UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`APPLE INC.,
`
`Petitioner
`
`v.
`
`SMITH INTERFACE TECHNOLOGIES, LLC
`Patent Owner
`
`______________
`
`Case IPR2024-01085
`
`Patent No. 10,649,580
`______________
`
`DECLARATION OF MARC DAVIS, Ph.D.
`
`Apple Inc. v. Smith Interface Techs., LLC
`IPR2024-01085 | Smith EX2001 | Page 1 of 39
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`TABLE OF CONTENTS
`INTRODUCTION ............................................................................................... 1
`I.
`II. PROFESSIONAL BACKGROUND ................................................................... 1
`III. COMPENSATION .............................................................................................. 7
`IV. LEGAL CONSIDERATION ............................................................................... 7
`A. Anticipation ..................................................................................................... 7
`B. Obviousness ..................................................................................................... 8
`C. Claim Interpretation ......................................................................................... 9
`D. Overview of Task & Basis for Opinions .......................................................10
`E. Level of Skill in the Relevant Art ..................................................................11
`V. OVERVIEW OF THE ’580 PATENT ..............................................................12
`A.
`Independent Claims 1, 22, and 58 .................................................................13
`VI. OVERVIEW OF THE PRIOR ART .................................................................14
`A. Ramos et al., “Zliding: Fluid Zooming and Sliding for High Precision
`Parameter Manipulation,” UIST: Proceedings of the ACM Symposium on User
`Interface Software and Technology, 2005 (“Ramos Paper”) ...............................14
`B. Zooming & Zliding (Gonzalo Ramos), December 28, 2007, available at
`https://www.youtube.com/watch?v=EcE3XBytN-U (“Ramos Video”) ..............16
`C. U.S. Patent App. No. 2008/0094356 (“Ording”) ..........................................18
`VII. ALL GROUNDS: DR. COCKBURN FAILS TO SHOW OBVIOUSNESS
`OF CLAIMS 1, 22, AND 58 OVER THE ALLEGED RAMOS PAPER, RAMOS
`VIDEO, AND ORDING DEVICE (PROD) ............................................................19
`A.
`[1h], [22d], [58c]: [when/in response to] an aspect of the touch [is/being]
`detected to surpass a threshold, display[ing], via the touch screen, a plurality of
`markings in a second virtual display layer ...........................................................19
`1. A “touch” is a touch; mere proximity is not a “touch” ..............................20
`2. Ramos Paper and Ramos Video display their Vernier in response to a
`hover—not touch ...............................................................................................22
`[1i], [22d], [58c]: at least a portion of the second virtual display layer is at
`B.
`least partially translucent ......................................................................................24
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`1. Dr. Cockburn’s first mapping relies on a semitransparent element that is
`not in the second virtual display layer ...............................................................26
`2. Dr. Cockburn’s second mapping fails to show semitransparency in a
`second virtual display layer ...............................................................................32
`VIII. CONCLUSION ..........................................................................................36
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`I.
`
`INTRODUCTION
`1. My name is Dr. Marc Davis, Ph.D. I have been retained by Smith
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`Interface Technologies, LLC as an independent expert consultant in this inter partes
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`review (“IPR”) proceeding before the United States Patent and Trademark Office
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`(“PTO”).
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`II.
`
`PROFESSIONAL BACKGROUND
`All of my opinions stated in this Declaration are based on my own
`2.
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`personal knowledge and professional judgment. In forming my opinions, I have
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`relied on my knowledge and experience in designing, developing, researching, and
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`teaching the technology referenced in this Declaration.
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`3.
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`I am over 18 years of age and, if I am called upon to do so, I would be
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`competent to testify as to the matters set forth herein. I understand that a copy of
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`my current curriculum vitae, which details my education and professional and
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`academic experience, is being submitted as EX2002. The following provides a brief
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`overview of some of my experience that is relevant to the matters set forth in this
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`Declaration.
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`4.
`
`In 1984, I received my Bachelor of Arts degree in College of Letters at
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`Wesleyan University in Middletown, Connecticut. I then received my Master of
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`Arts degree in Literary Science and Philosophy in 1987 at the University of
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`Konstanz in Germany. During my time at the University of Konstanz, I also worked
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`as a Research Coordinator in the Literary Science department where I initiated and
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`managed computerization of a large scale, multiyear Intertextuality Research
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`Project. Later, in 1990, I pursued my doctorate in Media Arts and Sciences at the
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`Massachusetts Institute of Technology (MIT) Media Laboratory. This program
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`focuses on the invention, study, and creative use of new technologies and draws on
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`a number of other disciplines, including computer science, cognitive sciences,
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`communications, design, and the expressive arts. For 5 years, I also worked as a
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`research assistant in the MIT Media Laboratory, where I worked on various
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`multimedia, user interface, and AI technologies in digital applications with a focus
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`on iconic visual language interfaces and systems for video annotation, retrieval, and
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`repurposing. I received my Doctor of Philosophy in Media Arts and Sciences from
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`MIT in 1995.
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`5.
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`For 5 years, partially overlapping my PhD program, I served as a
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`Project Coordinator for Interval Research Corporation, a research laboratory created
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`by Paul Allen, the Co-Founder of Microsoft. My role included leading and
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`contributing to the technical and user interface development of digital media
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`technologies,
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`including media automation applications, visual
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`language
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`programming tools, and media interfaces and systems. During this time, my
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`responsibilities also included researching other digital projects, including various
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`interactive applications. It was at Interval Research where I first began patenting
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`my inventions, leading to over 240 patents in my career.
`
`6.
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`I then served as Chief Technology Officer and Co-Founder of Amova,
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`which focused on the development of media automation and personalization
`
`technology. In my role, I was responsible for the technical research and development
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`of innovative personalized media systems and applications. My focus included the
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`design of user interfaces for multimedia websites and location-based live interactive
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`multimedia systems.
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`7.
`
`From 2002 to 2006, I served as Assistant Professor at the UC Berkeley
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`School of Information where I initiated and directed various media related research
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`and development projects that involved user interfaces and user experiences among
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`various technologies, in particular for mobile devices. My mobile research projects
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`pioneered technologies and interfaces for capturing, tagging, and sharing
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`photographs on mobile devices, including using the earliest smartphone with a
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`camera introduced in the United States. The Mobile Media Metadata projects
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`(MMM and MMM2) developed context-aware mobile media
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`technology,
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`applications, and user interfaces that leveraged contextual metadata—spatial,
`
`temporal, and social—to infer media content and support media tagging, sharing,
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`and reuse, including breakthrough work in context-aware mobile face and place
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`recognition. In addition, our project collaborated closely with social science and
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`design research to understand how and why people use mobile media technologies.
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`These Mobile Media Metadata Data projects were sponsored by numerous
`
`commercial leaders in mobile and media technologies, including British Telecom,
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`Hewlett-Packard, France Telecom, Nokia, Ricoh Innovations, AT&T, Opera
`
`Software, TEKES, and the UC Discovery Grant for Digital Media. Other projects
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`that I directed at the UC Berkeley School of Information included: Media Streams
`
`Metadata Exchange (media metadata framework for annotating, retrieving, sharing,
`
`and remixing video on the Web); Active Capture (interactive cameras that use signal
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`processing and computer-human interaction to capture high quality, reusable,
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`annotated media assets); and Adaptive Media (adaptive media templates and
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`automatic editing functions to mass customize and personalize media). In my time
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`at UC Berkeley, I also served as Co-Founder and Executive Committee Member of
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`the interdisciplinary UC Berkeley Center for New Media, an Advisory Board
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`Member of the Art, Technology, and Culture Colloquium, and an Affiliated Faculty
`
`Member of the Berkeley Institute of Design. In addition to supervising doctoral and
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`master’s degree students at the UC Berkeley School of Information, I taught courses
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`in “Information Organization and Retrieval”, “Multimedia Information”, “Digital
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`Media Design Studio”, and “Foundations of New Media”, all of which involved
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`teaching and mentoring students in user interface design.
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`8.
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`In 2005, I founded and co-directed Yahoo! Research Berkeley, a joint
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`research laboratory in partnership between UC Berkeley and Yahoo!, which
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`produced a number of innovative public prototypes in mobile media and social
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`media technology and applications. The development of these prototypes included
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`extensive exploration of user and design interfaces, mobile computing, and media
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`technology. From 2006-2009, I transitioned to the role of Chief Scientist and Vice
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`President of Early Stage Products (ESP) for Yahoo! Connected Life (which included
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`Yahoo!’s mobile and interactive television divisions), and I also served as Social
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`Media Guru at Yahoo!, including working closely with Yahoo! CEO and Co-
`
`Founder Jerry Yang. My work at Yahoo! focused in particular on creating the
`
`technology, applications, and user interfaces for mobile devices and systems
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`including mobile search, mobile social communications applications, and mobile
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`advertising. In addition, I was very actively involved in patenting my inventions,
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`producing over 100 patents while at Yahoo!.
`
`9.
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`I then served as Chief Scientist for Invention Arts where I focused on
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`new approaches to how people can better control, share, and benefit from their
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`personal data as well as new methods of strategic intellectual property development.
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`At Invention Arts, I worked with the World Economic Forum’s Rethinking Personal
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`Data project. After my time at Invention Arts, I worked as a Partner Architect for
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`Microsoft’s Online Services Division. I and my team continued to work on early-
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`stage products and developed technology involving personal data, privacy, social
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`computing, and personalized search. This technology included the development of
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`user interface (UI) and the software architecture underlying the UI. I also worked
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`as an elite inventor at Microsoft including co-inventing with Microsoft Co-Founder
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`and Chairman Bill Gates and current Microsoft CEO Satya Nadella resulting in
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`numerous patents.
`
`10.
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`I am the inventor or coinventor on over two hundred and forty (240)
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`granted patents, involving various computing environments, especially mobile and
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`media systems, applications, and user interfaces. In my time at the MIT Media
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`Laboratory, Interval Research, Amova, UC Berkeley, Yahoo!, Invention Arts, and
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`Microsoft, I worked on innovative technologies, applications, and user interfaces for
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`media automation, context-aware computing, computer vision, mobile computing,
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`social and mobile media, social and mobile search, sociotechnical systems, mobile
`
`and social advertising, and personal data technologies and applications. During my
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`time teaching and working with these entities, I was also a member of the Institute
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`of Electrical and Electronics Engineers Computer Society (IEEE), Association for
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`Computing Machinery (ACM), and American Association for Artificial Intelligence
`
`(AAAI).
`
`11. My curriculum vitae is attached as EX2002 and includes a listing of my
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`research publications and patents on which I am an inventor. To help gauge the
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`impact of my work, it is important to note that my patents and research publications
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`have earned an h-index of 88, demonstrating significant impact, and an i10-index of
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`237, reflecting the wide scope of my contributions (Google Scholar).
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`III. COMPENSATION
`12. My work on this matter is being billed at my customary rate of $400 an
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`hour. Also, I am being reimbursed for reasonable expenses I incur in relation to my
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`services. I have no pecuniary interest in the outcome of this proceeding. I
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`understand I will be paid regardless of the outcome of any proceeding in which my
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`work is used.
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`IV. LEGAL CONSIDERATION
`I am not an attorney. My understanding of the law is based on
`13.
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`information provided by counsel for Smith Interface Technologies, LLC.
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`A. Anticipation
`I understand that a reference anticipates a claim if it discloses each and
`14.
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`every element recited in the claim, arranged as in the claim, so as to enable a person
`
`of ordinary skill in the art (POSITA) to make and use the claimed invention without
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`the need for undue experimentation in light of the general knowledge available in
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`the art. I understand that a U.S. Patent document is presumed to have sufficient
`
`description to include sufficient detail for a person of ordinary skill in the art to make
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`and use the subject matter that document describes.
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`15.
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`I also understand that a claim limitation may be present in an alleged
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`prior art reference either expressly or inherently, but inherency may be established
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`only if such limitation is necessarily present in the reference. I understand inherency
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`cannot be established by probabilities or possibilities, and the mere fact that a certain
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`thing may result from a given set of circumstances is not sufficient to establish
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`inherency.
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`B. Obviousness
`I understand that a claimed invention is obvious and, therefore, not
`16.
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`patentable if the subject matter claimed would have been obvious to a POSITA at
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`the time that the invention of the ’580 Patent (a “POSITA”), which I have been asked
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`to treat as August 5, 2011.
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`17.
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`I understand that a claim can be obvious in view of a single prior art
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`reference (e.g., via modification of that prior art reference) or multiple prior art
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`references (e.g., via a combination of two or more prior art references), if such a
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`modification or combination was within the skill of a POSITA. I understand that
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`there must be some articulated reasoning with some rational underpinning to support
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`a conclusion of obviousness. I also understand that to establish a finding of
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`obviousness one must show that one of ordinary skill in the art would have had a
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`motivation to combine the prior art references to produce the claimed invention and
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`a reasonable expectation that the combination would be successful.
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`18.
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`I further understand that exemplary rationales that may support a
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`conclusion of obviousness include: (1) simply arranging old elements in a way in
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`which each element performs the same function it was known to perform, and the
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`arrangement yields expected results, (2) merely substituting one element for another
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`known element in the field, if the substitution yields no more than a predictable
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`result, (3) combining elements in a way that was “obvious to try” because of a design
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`need or market pressure, where there was a finite number of identified, predictable
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`solutions, (4) that design incentives or other market forces in a field would have
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`prompted variations in a work that were predictable to a person of ordinary skill in
`
`the art, and (5) that there was some teaching, suggestion, or motivation in the prior
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`art that would have led a POSITA to modify or combine prior art references to arrive
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`at the claimed invention.
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`C. Claim Interpretation
`I understand that a claim term is interpreted according to its ordinary
`19.
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`and customary meaning as a POSITA would have understood the term in light of the
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`surrounding claim language, other claims, the specification, and the patent’s
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`prosecution history, which are referred to as intrinsic evidence. I also understand
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`that prior art references cited in the patent’s prosecution history are considered
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`intrinsic evidence. I further understand that evidence outside the patent and its
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`prosecution history (e.g., dictionaries and technical articles) may inform the context
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`in which a POSITA would have understood the claims of a patent. I understand this
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`ordinary and customary meaning applies absent unique circumstances, such as
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`where a patent clearly expresses an intent to set forth a special meaning for a term.
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`D. Overview of Task & Basis for Opinions
`I have been asked to review U.S. Patent No. 10,649,580 (referred to as
`20.
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`“the ’580 Patent”). I have been asked to provide opinions related to certain issues
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`from the perspective of a person of ordinary skill, having knowledge of the relevant
`
`art, as of August 5, 2011, and—except where otherwise noted—the opinions stated
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`in this declaration are from that perspective. The qualifications and abilities of such
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`a person are described in paragraph 21 below.
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`21. More particularly, I have been informed that this proceeding is
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`currently at a preliminary stage during which the Patent Trial and Appeal Board (the
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`Board) will decide whether the Petition establishes a reasonable likelihood of at least
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`one claim of the ’580 Patent being invalid. At this preliminary stage, I have been
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`asked to focus my analysis on the Petition’s proposed invalidity theories for the ’589
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`Patent’s independent claims 1, 22, and 58.
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`22. My opinions are based on my education, training, and experience as
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`well as items that I reviewed to prepare my opinions, including the Petition, the
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`documents listed in the Exhibit List included with the Petition, and any other items
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`that I reference in my below analysis.
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`23.
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`I understand that other issues may arise that require further explanation,
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`and I will provide that explanation if appropriate. As a result, I respectfully reserve
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`the right to update and supplement this declaration and the information and opinions
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`provided herein.
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`E.
`24.
`
`Level of Skill in the Relevant Art
`I understand that a patent must be analyzed from the perspective of a
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`person of ordinary skill in the art (“POSITA”) as of the time of invention of the
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`patent, which is typically considered to be the patent’s earliest filing date. While I
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`do not necessarily agree with every aspect of Dr. Cockburn’s explanation of the level
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`of ordinary skill in the art, I do not currently believe the aspects of that explanation
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`I would change or clarify would impact the analysis set forth in this declaration. For
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`purposes of this declaration, my opinions are therefore provided from the perspective
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`of the POSITA described in paragraph 26 of Dr. Cockburn’s declaration (EX1003)
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`as of August 5, 2011. This POSITA would have bachelor’s degree in computer
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`science, computer engineering, electrical engineering, human-computer interaction,
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`or a related field, and would have had at least two years of relevant work experience
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`in the design and development of graphical user interfaces (GUIs), human-computer
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`interfaces, or equivalents thereof. Less work experience may be compensated by a
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`higher level of education and vice versa. My education, technical expertise and
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`personal knowledge discussed in Section II shows that I meet the qualifications of a
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`POSITA.
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`V. OVERVIEW OF THE ’580 PATENT
`25. The ’580 Patent “generally relate[s] to touch screens.” EX1001, 1:36–
`
`37. Specifically, the ’580 Patent features a camera on a mobile device, zooming
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`functionality, various virtual display layers, implementation of translucency, and a
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`display of a plurality of markings in response to a touch exceeding a threshold. See
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`EX1001, Claims 1, 22, and 58.
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`26. The ’580 Patent explains that “[i]n various embodiments, a 3D layered
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`user interface may make use of multiple virtual display layers,” and “[i]n the context
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`of the present description, a virtual display layer refers to a collection of display
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`elements which have all been assigned the same apparent depth within the 3D
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`layered user interface.” EX1001, 68:6–11.
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`27. The ’580 Patent further states that “virtual display layers may be given
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`the appearance of depth through the use of 3D depth cues.” EX1001, 68:25–27.
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`Such visual cues “refer[] to an effect, manipulation, transformation, animation, or
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`operation which gives a visual indication of simulated depth. For example, in one
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`embodiment, a 3D depth cue may be a blur operation, such that layers located at
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`successively greater depths may appear blurrier than those closer to the user. In
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`various embodiments, one or more 3D depth cues may be used to give the
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`appearance of depth to one or more virtual display layers.” EX1001, 68:27–35.
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`28. Different depth cues may be used for different virtual display layers;
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`depth cues may also “be used in conjunction with a 3D layered user interface
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`implemented in a layered display device, to enhance the layered appearance.”
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`EX1001, 68:36–40.
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`A.
`29.
`
`Independent Claims 1, 22, and 58
`Independent claims 1, 22, and 58 of the ’580 Patent are directed to an
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`electronic device programmed to perform certain functions. See generally EX1001.
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`Specifically, claims 1, 22, and 58 include “when” or “in response to” “an aspect of
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`the touch being detected to surpass a threshold, displaying, via the touch screen, a
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`plurality of markings in a second virtual display layer that appears to have a lesser
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`depth than the first virtual display layer, where at least a portion of the second virtual
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`display layer is at least partially translucent so that at least a portion of the contents
`
`of the first virtual display layer is visible through the at least portion of the second
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`virtual display layer.” See Limitations [1h], [22d], [58c] (emphasis added).
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`30. Additionally, “the at least portion of the second virtual display layer is
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`at least partially translucent so that a result of the zoom operation on the at least
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`portion of the contents of the first virtual display layer is visible through the at least
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`portion of the second virtual display layer.” See Limitations [1l], [22g], [58g]
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`(emphasis added).
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`VI. OVERVIEW OF THE PRIOR ART
`31. Dr. Cockburn primarily relies on three cited references for his invalidity
`
`analysis. See EX1003, ¶61 (the Ramos Paper-Ramos Video-Ording combination).
`
`A. Ramos et al., “Zliding: Fluid Zooming and Sliding for High
`Precision Parameter Manipulation,” UIST: Proceedings of the
`ACM Symposium on User Interface Software and Technology, 2005
`(“Ramos Paper”)
`32. Ramos Paper is titled “Zliding: Fluid Zooming and Sliding for High
`
`Precision Parameter Manipulation,” and “introduces the notion of Zoom Sliding, or
`
`Zliding, for fluid integrated manipulation of scale (zooming) via pressure input while
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`parameter manipulation within that scale is achieved via x-y cursor movement
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`(sliding).” EX1004, Abstract. Ramos Paper “present[s] the Zlider (Figure 1), a
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`widget that instantiates the Zliding concept.” EX1004, Abstract.
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`33. As an interactive widget, Zlider offers high precision parameter
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`manipulation and immediate feedback for continuous, rather than discrete,
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`parameter adjustments. EX1004, 1. Ramos Paper evaluates “three different input
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`techniques for cursor position,” but ultimately elects the “stylus with integrated
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`isometric pressure sensing tip” as the favored choice. EX1004, Abstract. “The scale
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`factor of the Zlider is adjusted by changes in pressure at the stylus’ tip, and the stylus’
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`x-y position enables sliding of the parameter’s value.” EX1004, 3.
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`34. The Zlider also features “a clutching mechanism that enables users to
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`completely stabilize pressure and hence lock the zoom level while sliding.”
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`EX1004, 3. Clutching is activated “by sliding the cursor away from the Zlider’s
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`working rectangle,” and declutching occurs by “[r]entering the working rectangle.”
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`EX1004, 3. “While clutched, users can still slide outside the working rectangle []
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`but the widget maintains its scale at the last reported value regardless of pressure
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`variations.” EX1004, 3.
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`
`
`
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`B.
`
`Zooming & Zliding (Gonzalo Ramos), December 28, 2007, available
`at https://www.youtube.com/watch?v=EcE3XBytN-U
`(“Ramos
`Video”)
`35. The Ramos Video illustrates the use and functionality of the Zlider
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`described in the Ramos Paper.
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`36. The Zlider “behaves like a regular selector with the difference that users
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`can, while dragging or sliding, explicitly adjust the precision they wish to interact at
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`or zoom by changing the amount of pressure they apply with an input device.”
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`EX1005, 0:14–0:27.
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`37. The Zlider uses a pressure cursor that “provides users with a real-time
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`visual indicator of the pressure they are applying with the input device. As the user
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`slides across the working area, a red needle indicates the parameter’s magnitude
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`relative to its minimum and maximum values at the extremes of the widget. The
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`Zlider also displays a Vernier, which adapts its grid spacing depending on the
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`widget’s current precision.” EX1005, 0:27-0:59.
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`
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`red needle
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`EX1005, 0:50 (Zlider) (annotated)
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`
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`38.
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`In addition to the clutching mechanism described above in the Ramos
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`Paper, the Ramos Video explains that “[u]sers can also hold the slider’s current scale
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`by using the hover region of the input device. This region allows them to perform
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`micro parameter adjustments without the need to reacquire a precision level as well
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`as to reposition the cursor as needed.” EX1005, 2:00–2:16.
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`39. Further, “[t]he hover region of the input device also allows users to
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`reach arbitrarily high precision levels. Users do this by repeatedly alternating
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`between increasing pressure and lifting the stylus while remaining in tracking
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`distance. By leaving and re-entering the Zlider’s working area while in the hover
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`region, users can also decrease the widget’s precision.” EX1005, 2:19-2:45.
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`hovering
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`contacting
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`
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`EX1005, 2:08 (annotated) (hovering)
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`EX1005, 2:09 (annotated) (contacting)
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`
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`C. U.S. Patent App. No. 2008/0094356 (“Ording”)
`40. Ording is titled “Methods For Determining A Cursor Position From A
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`Finger Contact With A Touch Screen Display,” and relates “to portable devices that
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`adaptively determine a cursor position from a finger contact with a touch screen
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`display and then perform operations according to the cursor position.” EX1006,
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`[0003].
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`41. Ording developed its methods to address the difficulty in navigating
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`compact mobile devices forced to support increasing functionality but armed with
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`outdated user interfaces such as physical pushbuttons. EX1006, [0004]–[0007].
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`Specifically, it addresses challenges in accurately identifying and responding to user
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`input on a compact screen, which is essential for improving usability on
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`multifunctional mobile devices. EX1006, [0004], [0006].
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`42. The invention includes a method where the device identifies the contact
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`area of a user’s finger on the touch screen and determines a cursor position based
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`partially on this contact area. EX1006, [0009]. Other factors influencing cursor
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`positioning include distances to nearby user interface elements and specific
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`“activation susceptibility” values for each element, which improve the precision and
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`accuracy of the touch input. EX1006, [0009]. This method allows for dynamic
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`adaptation to different user interactions, improving the user experience by reducing
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`accidental selections and enhancing ease of use. See EX1006, [0007].
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`43. The patent further covers the application of this cursor positioning
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`method to various device functions, such as “telephoning, video conferencing, e-
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`mailing, instant messaging, blogging, digital photographing, digital videoing, web
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`browsing, digital music playing, and/or digital video playing.” EX1006, [0008].
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`VII. ALL GROUNDS: DR. COCKBURN FAILS TO SHOW OBVIOUSNESS
`OF CLAIMS 1, 22, AND 58 OVER THE ALLEGED RAMOS PAPER,
`RAMOS VIDEO, AND ORDING DEVICE (PROD)
`[1h], [22d], [58c]: [when/in response to] an aspect of the touch
`A.
`[is/being] detected to surpass a threshold, display[ing], via the
`touch screen, a plurality of markings in a second virtual display
`layer
`44. Limitation [1h] recites: “when an aspect of the touch is detected to
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`surpass a threshold, display, via the touch screen, a plurality of markings in a second
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`virtual display layer [...].”
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`45. Limitations [22d] and [58c] similarly recite: “in response to an aspect
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`of the touch being detected to surpass a threshold, display[ing], via the touch screen,
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`a plurality of markings in a second virtual display layer [...].”
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`46. For claim 1, “the touch” finds its antecedent in Limitation [1g]: “detect,
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`via the touch screen, at least a portion of touch on the least one user interface
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`element.” See also Limitations [22c], [58b].
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`A “touch” is a touch; mere proximity is not a “touch”
`1.
`47. For Limitation [1g], Dr. Cockburn pretends there is no difference
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`between a stylus not touching (hovering within a threshold distance of) and touching
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`(actually contacting) the screen.
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`48. First, Dr. Cockburn asserts that the “[t]he Ramos Video further shows
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`several examples of the device detecting at least a portion of a touch on the working
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`area (at least one user interface element) displayed on the touch screen, as evidenced
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`by the ‘before’ and ‘after’ of the displays, shown below.” EX1003, ¶79 (emphasis
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`added).
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`49. Dr. Cockburn then shows a number of screenshots from the Ramos
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`Video, without addressing the elephant in the room—i.e., that the “after” display of
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`the Vernier is responsive to the stylus hovering within a threshold distance of the
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`screen, not to the stylus actually touching the screen.
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`50. Dr. Cockburn next asserts—without explanation—that a “POSITA
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`would have understood that a touch in the Ramos Paper and Ramos Video includes
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`both contact with the touch screen and meeting a threshold proximity [without
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`contact] between the stylus and the touch screen.” EX1003, ¶80 (emphasis added).
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`But that’s nonsensical: what distinguishes proximity from a touch is that a touch
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`includes contact, while proximity does not.
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`51. The only support Dr. Cockburn cites for the conclusion that merely
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`getting close could be a “touch” is a (misquoted) passage in the ’580 Patent. Dr.
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`Cock