Samsung/Apple Jury Foreman's Explanation For Verdict Shows He Doesn't Understand Prior Art
from the uh-oh dept
We had already noted what appeared to be serious problems with the way the jury decided the verdict in the Apple/Samsung case -- including ignoring prior art, awarding damages on patents not infringed, and an admission of choosing punitive damages, despite instructions that clearly bar such an action. And it seems to only be getting worse. Groklaw points out that Velvin Hogan, the controversial jury foreman, went onto Bloomberg TV to defend himself, but only served to make things worse, by more or less admitting to not understanding how prior art works.As was discussed in the previous post, the jury initially got hung up on the question of prior art on the first patent (7,469,381 -- better known as the "bounceback patent" -- covering how when you scroll and hit the edge of a "page" the screen "bounces back.") However, in this interview, Hogan explains the "aha!" moment he had that led him to suggest to the jury that the prior art doesn't apply:
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.You can see him say this in the video below, around the 3 minute mark:
Once again, we learn why it's silly to have juries determining patent cases.
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Filed Under: juries, patents, prior art, velvin hogan
Companies: apple, samsung
Reader Comments
The First Word
“Re: Re: Re: facepalm...
Well, I'm actually a patent examiner and can say, with no doubt, that 12 people at random cannot judge obviousness (or even novelty). I've seen trained examiners, already 1 or 2 years in house, with PhD's and experience in whatever field, struggle with it, let alone 12 jurors with random or non-existent technical backgrounds with 3 weeks pseudo-experience in assessing prior art...Subscribe: RSS
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facepalm...
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Re: facepalm...
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Re: Re: facepalm...
Well, it was on page 44 of the jury instructions, and they figured the judge read it off before the closing statements so they already heard all of the instructions.
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Re: Re: facepalm...
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FTFY.
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Re: facepalm...
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Re: Re: facepalm...
Not necessarily. His patent (http://www.freepatentsonline.com/7352953.html) is for a device similar to a TIVO, two years after TIVO was introduced. It had some differences, but I am not sure how the patent office thought it was novel.
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Re: Re: Re: facepalm...
Probably in the same way the patent office thought that the fourth patent granted for how to tease a cat with a laser pointer was novel and different than the first three that it had granted. And also that teasing a cat with a flashlight (also patented) did not constitute prior art.
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Re: Re: Re: Re: facepalm...
*runs off to patent office*
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Re: Re: Re: Re: Re: Re: facepalm...
Why? Because "why not?" that's why.
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Re: Re: Re: Re: Re: Re: Re: facepalm...
Then we can all get together and sue each other in Texas because that is what we "innovators" do right?
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Re: Re: Re: Re: Re: Re: Re: Re: facepalm...
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Re: Re: Re: Re: Re: Re: Re: facepalm...
[Also runs to the patent office to get a patent on "bouncing around a mobile device with an active screen on the end of a line attached to a fishing rod with the intended outcome of teasing a cat"].
[Also wants to register "fishing with mobile phones" as a trademarked sport.]
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Re: Re: Re: Re: Re: Re: facepalm...
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Re: Re: Re: Re: Re: Re: Re: Re: facepalm...
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Re: Re: facepalm...
If I was Sammy USA CEO I'd have those lawyers fired and find another company to defend me. They should, and could have dismissed this guy but didn't.
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Re: Re: Re: facepalm...
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Re: Re: Re: Re: facepalm...
To be fair, asking a guy with a patent that should have been invalidated on prior art to sit on a jury that was ruling on prior art was probably a mistake, but at least it's also grounds for appeal.
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Re: facepalm...
>>>
A utility patent claim is invalid if the claimed invention is not new. For the claim to be invalid
because it is not new, all of its requirements must have existed in a single device or method that
predates the claimed invention, or must have been described in a single previous publication or
patent that predates the claimed invention. In patent law, these previous devices, methods,
publications or patents are called �prior art references.� If a patent claim is not new we say it is
�anticipated� by a prior art reference.
The description in the written reference does not have to be in the same words as the claim, but all
of the requirements of the claim must be there, either stated or necessarily implied, so that someone
of ordinary skill in the field looking at that one reference would be able to make and use the
claimed invention.
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Re: Re: facepalm...
because it is not new, all of its requirements must have existed in a single device or method that
predates the claimed invention"
This always makes me think, well "Well, My invention has a clock. Does your's have a clock? No? Then there's no prior art."
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Re: Re: Re: facepalm...
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Re: Re: facepalm...
claimed invention"
This is what I've always thought was odd... choosing 12 random people out of society means the odds are quite low that a jury will have anyone 'of ordinary skill in the field' of relevance, yet they have to decide what 'someone of ordinary skill in the field' would think.
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Re: Re: Re: facepalm...
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Re: facepalm...
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"Did Apple Just Help Samsung Sell A Ton Of Smartphones?"
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Re: "Did Apple Just Help Samsung Sell A Ton Of Smartphones?"
Headline: Samsung to release iGalaxy next month....
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Re:
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Having served on a couple of juries, I can assure that is what HAS to happen.
You convince others that there point of view is wrong (or yours is right), or skewed or... based on the evidence and jury instructions.
The problem comes in when you have too many sheep and only one wolf, er um shepherd in the jury room.
Not a lot to be done for it I am afraid. The system ain't perfect, but it's the best one out there.
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Re: Re: Re: Re:
Is it the best one out there? I'm not so sure. But even if it is, that's no reason to be satisfied with it.
When the justice system results in injustice, should we fix it? Of course, if we're really going to fix the justice system, then there are more glaring and important problems that should be addressed first.
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Re: Re: Re:
That's what the deliberations are supposed to be about.
Ain't you never seen 12 Angry Men!?
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stupid
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Re: stupid
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Are juries really so silly?
Actually they are much less damaging. They can only foul up one case but can not set precedent. Their power to make even this much mess flows from the real villains who made the rules compelling the patent office to hand out monopolies like they were halloween candy.
What would taking juries off patent cases really do? Get us better professional lies instead of obvious gaffes like this? We have the focused professional appeals court and they led the charge creating our patent mess in the first place.
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Re: Are juries really so silly?
It seems in this case the dominant person (the foreperson) also has some skin in the patent game and that appears to have driven some of his thinking.
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Re: Re: Are juries really so silly?
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WTF?
What the hell?
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Re: WTF?
What the hell?
I think he said *bias us* not *buy us*.
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Re: WTF?
Even so, it's still stupid: it's trying to persuade, not trying to bias.
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Once again, we fail to learn what the non-silly and yet still legally feasible, constitutional alternative would be.
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Re:
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Re: Re:
That said, I believe the Federal Circuit has read the Seventh Amendment to guarantee a jury trial for patent infringement, insofar as there is a question of fact -- e.g. whether a product fits within the language of the patent as construed by the judge.
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Re:
Not difficult at all: abolish the obscene, wealth-serving fiction known as "intellectual property."
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Trial by the ignorant
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juries
One of the first things the lawyers (on both sides) tend to do in a case like this, during the process of jury selection, is dismiss anyone who might have technical knowledge relevant to the case. Seems to me that that's the problem right there! Does the law not explicitly specify that jury trials require a trial *of your peers*? The selection process should be the exact opposite: send away anyone *without* knowledge of the technical matters at hand.
Any lawyer who specifically seeks to exclude competent peers from a jury needs to be disbarred. Maybe then we'd see sanity return to tech trials.
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Re: juries
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Re: juries
In this case the foreman explicitly says here that he approached evaluating the patents as though they were his own and asking if he could defend them, a process suggested by his own experience filing a patent. If he had instead started from the position of the opposition and questioned whether he could defend against each patent, he might have reached a different decision. But that's not the side he has experienced in the past.
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Re: Re: juries
I would view it as something that either demonstrates me to be a fool or a liar.
I would view these things in terms of how I would go about recreating them. I might also keep this in mind in terms of damages.
If I were forced to assign damages to these patent violations I would base it on the effort required to "invent" them. Perhaps I might estimate the man hours required and multiply that by some standard contract rate for the relevant experts.
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Re: juries
So much for technically-minded juries being more likely to find invalidity.
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Brain Trust
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Re: Brain Trust
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Even better...
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is it me?
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Re: is it me?
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The idiot is trying to cover his ass and won't admit that he is a fraud. The concept of prior art has to do with designing concepts in two ways.
Filing a mockup of the device ("device" could mean anything as long as it is conceptually drawn on paper) or making the schematics with references to the essential industry standard patents required to build around said schematics.
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This is an east TX type of decision.
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This is Scary Stuff
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Make him live in the world he wants to create...
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Re: Make him live in the world he wants to create...
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Re: Re: Make him live in the world he wants to create...
http://en.wikipedia.org/wiki/Punched_card#_
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In the jury of the blind...
Anyone looking for more info on this travesty of a civil servant and his "patent" that he was so adamant to base his ruling on should check out this report. Intangible asset finance firm M�CAM provides a great perspective.
http://www.m-cam.com/patently-obvious/regione-caecroum-rex-est-luscus-or-jury-blind-ve lvin-hogan-king
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That is PAINFUL to watch!
dear god... I lost a lot of faith in humanity today.
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Re: That is PAINFUL to watch!
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Crazy
How is it that these 'every day people' are able to decide the fate and come up with a dollar value they think is fair when they clearly have no idea on the basics of what THEY are suppose to do and what there responsibilities and function is yet along making decisions for multi billion dollar company's... What a crazy system and process... Sorry no respect and I really feel sorry for Samsung as they are clearly not the only phone company and Apple on the other hand is by no means a company that invented or came up with the idea's... yet some how they manage to patent idea's that they did not even come up with... CRAZY TIMES!
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This just in -
So just quit fussing, youse guyse. He knows what he's doing and you're wrong!
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Re: This just in -
It is a wise man who knows that he knows nothing
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Wrong again Mike
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Re: Wrong again Mike
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Re: Wrong again Mike
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Re: Wrong again Mike
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A Court in Washington With a Jury
However, nothing in the constitution says that a civil jury has to be in one place. Suppose that there is a Patent Infringement Court, attached to the Patent Office, and probably borrowing judges from the BPAI. It assembles a national jury. Prospective jurors report to the U.S. Courthouses of the districts in which they reside, where they are examined by teleconferencing, to reduce the jury pool to a reasonable number. Depending on circumstances, they may hear the case and deliberate via teleconferencing, or at some point in the proceedings, they may be flown to Washington.
Now, as to the issue of jury qualifications, I would suggest that the jury pool for patent cases be drawn from Licensed Professional Engineers. Licensed Professional Engineers are preponderantly civil engineers. Many electrical and mechanical engineers do not regard it as worth the trouble to become licensed, because their work does not ordinarily involve working directly with the public. At the same time civil engineers have comparatively little engagement with the patent system. The kinds of things civil engineers do are locally particularistic, eg. examining the soil under a particular structural foundation. The technology of civil engineering is comparatively stable, in the sense that new products are not so much better as to justify wholesale replacement. There is no "Reardon Metal." Building a better road, or a better railroad track is mostly a matter of building better foundations. Large sections of the physical plant on which civil engineers work are a hundred years old, and the civil engineer frequently has cause to admire the Roman engineers who built thing like the Pont Du Gard in France, or the Via Appia. The most difficult civil engineering jobs tend to involve working for the government. It is virtually impossible to be an uber-capitalist in civil engineering, given that so much of the critical raw material belongs to the public. The most powerful men, such as Robert Moses of New York, have been civil servants. While civil engineers do not ordinarily know very much about computers or electronics or molecular biology, they do have a considerable capacity to learn such subjects.
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Judge, wearing a "Think differently" shirt: I have no idea, can we please proceed with the show trial... I mean trial.
I know that it probably isn't that way, but it sure feels like it.
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Stupid
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Bunch of Cavement Evaluate Trains
How odd, too, that none have smartphones. In the USA, 54% now have them, and I would suspect that number to be higher in San Jose. So what filter removed all smartphone users from the jury in favor of luddites?
If I asked two cavemen to evaluate a claim between a steam locomotive maker against an electric locomotive maker, I'm pretty sure they would see both locomotives as pretty much the same thing, despite the vast differences. From a primitive perspective, they both produce pretty much the same result. Just as this jury could not see the vast differences between the Galaxy UI and the iOS UI.
And what legal team failed to teach them the differences?
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Re: Bunch of Cavement Evaluate Trains
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Wait, what?
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Re: Wait, what?
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Punitive v. Compensatory (or, is this a 1D10T error?)
I'm getting something like: It wasn't punitive, it was to make an example for the industry that if you're found to be infringing, you'll be punished for it. But we're not punishing here. We're just making an example of Samsung.
Still doesn't sound compensatory to me, but maybe I'm stoopid...
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Potential patent invalidation
>>>
"A utility patent claim is invalid if the claimed invention is not new. For the claim to be invalid because it is not new, all of its requirements must have existed in a single device or method that predates the claimed invention, or must have been described in a single previous publication or patent that predates the claimed invention. In patent law, these previous devices, methods, publications or patents are called �prior art references.� If a patent claim is not new we say it is "anticipated� by a prior art reference. The description in the written reference does not have to be in the same words as the claim, but all of the requirements of the claim must be there, either stated or necessarily implied, so that someone of ordinary skill in the field looking at that one reference would be able to make and use the claimed invention."
Which means that all patents on existing mobile devices have always been invalid since L. Frank Baum pretty much described cell phones and tablets in 'The Master Key: An Electrical Fairy Tale' in 1901, long before the 'brick on a strap' was a twinkle in its inventor's eye!
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Juries vs internet "Experts"
Patents have to be specific. Imaginary devices and references in literature are NOT prior art. A similar solution in a different domain is NOT prior art.
The foreman was correct. Samsung violated Apple's patents. They KNEW they were violating them. They got off very easy.
Get over it. If you don't like the current patent laws, elect lawmakers who will change them.
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Prior Art and Immediate Obviousness (to Robbie Walker, #103).
For example, it is immediately obvious that, given sufficient memory, any computer can be emulated by a computer program, and that this computer program can be compiled to run on any computer. Circa 1960, IBM solved backwards compatibility problems with a couple of generations of emulator programs, before establishing a standard architecture with the System/360 in 1964. Many people in many places have done emulation. Just off the top of my head, Tracy Kidder describes emulation of a computer in the process of being designed in _The Soul of a New Machine_ (1981). Anthony Ralston's _Encyclopedia of Computer Science_ (1976) contains a short article on emulation,with multiple references. Someone reading these descriptions could be expected to grasp that they applied to computers in general, not just to one particular computer. Circa 1985, I personally developed a paper board game, for educational purposes, in which the player was to emulate a computer, moving around pins stuck in the game board to represent bits, and doing so according to directions from a manual. Velvin Hogan's understanding of emulation is profoundly strange, to put it no higher.
It is immediately obvious that a program which once ran on a big, expensive, and heavy computer can eventually run on a small, cheap, and portable computer. That is known as Moore's Law. I don't see how Hogan could possibly be so ignorant as not to know about Moore's Law. Similarly, a personal computer incorporates a terminal, even though it hasn't been since the Altair, or thereabouts, that the computer and the terminal were in separate boxes. Similarly, there are systematic resource models, such as the OSI network layer model, which have been taught in the schools for more than twenty years.
This is of course inconvenient for Apple, because it means that there are a good sixty years of prior art to draw upon, all the way back to Project Whirlwind. I realize that there are a lot of Apple Fanboys who have never learned to program. Apple products seem to target the kind of customer who doesn't need either a word processor or programming tools, and who communicates primarily via 140 character tweets.
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Of the 30 some prospective jurors for a murder case, at least 3/4 of them did NOT pay attention to anything, did NOT follow instructions, and generally acted 'stupid' and disrespectful.
I expected the judge to throw some of them in jail for contempt!
I thought, "Damn! I can't believe these are examples of "MY peers". I sure wouldn't want to be on trial for something because I don't believe it's possible to get a fair trial because people are too stupid."
Remember hearing about our sucky education system? Well, here's one [of thousands] example of the consequences.
I sure hope this is appealed by Samsung.
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