user interface element and this is how we do it.

MS. MAROULIS: Your Honor, move to strike. Lack of foundation and opinion testimony.

MR. MUELLER: Your Honor, again, this is a portion of a presentation that Mr. Teksler helped to author. I'm just asking about one entry on this page.

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THE COURT: All right. Overruled.

By MR. MUELLER:

Q: Mr. Teksler, if you could, please turn to tab 2 in your binder, and this is PDX 32. If we could also put that on the screen. Mr. Teksler, this shows seven patent covers. Are you familiar with these patents?

A: I am.

Q: What are they?

A: These are the patents --

MS. MAROULIS: Objection, calls for opinion testimony. Lacks foundation.

THE COURT: What are you asking?

MR. MUELLER: I merely wanted to get across that these are the asserted patents in this case.

THE COURT: Is there any question about that so far?

MR. MUELLER: I can rephrase if you -- if I might, Your Honor.

Q: Are these the seven asserted patents?

A: Yes, they are.

Q: Where do these fall, these seven patents, within the categories you described earlier in the Apple portfolio?

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MR. MUELLER: Thank you, sir. No further questions.

THE COURT: All right. The time is now 4:22.

CROSS-EXAMINATION

By MS. MAROULIS:

Q: Good afternoon, Mr. Teksler. How are you?

A: Good afternoon.

Q: My name is Victoria Maroulis. I'm counsel for Samsung. And seeing how it's late Friday afternoon, I'll be very brief.

You testified that you prepared a Powerpoint for a meeting between Apple and Samsung in August 2010. Is that correct?

A: I believe that was key note, but yes.

Q: And you didn't personally attend the meeting in question, right?

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Q: You cannot tell us from your personal knowledge anything about that meeting and what was presented; correct?

A: I know that that was presented. We later sent Samsung the presentation and, in subsequent meetings with Samsung, we referred back to that presentation and to the dialogue that happened that day. So that's --

Q: But from personal knowledge, you do not know what occurred at that meeting and what was shown and what was not shown; correct?

A: Okay, certainly.

Q: And the Powerpoint presentation that you prepared is exhibit 52 in evidence; correct? If you can look in your cross-examination binder at tab 52, do you see that?

A: I do.

Q: OK. ANd do you remember, on direct, Joe asked you about the seven patents asserted in this case; correct?

A: Yes, that's correct.

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A: Yes, that's correct.

Q: One of those design patent patents was D'677; right?

A: I believe that's correct, yes.

Q: That patent is nowhere in this presentation; is that correct?

A: It's not enumerated.

Q: It's not mentioned at all as a patent, the D'677; right?

A: So I think what I would say is I agree that it's not enumerated in the presentation. When we were preparing the, the points that we wanted to get across -- and I believe that was back in slide 17 of this presentation -- we did say that there was a remarkable similarity between the products and, in doing so, we did talk about design patents.

Q: Sir, this presentation does not mention the word "design patent" at all; correct?

A: I agree.

Q: And design patent '087 that you reviewed with counsel is also not mentioned in this presentation; is that right?

A: I agree.

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A: I agree.

Q: And so is D'305, that is also not mentioned in the presentation; right?

A: I agree.

Q: You also looked at several utility patents with counsel; is that right?

A: I did.

Q: One of them was '163 patent; correct?

A: I believe that's correct, yes.

Q: That patent is not enumerated anywhere in this presentation we just look at; right?

A: That's correct.

Q: And the '915 patent that you also looked at in your direct testimony is also nowhere mentioned; correct?

A: That's correct.

Q: This presentation that you prepared for Samsung does not have any mention of trade dress; right?

A: Again, I think I would put it into the same category of bullet points that we talked about.

Q: Sir, you're a licensing professional. You know what a registered trade dress is; correct?

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1968

Q: So nowhere in this presentation is there mention of a registered trade dress for an iPhone; correct?

A: I agree that there is not.

Q: And there's no mention of unregistered trade dress for iPhone as well; correct?

A: I agree that it's not written on the slides.

Q: And there's no unregistered trade dress for iPad; correct?

A: I agree.

Q: Exhibit 52 doesn't say anywhere that Apple would not license its design patents to Samsung; is that right?

A: I agree.

Q: And the presentation does not identify any utility patents that Apple would not license to Samsung; is that right?

A: I agree.

Q: Please take a look at exhibit DX 586 in your binder. This is a presentation that you made to Samsung in October 2010; correct?

A: Yes, that's correct.

Q: You prepared it yourself?

A: I did.

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1969

A: Yes, that's correct.

MS. MAROULIS: Your Honor, I move exhibit 586 into evidence.

MR. MUELLER: No further objections, Your Honor, subject to the limiting instruction Your Honor mentioned.

THE COURT: Right. And there is a -- this is admitted.

(Whereupon, Defendant's exhibit number 586, having been previously marked for identification, was admitted into evidence.)

THE COURT: You may consider this -- you may not consider this evidence to prove or disprove the validity or invalidity of the claim or the amount of the disputed claim. However, you may consider this evidence for some other purpose, for example, whether or not Samsung lacked notice of Apple's infringement claims. Okay. Go ahead, please.

By MS. MAROULIS:

Q: Mr. Teksler, nowhere in exhibit 586 does Apple

332

1970

A: That's correct.

Q: And nowhere in this written presentation does it say that Apple would not license its design patents to Samsung; correct?

A: I'm not sure that I agree with that. I know that we talked about that and that there was a specific bullet, I believe, on one of the pages that addressed that.

Q: Sir, I'm not asking you about the meeting itself. I'm asking you about the presentation. Nowhere in this document, 586, is there a statement that Apple would not license design patents to Samsung?

A: I think there is a bullet in here that says specific Apple proprietary features to be discussed.

And in that construct, we talked about not having the ability to clone our products.

Q: Again, within the context of this presentation, there's no statement that Apple would not license its design patents to Samsung; correct?

A: I agree.

Q: And nowhere in this document does Apple say that it would not license certain utility patents

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1971

A: Subject to the same, you know, point that I made earlier, yes.

Q: Let's put up 586, page 13, please. At the top of the page, it says "We will provide Samsung with a number of options for obtaining a cost-effect license to our patent portfolio." Did I read this correctly?

A: Yes, that's correct.

Q: And this refers to licensing patent portfolio; right?

A: Yes, that's correct.

Q: It does not say "patent portfolio except design patents." Correct?

A: No, I agree the slide doesn't say that.

Q: And it doesn't say "except for certain utility patents." Correct?

A: That's correct.

Q: In exhibit 586, Apple proposed certain discounts on the license fees based on certain elements; correct?

A: Yes, that's correct.

Q: And one of those elements were proprietary, so-called proprietary features?

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1972

A: Yes. I'm not sure that we're using the word the same way, but yes.

Q: Okay. And Apple defined some of its proprietary features, what it's called distinctive industrial design; correct?

A: Apple defined some of it as -- or what I did specifically, I should say, is I defined them as distinctive industrial designs, that's correct.

Q: And Apple never gave Samsung anything in writing that identified patents or features that were not available for license; is that right?

A: In this presentation? Or ever?

Q: In this presentation, sir.

A: In this presentation, no, we had not gotten to that point of the discussion. We had just simply mentioned that there were some things that yet had to be discussed.

Q: Okay. Sir, it's true, is it not, that Apple licensed its design patents to another party?

A: Yes. I think I said earlier that there were less than a handful of such events.

Q: But those patents have been licensed before; correct?

A: Yes.

Q: Are you aware of whether anyone has ever paid

335

1973

A: No, I'm not aware.

(Pause in proceedings.)

By MS. MAROULIS:

Q: I'm sorry, sir?

A: No, I'm not aware of that.

MS. MAROULIS: Okay. Your Honor, we're almost at the end. Should we stop or continue?

THE COURT: It's now 4:30, so we can end for today.

MS. MAROULIS: Okay.

THE COURT: So we'll continue with the cross on Monday. All right. So please don't discuss the case with anyone, don't do any research, please keep an open mind, and you're excused for today and we'll see you back on Monday at 9:00 o'clock. And next week we are going five days okay? Thank you for your patience and your service.

And if you would, please, leave your jury books in the jury room over the weekend.

Okay. Thank you.

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1974

THE COURT: The record should reflect the jury has left the courtroom. You may step down.

THE WITNESS: Thank you.

THE COURT: And please take a seat. Are you -- is Apple not calling any of the individuals, the four individuals who were identified for deposition designations?

MR. MCELHINNY: I'm -- I'm sorry, Your Honor. I'm not sure I understand your question. We will be playing the deposition designations.

THE COURT: Of Junwon Lee and Dong Hoon Chang and Timothy Benner and Timothy Sheppard?

MR. MCELHINNY: Yes, Your Honor.

THE COURT: Okay. So that's what you'll do on Monday.

MR. MCELHINNY: Yes, Your Honor.

THE COURT: After Mr. Teksler?

MR. MCELHINNY: Yes, Your Honor.

THE COURT: Okay.

MR. MCELHINNY: And then Mr. Musika.

THE COURT: and then Mr. Musika. And

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1975

MR. MCELHINNY: We plan to rest after Mr. Musika.

THE COURT: I see. Okay. So then the only objections that are left, then, are Mr. Musika. And then have you redesignated the deposition excerpts that you want for Mr. Sheppard?

MR. MCELHINNY: We haven't yet. We'll do that tomorrow, Your Honor.

THE COURT: Okay. I need the objections to any witnesses to be filed at 8:00 a.m. the day before the witness testifies. Doing it at 4:00 o'clock just doesn't give me enough time. Okay?

MR. JACOBS: So, Your Honor, the problem I think we're going to run into is we will finish with Mr. Musika, and then there's the Samsung case about which we know absolutely nothing.

THE COURT: Well, I assume that Samsung also is going to do its rolling list of seven witnesses that Apple has done. So when are you intending to file that, understanding, I think, that your case, Mr. Verhoeven, will start on Monday.

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1976

MR. VERHOEVEN: Yes, Your Honor.

THE COURT: So when are you going to file your rolling list of seven witnesses?

MS. MAROULIS: Your Honor, the disclosures are due Saturday for the Monday witnesses, and then Saturday night we will file our rolling list of seven witnesses.

MR. JACOBS: It would be very helpful, to meet Your Honor's schedule, if we could get all of that early. I think the disclosure of exhibits would be due at, under our new schedule --

MS. MAROULIS: Your Honor, under our new schedule, it's 10:00, 10:00 a.m. tomorrow.

MR. JACOBS: Yeah, 10:00 a.m. tomorrow for the exhibits. If we could have the rolling list of seven at that time, that would be terrific.

THE COURT: So the exhibits and the list of witnesses for Monday are going to be filed and, I guess, exchanged Saturday at 10:00 a.m., and then I would like the objections and responses filed on Sunday. Can you do that by 8:00 A.M., or what time?

MS. MAROULIS: In that case, we would expedite the cross disclosures because we won't be getting the cross disclosures until 7:00.

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1977

THE COURT: 7:00 on which date?

MS. MAROULIS: Saturday.

THE COURT: Okay. Tell me what time on Sunday were you planning to -- I mean, you all propose a schedule for this weekend, please.

MS. MAROULIS: We were planning to do it by 1:00 p.m. for Monday witnesses. That's the schedule we worked out, where we file objections the day before at 1:00 o'clock if that's okay for Your Honor.

THE COURT: That doesn't give me much time. I mean, you had 11 witnesses this time and you missed the 1:00 o'clock deadline. I got the objections for most of the witnesses at 4:00 o'clock, and I didn't even have the exhibits.

MR. JACOBS: We apologize for that.

THE COURT: So that has become a perennial problem that both sides are filing these objections and then not giving me the relevant exhibits. I don't know how you expect me to rule on things that I've never seen before.

So somehow this process needs to be improved because I'm getting objections late and I'm not getting exhibits.

So I'm -- just doing a list of

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1978

MS. MAROULIS: Your Honor, may we file everything at 1:00 p.m. Sunday, but sharp this time?

THE COURT: Well, this is my concern. For eight different witnesses, at least, at a minimum because we, you know, no objections were filed as to Mr. Sheppard. I've excluded Mr. Sittler, so I'm assuming he's off. Right?

MR. JACOBS: Yes, Your Honor.

THE COURT: No. I'm going to say -- can we say at least by 10:30 on Sunday?

MR. JACOBS: As you wish, Your Honor.

MS. MAROULIS: Yes, Your Honor.

THE COURT: Okay.

MR. JACOBS: Is there any --

THE COURT: Okay. So we have also the issue and the F7000 phone designer issue, and I owe you the rulings on the Musika objections and then we'll wait and see on Sheppard.

I guess it's possible that Dale Sohn and the phone designer will go on on Monday? is that

341

1979

MS. MAROULIS: No, Your Honor. They're not scheduled to go on Monday.

THE COURT: Okay. All right. I'll try to get you a ruling on that as quickly as I can. You're going to file the objections today? Right?

MS. MAROULIS: We have filed it, Your Honor. I understand it's been filed about an hour ago.

THE COURT: Okay, perfect. So if I can, if it's possible, I'll try to get you the rulings this weekend.

Okay. What else? anything else that --

MR. MCELHINNY: Can I get some guidance from Your Honor?

THE COURT: Yeah.

MR. MCELHINNY: The issue is, in my mind, admitting demonstratives as exhibits. We have been -- as you know, we have a specific exhibit list that was subject to limitations. We have been focussing our objections on the exhibits that are on that list. Today Your Honor began to admit demonstratives.

THE COURT: Oh, no, no. That's not true.

342

1980

MR. MCELHINNY: Let me just start back again. All I really want -- we don't want to be making objections that are not going to be -- what is the court's --

THE COURT: Actually, both sides have been objecting to demonstratives, so I'm not sure what you're talking about that no one has objected to demonstratives so far. There have been a lot a objections to demonstratives. That's why you've had to change titles and take out portions.

MR. MCELHINNY: We've been objecting to the demonstratives on the grounds that they're misleading. We've not been applying evidentiary objections to them because I didn't think they were coming into evidence. But I just want to -- if a demonstrative is shown, is it moved into evidence? Is that going to happen now? That's all I really want to know.

THE COURT: Well, I'm telling you, ask Ms. Krevans. She's the one that started admitting demonstratives into evidence.

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1981

MR. VERHOEVEN: Yes.

THE COURT: It was not my understanding that was going to happen. Let me hear from Ms. Krevans. You should talk to your own team. Your own team started this process of admitting demonstratives.

MR. VERHOEVEN: And if I could just say --

MS. KREVANS: If I may respond to Your Honor's question?

THE COURT: Yeah.

MS. KREVANS: The exhibits that I put in were on our exhibit list from the start. They were photographs that were put in explicitly as summaries of sets of devices. All the underlying devices were made available to counsel. They were objected to not because they were demonstratives, they were objected to on the basis they were improper summaries.

Your Honor said that objection was overruled, so long as the underlying devices were made available, and they were. They were plain and simple, straight ahead photographs to collect for the jury a set of underlying devices.

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1982

MR. VERHOEVEN: May I be heard, Your Honor?

THE COURT: Please.

MR. VERHOEVEN: Not only is that not correct, as Your Honor will recall, I repeatedly objected that they were demonstratives and I was overruled.

But just today, Mr. Jacobs put in his slides, one after another after another after another of demonstratives, moved them into evidence over our objection that they were demonstratives.

And now that they've finished putting in all their demonstratives is when we hear counsel get up and say, "Well, what's sauce for the goose shouldn't be sauce for the gander."

This is a clear situation where they're trying to change the rules now that they're getting close to finishing their case-in-chief.

If we can look through Mr. Jacobs' slides, he moved them all in, and Your Honor let them all in, and now they're trying to change the rules.

345

1983

MR. MCELHINNY: And it's late Friday afternoon, Your Honor, and I'm really sorry for opening this because all I really wanted to know was what the rules are going forward. We'll live with whatever the rule is. I just wanted some sort of guide.

THE COURT: Well, as long as they -- I mean, this is exceeding all of the exhibit limits.

MR. VERHOEVEN: Your Honor --

THE COURT: But I'm going to the allow them as long as they meet 403 and our, you know, other proper evidentiary rules. I think that's only fair since they have been coming in.

346

1984

MR. MCELHINNY: Thank you, Your Honor.

THE COURT: So -- and they have been very heavily objected to, so I'm not sure what you're referring to that no one has been objecting to demonstratives, because that ain't what I've been doing for the last two weeks.

So anyway, what else do we have?

MR. VERHOEVEN: I just have one sort of a housekeeping matter, Your Honor. On the depos, I understand Your Honor's ruling on 106, but the issue we're having is the witness isn't here, right, and so typically, my practice, the way you do depos is you have designations and counter-designations. But the counters don't make any -- you can't -- because it's a transcript, you can't say, "now, you remember when so and so asked you x, did you have something to add to that?"

So if you just play them, they really don't make sense and the jury is not going to understand, outside of the context.

So my -- I'm just telling my historical practice has been that you put them together and you play them and the two sides work out, you know, their objections to the designations and counters,

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1985

Your Honor, if I can just finish? If Your Honor is not willing to do that, then at least I think it makes sense to have them played sort of like when we were talking about cross-examination where if I put up a snippet on rebuttal, or reply, the other counsel is able to put up the other context, so at least it would be while the witness is still on the stand for context.

So if we're not allowed to put them together, which I actually think would be the most coherent for the jury, I think it would make sense for us to play our counters immediately after theirs, sort of like a cross to their examination.

THE COURT: No. I'm just going to have whatever excerpts one side wants in, they'll just finish it and it'll be counted towards their time; and then whatever excerpt the other side wants, then they'll be played and they'll be counted towards their time.

It's going to be like the witness is here. You don't get to do the immediate cross when a live witness is here, and I'm not going to treat it any differently if it's video.

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1986

MR. MCELHINNY: They are video.

MR. VERHOEVEN: So just for clarity, I think I understand you to say no, we can't do that, we have to wait until our case-in-chief to play it?

THE COURT: No, no. It's going to be like the witness is live. Whatever excerpt one side want, I will dock their time, and whatever other excerpts the other side wants --

MR. VERHOEVEN: So we should be prepared and ready to play our counters immediately after they do their designations?

THE COURT: Yes, after they show their video portions, you'll show your video portions, and I assume it's not going to be any further. It's just one set and one set.

And then we'll go to the next witness and one set and one set, and that way I'll keep the time that way.

MR. VERHOEVEN: Thank you, Your Honor, for the clarification.

THE COURT: What else? You're still standing.

MR. MCELHINNY: Are you prepared to share your time?

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1987

THE COURT: Oh, yeah, okay.

(Pause in proceedings.)

THE COURT: All right. Apple has used 11 hours and 35 minutes. And Samsung has used 12 hours and 16 minutes.

Okay. What else? Anything else?

MR. VERHOEVEN: Nothing from Samsung, Your Honor.

MR. MCELHINNY: Nothing for Apple, Your Honor.

THE COURT: Okay. Then I will -- are you going to -- for the exhibits, are you going to then provide them on FTP or e-mail, the ones that I need to rule on on Sunday?

MS. MAROULIS: Whatever is best for Your Honor. We can either e-mail them or FTP them. That's the preference?

THE COURT: I guess that depends on size. If they're relatively small and they can be e-mailed, that's fine. But if it's a very big volume, then probably FTP is preferable.

MS. MAROULIS: Okay, Your Honor. We'll probably do FTP, because if they're Powerpoints for demonstratives --

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1988

THE COURT: They'll take a long time. Okay. So we'll expect them Sunday at 10:30.

We'll try to get the Musika objections, if we can, even today out, and then the other two as soon as we can. But hopefully this weekend or early next week. Okay. All right. Thank you all. Appreciate it.

MR. JACOBS: Thank you very much, Your Honor.

MR. VERHOEVEN: Thank you, Your Honor.

(Whereupon, the evening recess was taken.)

348

Certificate of Reporter

that the foregoing transcript, certificate inclusive, constitutes a true, full and correct transcript of my shorthand notes taken as such official court reporter of the proceedings hereinbefore entitled and reduced by computer-aided transcription to the best of my ability.

/s/[signature]
Lee-Anne Shortridge, csr, crr
Certificate Number 9595

Dated: August 11, 2012