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: 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.

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

Apple/Samsung Jurors Admit They Finished Quickly By Ignoring Prior Art & Other Key Factors

from the rushing-to-get-things-done dept

Late Friday afternoon, the jury in the Apple/Samsung patent dispute surprised just about everyone by telling the court it had reached a verdict. Given the number of complex issues it needed to go through, most experts expected it to take well into this week. According to observers in the courtroom, one of Apple's lawyers was so surprised and unprepared that he had to rush back to court without a suit, and showed up in a polo shirt. The quickness of the decision certainly resulted in some questions about just how thoroughly the jury reviewed the instructions and then considered each of the approximately 700 questions it needed to answer (initial jury form is embedded below). As we noted in an update to our post on Friday, about half an hour after the ruling was read out -- and long after most of the press stopped paying attention -- the judge announced at least two problems with the ruling, where the jury had awarded damages, despite not finding infringement.

As we said on Friday, that certainly raised significant questions about how carefully the jury actually reviewed the issues in question. While some said it could have just been a clerical error in answering all the questions, that appears not to be the case. Because after the judge instructed the jury to fix the mistakes, they didn't reassign those damages elsewhere, they just wiped them off the slate. Besides, even if you were to argue it was merely a mistake, that's no excuse. This "mistake" could have ended up costing millions of dollars. That's quite a "mistake."

Over at Groklaw, they're discussing this and other evidence of jury misconduct. The awarding of damages for things they found didn't infringe was already pretty bad, but some of the other details highlight how the jury clearly did not read the jury instructions (or bother to comprehend them).

A Reuters interview with the jury foreman demonstrates conclusively that the jury ignored the rules. Foreman Velvin Hogan told Reuters that they wanted to punish Samsung:

"We wanted to make sure the message we sent was not just a slap on the wrist," Hogan said. "We wanted to make sure it was sufficiently high to be painful, but not unreasonable."

That sounds nice, except... patent awards are only supposed to be about making the patent holder whole, not about punishing the infringer. And, in fact, the jury instructions clearly stated this:

The amount of those damages must be adequate to compensate the patent holder for the infringement. A damages award should put the patent holder in approximately the financial position it would have been in had the infringement not occurred, but in no event may the damages award be less than a reasonable royalty. You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer.

And yet here's the jury foreman flat out admitting that they decided to use the award amounts to punish Samsung. Elsewhere, it becomes pretty clear that Hogan was hardly an impartial juror. He has his own patent, 7,352,953 on "recording and storing video information." That, by itself, does not automatically make one biased in favor of the system (I know plenty of people with patents who hate the patent system), but he admitted elsewhere that he ended up making decisions based on how he would feel if it was his patent at stake, rather than on what the law actually says -- and then said he needed to rule as if he were speaking out "for all" patent holders. In an an interview with Bloomberg, he made that bias clear:

“When I got in this case and I started looking at these patents I considered: ‘If this was my patent and I was accused, could I defend it?’” Hogan explained. On the night of Aug. 22, after closing arguments, “a light bulb went on in my head,” he said. “I thought, I need to do this for all of them.”

He then told Bloomberg that "he explained his thinking to his fellow jurors" and that seemed to drive the discussion. An interview with another juror, over at News.com, confirmed that Hogan's views focused the jury, with one juror admitting that they just started ignoring prior art, because that question was too time consuming. Seriously.

"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."

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."

Yeah. Read that sucker again. The jury instructions are again clear that the jury needs to consider the prior art, but according to this juror, Manuel Ilagan, after foreman Hogan talked about his own experience with patents, they decided that prior art was "bogging us down" and they might as well "skip" it.

In the long run, the jury verdict probably won't matter much, because this case would have been appealed no matter what. But these kinds of stories certainly give Samsung plenty of fodder to ask the judge to toss out the jury verdict already. It also raises questions, yet again, about why we allow juries on patent trials. This has been a big problem for a long time and the results here only serve to emphasize that fact.

Filed Under: jury, make whole, mistakes, patents, prior art, punishment, velvin hogan
Companies: apple, samsung