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Sunday, August 26, 2012

The Apple-Samsung debacle

It would appear fairly obvious that Apple's patent infringement award will not only be appealed, but reversed and thrown out.
Apple v. Samsung juror Manuel Ilagan said the nine-person jury that heard the patent infringement case between the companies knew after the first day that it believed Samsung had wronged Apple.... The decision was very one-sided, but Ilagan said it wasn't clear the jurors were largely in agreement until after the first day of deliberations.

"It didn't dawn on us [that we agreed that Samsung had infringed] on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about the same technology that Samsung said existed before the iPhone debuted]. [Velvin Hogan] was jury foreman. He had experience. He owned patents himself. In the beginning the debate was heated, but it was still civil. Hogan holds patents, so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art, that there wasn't something out there before Apple.

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down." ...

"Once you determine that Samsung violated the patents," Ilagan said, "it's easy to just go down those different [Samsung] products because it was all the same. Like the trade dress, once you determine Samsung violated the trade dress, the flatscreen with the Bezel...then you go down the products to see if it had a bezel. But we took our time. We didn't rush. We had a debate before we made a decision. Sometimes it was getting heated."
Regardless of what you think of patents or Apple, the fact that the jury didn't even look at all the prior art should be sufficient to get a judge to look at this again. And the jury foreman sounds like an Apple plant, or at least fanboi.

Labels:

64 Comments:

Anonymous Dustin August 26, 2012 11:06 AM  

I hope you're right.

Anonymous Country Lawyer August 26, 2012 11:14 AM  

Nope, it won't be reversed because of this. What they jury does in the room, almost always stays there.

The system absolutely does not want the veil lifted on what a jury says and does during deliberations after a verdict is rendered, unless a juror broke the law, or someone influenced them from outside during the process.

And this isn't breaking the law, its just being stupid, and the system cannot afford to undo things because people were stupid or they'd be having hearings on this with every jury, anyone that lost a jury would be stalking them and trying to find out what they said.

Anonymous MikeH August 26, 2012 11:19 AM  

I had read a little bit about the patent war between the Wright bros. and Curtis. It basically stiffled early aviation for about 10 years until the war dept got them together and told them to knock it off and start building planes.

The pettiness of the patent trolls is infuriating and will bring innovation to a standstill. Who the hell would actually consider a glass screen with a bezel as legitimate trade dress? Does that not seem like a very obvious feature to maximize the viewing area of a cell phone? Wait a sec, let's patent the use of. 3.2" screen. See how this works?

Screw tech I am going farming. Oh wait, I can patent infringe if a Monsanto seed is carried through the air and blends with one of my plants. Dear god we are all hosed by these rent seeking bastards.

Anonymous Axe Head August 26, 2012 11:23 AM  

A jury can do whatever it wants, including ignoring judge's instructions and all the evidence.

Anonymous Mr Green Man August 26, 2012 11:32 AM  

Anybody who wants to see this area keep growing wants to see that verdict thrown out. Without Samsung poking them, you would see the continued prickly Apple prick behavior -- the Galaxy Tab made the iPad better, but didn't HP try selling these tablets 6 years prior without much luck? Speaking of making the iPhone better, wasn't the 4S moribund and then the HTC Evo hit that between the eyes, and now the rumor is their going to the larger screen on the Evo for the next one?

Although Apple is back in the sun again, until their hubris breaks them again, because you cannot change who they fundamentally are -- a cult of innovation, but only their own innovation. They make Microsoft look like wild-eyed GNU fanatics. They will head down a path where they will lose the consumer pulse and Apple will be uncool again in a decade or less, probably 5 years.

Blogger JACIII August 26, 2012 11:32 AM  

Apple is being outsold by Android phones and it must really hurt. Perhaps manufacturers should sell blank "handheld computer phones" and allow the user to pick an OS to be flashed in the store.

Webos FTW!

Also, this may just give Blackberry a stay of execution....

Anonymous Salt August 26, 2012 11:49 AM  

Sounds like a Cinderella jury. One bite of the Apple and it went to sleep.

Anonymous Joe Doakes August 26, 2012 11:57 AM  

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down." ...

I prefer the historical version: "Sentence first, verdict afterwards."

.

Anonymous VryeDenker August 26, 2012 12:04 PM  

Being a die-hard Windows Mobile fan, I would like to beat this kid up.

Anonymous Zartan August 26, 2012 12:25 PM  

How the Hell did they end up with a jury foreman that was an ENGINEER THAT HELD PATENTS HIMSELF?

Someone failed during voire dire

Anonymous The other skeptic August 26, 2012 12:29 PM  

They should have gotten Gene Hackman to manage the jury for them

Anonymous The other skeptic August 26, 2012 12:34 PM  

They should have gotten Gene Hackman to manage their jury

Blogger RobertT August 26, 2012 12:42 PM  

I testified as an expert witness on behalf of clients embroiled in large disputes - generally about what the facts were or what the value was or some other opinion of fact. In several of those cases the opposing attorneys appealed the verdict by specifically raising questions about my testimony. What normally happened was during cross examination the judge became aware they were attempting to attack my conclusion. When that happened often the judge often took over and questioned me about my qualifications. Once he was satisfied about me, he wouldn't allow that line of questioning. That was still where the appeal went, but none of them ever worked. I was told then that an appeal had to be based on technical error, not a question of fact. I am not an attorney, but I'm mot so sure you can appeal about how the jury deliberates.

Anonymous Noah B. August 26, 2012 12:50 PM  

My kitchen countertop has rounded corners. Is Apple going to sue me?

Anonymous Noah B. August 26, 2012 12:52 PM  

"A jury can do whatever it wants, including ignoring judge's instructions and all the evidence."

A jury's documented decision to ignore the law should be more than enough to convince a rational judge to set their verdict aside and grant a new trial. Samsung shouldn't even have to appeal this one.

Blogger Positive Dennis August 26, 2012 12:53 PM  

It will not be overturned. Apple is an American company. Samsung is not.

Anonymous dh August 26, 2012 1:26 PM  

> A jury's documented decision to ignore the law should be more than enough to convince a rational
> judge to set their verdict aside and grant a new trial. Samsung shouldn't even have to appeal this
> one.

Jury's have the absolute right of jury nullification. They can ignore or excise any law they want however they see fit.

This is uniformly good.

Anonymous The other skeptic August 26, 2012 1:38 PM  

Jury's have the absolute right of jury nullification. They can ignore or excise any law they want however they see fit.

Except in California, it seems

Anonymous trk August 26, 2012 1:38 PM  

Man I hate apple

--Sent from my iPhone

Anonymous YIH August 26, 2012 1:42 PM  

Ironically just before reading this a local 'tech' radio show was on. Their take was Apple had 'dumbed down' all their testimony, describing everything in simplistic terms. Samsung went highly technical trying to explain why they were not infringing,
Well MPAI and all, it worked.
There's going to be an appeal, but who knows how that will shake out.

Blogger JACIII August 26, 2012 1:46 PM  

Evidently Samsung paid their lawyers, while Apple paid the jurors, the judge, and any applicable politicians/public officials.

Anonymous Phil Mann August 26, 2012 1:55 PM  

The real battle will take place in the Court of Appeals for the Federal Circuit where such niceties as jury verdicts are, for practical purposes, treated as advisory and where the court reserves the right to substitute its own views for the those of the jury. (Yes, I know they are not supposed to, but elected politicians and Supreme Court justices aren't supposed to ignore their oaths either.)

This will turn on unstated political/economic/policy considerations that may or may not be apparent in the final decision.

Positive Dennis may be joking (or maybe not) but his observation will have as much to do with the final outcome as any of the other views stated here.

Anonymous iSteve's rotten liver August 26, 2012 1:57 PM  

How many jurors have Apple stock in their pensions?

Anonymous Scintan August 26, 2012 2:15 PM  

Apple won because Apple was right. Samsung was blatantly ripping them off. Even in South Korea, Samsung's home court, it was found that both were guilty.

Anonymous Noah B. August 26, 2012 2:18 PM  

"Jury's have the absolute right of jury nullification. They can ignore or excise any law they want however they see fit."

No, they can't. And this isn't an example of a jury nullifying a bad law, it's an example of a jury failing to consider one of the bedrock principles of patent law. To allow such a verdict to stand would greatly increase uncertainty in the marketplace, as the risk to manufacturers that their products might unjustly be held in violation of the patents of large, powerful corporations would surge.

Anonymous tviper August 26, 2012 2:31 PM  

"Evidently Samsung paid their lawyers, while Apple paid the jurors, the judge, and any applicable politicians/public officials."

Nah, Apple just had better attorneys.

Blogger JACIII August 26, 2012 2:57 PM  

"Nah, Apple just had better attorneys."

That appears to also be the case.

Blogger tz August 26, 2012 3:00 PM  

groklaw.net has good coverage. One big issue is there was this huge list of questions and answers and a lawyer pointed out HE would have trouble going through it in 3 days. Then they declared damages on an item they found didn't infringe.

Woah Nully! If this is left to stand, fija.org and the other jury nullification organizations should build on it and say that jurors cannot be second-guessed even IF THEY VIOLATE EVERY INSTRUCTION, and even lie during the selection process.

IANAL, but a line of attack might be that the instructions to the jury were in error, unclear, or whatever, so they didn't understand what they were deciding.

And the foreman didn't have to be a plant, merely a fanboy, i.e. fanatic as in religious fanatic of the cult of apple.

And there is some backfire. On G+ someone at a coffee shop noted four non-nerd people after reading an article said "You mean I paid twice as much when I could have gotten the same thing from Samsung?".

Blogger tz August 26, 2012 3:05 PM  

Jury nullification applies to CRIMINAL trials since double-jeopardy applies. Unless there is grounds for a mistrial, and that is a very high threshold, a jury finding someone not guilty of a crime beyond a reasonable doubt must stand.

Civil trials are different.

Anonymous a nony mouse August 26, 2012 3:22 PM  

http://i.imgur.com/P8jL3.jpg

Anonymous scoobius dubious August 26, 2012 3:58 PM  

Hmmm, maybe we should begin a happy new trend of using American law and biased American juries to favor American companies and screw out Asian mercantilists and reverse-engineering IP thieves.

Why, it would almost be sort of, not unlike, similar to... what Asians do.

Anonymous scoobius dubious August 26, 2012 4:01 PM  

"Law that is not a weapon and a wall is madness."

-- John Norman, being sane and sensible for once in a way.

Blogger vandelay August 26, 2012 4:25 PM  

Isn't the foreman's personal patent experience the kind of thing that a jury isn't supposed to be including in their deliberations?

Anonymous Paul Stanley August 26, 2012 4:40 PM  

Which is more evil?

A) Apple
B) Gene Simmons

Anonymous Todd August 26, 2012 5:34 PM  

Juror: "After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art, that there wasn't something out there before Apple."

The judge didn't let Samsung admit some prior art evidence.

DailyTech has been following this dispute:
DailyTech article

"More surprisingly the jury found Samsung guilty of infringing Apple's U.S. Design Patent No. D618,677 and D593,087, which Apple's attorney's argued in testimony give it exclusive rights to produce rectangular smartphones with rounded edges."

I'm holding out for a WP8. I'd like to see Apple try to sue Microsoft. Microsoft would kill them with their huge patent portfolio.

Anonymous Country Lawyer August 26, 2012 5:41 PM  

First, the jury is instructed not to engage in jury nullificstion everywhere in the United States, even though everyone knows they engage in it at times.

The viel isn't going to be pierced.

Now, jury instructions being incorrect is an area of appeal, voir dire is a huge aea of appeal. evidence being kept out is an area of appeal.

The findings of the jury can be appealed is "no rational trier of fact could come to that conclusion" and that is taking the evidence in the light most favorable to the jury.

If the jury wants to disregard an expert, they can.

Now, if they awarded damages for something they specifically found wasn't patent infringement, then this is clearly erroneous.

But even documentation,regarding deliberations isn't going to be considered unless what was going on was illegal (threats of violence, bribery, a juror lied about something significant during the voir dire process.

Those that think this causes "instability" should think carefully about that. The unpredictability of the jury is a good thing, it keeps at least some of the nonsense in check.

Judges and the appeal courts should be predictable, juries should not.

Blogger Steven M. Wells August 26, 2012 5:54 PM  

I am a lawyer and this is not grounds for an appeal. Juries are given tremendous latitude in weighing evidence, including weight, witness credibility, etc. Appeals focus upon whether the court followed the law. I believe a previous commenter described this as a "technicality". While a court can reverse if the evidence fails to support the verdict, such is the least likely appeal point to succeed.

Instead, Samsung will have to argue that the courts exclusion of some evidence or some other ruling during the trial constituted sufficient error to grant a new trial. That is, even if the appellate court agree that the trial court made a mistake, it might be a minor point or one that is insufficient to reverse. Judges have wide discretion to allow or exclude evidence within appropriate rules. Since this is a civil case, there is no constitutional right to be able to present certain evidence. Thus, even if the appellate court decides that some evidence probably should have been allowed (or excluded), if it was with the judge's discretion, the court rulings will stand.

Anonymous Outlaw X August 26, 2012 6:14 PM  

I won't own an Apple anything. I don't want to carry around a logo which is a piece of fruit with a bite out of it.

Genesis ch 3

Blogger IM2L844 August 26, 2012 6:17 PM  

In any event, I'm sure Samsung has a team of lawyers who are well versed in every aspect of the law as it pertains to this specific case and if they have any viable legal avenues to explore, I'm sure they will examine every possible nook and cranny for potential weak points to exploit even if it is just delay tactics designed to allow inflation and/or dividends to reduce their real costs over time.

Anonymous DT August 26, 2012 6:31 PM  

U.S. patent law needs to be overhauled.

Then again, pretty much all U.S. law needs to be overhauled.

Anonymous Phil Mann August 26, 2012 7:05 PM  

I agree with you Steve that what's reported here is not legally sufficient to set aside the verdict.

However, in the patent field, a number of issues, particularly regarding "construction" or interpretation of a patent, are now considered issues of law subject to de novo review on appeal.

If they choose to do so, the appellate judges can simply hold that the lower court got the patent claim construction wrong, and that a correct interpretation would result in no infringement. Or they could declare the patents invalid on any number of supposed "legal" issues, that, again, they alone get to decide.

In short, if the appellate court does not like this decision, they have any number of ways of setting it aside.

Country Lawyer's point that "Judges and the appeal courts should be predictable, juries should not" is absolutely correct. But "should" and "is" are not always the same, and I suspect the final outcome will have little to do with what is said in the briefs.

I have been practicing too long to still believe that cases are decided solely on the basis of law and fact.

Anonymous Noah B. August 26, 2012 7:09 PM  

"Since this is a civil case, there is no constitutional right to be able to present certain evidence."

That may be the outcome generally accepted in the legal community after hundreds of years of bad decisions piled on top of bad decisions, but that doesn't mean that was the original intent of the Constitution. In other words, just because you drank the Kool Aid and accept precedent that is completely contrary to the goal of preserving human liberty, don't expect the rest of us to.

Anonymous Noah B. August 26, 2012 7:10 PM  

"I don't want to carry around a logo which is a piece of fruit with a bite out of it."

Wow, I had never realized the symbolism in that. Do you suppose that's what they had in mind?

Anonymous Idle Apple Farmer August 26, 2012 7:52 PM  

This should be called a Sampple Debacle to be used in law books.

I remember Steve Jobs.
Do you remember when he was all alive?


MacBook Wheel
A laptop that does away with that pesky keyboard. We here at Apple make products that are simple to use. And what could be more simple to use than a single giant button?

One Button. Endless possibilities.

Anonymous Outlaw X August 26, 2012 8:01 PM  

Wow, I had never realized the symbolism in that. Do you suppose that's what they had in mind?

I don't know who they are. It is message to me and it encompasses many things.I find people want solid answers about spiritual things, I don't have them the Gospels clearly spell this out. Ask for the Holy Spirit he can help you I cannot. Unless you send me $1000 and the Lord will bless you, you won't even get cancer.

Anonymous FUBAR Nation (Ben) August 26, 2012 8:03 PM  

Vox hatin on apple again? Good. I can't stand that cult.

Anonymous Idle Apple Farmer August 26, 2012 8:15 PM  

"I don't want to carry around a logo which is a piece of fruit with a bite out of it."

Wow, I had never realized the symbolism in that. Do you suppose that's what they had in mind?


No.

The original icon had Isaac Newton sitting under an apple (Malus domestica) tree. There was also an untrue rumor later on that the rainbow apple symbol was based off the cyanide-laced apple that the mathematician and logician Alan Turing* took a bite of to kill himself, after he was convicted of being a homosexual.

Also the translation in the Bible might be wrong. The Tree of Knowledge might have not been an apple tree, but instead a Quince (Cydonia oblonga) tree. They used to be called Kydonian Apples.


*Developed the Turing Test in computer science. He took Kurt Gödel's Incompleteness Theorem in symbolic logic and applied it to computer science to determine computability. Also worked in Bletchley Park during World War II as a cryptanalyst for the German Enigma machine.

Blogger Galt-in-Da-Box August 26, 2012 8:41 PM  

Google needs to jump in on this and join the appeal because the next step down is likely to be one into their front yard, since crApple has resorted to suing rather than innovating.
BTW, didn't Nokia just pull huge jack out of crApple for stealing their touch-screen design & technology...i.e: WHAT THIS IS ALL ABOUT!?

Anonymous Outlaw X August 26, 2012 8:50 PM  

test for time feel free to delete

Anonymous RC August 26, 2012 9:11 PM  

Patent law is absurdly complex, written in very specialized style that is all but incomprehensible to anyone but an IP attorney. Under the Markman decision the judge is supposed to instruct the jury as to the meaning of the claims but most judges lack any technical knowledge outside law and know almost nothing about IP law either.

Anyone who believes a jury can make a carefully weighed decision on complex patents is confused. And expert witnesses are mere prostitutes.

Blogger Dominic Saltarelli August 26, 2012 9:14 PM  

Has Samsung never heard of the reexamination process? If the jury doesn't feel like considering Samsung's prior art, I know a certain organization that will.

Anonymous Roundtine August 26, 2012 9:15 PM  

Is Apple an American company? How many employees do they have in America? The retail store kicks the numbers up, but I think it's about 40k. They hold billions and billions of dollars overseas. On the other hand, Samsung has invested $13 billion in an Austin, TX chipmaking plant.

Retail stores or chip making plants....I vote to make Apple give billions to Samsung.

Anonymous zen0 August 26, 2012 9:24 PM  

Unless you send me $1000 and the Lord will bless you, you won't even get cancer.

Waddu I get for $500, Mr. X?

Anonymous Outlaw X August 26, 2012 9:29 PM  

Waddu I get for $500, Mr. X?

A smell cocaine size Ziploc of sand from the homeland Israel and my prayers for you.

Anonymous Outlaw X August 26, 2012 9:33 PM  

Small nor smell. But the HS made me make that mistake because you have 6 senses. Either that or spell check messed up.

Anonymous Breeze August 26, 2012 10:32 PM  

"I was told then that an appeal had to be based on technical error, not a question of fact."

True in Australia. The only way you can appeal based on fact is if new evidence comes to light and you are granted a re trial.

Anonymous rho August 26, 2012 11:00 PM  

As a verdict, it's perfectly within the law as I understand it. Juries have some latitude in these things, as they should.

As a practical matter, it smells like a look-and-feel patent, which shouldn't be allowed. Who would get the patent on the steering wheel? Does Twitter own the patent on micro-blogging and hash-tags?

I suspect that Apple wasn't actually looking for a win here. It was enough to scare smaller players into going their own way rather than try to copy the iOS interface. I don't think there's much doubt that Android phones do quite a bit of copying of the interface. They copying always seems to flow one direction--away from Apple.

Anonymous tviper August 26, 2012 11:09 PM  

"Has Samsung never heard of the reexamination process? If the jury doesn't feel like considering Samsung's prior art, I know a certain organization that will."

I am sure it was on the table. Such a decision is a weighing of risks. If you put the patent(s) into reexam, they might end up perceivably stronger after a reexam certificate issues. It is also a matter of timing, and probably a whole hosts of other factors.

Anonymous 11B August 26, 2012 11:39 PM  

Vox, this is off topic, but it will interest you. The Washington Post Blog has a post entitled, 'Want a global economic boom? Open the borders'.

The post summarizes an argument put forth by a professor at the University of Wisconsin who believes opening the borders of all nations would create a world wide economic boom. Now this post is short and doesn't get into free trade. But it goes to show that free movement of labor is never too far from the minds of true free traders.

Anonymous Gen. Kong August 27, 2012 3:35 AM  

VD: Regardless of what you think of patents or Apple, the fact that the jury didn't even look at all the prior art should be sufficient to get a judge to look at this again. And the jury foreman sounds like an Apple plant, or at least fanboi.

You must have forgotten, Vox. There is no rule of law in the Banksta Banana Republick - only the law of rule. It should surprise no one if the the entire jury were Apple plants and the judge was on the board of directors. Apple obviously has the cash to do whatever it likes. Here in the Banksta Banana Republick the Goldman Rule always applies: He who has the gold, makes the rules.

After all, this is the same place where Corzine just walked away after looting more than a billion worth of customer funds. He's not only still bundling banksta bucks for his buddy Bambi but even thinking of starting a new hedge racket to rake in more. Even better, the investor idiocracy is already lining up to join like hypergamous wymyn before Roissy's notorious alpha carousel.

Blogger R. Bradley Andrews August 27, 2012 4:48 AM  

Nothing says it was an apple in the Garden of Eden. Common misconception.

I can't see how we won't kill our innovation with all this patent crud.

Anonymous scoobius dubious August 27, 2012 9:24 AM  

"The post summarizes an argument put forth by a professor at the University of Wisconsin who believes opening the borders of all nations would create a world wide economic boom. ...it goes to show that free movement of labor is never too far from the minds of true free traders."

They aren't arguing for either free labor or free trade, they are covertly arguing for white genocide, because that is what the free movement of labor effectively entails. Free trade is just the cover for the real argument. They are leftist liberals, and leftist liberals are in favor of white genocide.

***

"Here in the Banksta Banana Republick the Goldman Rule always applies: He who has the gold, makes the rules."

I think what you mean to say is, The Goldman Rule is: he who works for Goldman, makes the rules. In any event, it's funnier (and truer) that way.

***

"Nothing says it was an apple in the Garden of Eden. Common misconception."

Yes, true. NERD ALERT! THIS IS GOING TO BE VERY PEDANTIC AND NERDISH!

The Hebrew original merely says, "fruit." In Latin, the word for "apple" came to be the generic word for "fruit", so when the Bible got translated into Latin, that's the word they used. As the Roman Empire expanded, and the Romans came in contact with foreign flora, instead of making up new Latin words for things like figs or dates or peaches, they would call them "a Syrian apple", "an Egyptian apple" etc etc.

But of course, by now, in English, the forbidden-apple imagery is so ingrained that the historicity of the trope hardly matters; it's ingrained in people's minds that way, so that is how the meaning should be parsed regardless.


Anonymous George August 27, 2012 10:36 AM  

Samsung and other consumer tech companies better appeal this as far as they can. If they don't, they will find themselves in the position of having to innovate, rather than copy. And we all know that innovating for the industry has been Apple's job.

Anonymous Toby Temple August 27, 2012 3:37 PM  

Samsung and other consumer tech companies better appeal this as far as they can. If they don't, they will find themselves in the position of having to innovate, rather than copy. And we all know that innovating for the industry has been Apple's job.

Why are there still people who make such stupid statements?

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