Free Declaration in Support - District Court of California - California

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KARL J. KRAMER (CA SBN 136433) ELLEN S. REINSTEIN (CA SBN 227833) ERIKA L. LABIT (CA SBN 234919) MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: (650) 813-5600 Facsimile: (650) 494-0792 [email protected] Attorneys for Defendant SYNAPTICS, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ELANTECH DEVICES CORPORATION, a corporation existing under the laws of Taiwan, R.O.C., Plaintiff, v. SYNAPTICS, INC., a Delaware corporation; AVERATEC, INC., a California corporation; and PROSTAR COMPUTER, INC., a California corporation, Defendants. AND RELATED COUNTERCLAIMS. Case No. C06-01839 CRB

DECLARATION OF ANDREW WOLFE Ph.D. REGARDING CONSTRUCTION OF THE '352 PATENT CLAIMS

DECL. OF ANDREW WOLFE PH.D. RE: CONSTRUCTION OF THE '352 PATENT CLAIMS
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I.

BACKGROUND 1. My background and qualifications are summarized in paragraphs 2-7 of my

declaration of January 26, 2007, which I hereby incorporate by reference into this Declaration. With a broad knowledge of touchpad technology, with a solid grounding in pertinent circuit and software design, with a historical perspective based on active personal participation, and with experience with the patent process, I believe that I am qualified to provide an accurate assessment of the technical issues in this case. 2. I was asked to review materials and provide technical teaching and opinions

regarding U.S. Patent No. 5,825,352, ("the '352 Patent"), that Elantech Devices Corporation ("Elantech") is asserting in this case. A true and correct copy of the '352 Patent is attached as Exhibit 1 hereto. In this Declaration, I present an explanation of the technical concepts and terms relevant to the interpretation of some of the claim limitations at issue. The documents that I reviewed and relied upon for my opinions are typically referenced expressly below. II. EXPERT OPINIONS 3. The '352 Patent claims an apparatus and method "for detecting the operative

coupling of multiple fingers" on a "touch sensor." In this Declaration I will address the interpretation of certain terms used in the claims of the '352 Patent. 4. In the mid-1990's, the people who were developing technology for use in touch

sensor devices would have had at least a B.S.E.E. and three or so years of practical experience. Of course, the higher the educational training, the less practical experience one would need. For example, an engineer with a master's degree would need probably only a year or two of experience in the area to be able to tackle the design of such circuitry. 5. In explaining how one of ordinary skill in the art would interpret the words in the

claims of the patents-in-suit, I understand that I am to focus on the claim language, the teachings in the patent itself, and on the correspondence recorded in the prosecution of the patents. I also understand that I am to explain how one of ordinary skill in the art would understand the claim terms in January 1996, roughly the time of the "inventions" claimed in the '352 Patent. In my analysis I will also present excerpts from dictionaries, both scientific and non-scientific, and
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statements in the relevant literature with respect to the terms and concepts that are claimed. In using this type of reference that is not directly tied to the patent, I will only refer to information that is consistent with the teachings and definitions used by the inventors in the patent at issue. I understand that I am not to impose my own interpretation of the words or to present evidence of the meaning of terms that contradicts or varies the meanings as used in the patents. I understand that a key issue in determining the meaning of the claims is how certain terms were used and understood by skilled artisans in or about January 1996. B. 6. The '352 Patent Claims. I understand that the asserted claims of the '352 Patent are claims 1 and 18. The

claims are set out in full below: 1. A method for detecting the operative coupling of multiple fingers to a touch sensor involving the steps of scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger, (b) identify a minima following the first maxima, (c) identify a second maxima in a signal corresponding to a second finger following said minima, and providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima. **** 18. A touch sensor for detecting the operative coupling of multiple fingers comprising: means for scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger, (b) identify a minima following the first maxima, and (c) identify a second maxima in a signal corresponding to a second finger following said minima, and means for providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima. C. 7. "Operative Coupling" The term "operative coupling" is used in the preamble of claims 1 and 18 of the

'352 Patent. One of ordinary skill in the art would conclude that the preambles of the claims at issue constitute limitations to the claims because they are necessary to give meaning to key terms in the body of the claims. There are two main factors that lead me to this conclusion.

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8.

First, the body of each of claims 1 and 18 refers to "the touch sensor." There is no

antecedent basis for "the touch sensor" in the body of the claims. Rather, the antecedent basis, and the first instance in which "touch sensor" is introduced in the claims is in the preamble, which recites "a touch sensor." The phrase "the touch sensor" in the body of the claims necessarily refers back to the recitation of "a touch sensor" in the preamble. Because the body of the claims relies upon this recitation in the preamble, I conclude that the preambles were obviously intended to be and are properly understood by one of ordinary skill in the art to be limitations of the claims. 9. Second, it is my opinion that one of ordinary skill in the art would conclude that

the claims do not have meaning without the recitation of "operative coupling" in the preambles to the claims. The body of each of the claims at issue recites a requirement of a "maxima" in a signal that represents some unstated measured property "corresponding to a first finger;" "a minima" of some unstated entity which one might reasonably assume is the same signal that represents some unstated measured property "following the first maxima;" and "a second maxima," again in a signal that represents some unstated measured property, "corresponding to a second finger." The body of each of the asserted claims contains no description of the property that is being measured to establish the recited signal and thus no hint as to where to find "maxima" and "minima" values. Although the preamble recitation of "operative coupling" is extremely vague, it at least breathes some life and meaning into the claim term signal and thus into the claim terms "maxima" and "minima." Put another way, the claim terms "signal," "maxima," and "minima" would lack any definite meaning without the recitation of "operative coupling" in the preamble of the claims. If instead the preamble is considered to be a limitation on the claim, then the otherwise unstated measurements represented in the various signals can be reasonably interpreted as measurements representing the recited "operative coupling" of a finger or fingers to the touch sensor. 10. In the context of the claims read in light of the specification of the '352 Patent, the

claim term "operative coupling" would have meant to one of ordinary skill in the art in 1996, and today, "finger-induced electrical effect" between the "touch sensor" and "multiple fingers." This
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is how the phrase is used in the specification of the '352 Patent. (Exhibit 1 hereto, '352 Patent, 1:32-39, 2:48-52; 5:6-10, 5:56-6:1, 6:14-18, 6:26-38, 6:42-45, 7:54-56; 11:16-19, 12:14-17, 12:42-45; 15:34-37, 15:51-54 at ETD0000302; Figs. 1-4, 7A-7F.) 11. This understanding of "operative coupling" is also consistent with common

dictionary definitions of the terms "operative" and "coupling" in the context of the field of art in which the claimed invention was developed. (Exhibit 2 hereto, The New Shorter Oxford English Dictionary (1993), at SYN 00103325 ("operative" means "Being in operation or force; exerting force or influence."); Exhibit 3 hereto, McGraw-Hill Dictionary of Scientific and Technical Terms (3rd ed. 1984), at SYN 00103310 ("coupling" means "A mutual relation between two circuits that permits energy transfer from one to another, through a wire, resistor, transformer, capacitor, or other device."); Exhibit 4 hereto, Modern Dictionary of Electronics (6th ed. 1984), at SYN 00103313 ("coupling" means "The association or mutual relationship of two or more circuits or systems in such a way that power may be transferred from one to another.").) 12. I understand that Elantech agrees with this interpretation. Attached as Exhibit 5

hereto is a copy of the Amended Joint Claim Construction Chart, which includes the agreed-upon definition of "operative coupling," which means "finger-induced electrical effect." D. 13. "Scanning the Touch Sensor"

Both of the asserted claims of the '352 Patent require "scanning the touch sensor."

The phrase "scanning the touch sensor" would mean to one of ordinary skill in the art at the relevant time and in the relevant field the process of "measuring the traces in the touch sensor and assigning them to a sequence corresponding to their physical order on the touch sensor." In my deposition in this matter, it became clear from questions presented by Elantech's counsel that the definition provided in my expert report could be incorrectly interpreted. I revised the wording of my original definition during my deposition to clarify that the actual sampling of the traces on the touch sensor need not happen individually as long as the result of such sampling is a sequence of measurements corresponding to the physical order of the traces on the touch sensor. 14. Elantech's proposed definition, "examining information associated with the touch

sensor," inserts words that are not present in the claim and as a whole is not consistent with the
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patent specification. The claims do not say scanning "information associated with the touch sensor," they say "scanning the touch sensor." It is true that in different contexts outside of this patent, the term "scanning" could have different meanings such as a person "scanning" a piece of paper or a software program "scanning" information stored in memory. However, the claims of the '352 Patent expressly identify what is being "scanned." The asserted claims are limited to "scanning the touch sensor." 15. In addition, the phrase "information associated with the touch sensor,"

encompasses far more than what is taught in the '352 Patent and would lead to absurd results. For example, "information associated with the touch sensor" would literally include the number of traces in the touch sensor, the color of the material of the touch sensor, the date the touch sensor was manufactured, and other "information associated with the touch sensor" that is completely irrelevant to the claims and the teachings in the patent specification. The only "information associated with the touch sensor" that has any relevance is the sequence of trace measurements used to form the "finger profile" that Elantech repeatedly refers to throughout its definitions and explanations. 16. Elantech's cited dictionary definition of "scanning" is not directly on point.

Elantech relies upon a reference to "information" as the object of "scanning" in one example dictionary definition and then argues that the object of the "scanning" step in the claim should be also be "information," rather than "the touch sensor." This argument ignores that the claims expressly state the object that is being scanned: "scanning the touch sensor." Certainly, those of ordinary skill in the art think of "scanning" as the process of examining something in a systematic, part-by-part manner. (Exhibit 6, The IEEE Standard Dictionary of Electrical and Electronics Terms (1996), at SYN 00103298 ("scanning" means "(6) The process of examining information in a systematic manner."); Exhibit 7, The Illustrated Dictionary of Microcomputers (1990), at SYN 00103305 ("To examine sequentially using a part-by-part technique.").) However, in the context of the claim phrase "scanning the touch sensor," the "scanning" or systematic, part-by-part examination, is of "the touch sensor," not "information" or "information associated with the touch sensor." The "scanning" process in the claims is directed to the
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physical touch sensor. To those of ordinary skill in the art, this refers to scanning the traces in the touch sensor that react to the "finger-induced electrical effect" of a finger or fingers on the touch sensor by measuring each one. 17. By contrast, the evidence from the patent itself concerning "scanning the touch

sensor" supports Synaptics' proposed definition. In particular, the intrinsic evidence shows that "scanning the touch sensor" includes (a) "measuring" the traces in the touch sensor and (2) assigning the measured values "to a sequence corresponding to their physical order" on the touchpad. I will address each of these in turn. 18. First, the patent specification describes the scanning process as including a

sequence of measurements of the traces in the touch sensor. (Exhibit 1, '352 Patent, 5:20-61, 6:14-26.) Indeed, the patent specification expressly states that "The scan process measures the values of finger-induced capacitance for each of the conductors, and stores the values in RAM at step 420." (Exhibit 1, '352 Patent, 7:38-40.) This language quoted directly from the specification underscores that in the phrase "scanning the touch sensor," the term "scanning" includes the act of measuring the "operative coupling," or as the parties have defined it, the "finger-induced electrical effect," on the touch sensor. 19. Similarly, the measurement results set forth in the patent specification are

described as "scans." In describing the "Tail state" of the graph of data representing the finger profile, the patent states that it "is simply the remainder of the scan after a second peak (in the exemplary embodiment). . . ." (Exhibit 1, '352 Patent, 9:12-13.) Figures 7 and 8 also show the results of measurements of the ordered set of traces in the touch sensor. These sequences of measurements are described (Exhibit 1, '352 Patent, 12:37-42, 14:3-7 (emphasis added)), as "scans": "In particular, and with reference to FIG. 7A in combination with FIG. 7B, an initial series of scans 700 indicates the presence of a single finger in contact with the touch sensor, with the changing X,Y location between 700 and 705 indicating relative motion by the finger across the touch sensor." "In FIG. 8, the process begins in a manner identical to FIG. 5, starting at step 400 and followed by scanning the conductors and storing the results of the scan in memory at step 405, followed by Xcompute and Ycompute at steps 430 and 440, respectively."
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20.

The only citation to the patent specification that Elantech relies upon for its

argument that "scanning" does not include measuring is from column 5, lines 60-61 of the '352 Patent. Elantech's reading of that single sentence is not correct in light of the context of the sentence and in light of the many other express statements in the patent that show that "scanning the touch sensor" means to measure the traces in the touch sensor. The portion of the specification that Elantech excerpts states "As noted above, the cycle begins by scanning the traces and measuring the capacitance on each trace." In the context of the patent and in light of the express statements from the specification as noted above that teach that the "[T]he scan process measures the values of finger-induced capacitance for each of the conductors," this sentence does not clearly support Elantech's interpretation of the claims. The cited sentence describes a single step in the described process, not a sequence of two separate steps. Indeed, the use of the term "and" in this context is akin to common usage in which one would say one is "picking up and holding a baby." Obviously, the act of "picking up" a baby requires that one be "holding" the baby as well. This common reading of the phrase that Elantech cites would make that passage consistent with all of the other passages noted above that treat measuring the traces in the touch sensor as an integral part of "scanning the touch sensor." 21. The other claim terms used in the claim also make clear that "scanning the touch

sensor" is intended to include "measuring the traces in the touch sensor." In particular, the claim language establishes that the "scanning" process is measuring the "operative coupling" of the fingers to the touch sensor to "identify" two "maxima" and a "minima" of signals corresponding to two fingers on the touch sensor. The claims literally require that particular measured values be evaluated and classified as "maxima" or "minima" values. The "scanning" step is expressly recited as the action that is required "to" do the sub-steps (a)-(c) that identify these "maxima" and "minima" values of "finger-induced electrical effect." By their own terms, the claim phrases that include "scanning the touch sensor to" literally means that "scanning" includes measuring the touch sensor in order to be able to identify the required values. Once again, this is perfectly consistent with the ordinary meaning of the phrase "scanning the touch sensor" and the teachings in the patent specification.
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22.

In addition, I note that Elantech objects to my inclusion of "trace values" in the

definitions of "scanning the touch sensor" and suggests that "finger profile" is a better term for describing what is measured. (Elantech Brief, at 6:17-23). As previously stated, the "finger profile" is "the profile of finger-induced capacitances" (Exhibit 1, '352 Patent, 11:49-51), i.e., the values sensed by "scanning" the traces on touch sensor. This is the only type of finger profile taught in the `352 specification. One of ordinary skill in the art at the time would not have known how to create such a "profile" of a "finger-induced electrical effect" other than by measuring trace values in the touch sensor. I conclude that the definition of the claim term in dispute should include an explanation of what is being measured. 23. Second, as noted above, the term "scanning" would be normally understood by

those of ordinary skill in the art to include a necessary order or sequence. This is clear from the dictionary definitions noted above. In addition, the literal words of the claims require a sequenced ordering of the measurements. The claim terms say the "scanning" is done "to": (a) identify a first maxima in a signal corresponding to a first finger, (b) identify a minima following the first maxima, (c) identify a second maxima in a signal corresponding to a second finger following said minima The claim terms "first," "second," and "following" all necessitate that the "scanning of the touch sensor" be in some sequence or order. Otherwise, one could not determine what is first, what is second, or what value follows another. Thus, in addition to the ordinary meaning of scanning as understood by those of skill in the art, the express words of the claim require that the "scanning the touch sensor to identify" step is conducted in a sequence or order that represents the physical touch sensor device. 24. The '352 Patent specification also expressly discloses that part of "scanning the

touch sensor to . . . identify" the required "maxima" and "minima" values is the step of assigning them to a sequence corresponding to their physical order on the touch sensor. As described at column 5 of the patent specification, the scan measurements are described as an enumerated sequence of values, for example "X(1) through X(Xcon) and Y(1) through Y(Ycon)." (Exhibit 1,
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'352 Patent, 5:64-65) A table at the bottom of column 8 and the top of column 9 includes an explanation of the sequence order for the measurements and states that "Xcon" represents "the number of sensor conductors in the X direction." This is consistent with Synaptics' definition. 25. Although the definition Synaptics proposes is correct based upon the intrinsic

evidence as understood by those of ordinary skill in the art, I also note that Elantech's own claim construction definitions effectively concede that the claim phrase "scanning the touch sensor to" includes measurement and sequential order. Elantech defines the step of "scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger" to mean "identify a first peak value in a finger profile obtained from scanning the touch sensor." As an initial matter, a "finger profile" is a set of values that numerically represent the X or Y sequence of measurements corresponding to the physical order of the traces in the touch sensor. In essence, the "finger profile" is "the profile of finger-induced capacitances" (Exhibit 1, '352 Patent, 11:4951), sensed by "scanning" the touch sensor. These finger profiles are shown graphically in Figures 3 and 4 of the '352 Patent. (Exhibit 1, '352 Patent, 4:56-59 ("FIG. 3 shows a finger profile . . . . FIG. 4 shows a finger profile. . . .") Figure 3, below, shows a graph of the "fingerinduced electrical effect" values for each successive trace in one dimension of the touch pad (horizontal or vertical/X or Y). The little "-" marks in the graph represent the value measured for one specific trace in the touch sensor during the scanning process. The "finger profile" represents the values for each of the traces as they are physically ordered on the touch sensor.

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26.

As noted, in its definition, Elantech concedes that the "scanning" step of the claim

requires that the system "identify a first peak value in a finger profile obtained from scanning the touch sensor." It is not possible for the "finger profile" values to be "obtained from scanning the touch sensor" unless "scanning the touch sensor" includes measuring the "finger-induced electrical effect" on the touch sensor traces. 27. Also, as shown in Figures 3 and 4 of the '352 Patent, a "finger profile" that

Elantech refers to in its own definitions constitutes the measured values of "the traces in the touch sensor" after "assigning them to a sequence corresponding to their physical order." Elantech also concedes that elements (a), (b) and (c) of the claims entail an ordered sequence since Elantech's own definition is that the "minima" must be "after the first peak value, and before another peak value is identified." Elantech also concedes that the "second maxima" means "after identifying the lowest value in the finger profile, identify a second peak value in the finger profile." These definitions logically necessitate that a required part of "scanning" is assigning the measured trace values from the touch sensor to a sequence corresponding to their physical order on the touch sensor. Thus, inherent in Elantech's own definitions of "scanning the touch sensor" are the requirements of "measuring the traces in the touch sensor and assigning them to a sequence corresponding to their physical order." 28. I conclude that one of ordinary skill in the art would understand from the patent

that the "scanning the touch sensor to" step of the asserted claims of the '352 Patent means "measuring the traces in the touch sensor and assigning them to a sequence corresponding to their physical order on the touch sensor." E. 29. Sub-Elements (a)-(c) of the "Scanning" Step or Function. The step or function of "scanning the touch sensor" in claims 1 and 18 of the '352

Patent is recited as follows: scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger, (b) identify a minima following the first maxima, [and] (c) identify a second maxima in a signal corresponding to a second finger following said minima

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30.

I believe that there are two areas of real dispute between Elantech and Synaptics

with respect to the meaning of the sub-elements (a)-(c). First, there is disagreement about how to explain to the jury the concepts of "maxima" and "minima." Second, there is disagreement about whether there is an order to the scanning process in sub-steps (a)-(c). I will address first the concepts of "maxima" and "minima." 1. "Maxima" and "Minima." (a) The Proper Definitions of "Maxima" and "Minima." 31. Leaving aside for the moment the definition of "scanning the touch sensor to" and

the issue of what order is required, the "maxima" and "minima" claim terms would mean to one of ordinary skill in the art as follows: (a) "identify a . . . maxima" would mean to one of ordinary skill in the art "determining the point at which the measured values cease to increase and begin to decrease;" and (b) "identify a minima" would mean to one of ordinary skill in the art "determining the point at which the measured values cease to decrease and begin to increase." 32. The key terms in understanding these claim phrases are the concepts of "maxima"

and "minima." The named inventors of the '352 Patent never specially defined these terms within the patent. These terms are well-known and understood by engineers and mathematicians. In general, "maxima" is the plural of "maximum." The term "minima" is the plural of "minimum." The terms "maximum" and "minimum" have two distinct meanings in general use, that of a "local" maximum or minimum, and that of a "global" maximum or minimum. A local maximum is "a point at which a quantity ceases to increase and begins to decrease." A local minimum is "a point at which a quantity ceases to decrease and begins to increase." By contrast, a "global" maximum is "the greatest value which a variable may have" or "the largest element in a set." Similarly, a "global" minimum is the "least value which a variable or a function may have" or "the smallest element in a set." These definitions can also be found in standard dictionaries. (Exhibit 2, The New Shorter Oxford English Dictionary (1993), at SYN 00103321 ("maximum" means "3 Math. The greatest value which a variable may have; the largest element in a set; a point at which a continuously varying quantity ceases to increase and begins to decrease.") and at SYN 00103322 ("minimum" means "3 Math. The least value which a variable
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or a function may have; the smallest element in a set; a point at which a continuously varying quantity ceases to decrease and begins to increase; the value of a quantity at such a point.").) As I noted above, these concepts are well established for engineers and mathematicians. 33. The distinction between these uses of maximum and minimum is important. The

"global" maximum or minimum is the largest or smallest value of an entire set and does not permit of more than one such value. You cannot have two mountains in the world with the global maximum height; there is only one, Mount Everest. However, you can have a "local" maximum on any number of hills or plateaus that may be in your neighborhood. In the same way, you can think of global minimum and local minimum as the lowest point globally (the Dead Sea) or just locally (at the bottom of a small hole in your backyard). 34. In the context of these claims and the disclosure in the '352 Patent disclosure,

"maxima" and "maximum" refer to local maximum and minimum. I reach this conclusion for a number of reasons. First, and most obviously, the inventors chose to use the plural forms of maximum and minimum ("maxima" and "minima"), and indeed recite two distinct "maxima" in the claim terms at issue. This eliminates the possibility that the inventors intended a "global" maximum and minimum because one cannot have more than one global maximum or minimum. Because the inventors chose carefully a plural form of these terms, they clearly intended to refer only to a "local" maximum and a "local" minimum. 35. Second, Figures 4 and 7B through 7F-2 all show that there are more than one

"maxima" present, which again precludes the concept of "global" maximum. (Exhibit 1.) Each of those Figures also depicts a finger profile of lower values than the "minima" between the first and second "maxima." Thus, the inventors intended "maxima" and "minima" to have the definition of "local" maximum and minimum and not "global" maximum and minimum. 36. Third, Figure 6-1 of the '352 Patent specifically describes a precise algorithm for

identifying the "maxima" and "minima," which exactly corresponds to Synaptics' definition and the ordinary meaning of these terms. (Exhibit 1.) In step 230, contained within the iterative loop from steps 215 through 235 in Figure 6-1, is depicted the formula "X(N) X(N-1)." In this algorithm, the "X(N)" refers to the current scan trace being evaluated and X(N-1) refers to the
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previous scan trace that was evaluated. "N" represents a number that is used to count through each of the traces as they are evaluated. Step 230 of the algorithm searches for a "maxima." It continues to search for a "maxima" so long as the current trace being evaluated ("X(N)") is greater than or equal to ("") the previous scan trace ("X(N-1)"), i.e., the measured values have not yet begun to decrease. If, and only if, a measured value is less than the previous value, then step 232 identifies the precise scan measurement, X(N-1), for which the measured values cease to increase and begin to decrease, as the first "maxima." 37. Similarly, step 250 in Figure 6-1, contained within the iterative loop from steps

215 through 235, depicts the formula "X(N) X(N-1)." (Exhibit 1.) In this algorithm, the "X(N)" again refers to the current scan trace being evaluated and X(N-1) refers again to the previous scan trace that was evaluated. Step 250 of the algorithm searches for a "minima." It continues to search for a "minima" so long as the current trace being evaluated ("X(N)") is less than or equal to ("") the previous scan trace ("X(N-1)"), i.e., the measured values have not yet begun to increase. If, and only if, a measured value is greater than the previous value, then step 262 identifies the precise scan measurement, X(N-1), for which the measured values cease to decrease and begin to increase, as the "minima." 38. Finally, step 275, contained within the iterative loop from steps 215 through 235 in

Figure 6-1, depicts the formula "X(N) X(N-1)." (Exhibit 1.) In this algorithm, the "X(N)" refers to the current scan trace being evaluated and X(N-1) refers to the previous scan trace that was evaluated. "N" represents a number that is used to count through each of the traces that are evaluated. Step 275 of the algorithm searches for the second "maxima." It continues to search for the second "maxima" so long as the current trace being evaluated ("X(N)") is greater than or equal to ("") the previous scan trace ("X(N-1)"), i.e., the measured values have not yet begun to decrease. If, and only if, a measured value is less than the previous value, then step 278 identifies the precise scan measurement, X(N-1), for which the measured values cease to increase and begin to decrease, as the second "maxima." 39. In each case, the algorithm shown in the flow diagram of Figure 6-1 fits precisely

the ordinary meaning of "maxima" and "minima." In each instance of a "maxima," the patent
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specification teaches that the "maxima" is "the point at which the measured values cease to increase and begin to decrease." Similarly, the "minima" is "the point at which the measured values cease to decrease and begin to increase." Thus, the clearest teaching in the patent specification is consistent with the definition of local maximum and local minimum and inconsistent with the definition of global maximum and global minimum. One of ordinary skill in the art would look to this clear explanation in flow-diagram form and would not look to unclear or ambiguous hand-drawn lines on Figures to determine the meaning of "maxima" and "minima." One of ordinary skill in the art would rely on such clear flow-chart descriptions as they are the most concrete and detailed explanation of the concepts claimed in the '352 Patent claims. Nowhere in the '352 Patent specification are the concepts of "maxima" or "minima" used in the context of "global" maximum or minimum. Thus, contrary to Elantech's contention (Elantech's Brief at 9:10-14, 11:27-12:2), the alternative definition of maximum and minimum (i.e., the concept of global maximum and minimum) stated in the dictionary definitions that Elantech cites, are not consistent with the intrinsic evidence. (b) Elantech's Criticisms Of Synaptics' Definitions. 40. Elantech's first criticism is that Synaptics' proposed definition does not take into

account the applicants statements during prosecution that the claimed maxima "could be maximum negative levels, or troughs, depending upon the circuitry used." This criticism is unfounded. In a circuit in which "operative coupling" of a finger to a touch sensor causes a negative signal, the "value" for which a "maxima" is being determined is clearly the negative level of the signal or, in mathematical terms, its absolute value. The definition that Synaptics proposes does not preclude such an embodiment. This would be self-evident to one of ordinary skill in the art. 41. Moreover, Elantech's argument is simply not logical given that it applies with

equal force to Elantech's own definitions of "maximum" as a "peak," and "minimum" as "lowest value." In the same superficial way, "peak" would seem to exclude "negative levels, or troughs" (a "peak" cannot be a "trough"), and "lowest value" would describe the "maximum" finger coupling, not the "minimum" finger coupling, if the circuitry measured negative values. But, as
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noted, this argument, whether applied to Synaptics' definition or Elantech's definition, is irrelevant given that one of ordinary skill in the art would apply the claim in the context of the circuitry being used (whether negative or positive measurements are used). In the end, this is not relevant criticism of either party's definition because, as noted above, for the same reason, both definitions are consistent with the inventors' statement during prosecution. 42. Elantech's second criticism is that Elantech's definition of "maxima" as a "peak"

is more accurate and helpful than Synaptics' definition of "maxima." This is wrong for several reasons. First, "peak" is ambiguous since it does not help solve the problem of which point on a "plateau" should be identified as the "maxima." In fact, the word "peak" means that there is a single point that represents the "maxima." Thus, "peak" suffers from the very ambiguity that Elantech suggests (incorrectly) undermines Synaptics' proposed definition. By contrast, there is no ambiguity in definition of "maxima" as "the point at which the measured values cease to increase and begin to decrease." Under that definition, the last point on the plateau (going in the direction of the scan order), will be the "maxima." That is consistent with the ordinary meaning of the term "maxima" and it fits perfectly with the clear and detailed algorithm of the preferred embodiment in Figure 6-1 of the '352 Patent (discussed in detail above). (Exhibit 1.) 43. Second, it makes no sense to define the term "maxima" as "peak" given that in the

patent the inventors define "peak" as a type of "maxima." Thus, while it may be true that a "maxima" may be a single point, or "peak," it is not necessarily so, as provided in the algorithm set forth in Figure 6-1. As shown above, in that algorithm, a maxima is not identified if the current scan value is greater than or equal to the previous scan value. The inventors made this distinction express when they drafted claims 7 and 21 of the '352 Patent. In those claims, dependent from claims 1 and 18, respectively, the inventors recited "wherein said maxima are peaks." (Exhibit 1.) This distinction makes no sense to one of ordinary skill in the art if, as Elantech contends, a "maxima" must always be a "peak." 2. 44. Scan Order Is Required In Sub-Elements (a)-(c)

Elantech states in its brief that the phrase "in scan order" in Synaptics' proposed

definitions of sub-elements (b) and (c) is incorrect. (Elantech Brief at 12:20-13:3, 13:15-17.)
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The claims recite: scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger, (b) identify a minima following the first maxima, (c) identify a second maxima in a signal corresponding to a second finger following said minima As noted above in paragraphs 23 -28 of this Declaration, the words in the claims require that there be an identification of values in scan order. Without an order to the identification in the scanning process, the terms "first," "second," and "following" are nonsensical. They only have meaning if, as is inherent in the meaning of "scanning," the identification proceeds through the measured values in an order that represents the physical placement of the "first" and "second" finger on the touch sensor. This order is necessary due to the use of the word "scanning" and the express statement that the "scanning" identifies a "first maxima," "a minima following the first maxima," and "a second maxima . . . following said minima." As Elantech's own definition concedes (Amended Joint Claim Construction Chart, Exhibit 5 hereto, Elantech's definitions for Claim Terms 16-18), the scan order must represent the "finger profile" upon the actual touch sensor or it would be impossible to identify what finger is "first," what finger is "second" and what values are "following" others. The more exact way to express this relationship is to state it explicitly, as Synaptics has in its definitions. 45. In summary, based upon the intrinsic evidence and the normal understanding of

one of ordinary skill in the art, the claim limitations labeled (a)-(c) in the asserted claims would be understood by one of ordinary skill in the art to mean as follows:
"scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger" "scanning the touch sensor to . . . (b) identify a minima following the first maxima" "measuring the trace values of the touch sensor corresponding to a first finger and determining the point at which the measured values cease to increase and begin to decrease" "measuring the trace values of the touch sensor following, in scan order, after the first maxima and determining the point at which the measured values cease to decrease and begin to increase" "measuring the trace values corresponding to a second finger following, in scan order, said minima and determining the point at which the measured values cease to increase and begin to decrease"

"scanning the touch sensor to . . . (c) identify a second maxima in a signal corresponding to a second finger following said minima"

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F.

"Providing An Indication Of The Simultaneous Presence Of Two Fingers In Response To Identification Of Said First And Second Maxima." Claims 1 and 18 both recite "providing an indication of the simultaneous presence

46.

of two fingers in response to identification of said first and second maxima." Claim 18 recites this function as being performed by a "means." The function "providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima" would be understood by one of ordinary skill in the art to have the ordinary meaning of the words outlined above. However, in reviewing the specification, I did not find any specific disclosure of a structure that is literally or necessarily linked to the precise functions recited in the claims. I did see that "the simultaneous presence of two fingers in response to identification of said first and second maxima" is determined at item 980 in Figure 9-2. (Exhibit 1.) However, there is no disclosure of a precise structure that is used to "provide an indication" once that information has been determined. In its brief, Elantech excerpts one phrase from a sentence to suggest that the claimed operation "has its output `supplied to an interface to a PC or other device. . . .'" (Elantech Brief at 14:13-15.) However, the full statement makes clear that only certain unspecified operations result in such outputs: "Depending on the operation being performed at the particular time, the output of microcontroller 60 is then supplied to an interface to a PC or other device. . . ." (Exhibit 1, '352 Patent, 5:52-55.) This statement plainly suggests that not all operations are to be output in that manner and certainly does not state that the specific function in these claims is one such operation. Consequently, I conclude that one of ordinary skill in the art today and in 1996 would find nothing in the specification that specifically links the claimed function, "providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima," to a particular structure. One of ordinary skill in the art would have to guess or make an educated surmise on what disclosed structures could be used for that purpose. Therefore, I conclude that this limitation is indefinite. 47. I anticipate that I might supplement or modify the opinions in this Declaration in

view of any such new information that might arise between now and the time of the hearing on the claim construction issues.
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2nd AMENDED JOINT CLAIM CONSTRUCTION CHART
Claim Terms
1. "tap gesture" ('931/'591) 2. "X and Y position information" ('931/'591) 3. "initiating a first signal to the host indicating the occurrence of said gesture" ('591) 4. "terminating said first signal" ('591) 5. "sending a second signal to said host indicating said second gesture" ('591)

Synaptics Claim Construction Disclosure

Elantech Claim Construction Disclosure

"a quick tap of the finger on the pad, of short duration and involving little or no X or Y finger motion, that is presented to the host as a brief click of the mouse button" "information about the horizontal and vertical "two-dimensional location on a touch-sensor pad" positioning of an object on a touch sensor"

"initiating transmission of a first set of data to a host that indicates that a tap gesture has occurred on the touch-sensor pad"

"outputting to the host a high state of a signal that has a low and a high state, and the high signal state represents that a double tap gesture will potentially occur on the touch-sensor pad" "changing the state of the signal from the high signal state to the low signal state" "changing the state of the signal from a low signal state to a high signal state for a predetermined period of time, and sending the high signal state to the host which interprets the termination of the first signal and the existence of a second high signal state as being a double tap gesture" This claim construction presumes that "said second gesture" should have read "said gesture" or "said double tap gesture." Absent such a presumption, no claim construction can be made because there is no antecedent basis for "said second gesture." "outputting to a host a high state of a signal that has a low and high state, and the high signal state represents that a drag gesture will potentially occur on the touch-sensor pad" "continuously outputting the high signal state"

"terminating the previous signal" "sending a second set of data to a host that indicates that a second tap gesture has occurred on the touch-sensor pad"

6. "initiating a drag gesture signal to the host indicating the occurrence of a gesture" ('591) 7. "maintaining said drag gesture signal" ('591) 8. "repeatedly sending X and Y position information to said host for the duration of said second presence" ('591) 9. "initiating a signal to the host indicating the occurrence of said tap gesture" ('931) 10. "maintaining said signal for a predetermined period of time" ('931) 11. "detecting in which of at least one corner of the touch-sensor pad said tap gesture occurred" ('931)

"initiating transmission of a first set of data to a host that indicates that a gesture has occurred on the touch-sensor pad"

"to continue, retain, or repeat the drag gesture signal" "after the second presence is detected, repeatedly sending information about the horizontal and vertical positioning of an object on a touch sensor to a host while the second presence continues"

"continuously sending the current two-dimensional location of the object on the touch-sensor pad to the host as long as the object continues to be in proximity to the touch-sensor pad"

"initiating the transmission of a set of data to a host that indicates that a tap gesture has occurred on the touch-sensor pad"

"outputting to the host a high state of a signal that has a low and a high state, where the high signal state represents that a tap gesture occurred on the touch-sensor pad" "continuously outputting the high state of the signal only for a predetermined time period (i.e., changing the signal state from high to low at the end of the predetermined time period)" "after detecting the occurrence of the tap gesture, separately detecting in which of at least one corner of the touch-sensor pad the tap gesture occurred"

"to continue, retain, or repeat the signal for a period of time that was determined before"

"detecting that a tap gesture has occurred in at least one corner, the identity of which is distinguished in some way from other corners of the touch-sensor pad"

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2nd AMENDED JOINT CLAIM CONSTRUCTION CHART
12. "data packet processor" ('052) 13. "incrementally move" ('411) 14. "operative coupling" ('352) 15(a) "scanning the touch sensor" 15(b) "means for scanning the touch sensor . . ." ('352) "hardware and/or program code, for example, software executed on a central processing unit, that examines data packets" "to move in increments" "software for processing data packets and sending messages"

movement defined by the second component of Equations 12 and 13 in the '411 patent, namely, S(Xcur ­Xcenter) and S(Ycur - Ycenter) "finger-induced electrical effect"

16. "scanning the touch sensor to . . . identify a first maxima in a signal corresponding to a first finger" ('352) 17. "scanning the touch sensor to . . . identify a minima following the first maxima" ('352t) 18. "scanning the touch sensor to . . . identify a second maxima in a signal corresponding to a second finger following said minima" ('352) 19(a) "providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima" ('352) 19(b) "means for providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima" ('352)

"measuring the traces in the touch sensor and "examining information associated with the touch assigning them to a sequence corresponding to sensor" their physical order on the touch sensor." 112 ¶6 Claimed Function "scanning the touch sensor to (a) identify a first maxima in a signal corresponding to a first finger, (b) identify a minima following the first maxima, and (c) identify a second maxima in a signal corresponding to a second finger following said minima," as those terms are defined below 112 ¶6 Corresponding Structures analog multiplexor 45, capacitance measuring circuit 70, analog to digital converter 80, microcontroller 60 "measuring the trace values of the touch sensor "identify a first peak value in a finger profile corresponding to a first finger and determining the obtained from scanning the touch sensor" point at which the measured values cease to increase and begin to decrease"

"measuring the trace values of the touch sensor following, in scan order, after the first maxima and determining the point at which the measured values cease to decrease and begin to increase" "measuring the trace values corresponding to a second finger following, in scan order, said minima and determining the point at which the measured values cease to decrease and begin to increase"

"identify the lowest value in the finger profile that occurs after the first peak value, and before another peak value is identified"

"after identifying the lowest value in the finger profile, identify a second peak value in the finger profile"

No further construction necessary since ordinary meaning is sufficient.

112 ¶6 Claimed Function "providing an indication of the simultaneous presence of two fingers in response to identification of said first and second maxima" 112 ¶6 Corresponding Structure 112 ¶6 Corresponding Structure None microcontroller 60

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