All of Apple's contracts combined (display, processor, memory, etc) only account for about 3% of Samsung's annual revenue and probably less than 1% of their profits (components are typically low margin). While Apple is a big customer, they aren't really a "golden goose" for Samsung.
Except that the system hasn't been around for a long time. The USPTO only began widely issuing "software patents" since 1993 and the appointment of Bruce Lehman (an IP lobbyist) to head the USPTO. Before that, the stance of the USPTO was that software was not patentable and fought very hard against such patents in the courts. The change in leadership and direction at the USPTO, along with the Supremes taking a 20 year hiatus from hearing software patent cases, allowed the Federal Circuit to make software patents legal and the concept of what is patentable has expanded greatly ever since.
Public companies do NOT have a fiduciary duty to maximize profits, only to follow the company charter. Even in the most often cited case creating fiduciary responsibility to maximize profits, Dodge v. Ford Motor Company (1919), the court said this in regards to Henry Ford's desire to reduce the price of his cars for his stated, purely altruistic, motives (and in doing so cancel a special dividend to his shareholders):
" We do not draw in question, nor do counsel for the plaintiffs do so, the validity of the general proposition stated by counsel⦠that although a manufacturing corporation cannot engage in humanitarian works as its principal business, the fact that it is organized for profit does not prevent the existence of implied powers to carry on with humanitarian motives such charitable works as are incidental to the main business of the corporation."
My primary problem with your position is not that it is factually wrong (even though it is), but that "maximizing profits" is a purely subjective term and an impossible goal. Short-term and long-term profits have mutually exclusive components. For example, cutting r&d or laying off staff raises profits in the short term, but may lead to declining profits in the long term. Depending on your point of view, any corporate action could be construed as not maximizing profits.
The issue being discussed is smartphones, so it seems that excluding other devices is appropriate. That said, they don't really change the numbers all that much:
3rd quarter: iOS: 14 million iPads, 6.8 million iPods, 26.9 million iPhones. Android: 10.5 million tablets, 136 million phones
Total: iOS: 47.7 million devices Android: 146.5 million devices
Android marketshare was 75% of worldwide sales last quarter, compared to 15% for iOS. This time last year the numbers were 58% for Android and 14% for iOS.
Apparently it isn't just computer nerds. Appeals court judges and Economics professors also believe our industry is "special" and patents are failing the industry.
basically you obviously will bring your life experience to your role as a juror, but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?
"I like all flavors of ice cream, but banana flavored." You are interpreting this sentence to mean that I like all kinds of ice cream without exception. I am interpreting this sentence to mean that I do not like banana flavored ice cream. The "but" in the judges sentence is important because it qualifies the previous clause. In other words, the juror will bring their life experience to the trial, BUT they must "set aside" or not consider their patent experience.
all three should have been rejected with cause. Therefore, that's not the right interpretation.
So, your counter argument is that the judge didn't really mean what she said?!
I believe that he's referring to anticipatory prior art there, not "prior art" in general. If so, he's likely correct. It would depend on the specific claim limitations that were lacking or not performed by the older Samsung device. Just by way of example, if Apple's claims included a step of encoding something in BigEndian, and the Samsung device was LittleEndian, it couldn't be considered anticipatory prior art. It could still be used in an obviousness rejection, but it would require another device.
From the BBC interview:
Mr. Hogan: "Prior art didn't mean that the prior art wasn't valid. It was valid. But the stipulation under the law is for the prior art to be sufficient to negate or invalidate the Apple patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.
And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error."
There is nothing in the '381 patent being discussed (7469381 if your interested in reading it for yourself) indicating the processor architecture (except to say "one or more processors." In fact, the technical requirements of the patent are a touchscreen, a processor, and memory. The entire rest of the patent describes the movement of the item on the screen, which Mr. Hogan says is "similar". His justification for not being anticipatory is that it wasn't physically "interchangeable" because the software couldn't be "loaded onto the older example and be run without error."
If he said that the movements described in the patent did not match the Diamondtouch device, there might be some truth to your claims, but that is not his rationale.
Are you going to claim that complete interchangeability is required for something to be anticipatory prior art?
First, I simply can't understand how you come to your reading of Judge Koh's statement to the jurors pertaining to patent experience. In my reading it could not be more clear, the juror must put aside their experience on patents even though they may use the remainder of their personal experience.
Actually, that was presented in court. Legally, patents are presumed valid. They can be invalidated only by a showing of clear and convincing evidence.
The concern of the jurors was invalidation by prior art, not whether patents are presumed valid. Mr. Hogan's anecdote changed other juror's definition of prior art. That insinuates that he shared his views on the legal definition of prior art.
It is true that we do not know the exact words used in Mr. Hogan's sharing of his patent experience. We do know that some jurors were confused about prior art before Mr. Hogan's story. We know that those jurors felt comfortable with prior art after the story. We also know that Mr. Hogan has an erroneous view of prior art. Does this all add up to a smoking gun that should immediately invalidate the verdict? No. However, I think there is enough here for Judge Koh to conduct an inquiry in order to determine if the foreman acted improperly.
Sure, but I'm not sure that was actually said at any point, or whether someone is mischaracterizing a statement about "these two pieces of prior art couldn't be combined and run effectively," which is the law. For example, take slide to unlock: bathroom doors usually have slide latches. Smart phones exist. Therefore, we can put a physical sliding latch from a bathroom door on a smart phone, and that invalidates the patent? Nope, the two pieces of art can't be combined that way. See KSR v. Teleflex. And that would have been discussed during trial.
Mr. Hogan is talking about an older Samsung device with the same functionality as the Apple device, but that uses a different microprocessor. He even goes so far as to discuss that the computer code that enacts the functionality (submitted by Samsung) is different from the computer code on the Apple device and, therefore, cannot be considered prior art. According to Mr. Hogan, the rest of the jury was swayed by this legal definition of prior art.
So? That's the job of the jury - argue amongst themselves until they come to a unanimous conclusion. It's not "take a straw poll and go with the majority." Basically, you're saying that Hogan acted properly.
This is not an anything goes free-for-all. There are boundaries to these discussions. For one, jurors cannot conduct their own experiments. For another, the jurors should use the legal definitions as presented by the court. Third, the jurors should use the evidence submitted in the case, seeking clarification from the court if necessary. They should not rely on the jury foreman as a expert on matters of law. There is significant evidence that Mr. Hogan convinced the jury that he was a subject matter expert and provided the jury with his own, incorrect, legal definitions and analysis. There is also evidence that Mr. Hogan's definitions significantly led the jury to vote how they did.
The judge has the power to conduct an inquiry into this situation and take sworn statements from the jurors. If your point is that Hogan is a lone voice here, then here is an quote from another juror, Manuel Ilagan, claiming that Hogan's analysis swayed the jury:
"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 similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...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."
Note here that it was Hogan, not the judge or lawyer, that explained the definition of prior art.
He says he talked about his life experiences, which the judge said they obviously would bring to the table
As mentioned repeatedly, the judge expressly instructed Hogan to not use his knowledge of patent law.
I'm not sure exactly what "aspects of the law not presented during the court proceedings" you're talking about.
Hogan presented two defenses for Apple's patents (though curiously used different criteria on the Samsung patents) that were not presented in the court by either party. The first is that because of the nature of the patent process itself, Apple's patents would already have been examined for prior art and, therefore, likely valid. The second was that if a piece of code will not run on the same system, they are not prior art (which is erroneous). There may also have been other claims by Hogan that have not made it into the press yet.
Neither party made either claim. According to Hogan, these new arguments swayed the jury from pro-Samsung to pro-Apple.
Personally, it appears to me that juror misconduct clearly occurred. However, having misconduct and that misconduct rising to the level requiring a new trial are different issues.
Emily Chang: Were you ever confused? Were other people ever confused?
Vel Hogan: I wasn't confused but there was a, a few of the jurors that were confused so what we did in the jury room before we did anything after we did the election of who was going to lead the jury I told them let's just lay out on the table any concerns or open questions you may have that's left over and let's just get that out of the way first.
Emily Chang: Now when you first got into the jury room initially, this was Wednesday right?
Vel Hogan: Yes.
Emily Chang: Was? There are reports that you were initially divided but did you, did you have a feeling this was going to sway overwhelmingly in Appleâ(TM)s favour?
Vel Hogan: No. No. In fact if you'd have asked me at that moment in time, I thought it was gonna ultimately maybe lean the other way.
Emily Chang: Why?
Vel Hogan: Why? We were at a stalemate but some of the jurors weren't sure of the patent prosecution process. Some weren't sure of how, ah, prior art could either render a patent accept... ah, acceptable or whether it could invalidate it and so what we did is we started talking about one and the day was over. When I was at home thinking about that patent, ah, claim by claim, limit by limit I had what we would call an aha moment.
Emily Chang: Um hmmm.
Vel Hogan: And I suddenly decided that I could defend this if it was my patent.
Emily Chang: Really?
Vel Hogan: Really. And with that, I took that story back to the jury, laid it out for 'em, they understood the points that I was talking about and then we meticulous, meticulously went patent by patent claim by claim against the test that the judge had given us because each area, each patent had a different ah legal premise to judge on. We got that all sorted out and decided which ones were valid, which ones weren't valid.
Emily Chang: So the initial stalemate that you found yourself in, what was that about?
Vel Hogan: It was about a particular, ah, patent, ah, the '460 patent, and whether or not the prior art really did invalidate that pattern, that patent and so with that moment I had, I realized that the software on the Apple side could not be placed into the processor on the prior art and vice versa.
Or how about...
Hogan: To try to make it as easy as possible - I have addressed this in other interviews that I have had - what it amounts to is there has been a big fuss since the deliberation that prior art was not considered. Prior art was considered.
When we had to determine the validity of Apple's patent against the charges of Samsung's with the prior art examples, what we had to do - to make it clear - is that not only did we have to validate, if you will, the Apple patent, but in looking at the prior art we had stipulations in the law that tested both sides and if the test wasn't passed then it was clear either the patent was valid or it wasn't.
Prior art didn't mean that the prior art wasn't valid. It was valid. But the stipulation under the law is for the prior art to be sufficient to negate or invalidate the Apple patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.
And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error.
continued from the same interview...
And we're talking about Samsung's patent claim about combining a mobile phone with email [and a camera]?
Hogan: Exactly, in fact that is the one issue that we left on Wednesday night, the first day of deliberation, that had hung us up. And I, being the foreman, said because we had
but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?
Mr. Hogan educating the jury on his experience with registering his patents and his understanding of the finer points of patent law would not violate this?
Second, jurors are allowed to bring their life experiences into the jury room - that's why they have voir dire in the first place. He brought in his patent experience, the programmer on the jury brought in his experience, etc.
From the voire dire, Judge Koh talking to Hogan:
THE COURT: Okay. All right. Would that in any way -- you'll be instructed on what the law is and would you be able to follow the instructions I give you on the law, even if it may not completely correspond to what you may know about the patent system or the intellectual property laws?
PROSPECTIVE JUROR: Yes, I follow your instructions....
THE COURT: Okay. All right. Thank you. Let's go, I think, to ms. Halim, Mr. Okamoto, and Mr. Hogan. You raised your hands. Okay. let's please start with Ms. Halim.
PROSPECTIVE JUROR: Okay. I have two patents. One is issued when I was at weitek, also I.C. Design. Another one was at silicon graphics.
THE COURT: And it was also on I.C. Design?
PROSPECTIVE JUROR: Yes, right.
THE COURT: Okay. Were patents issued?
PROSPECTIVE JUROR: Yes.
THE COURT: And you were the inventor on both?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay. All right. Anything from that experience -- basically you obviously will bring your life experience to your role as a juror, but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?
PROSPECTIVE JUROR: Yes....
THE COURT: Now, same for Mr. Tepman, as well as to Mr. Hogan. You all have a lot of experience, but will you be able to decide this case based solely on the evidence that's admitted during the trial?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay. Mr. Hogan says yes. What about Mr. Tepman?
PROSPECTIVE JUROR: I think so, too.
It doesn't seem like the voire dire transcript entirely agrees with you. He was specifically instructed to not bring his patent experience into the jury room.
The LG Prada looks a lot like the iPhone to me. They both came about because advances in components allowed for designs that were impractical or impossible in prior years. Why do you think it is that Apple sat on the designs for the iPad and iPhone for years. Hint: When Apple first envisioned the iPad (they thought of the iPad before the iPhone) it was not technologically feasible to produce it.
Apple certainly influenced the market and design of smartphones, but other companies were already experimenting with designs very similar to the iPhone before it was released (the Prada is just an example of one that made it to production).
I think the point is more that someone didn't wake up one day and invent the steam engine out of thin air. What came to be known as the steam engine evolved slowly (over hundreds of years in the case of the steam engine) with incremental changes, not all at once.
Upon reading what I wrote, I realized I shouldn't have placed Creationism along with Intelligent Design. Creationism is perfectly fine as part of religious studies. Intelligent Design, however, is an attempt to make Creationism appear more scientific. Intelligent Design fails as a Science not because of its answers, but because it doesn't use a scientific methodology to arrive at those answers.
I sincerely believe that this is an illusion. Evolutionists see these evidences as persuasive because they believe they offer our best clues as to how Evolution works. But if someone seriously doubts that Evolution explains life's origin, they have no persuasive value. The Evolutionist sees enlightenment in peppered moth studies, the doubter sees wishful thinking.
Once again, Science is not about beliefs, only process. I can make falsifiable tests for evolution. I can observe evolution in nature. Why do you think parasites and diseases become resistant or even immune to drugs or insecticides? We can observe their genetic changes that give them that advantage. These experiments and observations are what gives Evolution the upper hand in the debate, not dogma.
Science does not care about religion, any religion (or atheism for that matter). Science is not a set of answers, it is a method to solve some questions. Any question for which falsifiable experiments or observations cannot be created, for example "Is there a God?", is a question that Science cannot answer.
My gripe is that the Darwinists are trying to hitch their unprovable atheistic views to the wagon of science. This undermines the whole idea that science involves impartial reasoning. Respect for and interest in science can only suffer as a result.
There are bad scientists. That does not mean we need more bad science, such as Creationism or Intelligent Design, to compensate for them.
, many of the founders of entire branches of science, such as Newton and Priestly believed in God,
Being religious does not preclude someone from being rational; nor does it preclude them from being a scientist. The important thing is not what you believe, it is process you use to find your answers. Atheists can, and frequently do, employ faith-based methodologies. They are not the exclusive purview of religion. The change that occurred during the Enlightenment is not that most of the thinkers were not religious, quite the opposite, but the methods they used to solve problems concerning the physical world changed.
I don't expect to persuade you. Anyone who "sincerely believes" enough will see what they want to see. There is nothing wrong with that and I think there is an important place for such things, but it isn't in Science.
All Science is speculative, this is just part of Science. Science is not a dogma, nor a belief of any kind. It is a methodology. It is a way of arriving at answers. Whether or not those answers are true to false is not part of Science. The theory of Evolution has the most evidence. It can be objectively tested and happens in laboratories constantly. If someone comes up with an explanation that is more accurate and can be objectively tested, then it will supplant Evolution.
The gripe of the "Darwinists" is that people are losing the ability to reason in a scientific manner. It is this ability to reason that created the Cultural and Industrial revolutions that led people to invent the modern world. The number of people who do not believe in Evolution is a symptom of a culture that does not understand or embrace a scientific methodology.
The alternative is a faith based methodology. The last time a faith based methodology dominated, we now call it the "Dark Ages." These two go hand in hand. The Darwinists don't want to see us return to a state of ignorance.
Apple has done pretty well off the bounce-back patent. Samsung lost on that in the Dutch court as well. Samsung would be wise to just get rid of TouchWiz, It is killing them in the courts.
My original comment was only intended to address the designs and not the software patents.
A little bit more on the Dutch case if you will. Apple appealed the ruling for the tablet and lost (the article), but in the original case, Apple also lost on look and feel (community design in Europe) on the phones, but I guess they didn't appeal that part.
Slashdot Mirror
All of Apple's contracts combined (display, processor, memory, etc) only account for about 3% of Samsung's annual revenue and probably less than 1% of their profits (components are typically low margin). While Apple is a big customer, they aren't really a "golden goose" for Samsung.
Except that the system hasn't been around for a long time. The USPTO only began widely issuing "software patents" since 1993 and the appointment of Bruce Lehman (an IP lobbyist) to head the USPTO. Before that, the stance of the USPTO was that software was not patentable and fought very hard against such patents in the courts. The change in leadership and direction at the USPTO, along with the Supremes taking a 20 year hiatus from hearing software patent cases, allowed the Federal Circuit to make software patents legal and the concept of what is patentable has expanded greatly ever since.
Public companies do NOT have a fiduciary duty to maximize profits, only to follow the company charter. Even in the most often cited case creating fiduciary responsibility to maximize profits, Dodge v. Ford Motor Company (1919), the court said this in regards to Henry Ford's desire to reduce the price of his cars for his stated, purely altruistic, motives (and in doing so cancel a special dividend to his shareholders):
" We do not draw in question, nor do counsel for the plaintiffs do so, the validity of the general proposition stated by counsel⦠that although a manufacturing corporation cannot engage in humanitarian works as its principal business, the fact that it is organized for profit does not prevent the existence of implied powers to carry on with humanitarian motives such charitable works as are incidental to the main business of the corporation."
My primary problem with your position is not that it is factually wrong (even though it is), but that "maximizing profits" is a purely subjective term and an impossible goal. Short-term and long-term profits have mutually exclusive components. For example, cutting r&d or laying off staff raises profits in the short term, but may lead to declining profits in the long term. Depending on your point of view, any corporate action could be construed as not maximizing profits.
The issue being discussed is smartphones, so it seems that excluding other devices is appropriate. That said, they don't really change the numbers all that much:
3rd quarter:
iOS: 14 million iPads, 6.8 million iPods, 26.9 million iPhones.
Android: 10.5 million tablets, 136 million phones
Total:
iOS: 47.7 million devices
Android: 146.5 million devices
Too late. Android's marketshare is 75% globally, compared to 17% for Apple.
http://news.cnet.com/8301-1035_3-57544131-94/android-beats-ios-5-to-1-in-q3-smartphone-market-share/
Not even close. Samsung doubled up Apple last quarter, 56 million phones to 27 million.
http://www.businesswire.com/news/home/20121025007003/en/Smartphones-Drive-Quarter-Growth-Worldwide-Mobile-Phone
Android marketshare was 75% of worldwide sales last quarter, compared to 15% for iOS. This time last year the numbers were 58% for Android and 14% for iOS.
http://news.cnet.com/8301-1035_3-57544131-94/android-beats-ios-5-to-1-in-q3-smartphone-market-share/
What ideas implemented by iPhone would you say were original?
I also voted by mail in CO. There was a "I voted" sticker attached to my mail-in ballot. I wonder if it comes down to which county you live in.
Apparently it isn't just computer nerds. Appeals court judges and Economics professors also believe our industry is "special" and patents are failing the industry.
http://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html
basically you obviously will bring your life experience to your role as a juror, but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?
"I like all flavors of ice cream, but banana flavored." You are interpreting this sentence to mean that I like all kinds of ice cream without exception. I am interpreting this sentence to mean that I do not like banana flavored ice cream. The "but" in the judges sentence is important because it qualifies the previous clause. In other words, the juror will bring their life experience to the trial, BUT they must "set aside" or not consider their patent experience.
all three should have been rejected with cause. Therefore, that's not the right interpretation.
So, your counter argument is that the judge didn't really mean what she said?!
I believe that he's referring to anticipatory prior art there, not "prior art" in general. If so, he's likely correct. It would depend on the specific claim limitations that were lacking or not performed by the older Samsung device. Just by way of example, if Apple's claims included a step of encoding something in BigEndian, and the Samsung device was LittleEndian, it couldn't be considered anticipatory prior art. It could still be used in an obviousness rejection, but it would require another device.
From the BBC interview:
Mr. Hogan:
"Prior art didn't mean that the prior art wasn't valid. It was valid. But the stipulation under the law is for the prior art to be sufficient to negate or invalidate the Apple patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.
And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error."
There is nothing in the '381 patent being discussed (7469381 if your interested in reading it for yourself) indicating the processor architecture (except to say "one or more processors." In fact, the technical requirements of the patent are a touchscreen, a processor, and memory. The entire rest of the patent describes the movement of the item on the screen, which Mr. Hogan says is "similar". His justification for not being anticipatory is that it wasn't physically "interchangeable" because the software couldn't be "loaded onto the older example and be run without error."
If he said that the movements described in the patent did not match the Diamondtouch device, there might be some truth to your claims, but that is not his rationale.
Are you going to claim that complete interchangeability is required for something to be anticipatory prior art?
First, I simply can't understand how you come to your reading of Judge Koh's statement to the jurors pertaining to patent experience. In my reading it could not be more clear, the juror must put aside their experience on patents even though they may use the remainder of their personal experience.
Actually, that was presented in court. Legally, patents are presumed valid. They can be invalidated only by a showing of clear and convincing evidence.
The concern of the jurors was invalidation by prior art, not whether patents are presumed valid. Mr. Hogan's anecdote changed other juror's definition of prior art. That insinuates that he shared his views on the legal definition of prior art.
It is true that we do not know the exact words used in Mr. Hogan's sharing of his patent experience. We do know that some jurors were confused about prior art before Mr. Hogan's story. We know that those jurors felt comfortable with prior art after the story. We also know that Mr. Hogan has an erroneous view of prior art. Does this all add up to a smoking gun that should immediately invalidate the verdict? No. However, I think there is enough here for Judge Koh to conduct an inquiry in order to determine if the foreman acted improperly.
Sure, but I'm not sure that was actually said at any point, or whether someone is mischaracterizing a statement about "these two pieces of prior art couldn't be combined and run effectively," which is the law. For example, take slide to unlock: bathroom doors usually have slide latches. Smart phones exist. Therefore, we can put a physical sliding latch from a bathroom door on a smart phone, and that invalidates the patent? Nope, the two pieces of art can't be combined that way. See KSR v. Teleflex. And that would have been discussed during trial.
Mr. Hogan is talking about an older Samsung device with the same functionality as the Apple device, but that uses a different microprocessor. He even goes so far as to discuss that the computer code that enacts the functionality (submitted by Samsung) is different from the computer code on the Apple device and, therefore, cannot be considered prior art. According to Mr. Hogan, the rest of the jury was swayed by this legal definition of prior art.
So? That's the job of the jury - argue amongst themselves until they come to a unanimous conclusion. It's not "take a straw poll and go with the majority." Basically, you're saying that Hogan acted properly.
This is not an anything goes free-for-all. There are boundaries to these discussions. For one, jurors cannot conduct their own experiments. For another, the jurors should use the legal definitions as presented by the court. Third, the jurors should use the evidence submitted in the case, seeking clarification from the court if necessary. They should not rely on the jury foreman as a expert on matters of law. There is significant evidence that Mr. Hogan convinced the jury that he was a subject matter expert and provided the jury with his own, incorrect, legal definitions and analysis. There is also evidence that Mr. Hogan's definitions significantly led the jury to vote how they did.
The judge has the power to conduct an inquiry into this situation and take sworn statements from the jurors. If your point is that Hogan is a lone voice here, then here is an quote from another juror, Manuel Ilagan, claiming that Hogan's analysis swayed the jury:
"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 similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...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."
Note here that it was Hogan, not the judge or lawyer, that explained the definition of prior art.
He says he talked about his life experiences, which the judge said they obviously would bring to the table
As mentioned repeatedly, the judge expressly instructed Hogan to not use his knowledge of patent law.
I'm not sure exactly what "aspects of the law not presented during the court proceedings" you're talking about.
Hogan presented two defenses for Apple's patents (though curiously used different criteria on the Samsung patents) that were not presented in the court by either party. The first is that because of the nature of the patent process itself, Apple's patents would already have been examined for prior art and, therefore, likely valid. The second was that if a piece of code will not run on the same system, they are not prior art (which is erroneous). There may also have been other claims by Hogan that have not made it into the press yet.
Neither party made either claim. According to Hogan, these new arguments swayed the jury from pro-Samsung to pro-Apple.
Personally, it appears to me that juror misconduct clearly occurred. However, having misconduct and that misconduct rising to the level requiring a new trial are different issues.
Fortunately, we know from Hogan what was said.
Emily Chang: Were you ever confused? Were other people ever confused?
Vel Hogan: I wasn't confused but there was a, a few of the jurors that were confused so what we did in the jury room before we did anything after we did the election of who was going to lead the jury I told them let's just lay out on the table any concerns or open questions you may have that's left over and let's just get that out of the way first.
Emily Chang: Now when you first got into the jury room initially, this was Wednesday right?
Vel Hogan: Yes.
Emily Chang: Was? There are reports that you were initially divided but did you, did you have a feeling this was going to sway overwhelmingly in Appleâ(TM)s favour?
Vel Hogan: No. No. In fact if you'd have asked me at that moment in time, I thought it was gonna ultimately maybe lean the other way.
Emily Chang: Why?
Vel Hogan: Why? We were at a stalemate but some of the jurors weren't sure of the patent prosecution process. Some weren't sure of how, ah, prior art could either render a patent accept... ah, acceptable or whether it could invalidate it and so what we did is we started talking about one and the day was over. When I was at home thinking about that patent, ah, claim by claim, limit by limit I had what we would call an aha moment.
Emily Chang: Um hmmm.
Vel Hogan: And I suddenly decided that I could defend this if it was my patent.
Emily Chang: Really?
Vel Hogan: Really. And with that, I took that story back to the jury, laid it out for 'em, they understood the points that I was talking about and then we meticulous, meticulously went patent by patent claim by claim against the test that the judge had given us because each area, each patent had a different ah legal premise to judge on. We got that all sorted out and decided which ones were valid, which ones weren't valid.
Emily Chang: So the initial stalemate that you found yourself in, what was that about?
Vel Hogan: It was about a particular, ah, patent, ah, the '460 patent, and whether or not the prior art really did invalidate that pattern, that patent and so with that moment I had, I realized that the software on the Apple side could not be placed into the processor on the prior art and vice versa.
Or how about...
Hogan: To try to make it as easy as possible - I have addressed this in other interviews that I have had - what it amounts to is there has been a big fuss since the deliberation that prior art was not considered. Prior art was considered.
When we had to determine the validity of Apple's patent against the charges of Samsung's with the prior art examples, what we had to do - to make it clear - is that not only did we have to validate, if you will, the Apple patent, but in looking at the prior art we had stipulations in the law that tested both sides and if the test wasn't passed then it was clear either the patent was valid or it wasn't.
Prior art didn't mean that the prior art wasn't valid. It was valid. But the stipulation under the law is for the prior art to be sufficient to negate or invalidate the Apple patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.
And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error.
continued from the same interview...
And we're talking about Samsung's patent claim about combining a mobile phone with email [and a camera]?
Hogan: Exactly, in fact that is the one issue that we left on Wednesday night, the first day of deliberation, that had hung us up. And I, being the foreman, said because we had
The rest of that instructions was
but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?
Mr. Hogan educating the jury on his experience with registering his patents and his understanding of the finer points of patent law would not violate this?
Second, jurors are allowed to bring their life experiences into the jury room - that's why they have voir dire in the first place. He brought in his patent experience, the programmer on the jury brought in his experience, etc.
From the voire dire, Judge Koh talking to Hogan:
THE COURT: Okay. All right. Would that in any way -- you'll be instructed on what the law is and would you be able to follow the instructions I give you on the law, even if it may not completely correspond to what you may know about the patent system or the intellectual property laws?
PROSPECTIVE JUROR: Yes, I follow your instructions. ...
THE COURT: Okay. All right. Thank you. Let's go, I think, to ms. Halim, Mr. Okamoto, and Mr. Hogan. You raised your hands. Okay. let's please start with Ms. Halim.
PROSPECTIVE JUROR: Okay. I have two patents. One is issued when I was at weitek, also I.C. Design. Another one was at silicon graphics.
THE COURT: And it was also on I.C. Design?
PROSPECTIVE JUROR: Yes, right.
THE COURT: Okay. Were patents issued?
PROSPECTIVE JUROR: Yes.
THE COURT: And you were the inventor on both?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay. All right. Anything from that experience -- basically you obviously will bring your life experience to your role as a juror, but would you be able to set that aside, your previous experience with patents, and decide this case based solely on the law as you're instructed and the evidence that's admitted during the trial?
PROSPECTIVE JUROR: Yes. ...
THE COURT: Now, same for Mr. Tepman, as well as to Mr. Hogan. You all have a lot of experience, but will you be able to decide this case based solely on the evidence that's admitted during the trial?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay. Mr. Hogan says yes. What about Mr. Tepman?
PROSPECTIVE JUROR: I think so, too.
It doesn't seem like the voire dire transcript entirely agrees with you. He was specifically instructed to not bring his patent experience into the jury room.
Agreed and even the "surge" spanned generations.
The LG Prada looks a lot like the iPhone to me. They both came about because advances in components allowed for designs that were impractical or impossible in prior years. Why do you think it is that Apple sat on the designs for the iPad and iPhone for years. Hint: When Apple first envisioned the iPad (they thought of the iPad before the iPhone) it was not technologically feasible to produce it.
Apple certainly influenced the market and design of smartphones, but other companies were already experimenting with designs very similar to the iPhone before it was released (the Prada is just an example of one that made it to production).
I think the point is more that someone didn't wake up one day and invent the steam engine out of thin air. What came to be known as the steam engine evolved slowly (over hundreds of years in the case of the steam engine) with incremental changes, not all at once.
Upon reading what I wrote, I realized I shouldn't have placed Creationism along with Intelligent Design. Creationism is perfectly fine as part of religious studies. Intelligent Design, however, is an attempt to make Creationism appear more scientific. Intelligent Design fails as a Science not because of its answers, but because it doesn't use a scientific methodology to arrive at those answers.
I sincerely believe that this is an illusion. Evolutionists see these evidences as persuasive because they believe they offer our best clues as to how Evolution works. But if someone seriously doubts that Evolution explains life's origin, they have no persuasive value. The Evolutionist sees enlightenment in peppered moth studies, the doubter sees wishful thinking.
Once again, Science is not about beliefs, only process. I can make falsifiable tests for evolution. I can observe evolution in nature. Why do you think parasites and diseases become resistant or even immune to drugs or insecticides? We can observe their genetic changes that give them that advantage. These experiments and observations are what gives Evolution the upper hand in the debate, not dogma.
Science does not care about religion, any religion (or atheism for that matter). Science is not a set of answers, it is a method to solve some questions. Any question for which falsifiable experiments or observations cannot be created, for example "Is there a God?", is a question that Science cannot answer.
My gripe is that the Darwinists are trying to hitch their unprovable atheistic views to the wagon of science. This undermines the whole idea that science involves impartial reasoning. Respect for and interest in science can only suffer as a result.
There are bad scientists. That does not mean we need more bad science, such as Creationism or Intelligent Design, to compensate for them.
, many of the founders of entire branches of science, such as Newton and Priestly believed in God,
Being religious does not preclude someone from being rational; nor does it preclude them from being a scientist. The important thing is not what you believe, it is process you use to find your answers. Atheists can, and frequently do, employ faith-based methodologies. They are not the exclusive purview of religion. The change that occurred during the Enlightenment is not that most of the thinkers were not religious, quite the opposite, but the methods they used to solve problems concerning the physical world changed.
I don't expect to persuade you. Anyone who "sincerely believes" enough will see what they want to see. There is nothing wrong with that and I think there is an important place for such things, but it isn't in Science.
All Science is speculative, this is just part of Science. Science is not a dogma, nor a belief of any kind. It is a methodology. It is a way of arriving at answers. Whether or not those answers are true to false is not part of Science. The theory of Evolution has the most evidence. It can be objectively tested and happens in laboratories constantly. If someone comes up with an explanation that is more accurate and can be objectively tested, then it will supplant Evolution.
The gripe of the "Darwinists" is that people are losing the ability to reason in a scientific manner. It is this ability to reason that created the Cultural and Industrial revolutions that led people to invent the modern world. The number of people who do not believe in Evolution is a symptom of a culture that does not understand or embrace a scientific methodology.
The alternative is a faith based methodology. The last time a faith based methodology dominated, we now call it the "Dark Ages." These two go hand in hand. The Darwinists don't want to see us return to a state of ignorance.
Apple has done pretty well off the bounce-back patent. Samsung lost on that in the Dutch court as well. Samsung would be wise to just get rid of TouchWiz, It is killing them in the courts.
My original comment was only intended to address the designs and not the software patents.
A little bit more on the Dutch case if you will. Apple appealed the ruling for the tablet and lost (the article), but in the original case, Apple also lost on look and feel (community design in Europe) on the phones, but I guess they didn't appeal that part.
http://www.osnews.com/story/25098/Apple_Scores_Meaningless_Dutch_Court_Victory_Against_Samsung
I encourage you to read the ruling for the Korean case. It ruled that Samsung violated the "bounce-back" patent, but was innocent as far as copying.
As for the Dutch case:
http://www.bbc.co.uk/news/technology-16704461