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Misunderstanding of Prior Art May Have Led to Apple-Samsung Verdict
One of the interesting tidbits that came out of last week's billion-dollar verdict in Apple v. Samsung was that the jury's foreman, a patent holder himself, was instrumental in leading the other members through the various complicated infringement claims. Now, Groklaw analyzes an interview the man gave with Bloomberg News (video), in which his statements reveal a basic misunderstanding of what qualifies as prior art. Quoting Groklaw:
"In discussing the first patent on the list, he says they got into a discussion about the prior art that was presented at trial. Here's why they discounted it: '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.' That isn't disqualifying for prior art. It doesn't have to run on the same processor. It doesn't have to run at all. It can be words on a piece of paper. (If you don't believe little old me, here's a lawyer noticing the video too now.) ... The foreman, in answering criticisms, says that the jury paid close attention to the jury instructions. But looking at this one, did they? I'm sure they meant to, and I'm also sure they did their best according to what they understood. But this was an error, and it's one I don't think the judge can ignore, if anyone brings it to her attention."
Being judged by an idiot who knows nothing about the law is a cornerstone of our civilization.
That if you were on this jury, that foreman would be valuable ewed as the expert by easily impressed everyman and you'd be arguing how silly his position is while the other jurors shot you down because "he has expertise, where's your patent?" ugh. I am glad for my mental health I was nowhere near that jury room.
Samsung can use his misunderstanding during their appeal.
On the other hand, there's no guarantee that the next jury will be any better than this one.
Guys, this is just getting started. Samsung isn't going to let a 1BN judgement go un-apealed.
Samsung, though. (This case is about Samsung and not Andriod. Don't get your panties in a knot) really did go out of their way to copy apple design, look and feel. Touchwiz, the Samsung created UI addition to Andriod, really is a (bad) attempt at making devices more apple like. (I know. Ive got a galaxy tab and a galaxy S2 - I rooted them both to remove it)
One of Apple's biggest assets is their design, look, feel, etc (Trade dress). Did you expect apple to take it laying down?
I am kinda caught between 'shouldn't being a patent holder be considered a conflict of interests and caused the defense to disqualify the person?' and 'wait, a jury member with actual knowledge of a field? that is almost like a peer!'.
Meh, at this point I try not to follow these case too closely... while I hate software patents and think they need to be abolished, I find the reporting and oversimplification almost as bad...
Microsoft Engineering Bill Buxton has this nice collection of multitouch systems going back to the early 80s. Pinch to zoom dates back as early as 1982. This collections of prior art makes it plainly obvious that people "skilled in the art" not only would find something like pinch to zoom obvious, the in fact did and implemented it long before the iPhone ever existed.
Was it implemented on a computer you could hold in your hand? No, simply because the technology was not small enough to fit in your hand. But just because Apple was the first to implement it in your hand, does not mean they were in anyway inventing something novel, unique, and non-obvious that deserves patent protection. Apple made a logical, obvious, iteration to a decades old technology. I don't see how this is possibly a point of contention, and the fact the jurors went the other way on this leads me to believe the headline is 100% correct, or something else fishy is going on.
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.
That just doesn't make any sense. If the fact that the given prior art is not interchangeable disqualifies it to make Apple's patent obvious, then the fact that Samsung's code is just as not interchangeable should disqualify it too from infringing. Or this is bullshit but then that means Apple's patent is obvious. No matter which is true, I don't see how it can go one way for prior art and the other way for Samsung's code.
If a gesture to produce a result can be patented "Pinch to Zoom", maybe I should then patent the following.
* Swallow pill to cure: Every orally delivered medicine, past and future now owes me big time
* Push button to Switch on: Every device in existence will now have to invent a new gesture to switch itself on.
* Click button to Submit: Most websites and applications..
* Pull handle to open: All doors.
This isn't about prior art, it is about what is patentable: The implementation (invention) or the gesture to interact with the implementation.
What I've seen & heard is that most juries and jury members take their role seriously, are diligent, want to do it right, and do so to the best of their ability.
And in a lot of more common cases -- especially the more basic ones like those from centuries ago when this system was just getting started -- they do fine. Their ability to judge who's lying, who's not, etc. is as good as anyone else's. Its all human nature.
But when that system got expanded to very intricate cases of highly technical laws and subject matter, the fundamental premise of the system was stretched past its breaking point. I've seen some of the closing instructions for cases like this. Even as a person with a top notch graduate degree, and directly relevant experience, and the luxury of seeing the instructions in print, and being able to review them at my leisure at the computer while looking up any more confusing terms, it can still be very difficult to follow.
The chance of a random juror, whose training and experience is in other areas, and has to hear many instructions primarily verbally, and at great length in one sitting, and without any modern technologies for making it better, actually fully understanding the material, is essentially zero. And that's no knock on the juror.
The article could well be right that jurors misunderstood. In fact most of the time, they almost certainly do. Its a problem with the system and not with the individual.
Doesn't this prior art argument apply to Samsung's device as well? If the iPhone processor isn't the same as Samsung uses, then Apple's software doesn't run that processor and no patent was violated.
The forman, Velvin Hogan is, IMHO, a patent troll. His "invention" is a TiVo, with options for a few minor and obvious additions (removable storage!, how inventive). He filed for the patent 3 years after TiVo first shipped.
Seems to me he's just an opportunistic SOB hoping to make some money from some company who would rather pay than fight. Of course he wants to defend patents against invalidation due to obviousness or prior art. His would be worthless if that were easy to do.
"National Security is the chief cause of national insecurity." - Celine's First Law
we need special juries in cases covering stuff like tech, prior art, patents, med, doctors.
As a court room is a poor place to learn about deep issues covering tech cases and the pay is way to low.
I think there was a few cases where where only 1 IT person the jury and some went to prison now with that jury had more then 1 IT person on it then maybe that person will not be in lockup right now.
Cases need viewpoints for people in the field and only havering 1 can get you a one sided view
I had jury duty this year, and I can say from that one experience, that jury's definitely want to do what is right... but they will often fail miserably, and will almost always follow those they feel have more knowledge on the subject at hand. What I saw was a couple very angry people who let their anger cloud their judgement and made them very stubborn and hard to deal with. One seemingly intelligent person who did a lot of steering when it came to the majority of the group, because they saw him as their leader and what he said, no matter what it was, was good enough for them. A couple undecided people who were actually open to listening to both sides, and myself, who had to argue my points again and again to get people to come to their senses. It was a nightmare... and that was a much more simple case than this one. We deliberated for six hours on six points, three of which were clear cut. I can't imagine sitting on a jury for a case of this magnitude and coming to a decision in less than a work week.
Mistrial.
Help stamp out iliturcy.
Ha, Slashdot is so pro-Apple it's painful. "We skipped that one" turns into "we skipped that one and came back to it" and that gets modded up despite there being no such context in the original source! Oh Slashdot, you so funny when you act like a kid and mod up the other kids!
You are a fool. First off, even without any references to check, the implied meaning in that statement is almost crystal clear. But I suppose in case you are too stupid, we can reference the interview the juror gave (which is actually the REAL original source).
http://www.youtube.com/watch?v=c9cnQcTC2JY
In it, at about the 4:00 mark he talks about trying to not get hung up on one question, so they do the simple things FIRST, so that when they come back it would be easier. At the 5:15 mark he says "we're gonna move on and come back to this". At the 6:10 mark he talks about how eventually they would come back to those question, and having moved on and answering the other questions taught them enough that it made those skipped questions easier to answer.
...the Apple products have a slight advantage on usability and battery life and construction (Gorilla Glass on their products for example).
Gorilla glass is not exclusive to the iPhone
In gigantic lawsuits involving the deepest of pockets, there should be an alternative 'fast track' available. Both parties (corporations, natch) pony up 25 million dollars (non-refundable, win or loose) and the initial trial is heard by the Supreme Court instead. With this much money and ego on the line, these suits always end up with the Supremes anyway, so why not pay a voluntary tax and shave of years of pointless, plodding (but billable) years, so we can all get on with progress - which ususally goes to the highest bidder anyway.
Of course prior art was misunderstood. It usually is, including the misunderstanding that Groklaw is propagating. For the purposes of dismissing a patent, prior art does not just have to be something similar, but must be something that is, in whole or in part, exactly the same as what's claimed in the patent. If the patent claims a specific processor function that the prior art didn't have, it's not prior art!
Software is algorithms, and algorithms are mathematics. That's why they should never be allowed to be patented in the first place, which would have avoided all this Apple v. Samsung trial about bounceback anyway.
The algorithms are not patentable, but their assembly into a system is, just like a screw conveyor is not patentable, but its use in a new material feeder is.
You do not have a moral or legal right to do absolutely anything you want.
This case is a prime candidate for a successful Rule 50 motion, which states essentially that in a jury trial, if a court finds that a jury would not have sufficient evidentiary basis to rule as it did, the judge may overrule the jury's decision or, alternately, vacate the jury's verdict and order a new trial. The judge can't use it to impose his or her own opinion; it has to be a fairly clear-cut case in which the jury acted unreasonably or contrary to law. So, for instance, if a jury finds a criminal defendant not guilty and the judge thinks there was enough evidence to convict, that's too bad. In the Apple-Samsung case, though, there was a clear and articulated misapplication of the prior art standard, which causes the verdict to fail as a matter of law.
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Something cleverYou are 100% correct. This guy is undoubtedly seeing dollar signs on his own patent, and if the jury had invalidated Apple's patents, I honestly believe that he thinks it would hurt his ability to monetize his own patent. It's very telling to me that he had an "aha" moment not about what the decision should be, but how to "explain" to other jurors why they should side with Apple. It seems to me that he had already made up his mind which way this trial must go, and he was just trying to figure out a way to convince the other jurors to go along with him.
The thing I'm wondering, though, is does that matter? I mean, once a jury has rendered a verdict, can you actually have it overturned because it's later found out that a juror has ulterior motives? Isn't that why the lawyers have an opportunity to strike jurors before the trial starts? And if so, why the hell didn't Samsung's lawyers ask the jury pool if anyone had any patents? It just seems to me that if I were Samsung, I'd want a jury that doesn't have any patent holders on it. Not that there's anything wrong with patent holders, but I would fear that any patent holder on the jury would be financially motivated to push for a system much more in favor of patents and would rule with Apple on the case to protect their own interests, which I'm convinced is what actually happened in this case.
IANAL though, so I can't answer these questions. Maybe someone else here who is a laywer can weigh in.
The jury is supposed to consider just the facts put before them, and just in the context they are instructed to. They aren't supposed to be experts, and are not supposed to use outside information. The judge instructs them on what the law is and how to apply it, and decides on what facts are entered in to evidence. The jury then is supposed to make its decision on that alone.
The reason is if they don't, well shit like this can happen. Some juror thinks they know what is the law better than the court, and they go and cause problems.
If the fact that finding out that a jury royally fucked up, does not lead to a judgement to be overturned, then I would rather never be judged by my "peer" like in the US system. Imagine that the judgement is not about patent law but a death penalty case. You would be on death row because of a fucktard in the jury decide you are guilty no matter the evidence.
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
Now tell me, tell me where it says they returned to it? In 2-3 days they skipped it and returned to it? It happened fast and they skipped at least one instance of prior art. Please come to terms with it and deal with it instead of being blindly pro-Apple.
Well, let me walk you step-by-step through the way in which a skilled reader would parse it. Start with the original:
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. In fact we skipped that one, so we could go on faster. It was bogging us down.
Now home in on the part in question:
After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that one...
Now, what does "that one" refer to? There are two possibilities, so let's substitute them both into the sentence and see which one makes more sense:
After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that patent...
Makes perfect sense.
After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that prior art...
Hmm. Skipped the prior art that did not exist? Skipped the prior art whose existence they debated? Maybe. But they just talked about debating it, so in what sense could they skip it? Kind of a strained reading of the quote.
Well, they could debate something that had been claimed to be prior art but skip making a decision on it, but then the reasonable course of action would be skipping the decision on the patent as well. But they did make a decision on the patent, and to do so without making a decision on the prior art would be unreasonable.
So your interpretation requires both an unlikely parsing of the actual quote, and unreasonableness from the jurors. I'll take the simpler explanation, no pro-Apple bias needed.
The later section about how much they studied the instructions do not invalidate his rather shaky interpretation of what counts as prior art, esp since he did not use the same standard to determine what counted as infringement.
They did not follow the jury instructions completely. I was on a jury once (not at all related to patents) and one of the main instructions was to only allow the evidence shown during the trial influence your decision. Since the foreman used his own personal experiences to influence his (and others') decisions, he was not basing his decision on the trial evidence, but his own experiences.
WTB [sig], PST!!!
Ha, Slashdot is so pro-Apple it's painful
This is where I stopped reading, because if you can present an observation that blatantly flawed right out of the gate, then I expect nothing of value from the rest of your comment.
Fortunatly you didn't give any details so there is no question, I hope, that I'm making an actual assessment of your arguements. That said ...
Somewhere right now there is a guy saying the EXACT SAME THING about some joker who kept "arguing his points again and again to get people to agree with him, no matter what it was."
Who knows, he might even be on /. :)
If you can't be good, be good at it!
Samsung can claim that the jury did not understand the testimony...
Actually, I think they did understand until Mr. Hogan derailed them by telling them his little story. My guess is the other jurors took Mr. Hogan as an expert in patent law which is obviously is not. They followed his lead right off the proverbial cliff.
I was recently called to report for jury duty on a patent litigation trial at a US District Court. The patent involved "computer code" as the judge put it. Weeks before arriving, I filled out a questionnaire which included questions about my occupation, which I stated as Software Engineer.
As we went through jury selection, it quickly became clear that the attorneys wanted to state their case in their own way without anyone on the jury attempting to re-explain or translate for the others. Out of the first 14 jurors interviewed, only 1 person had had ANY experience with "computer code" (30 years ago in the Navy, and he mentioned COBOL). One side or the other threw that guy off the jury. We didn't get past Juror #15 before they had agreed on the jury pool. I was juror #28!
I can't believe that Samsung allowed this guy anywhere near the final jury. Well, unless there were 10 other patent trolls in the pool that they needed to get rid of before him.
They call me the working man. I guess that's what I am.
> What was the jury supposed to do other than to return to consider the item later? They had no choice, they HAD to consider it to arrive at a verdict.
They could have done the obvious thing: NOT SKIP IT.
As it stands, it sounds like they glossed over something because it seemed difficult. There is no taking that back. They refused to tackle the task with which they were entrusted head on. That casts doubt on the whole thing.
A Pirate and a Puritan look the same on a balance sheet.
'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.'
I guess that would have pretty much ended the apple v microsoft trial, since apple was using 68000 cpu's and microsoft windows ran on intel stuff. Not sure what the xerox star ran that apple copied to make their 'original work'.
And hey, weren't nokia and a number of other companies making smartphones for about 10 years before Apple? Isn't apple therefore running over any of their prior work?
Stupid, stupid, stupid. Its a freaking cell phone.
...probably stands for Did Not Attack!
(credit to Dana Carvey)
My God can beat up your God. Just kidding...don't take offense. I know there's no God.
Maybe I don't understand the role of a juror. Are they allowed to present new evidence, or cover arguments that were not covered in a case? Isn't it the role of the lawyers on each side to provide details like if prior art can be considered or not?
It would be like a juror deciding he was an amateur forensic investigator, and chose to add additional evidence based on his observations. Such possibilities don't inspire confidence in our legal system.
“Common sense is not so common.” — Voltaire
You're not allowed to ferret out evidence related to the case at hand. That does not mean you can't use your own existing knowledge of a given domain. If a trial hinges on whether the earth is flat or round, but no evidence is presented at the trial showing one way or another, you can still use your knowledge that the earth is round. It's possible people will use domain 'knowledge' that is incorrect, the hope is that at least the prevailing knowledge on the topic is correct. If that's not the case, or you have a forceful personality pushing bad ideas, well, that's just a failing to jury trials.
Jherico
What can the average user can do to ensure his security? "Nothing, you're screwed"
Funny....I found it. How did you miss it?
Vel Hogan: Oh. We read. First off, before closing arguments was given, the judge read to us the final instructions, instruction by instruction. Then she allowed the closing arguments, then she dismissed us. And so we had those closing argue..., those ah, instructions and we had them open there and then we took patent by patent and got hung upon the first one but the day was almost over by then and so I said to the jury, *******>>>>>>>>>>>>"We're not going to allow ourselves to get hung up. We're going to, if we find a debate like this, we'll move on. We'll do the simplest things first.” So then when I came back the next day...
"I remember when I could have 6 or 7 A-HA! moments in one night."
I was going to say that you must be female to have that many in one night.
Then I realized you weren't talking about what I thought you were talking about:
That was back in the days when MTV ran "Take On Me" music video in regular rotation.
But I suppose I could still say the same thing. My wife certainly gets a certain dreamy-eyed faraway look whenever A-HA! comes on the radio with "Take On Me"...
:-P
"What in the name of Fats Waller is that?"
"A four-foot prune."
Yeah yeah... hehe. Let's just say, it was a murder case, and the main reason most jurors wanted to convict him and slam him with every year they could was because it was shown that he was a repeat marajuana dealer and a general shady character, so it was obvious that even though there was clear evidence that he did have a hand in someone's death, it wasn't absolutely clear that he did not do it by accident. The stubborn guys wanted to hang him basically, the seemingly intelligent leader/foreman thought that it was pretty clear cut that he did it but didn't want to slam him with all the years for each of the items he was accused for, the "followers" as I shall refer to them were basically for whatever the foreman said, and the undecideds wanted to discuss the facts as they were presented to us and hear what everyone thought before making their own decisions. I had to keep returning to the facts because there was a lot of "he's a bad guy, he must be guilty" talk going on, and it was quite out of hand. I can only assume, and somewhat logically conclude from the few juror interviews that have come out so far, that this type of issue was also going on in the Sammy vs. Apple case.
However, he owns a patent. This is an obvious conflict of interest. This would be something like a person who owns and profits from copyright sitting on the jury in a case where someone was being sued for copyright infringement.
If you watch his interview, it's apparent he's factually mistaken horribly in regards to most things patent related. He's also under this Apple-fanboi-esque assumption that a patent must be an identical match in every minute detail to an existing thing for that thing to be considered "prior art." So he's completely ignoring obviousness and likeness, which are key in prior art claims. Making this observation failure is key to the validity of many Apple patents. If something is original and unique just because it has rounded corners, something's really broken. Worse, probably, is that he uses likeness and obviousness to determine the infringement of another thing. So you have a guy who's perfectly willing to take a patent and make a deduction which I can only expect is similar to: "look, these icons are spaced/oriented in this manner, and that's similar to what the Samsung device here has, and there's a button here which is really obvious by the design, even though it's not identical to the Apple patent, so obviously this is infringing." While at the same time making the deduction when presented with evidence of prior art: "well... it wouldn't run on an Apple processor, so it can't be prior art, even if the software is functionally identical and looks identical." Complete absurdity.
Also, he clearly states he was trying to expedite the whole process to avoid being hung up on actually looking at evidence. Sounds like solid grounds for an appeal to me. It appears very clear he had his decision made on day 1 and was influencing the other jurors to ignore evidence and vote the same as him. This makes me curious if being a negligent juror is actually a federal crime. If it's not, it should be.
That comment is wrong in many ways. The AC above me makes the legal points why your comment is nonsense. In my own experience on a jury, we couldn't even get the judge to clarify his instructions to us. Every time we asked the bailiff to clarify a certain instruction she would go to the judge to discuss it and she always came back with the response for us to read the instruction again and follow it as best we could. In no instance did the judge ever reword the instruction or give any other details. The instruction was there in relatively plain language, and we needed to follow that instruction. We weren't allowed to assume the instructions meant anything other than what was specifically stated. The same goes for the evidence, we weren't allowed to consider any evidence other than what was presented in court. We could question each side's interpretation of the evidence to determine how relevant it was, but we were only allowed to consider what was presented to us. That made all the difference too, the relatively young prosecutor had a minor problem with one of her charges that caused us to find the defendant not guilty of that specific charge, when in fact he should have been found guilty of something that he wasn't charged with. We were not allowed to reinterpret that charge or the judge's instructions in order to find the defendant guilty of what he actually did versus what he was being charged with. We deliberated for hours on that until it became clear exactly what we were being asked to do, and after that it took minutes to reach a verdict.
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
If you actually watch the video, you'll see that the patent he is talking about is the "460" patent, is a Samsung patent on a method of transmitting emails from a mobile phone with a camera. Indeed, the jury did rule that Apple had not proved that Samsung's patent was invalid. However, they also ruled that Apple did not violate it, so even if the jury had found Samsung's patent invalid based on prior art, it would not have changed anything.
Holding a patent should not invalidate one from serving on a jury on a patent related case; unless the case is related to your patent, in which case you never would have made it past jury selection.
If he held a patent and it didn't come up in jury selection, well that's the fault of the lawyers. If it did come up in jury selection and he lied, I'd assume that would have a heavy impact on appeals, maybe even void the verdict. He'd probably get some jail time too. If it did come up in jury selection and he told the truth, it's up to the judge to decide if it constitutes bias (and they'll often base that off of asking the person if they feel they'd be biased) and it's up to the lawyers to decide if they want to use one of their limited number of juror exceptions.
Jherico
What can the average user can do to ensure his security? "Nothing, you're screwed"
So your interpretation requires both an unlikely parsing of the actual quote, and unreasonableness from the jurors. I'll take the simpler explanation, no pro-Apple bias needed.
Except for the fact that the jury botched their own decisions -- awarding damages on products that don't infringe, for example. Twice, at that. This is just as "unlikely" for most folks as your proposition.
Slashdot comments on Groklaw's comments on Bloomberg's comments on a juror's comments about a trial.
Obviously a better indicator of guilt or innocence than the actual evidence.
You seem to be operating under the assumption that having to put down a decision magically forces them to actually do some thinking beforehand instead of just slapping down whatever they wanted like a stoner christmas treeing a midterm.
A bullet may have your name on it but splash damage is addressed "To whom it may concern."
I am not a lawyer, but it sounds like this foreman was acting as an expert witness, one whom the jury was forced to listen to and one side could not question or rebut or even question.
It's true it may be a failing of the judge, however, it is also be a failing of the jury foreman. It's his job to communicate to the judge the questions that the jury has. Instead of asking for clarification on what prior art is, he presented his own opinion as fact to the rest of the jury. Additionally, according to the jury foreman, he based his opinion on the fact that he owns patents and if he had Apple's patents, he would want to pursue a case against Samsung.
This is appears to be a serious breach of the jury foreman's duties.
Fanatically anti-fanatical