Apple v Samsung Foreman Gets More Things Wrong

http://www.groklaw.net/article.php?story=20120904190933195

by esolyt • 14 years ago

116 51 14 years ago

shmerl2• 14 years ago

Yeah, he avoided the killer question which busts his logic.

Can we please stop picking on the foreman? It's not like this person forced their way into the trial--they were picked by the state at random, and oh by the way, jury duty is not optional. Attorneys for both sides had their chance to dismiss the guy and they did not. He's talking about his thought processes which is a hell of a lot more "closure" than you typically get in a trial. So the plan is to make him the villain?

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.

mistercow7• 14 years ago

Sorry, if you say dumb things to the media, you are fair game for having those things torn apart. Talking to the media is optional.

steve19• 14 years ago

He decided to, and continues to, talk to the media. If he kept his mouth shut, nobody would picking on him. Media whoring has its price.

Tyrannosaurs3• 14 years ago

In the UK you're not allowed to talk about what went on in the jury room and given what we're seeing here it strikes me as entirely sensible.

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.

snowwrestler2• 14 years ago

So because he has decided to be more open and transparent than the typical juror, we should all treat him worse than the typical juror? That seems like backward thinking to me.

swdunlop• 14 years ago

Agreed. The guilty party, here, is either Samsung's lawyers for failing to convince the foreman of the law and its applicability to their case, the judge for refusing to permit prior art to be presented, or the laws themselves which were incomprehensible to a layperson.

fpgeek4• 14 years ago

It isn't Samsung's (or Apple's) job to convince the foreman of the law. It is the judge's job to tell the jury what the law is for the purposes of their deliberations. It is the jury's job to follow the judge's instructions with respect to the law and to reach factual (not legal) conclusions to determine their verdict. Even though the judge makes the jury instructions with input from the lawyers on both sides, the jury doesn't see that and, from their perspective, that's irrelevant.

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.

deadhead• 14 years ago

I hardly say he did his best. From a previous groklaw article [1]: "The foreman told a court representative that the jurors had reached a decision without needing the instructions." The jury then doesn't follow all of the instructions. Sounds to me like a jury that just wants to get out as quick as possible, not do their best.

[1] http://www.groklaw.net/article.php?story=2012082510525390...

wvenable• 14 years ago

Juries just wanting to get out as quickly as possible is probably the norm. At least with a criminal case there is some tangible moral incentive to do a good job. A bunch of large companies quibbling over basic shapes probably seems like a rather ridiculous waste of time even if billions of dollars hang in the balance.

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?

hetman• 14 years ago

I think part of the problem is having someone without correct technical knowledge of the subject matter actually making decisions. It is not the foreman's fault for being picked for this task, however, his lack of competence is a perfect demonstration of why the system needs to be fixed.

rayiner5• 14 years ago

The criticism of the jury in this case doesn't seem to stem from their lack of technical understanding, but rather their following the judge's jury instructions. Indeed, there isn't really anything technically complicated in this litigation, a lot of it is over design patents.

ryanmolden• 14 years ago

My problem with his interviews is that he comes off very smug, self-assured and condescending (for instance suggesting others read up on a law he himself clearly doesn't understand).

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.

bane• 14 years ago

It's like watching a live-action case study of the Dunning-Kruger effect.

http://en.wikipedia.org/wiki/Dunning-Kruger_effect

mistercow7• 14 years ago

>Edit: rayiner claims below he (the foreman) may be correct in his statement about the patentability question.

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.

CamperBob2• 14 years ago

You know, if you were Samsung and you weren't too concerned with ethics in the strictest sense of the word, you might be tempted to approach the jury foreman and offer him a large amount of money to get in front of every camera and microphone he can find and demonstrate gross disregard for Judge Koh's orders and patent law in general.

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.

mistercow7• 14 years ago

>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?

bsphil• 14 years ago

I'm not sure how much sway that would hold, considering he explicitly set out to teach Samsung a lesson using the verdict.

craigyk• 14 years ago

Seriously. groklaw is starting to sound whiny with their unending criticism of the guy. Argue the system not the verdict. I am for major reforms to the current patent system, but deep down am secretly pleased that the jury decided to stick it to Samsung for being, lets face it, arrogantly blatant copycats.

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.

fpgeek4• 14 years ago

By starting their "thermonuclear war" in the first place, Apple has already, practically speaking, leveled the patent system against small players. Almost by definition, small players don't have bombs to respond with nor do they have sponsors interested in protecting them. How do you think they will respond to bombs flying?

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."?

kenster072• 14 years ago

Please clarify "arrogantly, blatant copycats." And please don't tell us about rounded corners or tapping a touchscreen.

wissler• 14 years ago

If you are incompetent to judge others and you pull the trigger on a verdict anyway... clearly, the fool deserves what he is getting. He has aided and abetted theft on a grand scale.

rayiner5• 14 years ago

This article is wrong in several places. E.g.

"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.

shmerl2• 14 years ago

Then why didn't the judge ask it?

rayiner5• 14 years ago

The judge will address that question in the opinion. The opinion has not yet been released. That of course makes all the hubub premature, since the jury verdict has no legal force in and of itself until the judge renders an opinion, but the tech media wouldn't be the same if it didn't continually jump the gun.

mistercow7• 14 years ago

A fair argument would be that author of the article interpreted the question differently than Hogan did, and should have been more charitable to Hogan.

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.

rayiner5• 14 years ago

The author of the article clearly posed a question about subject matter patentability rather than patent validity, given the terminology he used. Hogan responded with a correct statement of the law of subject matter patentability.

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.

lazugod• 14 years ago

What mess is that comments section?

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.

Steko• 14 years ago

"little patent fascists"

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.

001sky• 14 years ago

The below,from the groklaw.net comment section, might be of interest re: prior art.

_____________________________

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.

---------------------

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.

-----------------------

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.

anuraj• 14 years ago

Don't think a jury can validate or invalidate a patent. Their job was to see if there was infringement.

learc83• 14 years ago

Part of finding if there is infringement includes deciding the validity of the patent--that's why prior art was introduced in this case.

Tyrannosaurs3• 14 years ago

It strikes me that if people have an issue with much of this, they have an issue with the concept of jury trials.

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.

keithpeter• 14 years ago

"And the more he talks, the worse it gets for that verdict."

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.

Apple v Samsung Foreman Gets More Things Wrong

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