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Report from the Apple v. Samsung II Markman Hearing - Judge Koh Tells Them to Slim the Case Down ~pj Updated
Monday, February 25 2013 @ 05:52 AM EST

The Markman hearing in Apple v. Samsung II was Friday, the 21st. And now we are really entering the darkest part of the patent woods. It doesn't get any more exasperatingly detailed than at a Markman hearing. But as usual with legal matters, the more you force yourself to examine the details, the more you get out of it and the more enjoyable it eventually becomes.

At the hearing, the presiding judge, the Hon. Lucy Koh, told the parties they have to narrow their cases against each other to 25 patent claims against 25 products, with more narrowing to come. And she asked if it would be wise to just table this case until the Federal Circuit rules on a pending appeal. Samsung told the judge it will, in fact, be offering a motion to do exactly that, but Apple piped up that it will oppose that motion.

I'm happy to tell you we had a volunteer in the courtroom again, the same Debra B. who told us about the February 14th hearing where the parties explained the technology of their various claims to her, and once again, we get more details about this hearing than we got from the media reports alone. For example, it's clear that Judge Koh has learned from the first Apple v. Samsung trial:

Koh suggested that she would not follow the pattern of the Apple-Samsung case held last summer with the parties’ superabundance of motions, filings, and efforts to expand the scope of the case. “This is going to be a streamlined case,” she said. "As this case … is currently framed, I'm refusing it to go on. I am willing to let it simmer for five years.”
That's a relief. Before I show you her full report, it might be good to explain a little bit about what a Markman hearing is and why it matters.

The parties have been filing claim construction materials since December, and there is a lot of it, so that should tell you how important it all is. I explained once before what a Markman hearing is, when Oracle and Google filed their joint claim construction statement. Here, the parties filed separately. They just have a lot of trouble agreeing on anything, anything at all. And so many exhibits. One filing alone cost over $22, just for the one filing, and there have been many more filings than that one. So when PACER says that their rates are low, that is only true if you aren't really following a case in detail. But without the documents, I think it would be hard to follow along with what was said at the hearing.

A Markman hearing is a pretrial hearing in a U.S. District Court during which a judge examines evidence on the appropriate meanings of relevant key words used in patent claims. It is referencing Markman v. Westerview Instruments, Inc., 517 U.S. 370 (1996). It was a case that centered on what a word in a patent meant, the word "inventory", and the question was who gets to figure out the meaning of the words in a patent, the judge or a jury? The US Supreme Court said that job was for the judge:

The two elements of a simple patent case, construing the patent and determining whether infringement occurred, were characterized by the former patent practitioner, Justice Curtis. [n.11] "The first is a question of law, to be determined by the court, construing the letters patent, and the description of the invention and specification of claim annexed to them. The second is a question of fact, to be submitted to a jury." Winans v. Denmead, 15 How., at 338; see Winans v. New York & Erie R. Co., 21 How., at 100; Hogg v. Emerson, supra, at 484; cf. Parker v. Hulme, supra, at 1140....

Where history and precedent provide no clear answers, functional considerations also play their part in the choice between judge and jury to define terms of art. We said in Miller v. Fenton, 474 U.S. 104, 114 (1985), that when an issue "falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question." So it turns out here, for judges, not juries, are the better suited to find the acquired meaning of patent terms.

The construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis. Patent construction in particular "is a special occupation, requiring, like all others, special training and practice. The judge, from his training and discipline, is more likely to give a proper interpretation to such instruments than a jury; and he is, therefore, more likely to be right, in performing such a duty, than a jury can be expected to be." Parker v. Hulme, 18 F. Cas., at 1140. Such was the understanding nearly a century and a half ago, and there is no reason to weigh the respective strengths of judge and jury differently in relation to the modern claim; quite the contrary, for "the claims of patents have become highly technical in many respects as the result of special doctrines relating to the proper form and scope of claims that have been developed by the courts and the Patent Office." Woodward, Definiteness and Particularity in Patent Claims, 46 Mich. L. Rev. 755, 765 (1948)....

The decisionmaker vested with the task of construing the patent is in the better position to ascertain whether an expert's proposed definition fully comports with the specification and claims and so will preserve the patent's internal coherence. We accordingly think there is sufficient reason to treat construction of terms of art like many other responsibilities that we cede to a judge in the normal course of trial, notwithstanding its evidentiary underpinnings.

So, both sides make known to the judge the meaning they give to words in the patent, but then the judge decides. And that is what happened on February 21.

Obviously, it matters a lot what a judge decides. What I've never been able to figure out is why they don't make the inventor explain the key words himself, so we don't have to go through this exercise in all the patent cases. Why don't they make them fill out a form when applying for a patent, as in "When I say 'inventory' I mean books, papers, blah, blah, but not T shirts." Or whatever. In this hearing, for example, they were arguing about Samsung's ’757 patent, Multimedia synchronization method and device, and they were trying to figure out whether or not the invention should be limited to a fixed or rigid place. They argued about that at the February 14 tutorial session too, about whether “zone-specific” referred to a specific and fixed room or not. Samsung says it didn't, because the specification mentions a yacht as a possible location for the invention, and one drawing showed LAN, WAN, central storage devices, and zone-specific storage interface devices. But the judge and Apple said the patent was confusing.

I mean, couldn't the inventor have specified that when he applied? "When I say 'zone-specific', I mean not a fixed place but any appropriate place, such as, but not limited to, yachts, LANs, WANs, central storage devices, etc." Why do we have to guess what an inventor was thinking instead? There would still be some disputes, I'm confident, because litigators litigate, but maybe we could at least narrow things down.

I'm with Judge Koh on that goal, for sure. But then, I hate patent law. I think it has no clothes, but nobody dares to tell the king.

The list of patents in this case makes me laugh, frankly. It's laugh or cry. But then, I'm not a patent lawyer. They probably eat this up and can't wait to do it again. Litigators are not like you and me. They *like* to argue, and the more complex the better. It's like playing chess. Some people love it, and they'll sit for hours and days practically without eating, working through strategies. Others get a headache after a half hour of chess and leave to get a hamburger or decide they need to go home and take a nap.

Inventors don't fill out such forms, so it is up to the judge, who first looks to intrinsic evidence of what a key word means, within the patent document itself, and then looks to extrinsic evidence, like prior art, correspondence between the patent applicant and the USPTO during the patent proceess, and even looks at dictionaries. You will see all of those types of evidence in the exhibits filed by the parties. Of course the materials are provided to her by the parties, each side trying to get the judge to agree with that side's interpretation. The jury isn't involved in this at all.

Here, then, is Debra B's report, and after it, I'll provide you with all the filings the parties have been bombarding the court with on claim construction, trying to get her to see things their way, so you can more fully understand what they are arguing about:

Apple v. Samsung II – Markman Hearing – February 21, 2013

The Markman hearing of Apple v. Samsung II held on February 21, 2013 started where the technology tutorial a week earlier had left off.

U.S. District Judge Lucy H. Koh, in San Jose, California, asked questions regarding Apple’s and Samsung’s proposed claim constructions in her process of construing the patent claims at issue in this litigation.

The Setting

The hearing took place in the same courtroom as the jury trial last August. The court–associated people included the judge, her clerk, the court reporter, and three people I assume were law externs or maybe clerks, because they were sitting in jury seats. The law firm attorneys and paralegals numbering roughly fifteen on each side filled the several rows of tables adorned with computers and monitors in front of the court bar. The audience included in-house legal counsel and employees of the parties, two or three media types, and a few other unidentified observers. And me.

The law firms that represented the parties in the August trial are representing the parties in this case, with one additional firm. Quinn Emanuel Urquhart & Sullivan, LLP is representing Samsung. Apple is represented by Morrison & Foerster, LLP, Wilmer Cutler Pickering Hale and Dorr, LLP, and the additional firm of Gibson, Dunn & Crutcher, LLP.

The hearing was held from roughly 10:30 a.m. to 3:30 p.m. with a forty-minute lunch.

Hearing Preliminaries

Last week, Judge Koh had asked the companies to consider whether the case should be put on hold until after the appeals court rules on the first lawsuit. This week, Samsung attorney Kevin Johnson indicated that Samsung would be filing a motion to suspend the lawsuit. Apple lawyer Josh Krevitt said Apple would oppose Samsung's request. Judge Koh said she would consider Samsung's motion when it is filed.

If the case does proceed, Judge Koh is insisting that each side’s case must be limited to 25 patent claims and 25 accused products. “We’ll keep narrowing and narrowing,” she said. “You’ve already been litigating this thing for a year. You must know something about what’s your best case.”

"Just take your best shots," Koh said. "I don't want a lot of sausage filler."

Koh suggested that she would not follow the pattern of the Apple-Samsung case held last summer with the parties’ superabundance of motions, filings, and efforts to expand the scope of the case. “This is going to be a streamlined case,” she said. "As this case … is currently framed, I'm refusing it to go on. I am willing to let it simmer for five years.”

[To date the number of filings in this case is piling up at just shy of 400. This compares to Apple v. Samsung I with 2200+ filings, not counting a multitude of document attachments and exhibits.]

The Markman Hearing

Apple is asserting the following US patents:

  • 5,946,647, System and method for performing an action on a structure in computer-generated data;

  • 6,847,959, Universal interface for retrieval of information in a computer system;

  • 8,046,721, Unlocking a device by performing gestures on an unlock image;

  • 8,074,172, Method, system, and graphical user interface for providing word recommendations;

  • 8,014,760, Missed telephone call management for a portable multifunction device;

  • 5,666,502, Graphical user interface using historical lists with field classes;

  • 7,761,414, Asynchronous data synchronization amongst devices; and

  • 8,086,604, Universal interface for retrieval of information in a computer system.

Samsung is also asserting eight patents:
  • 7,756,087, Method and apparatus for performing non-scheduled transmission in a mobile communication system for supporting an enhanced uplink data channel;

  • 7,551,596, Method and apparatus for signaling control information of uplink packet data service in mobile communication system;

  • 7,672,470, Audio/video device having a volume control function for an external audio reproduction unit by using volume control buttons of a remote controller and volume control method therefor;

  • 7,577,757, Multimedia synchronization method and device;

  • 7,232,058, Data displaying apparatus and method;

  • 6,292,179, Software keyboard system using trace of stylus on a touch screen and method for recognizing key code using the same; 6,226,449, Apparatus for recording and reproducing digital image and speech; and

  • 5,579,239, Remote video transmission system.

The Markman hearing, however, covered disputed terms in Apple’s ‘502, ‘647, ‘414 and ‘760 patents and Samsung’s ‘087, ‘757, and ‘239 patents.

Below are a few notes about the issues with and specific words from the seven patents discussed in the hearing.

Note that as the hearing progressed, the Hon. Judge Koh became increasingly impatient with the attorneys interpreting what language in the patents meant. At one point she said, “I don’t want any representation of what it says. I want a column and a line number [of the patent at issue].”

Apple’s ’502 patent - Graphical user interface using historical lists with field classes:

The terms “history list” and “field class” were at issue. Judge Koh asked, “What is the point of having a class, if not sharing?” Apple said the purpose of the invention was flexibility and that the sharing between computer applications was optional.

This week Samsung came up with a new argument about what the “category of information associated with the field” was. “This is a sandbag,” Koh suggested. The attorney reluctantly admitted after direct court questioning that the argument had not been presented in any of Samsung’s filings or to Apple, and was only contemplated the previous day at 4 p.m. [Oops.]

The exasperated judge said, “I want just column number and line number [in the patent]…. Nope, I am going to read it….” [The judge read out short passages of patents here and later on in the hearing when attorneys gave their chapter-and-verse evidence from the patents.]

For the ‘502 claims and claims discussed later, Judge Koh took down column and page-number citations presented by the parties for her further review.

The judge said she would review the citations as well as some inventor testimony before giving her ruling on the '502 term of “field classes.” Her tentative thinking is that “history list” is a “list of previously used entries.”

Apple’s ’647 patent - System and method for performing an action on a structure in computer-generated data:
The discussion focused first on claim scope. Judge Koh said that claims are presumed to be different in scope, yet the Federal Circuit says that this does not mean that every limitation must be the same, but that at least one of them must be different.

Samsung presented two distinctions that are found in Claims 3 and 10 but not in Claim 1: “application programming interface” [API] and “running concurrently.” Samsung suggested that the use of API in Claims 3 and 10 and not in Claim 1 further supports its position that the API is separate from the computer program.

Apple countered that Samsung is trying to limit the claim construction of Claim 1 unduly to one embodiment when there is not reference of the limitation of the API, even though Claims 3 and 10 are narrower with the use of the API.

Samsung argued that to follow Apple’s construction is to read out the processor entirely. The claim differentiation doctrine does not apply to Claims 3 and 10. Here the API is separate from the program, just like a client and server that Judge Posner in Apple, Inc. v. Motorola, Inc. (N.D. Ill. 2012) concluded were separate.

Again, Samsung and Apple agree -- except on the claim-construction language of “separate from a client” phrase. Last week, Judge Koh was thinking that the action of the processor does not have to be separate from the client. She did not give a hint of her opinion at this hearing.

Apple’s ’414 patent - Asynchronous data synchronization amongst devices:
The discussion is back to single- and dual-core processors and whether cell phones had dual-core processors when the patent application was filed in 2007. The judge suggested the Samsung attorney was sandbagging again because last week he had argued that the patent was not directed toward cell phones and this week he was referencing an LG cellphone patent, which had not been presented to the court before. Presumably, the patent disclosed something about two-way simultaneous multithreading (SMT). The judge agreed that column 24 of the patent was the strongest evidence that “concurrently” means “at the same time.”

Apple would like the claim to be construed as having interleaving threads during a same period.

Koh suggested that Samsung’s intrinsic evidence of the words “at the same time” should be weighed more heavily than Apple’s extrinsic evidence of dictionary definitions and what a PHOSITA would have understood in 2007.

Apple’s ’760 patent - Missed telephone call management for a portable multifunction device:
Judge Koh said she needed the most help with the ‘760 and ‘757 patents. The two parties were unsuccessful in coming to an agreement on ‘760 language, despite the judge’s urging last week. They presented two new claim constructions, which the judge found more confusing than their previous constructions.

A little prosecution history for ‘760: The patent examiner sent a notice of allowance [NOA] to Apple. However, Apple then filed a request for continued examination [RCE], which meant that the examiner did a new patent search. A new prior-art reference was found and so before another NOA was sent, the examiner made an amendment to the claim language.

Apple suggested reasons for the patent examiner’s amendment. Samsung countered that one should not speculate on the reasons for the amendment. Instead, one should look to what the examiner wrote about the amendment, pointing to the amended language of “completely substituting display of the list of interactive items.” The examiner referenced “completely substituting” … “as defined in the specification.”

Samsung’s ’087 patent - Performing non-scheduled transmission in a mobile communication system (FRAND patent that is part of the 3GPP standard):
Koh said Apple stated last week that non-scheduled N and K control the data rate. She asked for Samsung’s input.

Samsung said that Apple was reading in a wrong negative limitation and with just N and K variables, the UE can still determine the data rate.

A number of abbreviations for terms used in the claims were thrown around including user equipment (UE), enhanced uplink dedicated channel (E-DCH), variable K for transmission time intervales (TTIs), non-scheduled transmission period of variable N, radio network controller (RNC).

After several volleys between parties, Judge Koh wanted just evidence (i.e. column and line numbers from patents).

Samsung's ’757 patent - Multimedia synchronization method and device:
Parties followed up on their disagreement about whether the invention should be limited to a fixed or rigid place.

Samsung’s proposed language: “device that resides in viewing and/or listening area”; Samsung’s proposed alternative language: “device that resides in a location for multimedia playback.”

Apple proposed language: “device that resides in a room or similar location” [Hmm. Does “room or similar location” include a “yacht,” – one of the locations mentioned in the specification?]

Last week Judge Koh had suggested “resides” might be a workable term for the claim construction.

Samsung’s ’239 patent - Remote video transmission system:
Apple is arguing that software is required for the invention to be effective. Samsung disagrees.

Samsung points to Claims 5 and 6 because they use “video devices,” which is broader language than “video card.”

In patent prosecution, “telemetric frequencies” received a 112 rejection [35 U.S.C. section 112], which was later withdrawn. Samsung argues the structure is “any frequency that data can be transmitted.” Judge Koh said she is hesitant about that language.

Another issue is whether the structure in Claim 11 require a modem. The claim says "the remote unit includes a transmitter connected to each computer interface such that each tranmitter transmits at a different frequency."

Apple asserts that the language “computer interface” is claiming pure function and has indefiniteness problems. Apple would like to limit the construction to require a modem.

Samsung argues that “computer interfaces such as a modem” is structure. Other interfaces exist besides modems so Apple’s language is too restrictive.

What Happens Next?

Once the judge decides on the claim construction, the court is requiring Apple and Samsung to narrow their cases to a maximum of 25 claims and 25 devices for each side. Further, parties are required to continue narrowing at what the judge refers to as “three subsequent inflexion points.” The inflection points are:

1) before expert discovery,

2) before summary judgment, and

3) after summary judgment

Fact discovery ends on July 8, 2013.
I know you join me in thanking her for doing this for us. When this goes to trial, someday, we will be able to track just how much the judge's final ruling molds the trial. The judge will issue her order on all these word issues, and when she does, we'll post it.

Meanwhile, here are all the filings from the docket on claim construction, leaving out all the other filings except for the parties' response to the court's order that they pare things down:

333 - Filed & Entered: 12/21/2012 CLAIM CONSTRUCTION STATEMENT Apple Inc.'s Opening Claim Construction Brief Pursuant to Patent Local Rule 4-5 filed by Apple Inc.(a California corporation). (Attachments: # (1) Declaration of Jennifer Rho In Support of Apple Inc.'s Opening Claim Construction Brief, # (2) Exhibit A, # (3) Exhibit B, # (4) Exhibit C, # (5) Exhibit D, # (6) Exhibit E, # (7) Exhibit F, # (8) Exhibit G, # (9) Exhibit H, # (10) Exhibit I, # (11) Exhibit J, # (12) Exhibit K, # (13) Exhibit L, # (14) Exhibit M, # (15) Exhibit N)(Lyon, Hervey) (Filed on 12/21/2012)

334 - Filed & Entered: 12/21/2012
Partial Opposition (re [306] MOTION for Leave to Amend its Disclosure of Asserted Claims and and Infringement Contentions ) filed by Samsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Todd Briggs In Support of Samsung's Opposition to Apple's Second Motion to Amend, # (2) Exhibit A to the Declaration of Todd Briggs, # (3) Exhibit B to the Declaration of Todd Briggs, # (4) Exhibit C to the Declaration of Todd Briggs, # (5) Exhibit D to the Declaration of Todd Briggs, # (6) Exhibit E to the Declaration of Todd Briggs, # (7) Exhibit F to the Declaration of Todd Briggs)(Maroulis, Victoria) (Filed on 12/21/2012) Modified text on 1/3/2013 (dhmS, COURT STAFF).

335 - Filed & Entered: 12/21/2012
CLAIM CONSTRUCTION STATEMENT Samsung's Opening Claim Construction Brief filed by Samsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Briggs Declaration, # (2) Ex. A, # (3) Ex. B, # (4) Ex. C, # (5) Ex. D, # (6) Ex. E, # (7) Ex. F, # (8) Ex. G, # (9) Ex. H, # (10) Ex. I)(Maroulis, Victoria) (Filed on 12/21/2012)

...

350 - Filed & Entered: 01/25/2013
RESPONSE to re [335] Claim Construction Statement, Apple Inc.'s Responsive Claim Construction Brief Pursuant to Patent Local Rule 4-5 by Apple Inc.(a California corporation). (Attachments: # (1) Declaration of Peter J. Kolovos, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5, # (7) Exhibit 6)(Selwyn, Mark) (Filed on 1/25/2013)

...

352 - Filed & Entered: 01/25/2013
RESPONSE to re [333] Claim Construction Statement,, Samsung's Responsive Claim Constructive Brief by Samsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Victoria Maroulis, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5, # (7) Exhibit 6, # (8) Exhibit 7, # (9) Exhibit 8, # (10) Exhibit 9, # (11) Exhibit 10, # (12) Exhibit 11, # (13) Exhibit 12, # (14) Exhibit 13, # (15) Exhibit 14, # (16) Exhibit 15, # (17) Exhibit 16, # (18) Exhibit 17, # (19) Exhibit 18, # (20) Exhibit 19, # (21) Exhibit 20)(Maroulis, Victoria) (Filed on 1/25/2013)

...

356 Filed & Entered: 02/07/2013
AMENDED OPENING CLAIM CONSTRUCTION BRIEF filed by Apple Inc.(a California corporation). (Lyon, Hervey) (Filed on 2/7/2013) Modified text on 2/8/2013 (dhmS, COURT STAFF).

...

362 - Filed & Entered: 02/08/2013
Reply Claim Construction Brief filed by Apple Inc.(a California corporation). (Attachments: # (1) Declaration of Jennifer Rho, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5, # (7) Exhibit 6)(Lyon, Hervey) (Filed on 2/8/2013) Modified text on 2/11/2013 (dhmS, COURT STAFF).

363 Filed & Entered: 02/08/2013
Reply Claim Construction Brief filed by Samsung Electronics America, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Todd Briggs in Support of Samsung's Reply Claim Construction Brief, # (2) Exhibit J to the Declaration of Todd Briggs)(Maroulis, Victoria) (Filed on 2/8/2013) Modified text on 2/11/2013 (dhmS, COURT STAFF).

...

377 - Filed: 02/14/2013
Entered: 02/15/2013
Minute Entry: Tutorial Hearing held on 2/14/2013 before Judge Lucy H. Koh (Date Filed: 2/14/2013). Claims Construction Hearing as previously set for 2/21/2013. (Court Reporter Lee-Anne Shortridge.) (ecg, COURT STAFF) (Date Filed: 2/14/2013)

...

379 Filed & Entered: 02/15/2013
Statement Samsung's Identification of Asserted Claims and Accused Products by Samsung Electronics Co., Ltd.(a Korean corporation). (Maroulis, Victoria) (Filed on 2/15/2013)

...

381 - Filed & Entered: 02/15/2013
NOTICE by Apple Inc.(a California corporation) Apple Inc.'s List of Accused Samsung Products and Asserted Patents (Attachments: # (1) Exhibit A)(Lyon, Hervey) (Filed on 2/15/2013)

...

383 Filed & Entered: 02/18/2013 Statement Docket Text: Statement re [379] Statement Samsung's Corrected Identification of Asserted Claims and Accused Products by Samsung Electronics Co., Ltd.(a Korean corporation). (Maroulis, Victoria) (Filed on 2/18/2013)

...

389 - Filed & Entered: 02/19/2013
Statement Joint Submission Regarding Claim Construction by Apple Inc.(a California corporation). (Selwyn, Mark) (Filed on 2/19/2013)

As you can see, it's ridiculous. So you can understand why the judge is insisting on slimming this case down. If you recall, Judge Alsup did the same thing in the Oracle v. Google patent phase of that litigation, and it worked out well. He was even more strict about it than Judge Koh, if you remember his instructions at the end of his tentative claim construction order in that case:
CONCLUSION

The constructions set forth above will apply in this dispute. The Court will reserve the authority, on its own motion, to modify these constructions if further evidence warrants such a modification. Additionally, by NOON ON MAY 6, 2011, each side may file a five-page critique (double-spaced, 12-point Times New Roman font, no footnotes, and no attachments) limited to points of critical concern. This is an opportunity for the parties to focus solely on their most cogent critique, not to rehash every point made in the briefs and at the hearing. No replies, please.

I love the "No replies please." Litigators never stop, unless you stop them. The 25 claims/25 products goal in this case is apparently just the beginning. Judge Koh saw how confused the jury became in Apple v. Samsung, the first case, and she complained more than once about all the motions being filed, but they never stopped, and she is determined to change the story in this case. It wouldn't surprise me at all if she granted Samsung's motion to table this until the pending appeal is ruled on by the Federal Circuit.

But we're trying to understand Markman hearings, so if you read the final claim construction briefs for each side, and maybe any exhibits that look interesting to you as you read the briefs, where they'll be described and you'll get the exhibit number or letter, you'll see how these things go. For example, you will see that Samsung offers a page from a dictionary, as well as a ruling from Apple v. Motorola, and some materials from depositions. I didn't get the exhibits that are the patents at issue, because you have them in Debra's list already.

Enjoy.

Update: If this isn't Exhibit A that litigators have to be stopped or they just keep going and going and going, someone just sent me this hilarious news that in Australia, Apple and Samsung have raised so many claims, they've assigned two judges to hear the case, a first for this Australian federal court:

According to in-court reports from The Australian Financial Review, the two-judge system was required due to the sheer volume of patents in suit, with Apple alone asserting 19 properties on 120 infringement claims. The Cupertino, Calif., company is targeting nine Samsung smartphones and two tablets, while the Korean tech giant is leveraging seven wireless patents in counterclaims against the iPhone and iPad.

Apple counsel Stephen Burley said Monday's hearing was "the first time in the history of the Federal Court" that two judges presided over an initial case. Justice Annabelle Bennett, who has been part of the proceedings since the case began in 2011, is being joined by Justice David Yates in an attempt to sift through the mire of complex patents and filings.

See? Also, I got an email from a member asking about the '414 patent, whether they were arguing that "at the same time" meant from the standpoint of the user/POSHITA or that of the CPU. I, of course, had no clue, so I asked Debra about it, and here's what she adds:
Like he suggests for U.S. Patent No. 7,761,414, Apple argued that "at the same time," is from the perspective of the user/PHOSITA. Therefore, the interleaving of the threads required on a single-core processor is seamless to the user. The user is mentioned in column 24, lines 52-64 of the patent. Apple also asserted that architecture is not germane here.

Additionally, in the technology tutorial, Apple cited to an article in PC Magazine from December 2010. The article presumably shows that the inventor/PHOSITA would not have been contemplating a dual-core processor in a cell phone at the time of the invention (2007), so interleaving threads would have been necessary. I suspect (after an Internet search) that the article is this one, "LG Announces Optimus 2X, World's First Dual-Core Phone."

My understanding of Samsung's argument is that "at the same time" is from the perspective of the processer. Dual-core processors existed in 2007 (albeit maybe not in phones), and "concurrently" should mean simultaneous or "at the same" with no interleaving.

Note that the attorneys sometimes referred to evidence in cryptic terms, which the judge and attorneys understood, but this court observer had a harder time catching.


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