Revolving Door: US Copyright Office General Counsel Becomes IFPI Lobbyist

Crime Inc. Produces Thoughtful, Nuanced Episode About Piracy (Haha, Just Kidding! Cue Scary Music)

Samsung/Apple Jury Foreman's Explanation For Verdict Shows He Doesn't Understand Prior Art

from the uh-oh dept

Thu, Aug 30th 2012 11:32am — Mike Masnick

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: Basically, he's admitting that he doesn't understand how prior art works. The fact that the software wouldn't run on the same processor is meaningless. In fact, as Groklaw notes, the jury instructions (which Hogan again insists the jury read) note that to find prior art, you just have to show that the invention has already been done or even explained somewhere else. That's got nothing to do with whether or not it can run on the same processor.

Once again, we learn why it's silly to have juries determining patent cases.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: juries, patents, prior art, velvin hogan
Companies: apple, samsung

105 Comments

If you liked this post, you may also be interested in...

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...

—The Patent Examiner Guy

”

Subscribe: RSS

View by: Time | Thread

ltlw0lf (profile), 30 Aug 2012 @ 11:23am

facepalm...
So in the jury instructions and during the final statements at no point did anyone actually explain to the jury what "Prior Art" was? Or were they just too dense? I am going to have to go back and read the instructions to figure out what went wrong here. I am sure the Samsung lawyers will probably be doing the same.
[ link to this | view in thread ]
:Lobo Santo (profile), 30 Aug 2012 @ 11:42am

Re: facepalm...
I think expecting people to follow instructions was just too much to ask.
[ link to this | view in thread ]
Wally (profile), 30 Aug 2012 @ 11:43am

Re: facepalm...
Mind you this is strictly hypothetical, but if you engineered a patent together, wouldn't you have to know about prior art? I think this guy is trying to [unsuccessfully] cover his ass.
[ link to this | view in thread ]
ltlw0lf (profile), 30 Aug 2012 @ 11:46am

Re: Re: facepalm...
I think expecting people to follow instructions was just too much to ask.

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.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 11:46am

"Did Apple Just Help Samsung Sell A Ton Of Smartphones?"
Co-incidence?
[ link to this | view in thread ]
Mesonoxian Eve (profile), 30 Aug 2012 @ 11:50am

Question for you lawyers out there: do these interviews play a big part in appeals or are they not admissible?
[ link to this | view in thread ]
James, 30 Aug 2012 @ 11:53am

stupid
Since prior art is invalid because it can�t run on the apple processor and vice versa then these patents can�t apply because they cannot be ran on the Samsung device and vice versa
[ link to this | view in thread ]
Aliasundercover, 30 Aug 2012 @ 11:56am

Are juries really so silly?
I don't see how this jury is any worse than the appeals court and its blockhead towers of rationalization explaining why all the world is patentable while novelty and obviousness mean nothing.

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.
[ link to this | view in thread ]
Colin Davidson (profile), 30 Aug 2012 @ 11:57am

Re: facepalm...
From the jury instructions:

>>>
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.
[ link to this | view in thread ]
anon, 30 Aug 2012 @ 11:58am

Re:
Generally not admissible - you have to show some kind of very serious misconduct, not just stupidity. Otherwise every appeal would become a trial about the jury deliberations.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 30 Aug 2012 @ 12:03pm

WTF?
"... People trying to buy us. Both sides."

What the hell?
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 12:06pm

Once again, we learn why it's silly to have juries determining patent cases.

Once again, we fail to learn what the non-silly and yet still legally feasible, constitutional alternative would be.
[ link to this | view in thread ]
ltlw0lf (profile), 30 Aug 2012 @ 12:09pm

Re: Re: facepalm...
Mind you this is strictly hypothetical, but if you engineered a patent together, wouldn't you have to know about prior art? I think this guy is trying to [unsuccessfully] cover his ass.

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.
[ link to this | view in thread ]
Steerpike (profile), 30 Aug 2012 @ 12:10pm

Re:
I don't believe the Constitution guarantees a jury in every civil case, however. I suppose you could have specialized courts at the trial level, just as you have the Federal Circuit at the appeals level (not that the Federal Circuit is infallible).
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 12:11pm

Re:
The United States government should have just seized www.samsung.com, and kept it for as long as possible. Now that's justice.
[ link to this | view in thread ]
Mike Masnick (profile), 30 Aug 2012 @ 12:13pm

Re: WTF?
"... People trying to buy us. Both sides."

What the hell?

I think he said *bias us* not *buy us*.
[ link to this | view in thread ]
Steerpike (profile), 30 Aug 2012 @ 12:15pm

Watching the video, I get the sense that this guy (and probably the rest of the jury) really did try to do what they thought was correct under the law. I think that fact, in and of itself, can support Mike's contention that a jury isn't the best arrangement for patent cases. Having an arbiter that understands the nuances of the law better would lead to better decisions, and probably just as importantly more predictable decisions so that companies getting involved in an industry have a decent idea of the bounds of the patents in that field. This case makes it seem kind of like a crap shoot.
[ link to this | view in thread ]
Lord Binky, 30 Aug 2012 @ 12:18pm

Re: Re: facepalm...
"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"

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."
[ link to this | view in thread ]
Steerpike (profile), 30 Aug 2012 @ 12:19pm

Re: Re: Re: facepalm...
I wonder why they don't mention "obviousness?" It is true that for a patent claim to be anticipated, each and every element of the claim has to be present in a single reference. However, to be valid a patent claim must also be non-obvious, and that requirement of a single reference doesn't exist in that case.
[ link to this | view in thread ]
cosmicrat (profile), 30 Aug 2012 @ 12:20pm

Trial by the ignorant
The comments being made about the alternative to juries -ie professional judges bought and paid for by copyright maximalist interests, are very telling. That said I have personal knowledge of just how ignorant and dense the average jury pool can be, having served on a personal injury case that attempted to assign guilt to the innocent in order to gain an insurance payoff. It was obviously a scam, and yet almost half the jurors were convinced. Think about who serves on juries: smart worldly people get excused, the people who serve are disproportionately the unemployed, retirees, or other marginally worldly citizens.
[ link to this | view in thread ]
Trails (profile), 30 Aug 2012 @ 12:20pm

Re: Are juries really so silly?
Juries are similar to focus groups in that one or two dominant people tend to set the tone of the discussion.

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.
[ link to this | view in thread ]
Mason Wheeler, 30 Aug 2012 @ 12:21pm

juries
I don't think it's a bad idea to have juries for these trials. What I do think is a bad idea is having *ignorant* 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.
[ link to this | view in thread ]
Steerpike (profile), 30 Aug 2012 @ 12:22pm

Re: juries
Except in this case they actually left on the jury a guy who actually went through the process of obtaining a patent. I'm sure that came up during the process of questioning potential jurors.
[ link to this | view in thread ]
fogbugzd (profile), 30 Aug 2012 @ 12:24pm

Re: Re: Re: facepalm...
>>but I am not sure how the patent office thought it was novel.

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.
[ link to this | view in thread ]
Mike42 (profile), 30 Aug 2012 @ 12:26pm

Brain Trust
This is what happens when you bet a billion dollars on the opinions of 9 people who aren't smart enough to figure out how to get out of jury duty.
[ link to this | view in thread ]
Berenerd (profile), 30 Aug 2012 @ 12:32pm

is it me?
This guy is just a moron. I am sorry that apparently he is in the Tech industry and yet he knows nothing about how the simplest of tech and then lead others to believe as he did. I just can't stand to listen to the rest of the interview.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 12:41pm

Sounds like he got lazy and is trying to cover for it. He might as well have said hey guys lets just let Apple win so we can go home.
[ link to this | view in thread ]
Beta (profile), 30 Aug 2012 @ 12:42pm

Re: stupid
Alas, that works only if they get this guy into future juries. A stupid verdict becomes part of the law, but the stupid reasoning that leads to it does not.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 12:49pm

Re: Re:
This guy and basically all the other jurors agree that he 'convinced' them to vote with him. How is that not serious misconduct?
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 12:56pm

Re: juries
Unfortunately I think the old maxim that "a little knowledge is a dangerous thing" comes into play here. When you get people who think they understand the issues, but don't, you have problems. People tend to interpret the case through the filter of their past experiences and biases.

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.
[ link to this | view in thread ]
Someone Special, 30 Aug 2012 @ 1:00pm

Re: Re: Re: Re: facepalm...
According to the Groklaw article, obviousness was addressed in jury instruction no. 33.
[ link to this | view in thread ]
bshock, 30 Aug 2012 @ 1:05pm

Re:
A legally feasible, constitutional alternative to jury trials over patent infringement?

Not difficult at all: abolish the obscene, wealth-serving fiction known as "intellectual property."
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 1:09pm

Re: Re: Re: Re: facepalm...
Ooooh. Betcha nobody's patented using a web-controlled laser to tease a cat!

*runs off to patent office*
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 1:12pm

Re: "Did Apple Just Help Samsung Sell A Ton Of Smartphones?"
Headline: Samsung trying to figure out how to goad Apple into suing again. Cheaper than paying for advertising.

Headline: Samsung to release iGalaxy next month....
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 1:14pm

Re: Brain Trust
Some people enjoy jury duty.... My aunt loved to go.
[ link to this | view in thread ]
Someone Special, 30 Aug 2012 @ 1:14pm

Does the judge in this case have a certain amount of time to decide whether or not to overturn the juries decision? If so, when can such a decision be expected?
[ link to this | view in thread ]
Machin Shin (profile), 30 Aug 2012 @ 1:18pm

Re: Re: Re: Re: Re: facepalm...
*Runs into patent office right on your heels to get patent on "software to run a web-controlled laser to tease a cat"*
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 1:25pm

Re: Re: Re: Re: Re: Re: facepalm...
[Runs to patent office right on your heels to get patent on "hardware that runs software to run a web-controlled laser to tease a cat for you".]

Why? Because "why not?" that's why.
[ link to this | view in thread ]
Mr. Applegate, 30 Aug 2012 @ 1:28pm

Re: Re: Re:
Exactly what do you think happens in deliberations?

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.
[ link to this | view in thread ]
Wally (profile), 30 Aug 2012 @ 1:35pm

I'm just going to shorten the article for everyone:

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.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 1:38pm

Understand prior art? The jury never even took it into consideration.
This is an east TX type of decision.
[ link to this | view in thread ]
383bigblock (profile), 30 Aug 2012 @ 1:40pm

This is Scary Stuff
WOW....this guy's an idiot and pretty much single handily convinced a bunch of other idiots to award a Billion Dollars to a corporation (which we all know that these awards end up being included in price of future products)based on his own ignorant misunderstanding of "prior art". They should have picked a jury or group of individuals from the technology sector to hear this case. What's really sad is that he starts off with identifying himself as someone who understands technology.....maybe so just not Prior Art or jury instructions. Talk about a runaway jury. This is exactly what is wrong with our patent system. I'm pretty sure Apple is trying to figure out how to lower prices on their products once they get Samsung eliminated from the market being the good industry stewards that they are. As Bill Paxton would say....."Game Over....we're F'd"
[ link to this | view in thread ]
Machin Shin (profile), 30 Aug 2012 @ 2:00pm

Re: Re: Re: Re: Re: Re: Re: facepalm...
Well, the answer to "why?" is because we can easily get these patents.

Then we can all get together and sue each other in Texas because that is what we "innovators" do right?
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:01pm

Re: Re: Re:
There's absolutely nothing wrong with convincing other jurors to vote with you.

That's what the deliberations are supposed to be about.

Ain't you never seen 12 Angry Men!?
[ link to this | view in thread ]
Andrew F (profile), 30 Aug 2012 @ 2:03pm

Re: Re:
Certain questions of law in a patent infringement suit are usually left to a judge to decide -- e.g. claim construction, or what the language of a patent actually means.

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.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:05pm

Re: juries
Except, it seems like the opposite problem occurred in this case. You've got an engineer and patent owner as jury foreman.

So much for technically-minded juries being more likely to find invalidity.
[ link to this | view in thread ]
Another AC, 30 Aug 2012 @ 2:07pm

Re: Re: facepalm...
"so that someone of ordinary skill in the field looking at that one reference would be able to make and use the
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.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:08pm

so what punishment is he going to get? after all, he was a totally biased (has his own patents) member who influenced others to follow his path rather than examine the evidence and reach their own conclusions. had a 'proper job' been done, maybe Samsung would still have been found guilty but the damages would have been more reasonable. on top of that, Apple may have been shown as the 2 faced arse holes that they are as well!
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:19pm

Re: facepalm...
One of the big points in all of this is that they didn't read the jury instructions...
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:22pm

Why do they need ignorant people aka juries? Because without then Apple would not win the case.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:22pm

Why do they need ignorant people aka juries? Because without them Apple would not win the case.
[ link to this | view in thread ]
John Fenderson (profile), 30 Aug 2012 @ 2:23pm

Re: Re: Re: Re:
Not a lot to be done for it I am afraid. The system ain't perfect, but it's the best one out there.

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.
[ link to this | view in thread ]
Another AC, 30 Aug 2012 @ 2:31pm

In the jury of the blind...
Of the many things wrong with this trial, this guy might have been the worst.

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
[ link to this | view in thread ]
JEDIDIAH, 30 Aug 2012 @ 2:33pm

Re: Re: juries
I think the problem here is that this guy is just a jerk. I would view his patent as derivative nonsense. I would be embarrassed to file it myself. I would have been embarrassed to file it myself either in 2002 or 1999.

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.
[ link to this | view in thread ]
JEDIDIAH, 30 Aug 2012 @ 2:34pm

Even better...
So you've got 8 idiots and a crusader...
[ link to this | view in thread ]
JEDIDIAH, 30 Aug 2012 @ 2:35pm

Make him live in the world he wants to create...
I suggest he be forced to us nothing more sophisticated than MS-DOS and no other tech that is less than 20 years old.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 2:55pm

Re: Make him live in the world he wants to create...
But MS-DOS was ripped off from CP/M.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 3:19pm

Re: Re: facepalm...
Expecting people to *listen to the instructions as they were read to them* was just too much to ask. God forbid the jurors have to read or take things seriously and act like adults when they are chosen to decide a legal case. It's more instantly gratifying to tune the judge out and then make stupid quick decisions: instead of debate, they tabled the controversy to revisit the vote when everyone is tired and not wanting to start over again. Source- the jury foreman in this articles video. All just to go home for the weekend, because why the fuck should jurors care about the greater good when ITS THE WEEKEND.
[ link to this | view in thread ]
Jeremy, 30 Aug 2012 @ 3:21pm

That is PAINFUL to watch!
They're both morons. He doesn't know what he's talking about, and she's asking him questions as if he's an expert on all things tech.

dear god... I lost a lot of faith in humanity today.
[ link to this | view in thread ]
"Innovator", 30 Aug 2012 @ 3:37pm

Re: Re: Re: Re: Re: Re: Re: Re: facepalm...
Yes that is right.
[ link to this | view in thread ]
That Anonymous Coward (profile), 30 Aug 2012 @ 5:08pm

Re: Re: facepalm...
I think expecting people to follow instructions, and ignore the patent holder in the room making up his own rules, was just too much to ask.

FTFY.
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 6:19pm

Re: Re: Re: Re:
not allowed due to the prior art of "Twelve Angry Men"
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 6:30pm

Re: Re: Re: Re: Re: Re: facepalm...
Runs into patent office to file patent for software for web-controlled laser to tease cat stipulating that my software won't run on the processor your software runs on and vice versa. That totally changes everything.
[ link to this | view in thread ]
Jonathan, 30 Aug 2012 @ 6:40pm

Crazy
What a joke of a system and process, how can things like this happen, when I read some of the case notes and details I can't understand how some decisions are made... also it's a rather highly important legal issues is it not... by the sounds of things the Jury has no legal idea on any thing, they could not even follow there own instructions on what to do yet alone try and understand law which is at best of times complicated and hard to follow...

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!
[ link to this | view in thread ]
Wally (profile), 30 Aug 2012 @ 6:53pm

Re: Re: Re: Re: Re: Re: Re: facepalm...
Win ^_^
[ link to this | view in thread ]
Laroquod (profile), 30 Aug 2012 @ 7:02pm

Re: Re: stupid
You've missed the point. How is it that Samsung is liable IN THIS CASE for infringing Apple's patents IN THIS CASE even though Samsung's software will not run on an iPhone? The foreman decided the issue one way to dismiss non-Apple prior art, and then discarded that reasoning a short while later in order NOT to dismiss Apple's prior art. The whole thing smells fishy and I call bullshit on this whole set of reasoning -- I don't believe that's the reason this verdict came out the way it did. I think the foreman and the rest of the jury went in with their minds made up and then just rationalised whatever it would take to get there -- the foreman was very helpful in that regard.
[ link to this | view in thread ]
Wally (profile), 30 Aug 2012 @ 7:04pm

Re: Re: Make him live in the world he wants to create...
Not sure how relevant this is but here:

http://en.wikipedia.org/wiki/Punched_card#_
[ link to this | view in thread ]
Beta (profile), 30 Aug 2012 @ 7:32pm

Re: Re: Re: stupid
Damn it, you're right. (In my defense, I realized my error and was preparing to eat my words before I saw your comment.)
[ link to this | view in thread ]
Cynyr (profile), 30 Aug 2012 @ 8:30pm

Re: Re: Re:
we could still have a trial with a jury, even if it wasn't a jury of randomly selection people. How about software patent cases should have a jury of 12 random professional programmers in the same space as the patent covers. So for example, 12 consumer device software programmers in this case for the software patents and 12 different jurors for the physical design patents, those that work in the mechanical design of portable consumer devices.
[ link to this | view in thread ]
artp (profile), 30 Aug 2012 @ 8:39pm

This just in -
From the BBC: http://www.bbc.com/news/technology-19425051

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.

So just quit fussing, youse guyse. He knows what he's doing and you're wrong!
[ link to this | view in thread ]
Anonymous Coward, 30 Aug 2012 @ 9:07pm

The video embed shows as a YouTube embed on the individual-article page, but on the blog index page it shows as an Insider Chat widget instead. Why is that? It's not the only one behaving that way, either.
[ link to this | view in thread ]
Graham J (profile), 30 Aug 2012 @ 9:23pm

Wrong again Mike
Just give it up Mike. All the post-mortem nit picking in the world doesn't change the fact that Sammy obviously ripped off Apple. The nits are just how a patent case is fought, they're not really the point.
[ link to this | view in thread ]
Smirnoff, 30 Aug 2012 @ 11:26pm

Re: Wrong again Mike
Yes, because "slide to unlock" is soooo worthy of being given an exclusive commercial monopoly!
[ link to this | view in thread ]
techflaws (profile), 31 Aug 2012 @ 12:10am

Re: Wrong again Mike
Obviously my ass.
[ link to this | view in thread ]
Bojan Markovic, 31 Aug 2012 @ 2:53am

Re: Re: facepalm...
Thing is that this guy has a direct interest in a legal precedent that justifies patent claims despite the fact that there was prior art (as he practically patented TiVo two years after it hit the market).

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.
[ link to this | view in thread ]
Andrew D. Todd, 31 Aug 2012 @ 3:41am

A Court in Washington With a Jury
The Board of Patent Appeals and Interferences (BPAI) does not need juries, because it is an administrative court, not a civil court. The patent applicant or patent holder is complaining against the Patent Office for not granting him a patent, or for canceling his patent. At this level, someone who merely supplied information in a Request for Reexamination is no longer a party to the case. A court for examining claims of infringement is, however, a civil court, and it does have to have 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.
[ link to this | view in thread ]
The Patent Examiner Guy (profile), 31 Aug 2012 @ 5:02am

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...
[ link to this | view in thread ]
Jeremy Lyman (profile), 31 Aug 2012 @ 5:57am

Re: Re:
Woah. Yeah, billions of dollars in IP infringement by a foreign run company? You'd think ICE would be all over them like... well, like ICE on Dajaz1.
[ link to this | view in thread ]
Jeremy Lyman (profile), 31 Aug 2012 @ 5:59am

Re: is it me?
It is not just you.
[ link to this | view in thread ]
Jeremy Lyman (profile), 31 Aug 2012 @ 6:02am

Re: That is PAINFUL to watch!
And most people watching the interview will not realize that neither of them have a clue. Wait for it... ah, there's the despair.
[ link to this | view in thread ]
Jeremy Lyman (profile), 31 Aug 2012 @ 6:08am

Re: This just in -
I hate people who consider themselves "experts" in something and refuse to accept input or consider the possibility that they are misinformed. Basically this.

It is a wise man who knows that he knows nothing
[ link to this | view in thread ]
Donglebert the Lengthy, 31 Aug 2012 @ 6:35am

Re: Re: Re: Re: Re: Re: Re: facepalm...
[Runs to patent office right on your heels to get patent on "mobile hardware that runs software to run a web-controlled laser to tease a cat for you".]

[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.]
[ link to this | view in thread ]
Codgerwilts, 31 Aug 2012 @ 11:30am

Re:
What if the Jury had an impartial advisor. Someone that they could ask about the vageries of the law during their deliberations. Not to ask about the case directly, hopefully that would have been concluded in the court room. I don't know, I have seen some court cases and lawyers do speak a lot of gobbledegook sometimes.
[ link to this | view in thread ]
Hector Salamanca (profile), 31 Aug 2012 @ 12:40pm

The jury does have an impartial advisor. He is call the "Judge". They are allowed to ask the judge question during their deliberations.
[ link to this | view in thread ]
Gryphon, 31 Aug 2012 @ 12:48pm

Lawyer for Samsung: Your honor, why does the jury all have new iPads, and... are those iPhone sixes?

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.
[ link to this | view in thread ]
Gryphon, 31 Aug 2012 @ 12:51pm

Re: Wrong again Mike
Just like Apple ripped of Gene Roddenberry and the Star Trek franchise.
[ link to this | view in thread ]
Faith, 31 Aug 2012 @ 2:17pm

Stupid
This juror was an is a idiot and a liar.
[ link to this | view in thread ]
Derek Kerton (profile), 31 Aug 2012 @ 2:23pm

Bunch of Cavement Evaluate Trains
In the case of this jury, we have 12 people, none of which ever owned a smartphone, evaluating whether two smart phones are too similar. How are they qualified to know? How are they "peers" with the product makers?

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?
[ link to this | view in thread ]
Lennart Regebro, 31 Aug 2012 @ 2:39pm

Wait, what?
If hardware incompatibility means the prior art isn't valid from one platform to another, then the patent isn't valid from one platform to another either, and then Samsung can not have infringed any of Apples patents.
[ link to this | view in thread ]
jimmy, 31 Aug 2012 @ 2:43pm

Re: WTF?
I thought the same thing at first, but I think it's "bias us"

Even so, it's still stupid: it's trying to persuade, not trying to bias.
[ link to this | view in thread ]
Mike P, 31 Aug 2012 @ 6:22pm

Hey, it's just $1 billion. Why bother trying to understand all the jury instructions or use logic in making decisions. Yeah I'm being sarcastic. These verdicts are more troubling the more I hear.
[ link to this | view in thread ]
Anon, 31 Aug 2012 @ 7:45pm

Re: Re: Re: facepalm...
There are a limited number of strikes during jury selection. Lawyers can't get rid of everyone who might be a problem.
[ link to this | view in thread ]
Starke (profile), 1 Sep 2012 @ 1:05am

Re: Re: Re: Re: facepalm...
Also, simply having a patent doesn't mean you [i]can't[/i] look at a case like a sane and rational individual...

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.
[ link to this | view in thread ]
Starke (profile), 1 Sep 2012 @ 1:07am

Re: Re: Re: Re: Re: Re: Re: facepalm...
Files a patent for a cat that has been teased by a laser pointer.
[ link to this | view in thread ]
Starke (profile), 1 Sep 2012 @ 1:10am

Re: Re: Are juries really so silly?
They're also like focus groups in that they can't really say anything useful or intelligent, but we're forced to listen to their opinions anyway.
[ link to this | view in thread ]
Starke (profile), 1 Sep 2012 @ 1:12am

Re:
Arbitration, which was an avenue open to them. No, the fact of the mater is, we actually get these jury trials because the companies involved actually want them.
[ link to this | view in thread ]
gnudist, 1 Sep 2012 @ 10:19am

Re: Wait, what?
Came here to say this. WTF jury guy?
[ link to this | view in thread ]
Wally (profile), 1 Sep 2012 @ 1:26pm

Re: Re: Re: Re: Re: Re: Re: Re: facepalm...
Claims prior art due to Philip K. Dick's book "Do Androids Deam of Electric Sheep?".
[ link to this | view in thread ]
Wally (profile), 1 Sep 2012 @ 1:29pm

Re: Bunch of Cavement Evaluate Trains
Perhaps we can agree to say both?
[ link to this | view in thread ]
Anonymous Coward, 1 Sep 2012 @ 1:56pm

Bought!!!
[ link to this | view in thread ]
phlynhi (profile), 1 Sep 2012 @ 2:44pm

Punitive v. Compensatory (or, is this a 1D10T error?)
Can someone please go to minute 6:30 and explain to me how his updated explanation clarifying that this award wasn't punitive makes any more sense than his first statement that he is trying to explain away?
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...
[ link to this | view in thread ]
Sheogorath (profile), 1 Sep 2012 @ 10:12pm

Potential patent invalidation
From the jury instructions:
>>>
"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!
[ link to this | view in thread ]
Robbie Walker, 2 Sep 2012 @ 6:52am

Juries vs internet "Experts"
What this actually shows is that the internet is just as stupid about patent law as it is about everything else and that Mike Masnick doesn't understand the subject that he is posting about.

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.
[ link to this | view in thread ]
Anonymous Coward, 2 Sep 2012 @ 10:23am

Well, what I experienced with the jury selection process scared the s**t out of me.
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.
[ link to this | view in thread ]
Andrew D. Todd, 3 Sep 2012 @ 9:28am

Prior Art and Immediate Obviousness (to Robbie Walker, #103).
There is a tendency to confuse prior art with immediate obviousness. If you like, prior art is the vocabulary, and immediate obviousness is the grammar. Read the key Supreme Court decisions, KSR v. Teleflex and Mayo v. Prometheus. Computer and software patents are almost always compound patents, because the basic components were invented a long time ago, back in the 1940's and 1950's. This is, such patents routinely recite combinations of prior-art-ed devices and algorithms, and claim the combination. One generally finds that each of these component devices or algorithms is used in the way that it has always been used. The Supreme Court has affirmed that many kinds of combinations are immediately obvious to a Person of Ordinary Knowledge in the State of the Art, that such a person is also a person of ordinary inventiveness. KSR v. Teleflex specifically refers to similar solutions in other domains, as I recall.

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.
[ link to this | view in thread ]

Revolving Door: US Copyright Office General Counsel Becomes IFPI Lobbyist

Crime Inc. Produces Thoughtful, Nuanced Episode About Piracy (Haha, Just Kidding! Cue Scary Music)

Follow Techdirt

Essential Reading

The Techdirt Greenhouse

Read the latest posts:

read all »

Techdirt Deals

Report this ad | Hide Techdirt ads

Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Friday
19:39	Important Announcement: Techdirt Is Migrating To A New Platform (0)

Samsung/Apple Jury Foreman's Explanation For Verdict Shows He Doesn't Understand Prior Art

from the uh-oh dept

Reader Comments

Re: Re: Re: facepalm...

facepalm...

Re: facepalm...

Re: facepalm...

Re: Re: facepalm...

"Did Apple Just Help Samsung Sell A Ton Of Smartphones?"

stupid

Are juries really so silly?

Re: facepalm...

Re:

WTF?

Re: Re: facepalm...

Re:

Re:

Re: WTF?

Re: Re: facepalm...

Re: Re: Re: facepalm...

Trial by the ignorant

Re: Are juries really so silly?

juries

Re: juries

Re: Re: Re: facepalm...

Brain Trust

is it me?

Re: stupid

Re: Re:

Re: juries

Re: Re: Re: Re: facepalm...

Re:

Re: Re: Re: Re: facepalm...

Re: "Did Apple Just Help Samsung Sell A Ton Of Smartphones?"

Re: Brain Trust

Re: Re: Re: Re: Re: facepalm...

Re: Re: Re: Re: Re: Re: facepalm...

Re: Re: Re:

This is Scary Stuff

Re: Re: Re: Re: Re: Re: Re: facepalm...

Re: Re: Re:

Re: Re:

Re: juries

Re: Re: facepalm...

Re: facepalm...

Re: Re: Re: Re:

In the jury of the blind...

Re: Re: juries

Even better...

Make him live in the world he wants to create...

Re: Make him live in the world he wants to create...

Re: Re: facepalm...

That is PAINFUL to watch!

Re: Re: Re: Re: Re: Re: Re: Re: facepalm...

Re: Re: facepalm...

Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: facepalm...

Crazy

Re: Re: Re: Re: Re: Re: Re: facepalm...

Re: Re: stupid

Re: Re: Make him live in the world he wants to create...

Re: Re: Re: stupid

Re: Re: Re:

This just in -

Wrong again Mike

Re: Wrong again Mike

Re: Wrong again Mike

Re: Re: facepalm...

A Court in Washington With a Jury

Re: Re: Re: facepalm...

Re: Re:

Re: is it me?

Re: That is PAINFUL to watch!

Re: This just in -

Re: Re: Re: Re: Re: Re: Re: facepalm...

Re:

Re: Wrong again Mike

Stupid

Bunch of Cavement Evaluate Trains

Wait, what?