Apple v Samsung Foreman Gets More Things Wrong
groklaw.net
groklaw.net
I get that people do not like the verdict, but save the vitriol for the lawyers and the law. Let's not hate on an American citizen who did his best when duty called.
I realize, as you said, he was just the guy that got picked, but he is also the one granting interviews, claiming he has expertise in the area because he is a patent holder, etc... It is a fairly well known that juries can be heavily swayed by one or two confident/aggressive people, which is why each side tries to eliminate such folks early on (to their own benefit of course).
This is just another instance of a pet peeve of mine, the "everyone's an expert" phenomenon where people have some familiarity with an area and then extrapolate that into some kind of claim/belief in their own deep knowledge (see also: Dunning-Kruger, lots of tech bloggers, New Scientist's "Instant Expert" section, etc...)
Edit: rayiner claims below he (the foreman) may be correct in his statement about the patentability question. If so I retract my statement that he "doesn't understand the law himself" and submit perhaps I don't :) His statement on interchangeability and non-answering of the proposed paradox which arises between his belief and the ultimate verdict still stands as fairly stupid though.
Hogan says that the jury was instructed not to decide patentability, but the only three occurrences of the word "patentable" (or any other form of that word) in the jury instructions were where it specifically instructed the jury to decide whether specific inventions were unpatentable due to obviousness.
At the end of the day maybe the verdict was a form of reverse jury nullification. I'm OK with that.
The second Apple or anyone else levels that patent system against small players, I'll go run and grab my pitchfork and torch and join groklaw. We'll see if it gets that far. I predict the big boys will blow through a whole pile of time and money before this is all done, and only to further expose the inherent problems in the system.
Do you really think anyone is going to touch Open webOS in the US after this? Do you think Jolla even dreams of bringing MeeGo here someday? Or will they think "We're not Samsung or Google. We can't survive, let alone make money if any of the big players toss even one bomb in our direction (and they're stockpiling them now). Let's stick to China and India and other markets with saner patent policies."?
The Open webOS platform beta was just released.
For that matter here's Lenovo, just starting to expand their smartphone line beyond China, citing the difficulty in "negotiating and securing rights to use other companies’ intellectual property" as one of their secondary reasons for avoiding the US market: http://www.bloomberg.com/news/2012-08-30/lenovo-brings-smart...
And Lenovo is far from the only China-only smartphone player looking to broaden their horizons.
And maybe because even Google thought that their tablets were too much like Apple's tablets. http://allthingsd.com/20120725/apple-google-warned-samsung-a...
And maybe because their stores look like Apple Stores, their chargers look like Apple chargers, their Ultrabooks look like Macbook Airs, and some of their phones look like iPhones.
Apple never went against Palm, nor Microsoft, nor any other manufacturer, simply because these devices were distinctly different than Apple's products. And yes, I know that the case verdict was only about some specific patents (and no, these didn't include rounded corners), but it's probably clear that the decision of the jury was also influenced by things like the above.
You see, even if, technically, the patent system is a mess, and technically the verdict is therefore wrong (which I don't think), Samsung are still copycats. They're not the good guy, just because they use Android. Instead, they're just a capitalist company like Apple.
Same with the cell phones.
Most tablets basically look the same and function the same to the end user.
Yes you can argue for transparency, but you're not really getting transparency, you're getting one persons edited highlights, possibly misremember almost certain skewed by personal bias what's been learned since, with none of the subtlety, none of the responses or questions or process that was undertaken to reach those positions.
I've served on a jury in the UK and I have a view on what happened in that room but I'm absolutely certain that other jury members would see it very differently. As a result anything I told you about how the decision was reached would I think be pretty suspect.
If you want transparency then record and document the whole of the jury's deliberations (with all the appeals and arguments that will lead to), but the current situation seems to be a halfway house which no real merit.
I do, however, talk about it when telling people how positive the experience was, and that it shouldn't be avoided. Before I went, I desperately wanted to avoid it, too, but after going through it, I actually have more confidence in the justice system.
Right now it seems like the appeals process is going to be like shooting fish in a barrel for Samsung, thanks in part to Hogan and his traveling Dunning-Kruger show.
This is something I've been wondering about. Is any of this going to be admissible in the appeal?
[1] http://www.groklaw.net/article.php?story=2012082510525390...
My opinion is the jury did a poor job. Even ignoring what the foreman has been saying the media; they had hundreds of questions to decide and took mere minutes on each of them. But the system is really the problem. How much unpaid time out of these people's lives are we willing to expect on such trivial and seemingly illogical crap?
When other members of the jury had doubts that the prior art invalidated patents, the foreman said he used his own patent(a patent on a TIVO like DVR) experience and then let out this gem about why the jury discounted the prior art.
"The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there."
How many really technical people(lets say the devs on HN) would agree with the statement that prior art has be run on the same processor to count? And to further corroborate that he did not just misspeak that, he says the following in a Gizmodo interview:
"I is not ignore prior art yes it was legitimate, however it was not interchangeable therefore it did not invalidate Apples patents....Under the current law the prior art must be among other things interchangeable. the prior art sighted even Samsung does not currently use. Read the law and the statues covering Prior art."
And he used his tech credentials and patent experience to convince the other jurors. Don't you see a problem with that?
I'd say there's a problem. Using his patent experience to convince the other jurors is pretty similar to a lawyer using his legal experience to convince other jurors. AFAIK, the latter is a very serious issue - no juror is supposed to substitute their legal opinions for the judge's.
We saw this very clearly in Oracle v Google. Judge Alsup told the jury that APIs were copyrightable and the jury found that Google infringed there. This is despite the fact that at least some jurors were uneasy about that conclusion (see, among other things, the deadlock over fair use). Judge Alsup later decided that APIs weren't copyrightable, so that portion of the jury's verdict turned out to be unimportant, but that's separate from the job the jury was asked to do. If the jury had found that Google didn't infringe because they decided APIs weren't copyrightable, that might have been the right bottom-line result, but they still wouldn't have been doing their job.
In civil cases the jury can ignore the judges instructions but if the judge feels that in doing so they've rendered an unreasonable verdict, he or she can issue a judgement notwithstanding verdict which essentially amends or entirely over rules the jury's decision.
https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...
"Demon-Xanth: Did you have the opportunity to ask 'Is this something that should be patentable?' during the trial?
Velvin Hogan: No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system.
Groklaw Commentary: The law is that the jurors are supposed to decide whether or not a patent is infringed, which includes whether or not the patent is valid, because if it is not valid, it can't be infringed."
Whoever wrote the commentary doesn't understand the patent law. The question of "is the patent valid" actually encompasses several different questions, some of which are for the judge to decide and some of which are for the jury to decide. The jury foreman's characterization of "is this something that should be patentable?" is correct. This is the "subject matter" question. It asks: "in general, is this kind of thing the kind of thing that should be patentable?" This is a legal question that is in the judge's province, not the jury's.
The jury decides patent validity, which encompasses a separate set of questions. If a particular "kind of thing" is patentable, then the jury looks at whether a particular thing that is of that "kind of thing" has been validly patented.
But your argument that the Groklaw commentator interpreted the question in the same narrow way as Hogan, and does not understand the basics of patent law, is ridiculous.
If the author had intended to ask a different question, he should have asked a different question. In general, the Groklaw coverage suffers from a lack of precision in writing. Law is all about breaking down a complex dispute into distinct questions, answering them separately, then synthesizing a result from answers to those distinct questions. Groklaw's coverage is very fuzzy about which legal questions it is talking about at any given time.
>Not all innovations are patentable. A utility patent claim is invalid if the claimed invention would have been obvious to a person of ordinary skill in the field at the time of invention.
So again, it is reasonable to say that Hogan may have simply misinterpreted the question he was being asked, and that whether he understood the jury instructions cannot be gleaned from this exchange. It is not reasonable to say that Hogan's interpretation of the question was correct and that Groklaw's interpretation was wrong.
At best the interviewer asked an ambiguous question and the foreman gave a reasonable answer. In any case, this would all be obviated if Groklaw and the media were precise in their use of the terminology. The lack of precision in their discussion is really what makes me question the depth of their understanding of the law.
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Authored by: nsomos on Tuesday, September 04 2012 @ 09:57 PM EDT I am guessing the foreman was confused by the last paragraph of page 40 of the instructions.
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In deciding whether any difference between a claim requirement and the product or method is not substantial, you may consider whether, at the time of the alleged infringement, persons of ordinary skill in the field would have known of the interchangeability of the part or software instructions with the claimed requirement. The known interchangeability between the claim requirement and the part or software instructions of the product or method is not necessary to find infringement under the doctrine of equivalents. However, known interchangeability may support a conclusion that the difference between the part or software instructions and the claim requirement is not substantial. The fact that a part or software instructions of the product or method performs the same function as the claim requirement is not, by itself, sufficient to show known interchangeability.
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It seems that the foreman at least has the ideas given here backwards. I suspect that he quickly skimmed and basically cherry-picked those sentences and paragraphs that allowed him to come to the conclusion he already had decided he wanted to come to.
The interchangeability that is mentioned here only applies to infringement, and not to prior art which is invalidating.
This guy isn't an expert on tech or on patent law, but the system isn't designed assuming that he is, actually the opposite. Jury trials are meant to put cases in front of 12 ordinary people and have them decide the facts with the judge guiding them through the law. Serving on a jury I (or rather we) were told that he was the judge of the law, it was not for us to interpret that, we were the judge of the facts.
If the jury does or seems likely to do something which contradicts the law then it is for the judge to direct them otherwise. If you believe that that should have happened and hasn't, then your issue is with the judge, not the jury (and here I would suggest saying he doesn't understand the law is probably a long shot, and if Samsung believe this then they will have grounds for an appeal.
But cases are meant to be judged by ordinary people, complete with their flaws and weaknesses, their biases and prejudices and their imperfect understanding because that is the standard the law is held to - the standard that "normal" people (rather than technicians or experts) see as appropriate.
Yes it's an imperfect system, but as with democracy, I'd suggest that it's the least bad system we've tried.
Wow someone's angry.
I just read through the actual responses at http://www.groklaw.net/article.php?story=20120904190933195
The smoking gun PJ decided to write 500 words on? The fact that he didn't answer a particular question. In fact there are hundreds of questions he didn't answer.
In fact he answered about 25-30 questions probably the number Gizmodo paid him to come and answer.
Is that the case in the US? Can this gentleman's comments become evidence at the appeal?
In the UK, members of the jury are not permitted to discuss the case, their deliberations or aspects of the evidence during or after the trial. For ever. It is contempt of court if they do.
The design (chronologically threaded rather than rated, large repeating personal signatures, offtopic designated threads) puts its worst foot forward. Maybe I'm pampered by Reddit and ArsTechnica, which let relevancy move upward or be promoted, but Groklaw's comments section is ugly.