Case 5:19-cv-00036-RWS Document 694 Filed 04/05/21 Page 1 of 6 PageID #: 33819
`Case 5:19-cv-00036—RWS Document 694 Filed 04/05/21 Page 1 of 6 PageID #: 33819
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`Case 5:19-cv-00036—RWS Document 694 Filed 04/05/21 Page 1 of 6 PageID #: 33819
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`Case 5:19-cv-00036-RWS Document 694 Filed 04/05/21 Page 2 of 6 PageID #: 33820
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`CIVIL ACTION NO. 5:19-CV-00036-RWS
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`SEALED
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`§§§§§§§§§§
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`MAXELL, LTD.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`ORDER
`Before the Court is Defendant Apple Inc.’s Motion for Clarification of the Court’s Order
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`Granting-in-Part and Denying-in-Part Maxell’s Motion to Strike Portions of Apple’s Rebuttal
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`Expert Reports Based on Untimely Claim Construction Positions (Docket No. 597). The motion
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`has been fully briefed.1
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`In its order (Docket No. 586), the Court resolved the parties’ dispute regarding language
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`from claim 5 of the ’493 patent, which recites an electric camera. Id. at 49–50. Specifically, claim
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`5(d) of the ’493 patent recites:
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`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 . . .
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`’493 patent, claim 5. The parties had disputed whether “N number of vertically arranged pixel
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`lines” must be every vertically arranged pixel line, or whether it can be a subset. Docket No. 586
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`at 49. Maxell moved to strike the opinions of Apple’s expert for the ’493 patent, Dr. Bovik, who
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`1 Maxell filed a response (Docket No. 607), Apple filed a reply (Docket No. 609), and Maxell filed a sur-reply (Docket
`No. 613).
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`Case 5:19-cv-00036-RWS Document 694 Filed 04/05/21 Page 3 of 6 PageID #: 33821
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`opined that the term “N number of vertically arranged pixel lines” must include every vertically
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`arranged pixel line.
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`Id. The Court first noted that
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`, making Dr. Bovik’s attempt at limiting the scope of “N number of vertically
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`arranged pixel lines” based on preferred embodiments in the specification a belated claim
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`construction dispute that Apple could have—and should have—raised during claim construction.
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`Id. at 49–50. Nonetheless, the Court concluded that Apple’s interpretation of “N number of
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`vertically arranged pixel lines” unduly limited and contradicted the plain language of the claim
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`term and struck paragraphs 27, 59–66, 71–79, 81–86, 92, 127 and 205–208 of Dr. Bovik’s rebuttal
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`expert report. Id. at 50.
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`Apple now seeks clarification as to whether the Court’s ruling striking Dr. Bovik’s
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`opinions also extends to what it argues is “a wholly separate noninfringement theory” contained
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`within the stricken paragraphs. Docket No. 597 at 3. Specifically, Apple asks whether Dr. Bovik’s
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`opinions about whether the accused products satisfy the requirement of using “all signal charges”
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`accumulated in the vertically arranged pixel lines to record a static image was stricken by the
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`Court’s order. Id. at 2. Apple contends that while Dr. Bovik discusses the “all signal charges”
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`requirement alongside his opinions regarding “N number of vertically arranged pixel lines,” the
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`two requirements—and Dr. Bovik’s opinions on them—are discrete. Id. at 3–4. Because Maxell’s
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`motion to strike did not specifically address Dr. Bovik’s “all signal charges” opinions and the
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`Court’s order did not specifically mention those opinions, Apple now asks the Court whether those
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`opinions were meaningfully excluded. Id. at 4–5.
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`Maxell responds that Apple’s motion is not asking for clarification of the Court’s order,
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`but rather for reconsideration of arguments already presented in Apple’s motion for partial
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`Page 2 of 5
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`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 4 of 6 PageID #: 33238Case 5:19-cv-00036-RWS Document 694 Filed 04/05/21 Page 4 of 6 PageID #: 33822
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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
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`noninfringement theory prior to this motion. Id. at 4–5. In any case, Maxell argues that Dr.
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`Bovik’s “all signal charges” opinions and the stricken “all N number of vertically arranged pixel
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`lines” opinions stem from the same belated, incorrect claim construction argument—that claim
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`element 5(d) requires “all pixels (i.e. all rows and all columns) of the image sensor to be used for
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`generating a still image.” Id. at 5 (quoting Docket No. 597-1, Ex. A (Bovik Reb. Rpt.) ¶ 61). This
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`argument, Maxell contends, was rejected by the Court in its order denying partial summary
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`judgment of noninfringement of the ’493 patent. Id. at 6 (citing Docket No. 586 at 23).
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`The Court agrees with Apple and thus clarifies its prior ruling. Dr. Bovik’s rebuttal expert
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`report describes how claim element 5(d) requires the recited camera to generate image signals
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`using: (1) “all signal charges accumulated in” (2) “all N number of vertically arranged pixel
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`lines[.]” Docket No. 597-1, Ex. A (Bovik Reb. Rpt. ¶ 61). The “vertically arranged pixel lines”
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`refers to rows of individual pixels:
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`See, e.g., ’493 Patent at 4:66–5:6.
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`Page 3 of 5
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`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 5 of 6 PageID #: 33239Case 5:19-cv-00036-RWS Document 694 Filed 04/05/21 Page 5 of 6 PageID #: 33823
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`The Court previously struck Dr. Bovik’s opinion claiming that the term “N number of
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`vertically arranged pixel lines” must include every vertically arranged pixel line. Docket No. 586
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`at 50. This includes his improper conclusion requiring the use of all pixels in an image sensor to
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`record a static image—i.e., all pixels in all rows and all columns. Id. But neither Maxell’s motion
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`nor the Court’s order addressed Dr. Bovik’s opinion that claim element 5(d) requires the use of
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`“all signal charges” accumulated in the N number of vertically arranged pixel lines. See id. That
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`is a separate requirement of the claim. If Apple wishes to have its expert opine that the accused
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`products do not meet the “all signal charges” requirement, the Court will not prohibit that
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`testimony.
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`But Dr. Bovik may not opine that an accused product must record still images “using all
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`pixels of the camera’s image sensor”—i.e., all pixels in all rows and all columns—because such
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`an interpretation relies on Dr. Bovik’s stricken opinion requiring every vertically arranged pixel
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`line to be used. Docket No. 586 at 23.
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`In clarifying its prior order, the Court does not, however, adopt Apple’s contention that “all
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`signal charges” means “all pixels” in a pixel line must be used. Docket No. 597 at 4. The plain
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`language of claim 5 treats the phrase “signal charge” as distinct from “pixel.” As the Court has
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`already noted, factual disagreements exist on whether the “all signal charges” claim element is met
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`by the accused products. Docket No. 586 at 23.
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`Page 4 of 5
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`Case 5:19-cv-00036-RWS Document 663-1 Filed 03/16/21 Page 6 of 6 PageID #: 33240Case 5:19-cv-00036-RWS Document 694 Filed 04/05/21 Page 6 of 6 PageID #: 33824
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` Accordingly, a fact issue exists for the jury on which the parties may present
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`evidence.
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`.
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`The Court therefore clarifies its previous order granting-in-part and denying-in-part
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`Maxell’s motion to strike portions of Apple’s rebuttal expert reports based on untimely claim
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`construction positions (Docket No. 586). The Court did not strike Dr. Bovik’s opinions contained
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`in paragraphs 27, 61, 64, 66, 71–79, 81, 86, and 206–207 of his rebuttal expert report regarding
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`“all signal charges.” Accordingly, Apple’s motion for clarification (Docket No. 597) is
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`GRANTED. Within 14 days of the issuance of this order, the parties shall jointly submit a
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`proposed redacted version so that a public version can be made available.
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`So ORDERED and SIGNED this 26th day of February, 2021.
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`________________________________________________________________________________________
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`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`Page 5 of 5
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