Samsung/Apple Jury Foreman Shows He Doesn't Understand Prior Art

http://www.techdirt.com/articles/20120830/02063020214/samsungapple-jury-foremans-explanation-verdict-shows-he-doesnt-understand-prior-art.shtml

by mtgx • 14 years ago

136 92 14 years ago

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brittohalloran3• 14 years ago

"I wasn't confused, but some of the jurors were". Does it seem crazy to anyone else to have non-experts making enormous rulings like this? This bumbling fool did some "calculations" to "zero in on 14%" ("I'm familiar with P&L statements") and decide that Samsung owes Apple a billion dollars!?!? I'm not saying that Samsung is innocent, but this seems like a ridiculous process.

wmeredith2• 14 years ago

Unfortunately part of the Jury selection process is lawyers filling it up with the least informed, most gullible people they can find.

alayne• 14 years ago

If that's true statement, then there should be evidence, right? I don't have a citation, but I do know that there have been several studies of jury effectiveness. A cursory look at a few of them seems to indicate that they are effective.

columbo• 14 years ago

That's just as much Samsung's fault as it is Apples. They could have dismissed this guy or any other juror, possibly without giving an explanation, or they could have argued that he wouldn't be impartial.

It bothers me that we seem to be attacking the jurors as if they were appointed in this case via back-door-meetings between the government and apple. Didn't Samsung get the opportunity to interview the candidates? Were they allowed to remove potential jurors from the pool? If this was the jury they all agreed on then the people to be angry at is Samsung's pool of lawyers, not the jurors they selected (or rather, jurors they didn't dismiss).

josephlord3• 14 years ago

They make life and death decisions in criminal cases. Why not make decisions for a few percent of companies turnover?

Given the numbers of phones Samsung is selling the per device fine isn't that high. Compared to copyright infringement statutory damages in files sharing cases the amounts are tiny.

Edit to add:

Some fair points were made in replies about the complexity of the patent law compared with criminal/murder cases but the parent to this was commenting the scale of the damages decided rather than complexity and that was the focus of my comment.

Yes it is scary but I'm not sure I can think of less scary options for really serious criminal cases.

jlgreco2• 14 years ago

"They make life and death decisions in criminal cases. Why not make decisions for a few percent of companies turnover?"

I don't know if you intended that to be comforting, but I really can't see it that way.

And that is even if I ignore my suspicion (hope?) that the average juror will tread with more care if they are considering the life of another person, than if they are considering a corporation's money.

laumars• 14 years ago

The difference there is the evidence is usually quite easy to understand. You don't need to know how DNA is matched to know that there is a DNA match. You also don't need to understand entropy to grasp that if glass is shattered inside the house, then the window was broken from the outside.

However you /DO/ need to understand prior art to rule in a patent dispute. There's no escaping that.

Technically minded people like us often bitch about how the mass media publish misleading "facts" (and often complete fallacies) due to their lack of technical understanding. Yet here we have a jury ignorantly making billion dollar decisions.

It's a bit like asking a group of hair dressers to officially confirm or deny whether CERN's "faster than light" neutrinos were a calculation error or not.

brittohalloran3• 14 years ago

True, the stakes in a death sentence case are higher, but the reasoning and expertise required are a lot lower. "Does the evidence prove beyond a reasonable doubt that this person killed that person" takes significantly less intelligence and expertise than "According the volumes of patent law and complex edge cases and prior art, does it seem like they were copying Apple" and "Examine this financial data and tell me how many dollars Apple lost because Samsung copied them".

rustynails2• 14 years ago

>Why not make decisions for a few percent of companies turnover?

The problem is that this case wasn't really about Samsung, and it wasn't really about a few companies, or the fine. This was a high profile case about a broken IP system, a rogue gorilla and an outcome that stifles innovation in the technical arena (not just smartphones). You don't think someone will think twice before even going near Apple again, regardless of the validity (or prior art) of the patent? I am incredulous that anyone could have come to the conclusion of this juror, particularly someone with a tech background.

Hopefully, this won't be the last battle that could turn this madness around.

batista• 14 years ago

>Does it seem crazy to anyone else to have non-experts making enormous rulings like this?

No, it seems democratic. The law is about the will of the people --which is what the "jury of your peers" tries to capture--, not about what some experts say.

Experts can serve the court with their "expert advice" (which lots of times in such cases is just BS, depending on which side pays their bills).

It's dead easy as a lawyer to find experts with Phd's and all, to testify both pro and against patents, or both pro and against each company in this dispute).

bpatrianakos3• 14 years ago

That's how our justice system works. I'm glad that any citizen gets to be on a jury rather than some elite set of experts. We can't have it both ways. If given the choice between "experts" and average citizens on a jury I'd go with average citizens every time. I don't care how dumb or smart they are. What I care about is if we decide that a certain kind of person should be on certain juries then that creates a new kind of class system and would hurt us more than help. The job of the lawyers throughout the trial was to explain these things to the jury and give them the information they need to make a decision. It's fine to have a jury full of people who have no clue about the patent system because the onus is on th lawyers in the trial to present the facts. If they fail to do so on either side then they have to deal with the consequences.

It's not fair but it's equal. America's judicial system is not about fairness so much as it is equality. Equality isn't always fair but in a country like this it's the best we can do.

Now what I'm about to say isn't an attack on you but instead just am observation. When people disagree with something they always try to explain why the bad thing happened. In this case it sounds like you're looking to explain away a decision you disagree with by saying the jurors should have been experts. If the jurors were experts and someone disagreed with the ruling then inevitably someone else would be sayng they should not be experts because of bias or some such reason.

te_platt• 14 years ago

So it looks like it's not good to have a jury decide and it's not good to have experts decide on the validity of a patents. Maybe it's that the idea of patents is flawed and the flaw manifests itself as a lack of a good way to determine if a patent is valid.

brittohalloran3• 14 years ago

Honestly I do think that Samsung is guilty of copying Apple, so I'm not trying to explain it away. The fact that the jury determined the percentage is probably the part that peeved me the most. The numbers are so clearly based on anchoring (Samsung said 12%, Apple said 35%...) there's no way its accurate.

sageikosa• 14 years ago

It's not fair but it's equal. America's judicial system is not about fairness so much as it is equality

Experts cannot be enhanced by the uninformed, but the uninformed can be enhanced by experts. When you average proficiency and incompetence, you end up with incompetence.

pfedor• 14 years ago

You could apply the same argument to any other kind of task. "If we decide that a certain kind of person should perform certain surgeries then that creates a new kind of class system and would hurt us more than help." So, if jury trials are a good thing, that's not for the reason you gave, since you obviously wouldn't want random people to perform heart surgeries or design bridges.

I don't know that the current system does much for equality either. For example, back when I used to read reddit there were a lot of stories about how black people are disproportionately likely to be convicted of crimes in the U.S. So if that's true, you can't help but wonder, maybe trained experts could be trained to be more color-blind than an average citizen.

Have you seen the movie "Twelve angry men"? It becomes much less uplifting once you realize that in the real life it will be just like that except there may be no Henry Fonda in the room.

pygorex• 14 years ago

I'm glad that any citizen gets to be on a jury rather than some elite set of experts

Expert testimony is used in trial all the time and is given great weight by jurors. Experts parse out highly technical details and draw conclusions to help the jury. Now, I'm not disagreeing with your initial assertion, but am pointing out that our justice system depends mightily on technical and professional elites.

The problem with this case is that a set of very complex and technical questions (did one or more patent infringements occur?) are being decided by non-experts. Having a lay jury decide these questions is as absurd as having the jury determine the caliber of gun used in a murder. Technical questions require expert/elite knowledge to untangle.

wtracy• 14 years ago

"It's fine to have a jury full of people who have no clue about the patent system because the onus is on th lawyers in the trial to present the facts. If they fail to do so on either side then they have to deal with the consequences."

Except that once one lawyer screws up, the legal precedent is set, and the rest of the people down the line get screwed too.

darkestkhan• 14 years ago

I would prefer set of experts - I don't see how lay person could be deciding in places where even experts can have problems.

rustynails2• 14 years ago

>I'm not saying that Samsung is innocent

You've got to get past this mindset. Was there prior art? Did Apple really invent this? Were the patents specific, non-obvious, etc.

No, No, ...

When you add that the outcome stifles innovation and a you add a broken IP system, you have so many nails in the coffin, it isn't funny.

Case closed.

vannevar• 14 years ago

It's also worth noting that while there is a right to a jury in a patent trial, it's not required. If both sides had agreed, the case could have been heard by the judge or a court-appointed special master. Obviously, one side or the other (maybe both) thought that a jury trial would work in their favor.

aretiste• 14 years ago

so you can see why choice of venue is so important. if this were tried outside of "the valley" you would not get people like this on the jury.

your comment about anchoring is spot on.

zmmmmm• 14 years ago

It was interesting hearing Nilay Patel (the verge) talk about this. He's very pro-patent, so he has a particular point of view, but his take is "yes the jury was incompetent but that's exactly how it's supposed to be". The underlying point being, both sides have the chance to educate the jury during the course of the trial. They have weeks to show them evidence, help them understand the laws and patent process, etc. If at the end of that time the jury is still incompetent to make a decision then it is the fault of parties in litigation. It seems to me this is as much Samsung's mistake as anything; they allowed in a jury member who was both incompetent, pro-patent and highly assertive and persuasive, and then they failed to anticipate and counter his influence effectively during the trial. If they were paying attention to these things they might have got a much better outcome.

ktizo4• 14 years ago

"Basically, he's admitting that he doesn't understand how prior art works. The fact that the software wouldn't run on the same processor is meaningless."

He also doesn't seem to understand how software works either. More worryingly, neither does techdirt, assuming they do think that it is a fact. It would run really bloody slowly, admittedly.

alanctgardner• 14 years ago

I think you missed the entire point. Someone could have demoed this on an i386, it doesn't mean implementing it on ARM is a novel, patentable invention.

ktizo4• 14 years ago

I didn't miss the point, I am saying that there are two points, one of which was addressed in the article, which is that the prior art doesn't have anything to do with the specific hardware implementation, and the other, which the article was happy to leave stated as fact, which is the claim by the foreman that the software couldn't be run on other processors.

The first point is only to do with an incorrect interpretation of the law, whereas the second is to do with being uneducated about the content of the case itself and I felt that techdirt should really have picked up the second point as well as the first rather than treating his assertion about the non-universality of software as somehow valid.

eumenides12• 14 years ago

IMO the verdict is the polar opposite of the verdict from Judge Alsup on Oracle v. Google.

One took it's time, the other rushed. One made sound decisions based on evidence, the other was off the cuff. One is clearly designed to be resistant to appeals, the other was in appeals before the first trial even finished.

I wish there was some way to incentivize the former instead of the latter.

hythloday• 14 years ago

In an article from 2004, the author of Freakonomics argued that we should do exactly that: "Should we punish juries that get it wrong?"

http://www.slate.com/articles/arts/everyday_economics/2003/0...

fkdjs• 14 years ago

If anyone should be punished it's the judges. When lawyers tried to use copyright arguments where they should have used patents, Alsup was all over that. Where Apple should have used copyright claims if they wanted to talk about similarities w/ icons, etc., Koh should have been on that. Koh's leadership of the courtroom was weak, she let too much slide. Alsup made sure everything was by the book with no emotions. Koh's courtroom was an emotional soap opera, which Apple thrived in since legally their case was weak. Emotionally, they had the jurors. Yes Samsung copied, but copying by itself isn't illegal. Koh compared to Alsup, showed that she really isn't fit to lead such a high profile case, or any case for that matter.

keithpeter• 14 years ago

No, that would simply lead to risk averse juries or retrials when they refused to return a verdict. I'm quite in favour of the English patents court, but it looks as if we may lose that in EU harmonisation.

"The English courts are already the chosen forum for many European patent disputes. The quality and relative speed of well-reasoned decisions, as well as the use of court procedures such as cross-examination and disclosure, are much respected throughout the world. Most of the English judges who are experienced in patent cases also have technical backgrounds, which is so important in complex cases."

http://www.thelawyer.com/opinion-patently-obvious-eu-patent-...

eumenides12• 14 years ago

One problem that comes with that is what is "wrong"?

How can you determine if the outcome is correct or incorrect before the jury does? And if you could, why would we have a jury?

ktizo4• 14 years ago

Require those involved in law to have wider education with study of history, science and maths as standard so that they have no excuse not to understand things that are useful to their job, like ballistics for instance, or logic.

shasta• 14 years ago

Good luck with that. This foreman is probably in the 90th percentile for intelligence and education. Remember, the rest of the jury picked this guy to represent them.

option_greek• 14 years ago

More than the juries, its the approach of judges that seem strikingly different: Alsup - no loose ends, Posner (Apple-Motorola case) - no bullshit, koh - no time to think approach.

smackfu3• 14 years ago

I'm surprised they didn't boot him after finding out he had a patent to his name. That seems like it would obviously put you on the pro-patent-issuer side.

tptacek2• 14 years ago

Legally, that is like booting someone out of a jury case in an auto accident because they have a driver's license. You can simultaneously believe, as most of us do, that the software patent system is in dire need of reform while at the same time understanding that individual patent lawsuits aren't opportunities to relitigate patent law.

AndrewKemendo• 14 years ago

I think that is a poor comparison. I think a better one would be booting someone out of a jury in an auto accident case if they work in/own an insurance agency.

The juror has something to gain with the legitimization and precedent that his jury will decide especially in such a high profile case. Diminishingly so for someone in an auto case.

siglesias• 14 years ago

You are aware that Samsung had counter claims too with their own patents, right?

angdis• 14 years ago

Don't blame the jurors. They're just regular folks who are earnestly trying do their best as though they're performing a civic duty. In reality, they're being played like a fiddle.

Instead, blame the f'ed patent system, the lawyers who exploit it for every last dime, and the companies that wield patents as a weapon against competition. We've come a very, very long way from the true meaning and intent of intellectual property protection.

mwctahoe• 14 years ago

I agree, I doubt anybody that doesnt have a law degree would really know how to interpret any of these laws in a normal environment with google to help, let alone being on the jury of a high publicity dispute like this with all that added pressure

runako• 14 years ago

You can add most lawyers to that group; most of them avoid IP law like the plague.

adgar2• 14 years ago

> Don't blame the jurors. They're just regular folks who are earnestly trying do their best as though they're performing a civic duty. In reality, they're being played like a fiddle.

I blame them a fair amount. They had hundreds of questions to answer and were asked to take as much time as they needed. Instead, they cranked them out in a couple days.

The pay is shit, the tasks are boring and inscrutable, and people have lives to get back to. But I don't think that's a full excuse for phoning it in like this jury did.

spenrose• 14 years ago

The logic of your comment depends on there existing a value of "as much time as they needed" which is significantly longer than the time they took and significantly shorter than, say, their lifespans. The point of earlier comments is to say that one does not exist. If you wish to rebut those comments persuasively, you might consider directly addressing that point: how much more time should they have taken, and what difference would it have made?

randallu• 14 years ago

It would have completely sucked to have been on the jury for this one. You don't get paid while you're not at work; you have to listen to expert bozos who have been paid millions for their testimony and who say some strange things under cross-examination; the lawyers all got paid handsomely too and you're basically only there because the patent system isn't working properly (why doesn't USPTO decide about prior art? aren't they required to do this when initially examining the patent?).

Then, once you've made a decision to the best of your ability, all of the tech press poops on you for weeks. Weaksauce!

Hopefully, the USPTO will re-examine the patents in question and resolve the prior art discussions in a better way than a jury could/has.

mullingitover2• 14 years ago

> You don't get paid while you're not at work;

Speak for yourself. I work at a Fortune 500 company and jury duty is paid, and I don't think this is at all uncommon.

That being said, I'd rather be at work than on jury duty any day of the week.

esolyt• 14 years ago

Based on that logic, Android manufacturers can simply move to Intel processors and repatent all UI interactions for x86.

wccrawford• 14 years ago

Not if I do it first!

... Which sounded less horrible in my head. Ugh.

vidarh• 14 years ago

And you wouldn't be first - there is at least one x86 Android phone: Orange San Diego.

drcube2• 14 years ago

We don't need to get rid of juries, we need to get rid of bad laws that allow these suits to exist in the first place.

alok-g2• 14 years ago

How then will we deal with cases where jury makes a misjudgement for good laws?

drcube2• 14 years ago

How do we deal with it when a judge makes a misjudgement for good laws? Or a panel of experts?

FreeKill• 14 years ago

What I don't understand is the Judge/Lawyers must know that the Jury aren't experts in technology or the law. Why do they not spend a substantial amount of time explaining prior art, the laws pertaining to prior art, and the Jury's options with regards to prior art?

For example, after the two sides have presented their case, why not spend a day or two just explaining the basics of the laws in play to the Jury before they start deliberations?

thezilch• 14 years ago

Easy, Judge Koh set forth an extremely limited pool of time each party was allowed in front of jurors. And what about putting it in the brief / instructions the jurors are intended to read? Easy, the jurors didn't read it; they were nearly prepared to execute maximum damages against Samsung before entering deliberation.

RyanMcGreal• 14 years ago

Is this a good time to roll out the old joke about cases being decided by a group of people who weren't smart enough to get out of jury duty?

donatzsky• 14 years ago

No. The problem isn't that the jury wasn't smart enough (they may or may not have been), but that they had a foreman that was just a bit too smart.

Jarihd• 14 years ago

1) Patent filing must be made a really cheap process; so that even an individual earning a normal salary is able to file patents. This way Prior idea(art) comes to focus immediately.

2) There should be "no country(area) boundary laws" for Patents. A patent filed in particular country should be applicable world wide.

jeremyarussell• 14 years ago

That would require all the world governments to agree on what a patent is and what it can protect. As it stands now the nations don't agree much on anything, let alone something as important as patent law.

Edit: clarification

lttlrck• 14 years ago

Its more than that I think, international laws require internation courts so all countries would have to relinquish control of intellectual property to a central authority and world patent court. It would create as many problems as it creates.

zackmorris• 14 years ago

In the end it doesn't matter, Thomas Jefferson was looking a dozen moves ahead when he helped lay the groundwork for a free society. Other checks/balances/appeals, and the incredulousness of the people, will eventually win out over special interests.

The patent system won't change until people are affected personally, when they realize that it's costing them jobs and money. I'm always astounded when people stand up for the rich people and organizations who have already won, and give them even more, like they owe them something.

My main complaint with this whole case is that the jurors completely ignored their own power. They could have nullified or come up with any way they wanted to handle the case, including setting a real precedent like saying since there is prior art everywhere, there's really no case, and thrown it all out.

I worry that we've become so uneducated about civics that we may no longer be capable of cultivating a free and evolving organic government. We're going to find ourselves stuck with archaic laws invented by people who have long since died.

gokhan• 14 years ago

One comment is quite insightful:

Since prior art is invalid because it can’t run on the apple processor and vice versa then these patents can’t apply because they cannot be ran on the Samsung device and vice versa

http://www.techdirt.com/articles/20120830/02063020214/samsun...

geophile• 14 years ago

By that token, isn't Samsung non-infringing? This rationale isn't even internally consistent.

Tycho2• 14 years ago

Not really sure if he means the microprocessor/CPU or whatever technology processes contact on a multitouch screen.

Tycho2• 14 years ago

I'm amazed that the press are allowed to approach jurors (or vice versa) after a trial. I think that's strictly forbidden in the UK.

Makes quite interesting reading in this case though.

ChuckMcM• 14 years ago

In the US, and in the Bay Area where I live, it is not uncommon to have an acquaintance notify folks that they may be on "Jury Duty" so schedules need to be flexible. And then to have that same person get advice from well meaning individuals about ways to answer questions so that they will be excused.

I've sat on two juries (both pretty minor, and one where the defendant switched their plea to guilty on what would have been the first day). It isn't a waste of your time, it is useful to know how this system works and to do you part to make it as effective as it can be.

The question I ask people trying to get out of a jury duty commitment is whether or not they would want someone like them who could be on their jury trying as hard to get out of it. Sort of a "pay it forward" way to look at it.

Going back and forth over this particular Juries deliberation and verdict is something Samsung is paying their lawyers to do, still haven't seen what the lawyers plan is for this case going forward.

lftl• 14 years ago

Does jury selection for civil cases work similarly to how it does for criminal cases, with both sides questioning jurors and getting a certain number of strikes? If so, I can't help but think that whoever was responsible on Samsung's side for letting this guy through is getting reamed right now.

Samsung/Apple Jury Foreman Shows He Doesn't Understand Prior Art

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