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Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 1 of 6 PageID #: 33235
`Case 5:19-cv-00036—RWS Document 663-1 Filed 03/16/21 Page 1 of 6 PageID #: 33235
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`

`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 2 of 6 PageID #: 33236
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`APPLE INC.,
`
`CIVIL ACTION NO. 5:19-CV-00036-RWS
`
`SEALED
`
`§§§§§§§§§§
`
`
`
`Defendant.
`
`
`
`
`
`
`ORDER
`Before the Court is Defendant Apple Inc.’s Motion for Clarification of the Court’s Order
`
`Granting-in-Part and Denying-in-Part Maxell’s Motion to Strike Portions of Apple’s Rebuttal
`
`Expert Reports Based on Untimely Claim Construction Positions (Docket No. 597). The motion
`
`has been fully briefed.1
`
`In its order (Docket No. 586), the Court resolved the parties’ dispute regarding language
`
`from claim 5 of the ’493 patent, which recites an electric camera. Id. at 49–50. Specifically, claim
`
`5(d) of the ’493 patent recites:
`
`Wherein when recording an image in a static image mode, the signal processing
`unit generates the image signals by using all signal charges accumulated in all N
`number of vertically arranged pixel lines of the image sensing device, to provide N
`pixel lines . . .
`
`’493 patent, claim 5. The parties had disputed whether “N number of vertically arranged pixel
`
`lines” must be every vertically arranged pixel line, or whether it can be a subset. Docket No. 586
`
`at 49. Maxell moved to strike the opinions of Apple’s expert for the ’493 patent, Dr. Bovik, who
`
`1 Maxell filed a response (Docket No. 607), Apple filed a reply (Docket No. 609), and Maxell filed a sur-reply (Docket
`No. 613).
`
`

`

`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 3 of 6 PageID #: 33237
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`opined that the term “N number of vertically arranged pixel lines” must include every vertically
`
`arranged pixel line.
`
`Id. The Court first noted that
`
`, making Dr. Bovik’s attempt at limiting the scope of “N number of vertically
`
`arranged pixel lines” based on preferred embodiments in the specification a belated claim
`
`construction dispute that Apple could have—and should have—raised during claim construction.
`
`Id. at 49–50. Nonetheless, the Court concluded that Apple’s interpretation of “N number of
`
`vertically arranged pixel lines” unduly limited and contradicted the plain language of the claim
`
`term and struck paragraphs 27, 59–66, 71–79, 81–86, 92, 127 and 205–208 of Dr. Bovik’s rebuttal
`
`expert report. Id. at 50.
`
`Apple now seeks clarification as to whether the Court’s ruling striking Dr. Bovik’s
`
`opinions also extends to what it argues is “a wholly separate noninfringement theory” contained
`
`within the stricken paragraphs. Docket No. 597 at 3. Specifically, Apple asks whether Dr. Bovik’s
`
`opinions about whether the accused products satisfy the requirement of using “all signal charges”
`
`accumulated in the vertically arranged pixel lines to record a static image was stricken by the
`
`Court’s order. Id. at 2. Apple contends that while Dr. Bovik discusses the “all signal charges”
`
`requirement alongside his opinions regarding “N number of vertically arranged pixel lines,” the
`
`two requirements—and Dr. Bovik’s opinions on them—are discrete. Id. at 3–4. Because Maxell’s
`
`motion to strike did not specifically address Dr. Bovik’s “all signal charges” opinions and the
`
`Court’s order did not specifically mention those opinions, Apple now asks the Court whether those
`
`opinions were meaningfully excluded. Id. at 4–5.
`
`Maxell responds that Apple’s motion is not asking for clarification of the Court’s order,
`
`but rather for reconsideration of arguments already presented in Apple’s motion for partial
`
`Page 2 of 5
`
`

`

`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 4 of 6 PageID #: 33238
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`summary judgment of noninfringement of the ’493 patent. Docket No. 607 at 3. Maxell contends
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`that Apple has never presented the “all signal charges” requirement as an independent
`
`noninfringement theory prior to this motion. Id. at 4–5. In any case, Maxell argues that Dr.
`
`Bovik’s “all signal charges” opinions and the stricken “all N number of vertically arranged pixel
`
`lines” opinions stem from the same belated, incorrect claim construction argument—that claim
`
`element 5(d) requires “all pixels (i.e. all rows and all columns) of the image sensor to be used for
`
`generating a still image.” Id. at 5 (quoting Docket No. 597-1, Ex. A (Bovik Reb. Rpt.) ¶ 61). This
`
`argument, Maxell contends, was rejected by the Court in its order denying partial summary
`
`judgment of noninfringement of the ’493 patent. Id. at 6 (citing Docket No. 586 at 23).
`
`The Court agrees with Apple and thus clarifies its prior ruling. Dr. Bovik’s rebuttal expert
`
`report describes how claim element 5(d) requires the recited camera to generate image signals
`
`using: (1) “all signal charges accumulated in” (2) “all N number of vertically arranged pixel
`
`lines[.]” Docket No. 597-1, Ex. A (Bovik Reb. Rpt. ¶ 61). The “vertically arranged pixel lines”
`
`refers to rows of individual pixels:
`
`See, e.g., ’493 Patent at 4:66–5:6.
`
`Page 3 of 5
`
`

`

`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 5 of 6 PageID #: 33239
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`
`
`The Court previously struck Dr. Bovik’s opinion claiming that the term “N number of
`
`vertically arranged pixel lines” must include every vertically arranged pixel line. Docket No. 586
`
`at 50. This includes his improper conclusion requiring the use of all pixels in an image sensor to
`
`record a static image—i.e., all pixels in all rows and all columns. Id. But neither Maxell’s motion
`
`nor the Court’s order addressed Dr. Bovik’s opinion that claim element 5(d) requires the use of
`
`“all signal charges” accumulated in the N number of vertically arranged pixel lines. See id. That
`
`is a separate requirement of the claim. If Apple wishes to have its expert opine that the accused
`
`products do not meet the “all signal charges” requirement, the Court will not prohibit that
`
`testimony.
`
`But Dr. Bovik may not opine that an accused product must record still images “using all
`
`pixels of the camera’s image sensor”—i.e., all pixels in all rows and all columns—because such
`
`an interpretation relies on Dr. Bovik’s stricken opinion requiring every vertically arranged pixel
`
`line to be used. Docket No. 586 at 23.
`
`In clarifying its prior order, the Court does not, however, adopt Apple’s contention that “all
`
`signal charges” means “all pixels” in a pixel line must be used. Docket No. 597 at 4. The plain
`
`language of claim 5 treats the phrase “signal charge” as distinct from “pixel.” As the Court has
`
`already noted, factual disagreements exist on whether the “all signal charges” claim element is met
`
`by the accused products. Docket No. 586 at 23.
`
`Page 4 of 5
`
`

`

`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 6 of 6 PageID #: 33240
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` Accordingly, a fact issue exists for the jury on which the parties may present
`
`evidence.
`
`.
`
`The Court therefore clarifies its previous order granting-in-part and denying-in-part
`
`Maxell’s motion to strike portions of Apple’s rebuttal expert reports based on untimely claim
`
`construction positions (Docket No. 586). The Court did not strike Dr. Bovik’s opinions contained
`
`in paragraphs 27, 61, 64, 66, 71–79, 81, 86, and 206–207 of his rebuttal expert report regarding
`
`“all signal charges.” Accordingly, Apple’s motion for clarification (Docket No. 597) is
`
`GRANTED. Within 14 days of the issuance of this order, the parties shall jointly submit a
`
`proposed redacted version so that a public version can be made available.
`
`So ORDERED and SIGNED this 26th day of February, 2021.
`
`
`
`
`________________________________________________________________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
`
`Page 5 of 5
`
`

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