PUBLIC VERSION
`
`has no information regarding— even from the limited data it receives from 1
`
`However, there are other problems with this theory. First, Dr. Balakrishnarfs testimony
`
`is severely undercut because this theory regarding the Android layer was not presented (besides
`
`some passing citations to the Android source code) in his direct witness statement and this new
`
`theory appears to contradict his direct witness statement. Second, some of the evidence cited by
`
`Apple, such as— is irrelevant. The- has almost nothing to do with
`
`the accused products. While‘ can receive data from the Atmei chip- it
`
`is undisputed that with sufficient position information that an ellipse could be drawn with little
`
`problem. Any discussion of extraneous software that
`
`is in no way implemented in the
`
`Accused ’828 Products is irrelevant. As for Dr. Balakrishnan
`
`faiis to line up
`
`2 to show ellipse fitting through a mathematical process. Rather the evidence shows that I
`
`- (Tr. 603:24-604:l4, 60724-608:4; 65421-22.)
`
`The evidence shows that the Android operating system “do[esn’t] do anything at all
`
`resembling” mathematically fitting an ellipse,
`
`(Tr. 1045:22-1046111), and Android does not
`
`provide applications with information regarding _ of touch events because “we don’t
`
`have any information about_ available.” (Id. at 105415-I4.) The evidence further
`
`shows that given the information that Android receives from the Xoom firmware, Android is
`
`unable to calculate information regarding
`
`(Tr. 105-4:5-19.)
`
`Accordingly, the ALJ finds that the Motorola Xoom does not literally infringe the claims
`
`of the ‘S28 Patent because it does not “mathematically titan ellipse” to the pixel groups.
`94
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`
`b) Motorola Xoom (Test Build) and the Remaining Accused ’828
`Products
`
`Motorola has modified the source code for the Motorola Xoom in a “test build” where the
`
` and several variables have been renamed. (CIB at"
`
`63; RIB at 96.) The parties agree that the operation of the Xoom Test Build is described on
`
`RDX-12.3 and RDX-12.4.
`
`(CIB at 63.)
`
`In the Xoom Test Build, the only Values reported to the
`
`Android operating system are
`
`(CIB at 63; RIB at 93.) As shown on RDX-12.4,- is used to provide a value for
`
`getPressure(), ‘ is used to provide a Value for getSize(),— provide
`
`values for getX() and getY0= and values for the other MotionEvent methods—
`
`2 (CIB at 63; RIB at 93-94.)
`
`In addition, Motorola has modified the source code for an
`
`additional product, the Droid X, in another “test build.” The operation of the Droid X Test Build
`
`is almost identical to the Xoom Test Build, and it is described on RDX-12.? and RDX-12.8.
`
`(CIB at 65 (citing Tr. 662:l6-665:4).)
`
`Apple
`
`argues
`
`that
`
`“[t]he Motorola Xoom Test Build literally
`
`infringes
`
`the
`
`‘mathematically fitting an ellipse’ limitation under Apple’s construction because it computes
`
`numerical parameters that mathematically define an ellipse in conjunction with default Values for
`
`other ellipse parameters, which is similar to the second embodiment described in column 27 of
`
`the ‘S28 Patent specification.” (CIB at 63 (citing CX-201C at Q/A 533).) Apple argues that
`
` is nearly identical to using total group proximity as an
`
`indicator of size in the second embodiment.” (CIB at 63 (citing JX-3 at 27:1-3).) Apple argues
`
`build)
`
`literally infringes the “mathematically fitting an ellipse” limitation under Apple's
`
`95
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`
`construction for the same reasons as the Xoom (test build).
`
`(CIB at 65 (citing CX-201C at QIA
`
`533).)
`
`In the ’828 Accused Products (other than the Motorola Xoom),9 the— is not
`
`used, so the ellipse fitting in these products is similar to the Xoom Test Build. The operation of
`
`these products is described on RDX-12.5 and RDX-12.6.
`
`(CIB at 64; RIB at 93.) The values for
`
`getX(), get‘{(), and getSize() are similar to that in the Xoom Test Build, but instead of—
`
` these parameters are computed by
`
`T. (018 at 64 (citing RDX—12.6>.>
`
`Apple argues that “[t]his is even more similar to the second embodiment described in
`
`column 27 of the ’828 Patent specification, because the product of amplitude and area is
`
`analogous to the ‘total group proximity’ of a pixel group, and since the getToucl1Major() and
`
`getTouchMinor() values are computed
`
`- (CIB at 64.) Apple argues that “[t]hese products thus literally infringe the
`
`‘mathematically fitting an ellipse’ limitation under Apple’s construction.” (CIB at 65 (citing
`
`CX—20lC at QIA 533.)
`
`Apple argues
`
`that even though the getTouchMajor() and
`
`getTouchMinor() values- in the test build products, they—
`
`- and “this is similar to the use of a generic size parameter described in the second
`
`embodiment of ellipse fitting in the ’828 Patent.”
`
`(CRB at 21.) Apple argues that “Dr.
`
`Westerman and Dr. Balakrishnan both characterized the second embodiment, where only a
`
`centroid and size parameter are computed, as defining a circle, which is a special case of an
`
`ellipse.” (CRB at 2] (citing Tr. 336:6-9; CX-201C at Qr’A 445).) Apple argues that Motorola’s
`
`9 Including the Motorola Atrix. Bravo, Charm, Citrus, Cliq 2, Cliq XT;’Quench, Defy, Droid, Droid 2, Droid 2
`Global, Droid Bionic, Droid Pro, Droid X. Droid X2, Droid 3, Flipout, Flipside, il, Titanium, and XPRT (CIB at
`64.)
`
`96
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`
`“test build” products similarly define a circle using the getSize() method.
`
`(CRB at 21 (citing Tr.
`
`659:6-660:5).)
`
`Motorola argues that Dr. Balakrishnan conceded at the hearing that the there is no literal
`
`infringement under any party‘s proposed construction with respect to the ‘828 Accused Products
`
`—. (RIB at 99 (citing Tr. 597:1?-23; 71123-712:12).)
`
`Motorola argues that Dr. Balakrishnan and the named inventors of the ’828 Patent conceded at
`
`the hearing that five distinct parameters are required to fully describe an ellipse.
`
`(RIB at 99
`
`(citing Tr. 54?:15-25; Tr. 315:1-15; JX-705C at 58:12-22).) Motorola argues that “[t]here is no
`
`dispute that for every ‘328 Accused Product except the non-test build of the Motorola Xoom,
`
`
`
` (RIB at 99
`
`(citing RX-1895C at QFA 301; Tr. 605:14-609:7).)
`
`Motorola argues that “[n]o matter what happens elsewhere in the [Accused ‘S28
`
`Products], and no matter how inforrnation is relabeled by Motorola, by Android, or by any
`
`applications-. the for all the [Accused ‘S28
`
`Products] except
`
`the non-test build of the Motorola Xoorn is—
`
` and none of these values provide any information
`
`regarding shape or orientation.” (RIB at 101 (citing RX-1895C at Q/A 301; Tr. 608:8-15).)
`
`Motorola argues that all products (other than the non-test build Motorola Xoom) that do not
`
`compute — “does
`
`not
`
`literally meet App1e’s proposed construction for
`
`‘mathematically fitting an ellipse to at least one of the pixel groups’ because—
`
` (RIB at 101
`
`(emphasis in the original).)
`
`9?
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`PUBLIC VERSION
`
`Motorola argues that “Dr. Balakrishnan agreed that no mathematical ellipse-fitting occurs
`
`(RIB at 105 (citing Tr. 618:6—25; 623:24—624:12)) But Motorola argues
`
`that this is the
`
`— (RIB at 105 (citing Tr. 579:20—5so:20), and this was—
`
`— that Dr. Balakrishnan actually identified in his witness statement as
`
`allegedly “mathematically fitting an ellipse to at
`
`least one of the pixel groups,” CX-201C,
`
`Balakrishnan QIA 526; 560-61; 5?'5-?'6. Motorola argues that “[t]he fact that Dr. Balakrishnan
`
` (for the one [Accused ‘S28
`
`Product] that requires a finding of non-infringement, because
`
`the calculation of these Values in the Accused ’828
`
`Products] that Dr. Balakrishnan accused of ‘mathematically fitting an ellipse to at least one of the
`
`pixel groups’ in his witness statement in this investigation.” (RIB at 105.)
`
`Motorola characterizes Apple’s new infringement theory as “the mere fact that Android
`
`provides measured position, size, and peak pressure information to appiications constitutes
`
`mafhemaricallyfifling an ellipse to a pixel group because position and size information could be
`
`used to describe a circle.” (RIB at 107-108 (emphasis in the original).) Motorola argues that
`
`“Dr. Balakrishnan did not identify any portion of the Android code that— in
`
`his entire testimony about the Xoom test build. .
`
`. .” (RIB at 108.)
`
`Motorola argues
`
`that
`
`for
`
`the test build products
`
` so there cannot possibly be infringement.
`
`(RIB at 109.) Motorola argues that
`
`setting getTouchMajor and getTouchMinor, “the
`
`majorfminor axes” of an ellipse model in the Android framework,—
`
`98
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`

`
`PU BLIC VERSION
`
`— (RIB at 109.)
`
`Indeed, Motorola points out that Dr. Westerman testified that
`
`“regardless of what the equations originally put out, we don’t let the numbers [for majorfminor
`
`radius] go below 5 or 6 millimeters .
`
`.
`
`. and then those get transmitted as like a 5 or 6 millimeter
`
`circle throughout the system.” (RIB at 109 (quoting Tr. 342:9-18).)
`
`The ALJ agrees with Motorola that there can be no literal infringement by the test build
`
`products of any of the asserted claims because they do not “mathematically fit an ellipse.” The
`
`evidence shows that
`
` (RX-l 895C at Q&A 75, 88.) As discussed above, these values are
`
`simply measurements made by
`
`There is simply no ellipse mathematically fit to
`
`determine these values.
`
`(RX-1895C, Wolfe QKA 295; RX-1879C, Simmons QIA 20-22; Brown,
`
`Tr. 1045222-1046210.) Even when these values are coupled with the getTouchMajor and
`
`getTouchMinor in the Android code, there is no ellipse titted, even under Dr. Balakrishnan’s
`
`“ellipse model" theory because even taking all of these values together—
`
` there is nothing elliptical about the result—
`
`: (RX-1895C QJA 301, Tr. 608:8-15.) An ellipse cannot have both—
`
`—. It is not an ellipse; it is not a circle.
`
`It is undisputed that the other
`
`values - and no fitting occurs
`
`to determine them. (RX-1895-C at QIA 78-79.) Moreover,— bears no relation to
`
`any elliptical parameter and does not suggest any fitting of an ellipse. Accordingly, the AL]
`
`finds for that the test build products do not literally infringe any of the asserted claims of the
`
`’828 Patent.
`
`The ALJ also agrees that
`
`there is no literal
`
`infringement of the Motorola Handset
`
`99
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`

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`PUBLIC VERSION
`
`productsm Apple has failed to show that any part of the code mathematically fits an ellipse to
`
`the pixel group. Neither Dr. Balakrishnan nor Apple ever identified the actions of the Android
`
`code layer as meeting this element in their pre-hearing testimony or statements. Such a dramatic
`
`change in theory (as discussed above) seriously undermines the credibility of the theory and
`
`testimony supporting it.
`
`However, even considering Apple’s new infringement theory regarding the operations
`
`performed by the Android code,
`
`the Motorola Handset products still do nothing that even
`
`resembles “mathematically fit(ting) an ellipse” to one or more pixel groups. The values for
`
`getTouchMajor and getTouchMinor are calculated
`
`The ALJ agrees with Motorola that the resulting numerical parameters share only a superficial
`
`relationship to an ellipse and regardless, Apple presented insufficient evidence that the resulting
`
`values actually define an ellipse—- The—
`
`are simply measured from the sensors. At no time, is any ellipse fitted to the underlying pixel
`
`data in the Motorola handsets to calculate any values. Moreover, the— are
`
`not ellipse parameters and provide no information of
`
` - Apple presented no evidence that any kind of
`
` as required by the AL.l’s construction.
`
`Furthermore, even if the “second embodiment” was considered to be ellipse fitting, the
`
`ALJ agrees with Motorola that— is a very different value than what the ‘S28
`
`Patent calls “total group proximity.” (See RX-1895C at QIA T9.) The ALJ agrees that according
`
`to the ‘S28 Patent, “total group proximity” is the sum of proximity values for an entire contact.
`
`1" The Motorola Handset products are: Motorola Atrix, Bravo, Charm, Citrus, Cliq 2, Cliq XTIQ_uench, Defy, Droid,
`Droid 2, Droid 2 Global, Droid Bionic, Droid Pro, Droid X, Droid X2, Droid 3, Flipout, Flipside, il, Titanium, and
`XPRT.
`
`100
`
`

`
`PUBLIC VERSION
`
`(See JX-3 at 26:12-13 (“total group proximity G2 integrates proximity over each pixel in the
`
`group”).) Thus, the— would not infringe even if that was included.
`
`Accordingly, the Motorola Handset products do not literally infringe any of the asserted
`
`claims of the ‘"828 Patent.
`
`c) Doctrine of Equivalents
`
`Apple admits that the Motorola Xoom would not infringe under Motorola’s and Staff’ s
`
`construction but meets this limitation under the Doctrine of Equivalents.
`
`(CIB at 62.) Apple
`
`argues that the Motorola Xoom computes numerical parameters that mathematically define an
`
`ellipse, and these parameters define an ellipse using the same classical ellipse parameters
`
`described in the ’328 Patent.
`
`(CIB at 62.) Apple argues that “[t]he computation of these
`
`parameters performs the same function of characterizing the position, shape, and size of a contact,
`
`characterized as an ellipse, in the same way by using mathematical computations, with the same
`
`result of numerical values that provide the X position, Y position, major axis, minor axis, and
`
`orientation of an ellipse.” (CIB at 62 (citing CX—201C at QEA 535).) Apple concludes, therefore,
`
`that “[t]he formulas used to define these parameters in the Motorola Xoom are insubstantially
`
`different from those described in the ’828 Patent.” (CIB at 62.)
`
`Apple argues that “[t]he second embodiment in the ‘S28 Patent explicitly describes this
`
`type of process as equivalent to ellipse fitting.” (CIB at 64 (citing JX-3 at 27:1-8).) Apple
`
`the position, shape, and size of a contact, in the same way by using mathematical computations,
`
`with the same result of numerical parameters that mathematically define an ellipse.” (CIB at 64
`
`(citing CX—201C at QIA 535).) Apple argues that all of the Accused ’828 Products infringe the
`
`101
`
`
`
`

`
`PUBLIC VERSION
`
`asserted claims of the ’828 Patent under the Doctrine of Equivalents under any construction.
`
`(CIB at 64.)
`
`Apple argues that
`
`its claims under the Doctrine of Equivalents are not barred by
`
`prosecution history cstoppel as Motorola and Staff argue because Motorola and Staffs
`
`arguments are “based on an incorrect reading of the prosecution history and a misinterpretation
`
`of what is disclosed in Bisset ’352.” (CRB at 21-22.) Apple argues that any amendments were
`
`merely “tangential” and therefore did not limit the scope of equivalents in this case. (CRB at 22.)
`
`Apple argues that “[t]he amendment at
`
`issue here, where the applicants added the word
`
`“mathematically” to claims 1 and 10, rebuts any prosecution history estoppel because the
`
`rationale underlying this amendment is tangential to the equivalent ellipse fitting processes in
`
`the ’828 Accused Products.”
`
`Apple argues that “the applicant did not distinguish “mathematically fit(ting) an ellipse”
`
`from other methods of fitting an ellipse.” (CRB at 22 (citing CX-568C at QIA 468).) Apple
`
`argues that the “applicant explained that ‘merely obtaining measured data is [not] the same as
`
`fining an ellipse to the data. . .,’” and that the amendment does not describe obtaining measured
`
`data as a process for computing parameters but refers to the “measured data” in Bisset ’352 as
`
`“simply a series of capacitance values.”
`
`(CRB at 22-23.) Apple argues that “this only
`
`distinguishes the ellipse fitting step from the data acquisition steps that precede ellipse fitting.”
`
`(CRB at 23.) Based on this characterization, Apple argues that “[t]his distinction is tangential to
`
`the equivalents accused by Apple, where
`
` that mathematically define
`
`an ellipse.” (CRB at 23.)
`
`102
`
`

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`PUBLIC VERSION
`
`Apple argues that Dr. Wolfe’s testimony comparing various processes in Bisset ’352 with
`
`the computation of parameters in the ’828 Accused Products is irrelevant because “the
`
`prosecution history contains no reference to these computations and identifies a different reason
`
`for amending the claims.” (CRB at 23.) Apple argues that
`
`the same arguments apply to
`
`Motorola's argument estoppel assertion and means-plus function arguments. (CRB at 23.)
`
`Motorola argues that as expiairied by Dr. Wolfe in his witness statement, the accused
`
`functionalities of the Accused ’828 Products do not perform substantially the same function, in
`
`substantially the same way, to achieve substantially the same result, as the literal recitation of
`
`this element under Motorola's and the Staff’ s proposed construction. (RX-1895C at QKA 298.)
`
`Motorola argues that no Accused ’828 Product
`
`—. (RIB at U5.) Motorola argues that as explained by Dr. Wolfe and by Martin
`
`Simmons of Atmel, the accused functionalities of the Accused ‘S28 Products-
`
`_have nothing whatsoever to do with
`
`(RIB at 115
`
`(citing RX-1895C at out 298; RX—1379C at QIA 27).) Motorola further argues that—
`
`_. (RIB at 115 (citing RX-1895C at QIA 298; RX-1879C at QIA 20-21).) Moreover,
`
`Motorola argues that the Android framework Tr. 57"9:20-
`
`580220, and it does not— in the Accused ’828 Products, as explained by
`
`Jeff Brown ofGoogle. (Tr. 1045122-1046:l0.)
`
`The ALJ finds that with respect to the test builds for the Motorola Xoom and the Droid X
`
`and the Motorola Handset products, Apple has failed to show that these products infringe under
`
`103
`
`

`
`PUBLIC VERSION
`
`the Doctrine of Equivalents. The evidence shows that these products,—
`
` simply do
`
`not in any way fit an ellipse to pixel data.
`
`(RX-1895C at QJA 302.) They merely ‘
`
` (Ial) Apple has made no showing that this is equivalent
`9
`to “mathematically tit(ting) an ellipse.‘ As discussed above, even giving full credit to Dr.
`
`Balakrishrianfs arguments, it is not even possible to construct an ellipse based on the information
`
`provided — it is impossible to construct an ellipse with
`
`Thus, the information provided from the measurements bear no resemblance to—
`
`— The test build products do not function in the same way or obtain the
`
`same result. Accordingly, they cannot infringe under the doctrine of equivalents.
`
`As for the Motorola Handset products, the values for the major and minor axes‘
`
`- But, as discussed above, the values for the major and minor axes bear no relation to the
`
`underlying pixel group, so there is simply
`
`This not only
`
`poses a problem for literal
`
`infringement, but also for infringement under the Doctrine of
`
`Equivalents, namely the Motorola Handset products simply do not function in the same way as
`
`required by the claims. There is still even if Dr.
`
`Balaltrislinaifs testimony was accepted on this point. There is simply no link between the way
`
`the device is to function under the asserted claims- mathematically fitting an ellipse — and the
`
`calculations that are performed in the Motorola Handset products. Accordingly, they do not
`
`infringe under the Doctrine of Equivalents.
`
`The final product to consider is the Motorola Xoom that includes the
`
`For
`
`this Product, the
`
` However, as discussed above, even with the
`
`104
`
`

`
`PUBLIC VERSION
`
`— these devices still do not mathematically fit and ellipse to the pixel group. The
`
`ALJ finds that while it is a much closer case, the evidence presented by Apple of infringement
`
`under the Doctrine of Equivalents is insufficient. Accordingly, the Motorola Xoom products do
`
`not infringe under the Doctrine of Equivalents.
`
`It is Apple’s burden to establish infringement through the doctrine of equivalents, and Dr.
`
`Balakrishnarfs entire testimony on this issue comprises one sentence in his witness statement
`
`(repeated for each claim) in which he asserts:
`
`[F]or the products that do not have the— parameters,
`if they are not found to infringe literally under Apple’s .
`.
`.
`proposed construction for “mathematically fitting an ellipse,” it is
`my opinion that the
`
`infringe under the doctrine of c uivalentsm is
`
`performing the same function of characterizing the position, shape,
`and size of a contact,
`in the same way by using mathematical
`computations, with the same result of numerical parameters that
`mathematically define an ellipse.
`
`(CX-201C at QIA 535.) Dr. Balakrishnan’s equivalents analysis is inadequate. The ALJ agrees
`
`with Motorola's argument that his analysis simply fails to demonstrate that the equivalent
`
` . In the absence of any meaningful testimony on this
`
`point, Apple cannot carry its burden.
`
`d) Prosecution History Estoppel
`
`But even if Apple had presented sufficient evidence for infringement under the Doctrine
`
`of Equivalents, the AL] finds that any equivalents for the claim element of “mathematically
`
`fit(ting) and ellipse” would be barred by prosecution history estoppel. Motorola argues that
`
`Apple is estopped from asserting the doctrine of equivalents with respect to the limitations
`
`“mathematically f1t[ting] an ellipse to at least one of the [one or more] pixel groups” in claims 1
`
`and 10 and the limitation “means for fitting an ellipse to at least one of the pixel groups” in claim
`
`24.
`
`(RIB at 110 (citing RX-1895C at QKA 271-81; JX—6 at 1454-72).) Motorola argues that the
`105
`
`

`
`PUBLIC VERSION
`
`limiting amendments to claims 1 and 10 created a presumption of prosecution history estoppel
`
`with respect to the ellipse-fitting limitations of these claims, and Apple has not rebutted this
`
`presumption.
`
`(RIB at 110.) Motorola further argues that remarks to the PTO regarding the
`
`scope of the ellipse—fitting limitations of claims 1, 10, and 24 created argument estoppel for these
`
`limitations.
`
`(RIB at 110.) Motorola argues that this argument estoppel bars Dr. Balakrishnan’s
`
`theory of equivalency with respect to the ellipse-fitting limitations of the ‘828 patent, because Dr.
`
`Balakrishnan’s theory of equivalency seeks to recapture the precise subject matter distinguished
`
`by the applicants in their remarks to the PTO. (RIB at 1 10.)
`
`Motorola argues that the amendment adding the limitation “mathematically” would be
`
`understood by a person of ordinary skill in the art to narrow the subject matter of claims 1 and
`
`10.
`
`(RIB at 110.) Motorola argues that this created a presumption of prosecution history
`
`estoppel and the presumptive surrender of all equivalents with respect
`
`to the narrowed
`
`limitations. (RIB at 110 (citing Honeywell, 370 F.3d at 1141-44).)
`
`The ALJ agrees with Motorola. Apple could rebut this presumption of prosecution
`
`history estoppel and complete surrender of equivalents by showing one of three things—either:
`
`alleged equivalent would have been
`the
`that
`[1]
`unforeseeable at the time of the narrowing amendment,
`[2]
`that the rationale underlying the narrowing amendment
`bore no more than a tangential
`relation to the equivalent
`in
`question, or
`that there was some other reason suggesting that the
`[3]
`patentee could not
`reasonably have been expected to have
`described the alleged equivalent.
`
`Honeywell, 370 F.3d at 1144.
`
`It
`
`is the patentee’s burden to rebut a presumptive surrender of equivalents.
`
`See
`
`Honeywell, 370 F.3d at 1144. Motorola argues that its expert has testified that one of ordinary
`
`skill in the art would understand the amendments to the ellipse-fitting limitations of claims 1 and
`
`106
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`

`
`PUBLIC VERSION
`
`10 to narrow the scope of the claimed subject matter. (RX-1895C at QEA 279; 297; & 302.) But
`
`Apple has not provided any testimony to rebut this presumption.
`
`Motorola argues that even if Apple did offer evidence that Apple could have not rebutted
`
`this presumption had it attempted to do so.
`
`(RX-1895C at QIA 297 & 302.) Motorola’s expert,
`
`Dr. Wolfe, explained in his witness statement:
`
`none of the three [Honeywell] factors is present with respect to the
`December 24, 2009 Office Action rejecting each asserted claim of
`the ‘S28 Patent based on Bisset ‘352, or the February 24, 2010
`Amendments and Remarks responsive to this Office Action.
`In
`particular, Bisset ‘352 not only bears more than a “tangential”
`relationship to the equivalent sou ht to be claimed by A le--
`
`‘352 actually discloses calculating near-identical values.
`
`(Id) Motorola argues that Dr. Wolfe's witness statement explained in detail exactly where and
`
`how Bisset disclosed calculations that bore a close relationship to each of the Atmel values that
`
`comprise Dr. Balakrishnan’s equivalence theories of infringement. (See id.)
`
`Apple’s argument relies heavily on its assertion that any amendment was merely
`
`tangential to the equivalents in question.
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`(CRB at 22.) Apple argues that the prior art references
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`simply fail to disclose any ellipse model, so there was no surrender of equivalents. However, no
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`one reading the prosecution history would reach that conclusion. The examiner rejected the
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`claims in light ofBisset because the prior art taught fitting an ellipse to one or more pixel groups.
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`While the applicants disagreed that Bisset disclosed this limitation, they amended the claims to
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`recite that the “fitting” was done mathematically. The ALJ finds that the equivalents at issue
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`here go to the heart of this amendment — the way in which the fitting is performed — and
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`therefore the presumption of surrender under Fesro applies. Because Apple has failed to rebut
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`the presumption of surrender, the ALJ finds that the products do not infringe under the Doctrine
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`of Equivalents.
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`107
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`C. The "60? Patent
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`Apple argues that the ’60?' Accused Products either literally infringe or infringe under the
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`doctrine of equivalents claims 1-7 and 10. (CIB at 92.) Motorola argues that none of its accused
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`products infringe any of the asserted claims. (RIB at 20.) Staff argues that the Accused Products
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`infringe claims 1, 2, 3, 6, '? and 10 but do not infringe claims 4 and 5. (SIB at 60-79.)
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`1. Claim I
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`Apple argues that the ’607 Accused Products meet each and every limitation ofciaim 1
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`either literally or under the doctrine of equivalents. Apple performs an element by element
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`analysis in its post-hearing brief setting forth its infringement arguments. (CIB at 93-110.) Staff
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`agrees.
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`(SIB at 61-?'0.)
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`Motorola argues that its ’607 Accused Products do not infringe claim I because they do
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`not (1)
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`either literally or any equivalents; (2) the Accused
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`Product and Accused ] do not have I
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` and (3) the Accused —
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`— fail to meet the
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`— limitation. ( RIB at 23-32.)
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`For the reasons set forth below, the ALJ finds that Apple has shown by a preponderance
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`of the evidence that the "60? Accused Products infringe ciaim 1.
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`I08
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`PUBLIC VERSION
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`a) Preamble -~ “A touch panel comprising a transparent capacitive
`sensing medium configured to detect multiple touches or near touches
`that occur at a same time and at distinct locations in a plane of the
`touch panel and to produce distinct signals representative of a
`location of the touches on the plane of the touch panel for each of the
`multiple touches, wherein the transparent capacitive sensing medium”
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`Apple argues that the '60? Accused Products meet this limitation as they all contain
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`transparent panels that are capable of accurately recognizing multiple, simultaneous or near
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`touches.
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`(CIB at 94.) Staff agrees. (SIB at 61-T0.) Motorola does not dispute that the Accused
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`Products meet this limitation. (See RIB at 20-39.)
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`The ALJ finds that Apple has shown by a preponderance of the evidence that the
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`Accused Products meet the preamble. The evidence shows that in each of the ’607 Accused
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`Products, the touch panel is connected to a chip, namely a sensor integrated circuit (or “sensor
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`IC”). The physical structure of the touch panels in the ’607 Accused Products depicted in the
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`“lens sensor assembly diagrams”.
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`(CX-I13; CDX—002.111.)
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`The touch panel contains
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`capacitive sensing elements including transparent, separated lines made of—
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`‘ (CX-202C at Q&A 256.) The touch panel is connected to a sensor IC manufactured
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`by K (CX-113C; CX~202C at Q&A 256.) Together, the sensor IC and the touch panel
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`form a transparent capacitive sensing medium that meets the limitations of the preamble.
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`The evidence shows that the touch panel and Sensor IC in each of the ’607 Accused
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`Products detect capacitive changes at the intersections between the two sets of conductive lines
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`in the touch panel. (CX-202C at Q.2S7; CDX-002.131; see, e.g., JX~652C.001, .012; see also JX-
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`OISC at 84:17-86:14, 179:2-183:25, 189:1?-23.) The sensor ICs detect these capacitive changes
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`by seaming one or more rows of intersections at a time and are able to measure all of the
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`intersections in less than one one- thousandth of a second. (JX-6520009 (“The [sensor IC] uses
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`a unique charge~transfer acquisition engine .
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`.
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`. This allows the measurement of up to 224
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`109
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`PUBLIC VERSION
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`mutual capacitance nodes in under
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`1 ms”), JX-6520012 (“The channels are scanned by
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`measuring capacitive changes at the intersections formed between the first X line and all the Y
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`lines. Then the intersections between the next X line and all the Y lines are scanned, and so on,
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`until all X and Y combinations have been measured”); CX-202C at Q.208-213, 241-246; Tr. at
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`976:4-9?7:23 (confirming that the Atmel chips are designed to accurately report and distinguish
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`between multiple finger touches).) The evidence also shows that Atmel sensor [C and the touch
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`panel
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`in the ’60'? Accused Products also support multiple touch gestures like the “pinch to
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`zoom” functionality and the “two-touch gestures” described in the Atmel documentation.
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`(CX-
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`202C at Q.2S8; CDX-002.132; see. e.g., IX-506.007’; JX-6520021, .038; see also IX-018C at
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`199:8-20320.)
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`Therefore, the ALJ finds that the ’607 Accused Products meet the preamble.
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`b) “first layer having a plurality of transparent first conductive lines
`that are electrically isolated from one another” and “second layer
`spatially separated from the first layer and having a plurality of
`transparent second conductive lines that are electrically isolated from
`one another"
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`Apple argues that the "607 Accused Products meet these limitations as they all contain
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`sense electrodes and drive electrodes that are separated enough to prevent any significant current
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`flow between the lines and can perform the functions required by the claims.
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`(CIB at 99-105.)
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`Staff agrees.
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`(SIB at 63-69.) Motorola argues that the Accused
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`_ fail to meet this limitation because the drive electrode layer-
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`(RIB at 29-31.)
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`The ALJ finds that Apple has shown by a preponderance of the evidence that the W507
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`Accused Products, including , meet these limitations.
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`ll0
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`PUBLIC VERSION
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`With regard to the— end— products; the
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`evidence shows that
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`these products meet
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`these limitations —_ sense
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`electrodes and drive electrodes as well as drive
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`electrodes and sense electrodes with the horizontal elements meet the “lines” requirement.
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`(CX-
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`202C at Q&A 226-231, 24'?-248, 264-284; RX-1895C at Q6]; Tr. 1295:?-1296211; 1301:24-
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`l302:22.)]2 The evidence further shows that the drive and sense electrodes of the —
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` products are “electrically isolated” under the
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`ALJ's adopted construction. namely they are separated to prevent any significant current flow
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`between the lines.
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`(CX-2{}2C at Q & A 231-236, 248, 513-515.) Motorola does not dispute this.
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`(RIB at 29-31.)
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`Regarding the the evidence shows that.
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`under the ALJ’s construction, the sense electrodes and the drive electrodes are separated to
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`prevent any significant current flow between the lines. (CX-202C at Q &A 247-248, 264-284.)”
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`Ill
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`PUBLIC VERSION
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`The evidence further shows that the addition
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` does not alter the fact that the drive electrodes
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`remain “electrically isolated” from one another.
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`(CX-202C at Q&A 248.) Specifically, the
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`evidence shows that Motorola’s own quality assurance tests require—
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`‘ (JX-667C.008-009 at Moro—A1>PLE—0005578653_01574131-132; CX—
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`202C at Q &A 23 S-236.) This test is even repeated a second time at the phone assembly level.
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`(JX-66?C.013,
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`015
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`at MOTO-APPLE-0005578653_O1574136-138.) Motorola’s quality
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`assurance personnel check for
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` (JX—650C.002 (using a scanning electron microscope
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`to confirm that the drive lines are still electrically isolated from one another); CX-202C.059-060
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`at Q&A 247-248.)
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`Therefore, the ALJ finds that Apple has shown by a preponderance of the evidence that
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`the ‘£507 Accused Products meet this limitation.
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`c) “second conductive lines being positioned transverse to the first
`conductive lines, the intersection of transverse lines being positioned
`at different locations in the plane of the touch panel”
`The evidence shows that the ’607" Accused Products have a plurality of horizontal -
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`rowsfX lines that are positioned transverse or crosswise to a plurality of vertical -
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`columnr’Ylines.
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`(CX—202C at Q&A 285-298, 548-566.) Motorola does not dispute this.
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`(See
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`RIB at 19-31.)
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`112
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`d) “each of the second conductive lines being operatively coupled to
`capacitive monitoring circuitry”
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`Apple argues that the ‘607 Accused Products meet this limitation because they all cont