Can we please stop picking on the foreman? It's not like this person forced their way into the trial--they were picked by the state at random, and oh by the way, jury duty is not optional. Attorneys for both sides had their chance to dismiss the guy and they did not. He's talking about his thought processes which is a hell of a lot more "closure" than you typically get in a trial. So the plan is to make him the villain?
I get that people do not like the verdict, but save the vitriol for the lawyers and the law. Let's not hate on an American citizen who did his best when duty called.
My problem with his interviews is that he comes off very smug, self-assured and condescending (for instance suggesting others read up on a law he himself clearly doesn't understand).
I realize, as you said, he was just the guy that got picked, but he is also the one granting interviews, claiming he has expertise in the area because he is a patent holder, etc... It is a fairly well known that juries can be heavily swayed by one or two confident/aggressive people, which is why each side tries to eliminate such folks early on (to their own benefit of course).
This is just another instance of a pet peeve of mine, the "everyone's an expert" phenomenon where people have some familiarity with an area and then extrapolate that into some kind of claim/belief in their own deep knowledge (see also: Dunning-Kruger, lots of tech bloggers, New Scientist's "Instant Expert" section, etc...)
Edit: rayiner claims below he (the foreman) may be correct in his statement about the patentability question. If so I retract my statement that he "doesn't understand the law himself" and submit perhaps I don't :) His statement on interchangeability and non-answering of the proposed paradox which arises between his belief and the ultimate verdict still stands as fairly stupid though.
>Edit: rayiner claims below he (the foreman) may be correct in his statement about the patentability question.
Hogan says that the jury was instructed not to decide patentability, but the only three occurrences of the word "patentable" (or any other form of that word) in the jury instructions were where it specifically instructed the jury to decide whether specific inventions were unpatentable due to obviousness.
The jury was given specific grounds on which they could find the patent invalid. See instructions 29 through 33 and 48 through 52. Invalidating because of lack of patentable subject matter is not among these.
Yes, probably, but that in and of itself is troubling, as it would seem to indicate that he hasn't given much thought on the subject of patentability for individual inventions, even though that was an entire section of the jury instructions.
Seriously. groklaw is starting to sound whiny with their unending criticism of the guy. Argue the system not the verdict. I am for major reforms to the current patent system, but deep down am secretly pleased that the jury decided to stick it to Samsung for being, lets face it, arrogantly blatant copycats.
At the end of the day maybe the verdict was a form of reverse jury nullification. I'm OK with that.
The second Apple or anyone else levels that patent system against small players, I'll go run and grab my pitchfork and torch and join groklaw. We'll see if it gets that far. I predict the big boys will blow through a whole pile of time and money before this is all done, and only to further expose the inherent problems in the system.
By starting their "thermonuclear war" in the first place, Apple has already, practically speaking, leveled the patent system against small players. Almost by definition, small players don't have bombs to respond with nor do they have sponsors interested in protecting them. How do you think they will respond to bombs flying?
Do you really think anyone is going to touch Open webOS in the US after this? Do you think Jolla even dreams of bringing MeeGo here someday? Or will they think "We're not Samsung or Google. We can't survive, let alone make money if any of the big players toss even one bomb in our direction (and they're stockpiling them now). Let's stick to China and India and other markets with saner patent policies."?
Who are those small players in smartphone industry?
The second part of your comment is pure speculation.
And let's not forget there was/is a hell of lawsuits between mobile makers, so Apple did nothing new what could scare non-existant small guys.
Jolla is a real Finnish company started by Nokia employees.
The Open webOS platform beta was just released.
For that matter here's Lenovo, just starting to expand their smartphone line beyond China, citing the difficulty in "negotiating and securing rights to use other companies’ intellectual property" as one of their secondary reasons for avoiding the US market: http://www.bloomberg.com/news/2012-08-30/lenovo-brings-smart...
And Lenovo is far from the only China-only smartphone player looking to broaden their horizons.
And maybe because their stores look like Apple Stores, their chargers look like Apple chargers, their Ultrabooks look like Macbook Airs, and some of their phones look like iPhones.
Apple never went against Palm, nor Microsoft, nor any other manufacturer, simply because these devices were distinctly different than Apple's products.
And yes, I know that the case verdict was only about some specific patents (and no, these didn't include rounded corners), but it's probably clear that the decision of the jury was also influenced by things like the above.
You see, even if, technically, the patent system is a mess, and technically the verdict is therefore wrong (which I don't think), Samsung are still copycats. They're not the good guy, just because they use Android. Instead, they're just a capitalist company like Apple.
In the UK you're not allowed to talk about what went on in the jury room and given what we're seeing here it strikes me as entirely sensible.
Yes you can argue for transparency, but you're not really getting transparency, you're getting one persons edited highlights, possibly misremember almost certain skewed by personal bias what's been learned since, with none of the subtlety, none of the responses or questions or process that was undertaken to reach those positions.
I've served on a jury in the UK and I have a view on what happened in that room but I'm absolutely certain that other jury members would see it very differently. As a result anything I told you about how the decision was reached would I think be pretty suspect.
If you want transparency then record and document the whole of the jury's deliberations (with all the appeals and arguments that will lead to), but the current situation seems to be a halfway house which no real merit.
I've never heard anything in the US about not being able to talk about jury-room stuff, but I never talk about my experience if someone could link it to the case in question. I just can't see it leading to anything good.
I do, however, talk about it when telling people how positive the experience was, and that it shouldn't be avoided. Before I went, I desperately wanted to avoid it, too, but after going through it, I actually have more confidence in the justice system.
So because he has decided to be more open and transparent than the typical juror, we should all treat him worse than the typical juror? That seems like backward thinking to me.
You know, if you were Samsung and you weren't too concerned with ethics in the strictest sense of the word, you might be tempted to approach the jury foreman and offer him a large amount of money to get in front of every camera and microphone he can find and demonstrate gross disregard for Judge Koh's orders and patent law in general.
Right now it seems like the appeals process is going to be like shooting fish in a barrel for Samsung, thanks in part to Hogan and his traveling Dunning-Kruger show.
>Right now it seems like the appeals process is going to be like shooting fish in a barrel for Samsung, thanks in part to Hogan and his traveling Dunning-Kruger show.
This is something I've been wondering about. Is any of this going to be admissible in the appeal?
A judge will only overrule a jury verdict for proven gross misconduct (mere incompetence or confusion is not enough) or because they judge that no reasonable jury could have decided as the jury did, given the evidence put forward. It does not matter if the jury came to the decision in a way that may not be reasonable, if a reasonable jury could have reached the same verdict.
I hardly say he did his best. From a previous groklaw article [1]: "The foreman told a court representative that the jurors had reached a decision without needing the instructions." The jury then doesn't follow all of the instructions. Sounds to me like a jury that just wants to get out as quick as possible, not do their best.
Juries just wanting to get out as quickly as possible is probably the norm. At least with a criminal case there is some tangible moral incentive to do a good job. A bunch of large companies quibbling over basic shapes probably seems like a rather ridiculous waste of time even if billions of dollars hang in the balance.
My opinion is the jury did a poor job. Even ignoring what the foreman has been saying the media; they had hundreds of questions to decide and took mere minutes on each of them. But the system is really the problem. How much unpaid time out of these people's lives are we willing to expect on such trivial and seemingly illogical crap?
I think part of the problem is having someone without correct technical knowledge of the subject matter actually making decisions. It is not the foreman's fault for being picked for this task, however, his lack of competence is a perfect demonstration of why the system needs to be fixed.
The criticism of the jury in this case doesn't seem to stem from their lack of technical understanding, but rather their following the judge's jury instructions. Indeed, there isn't really anything technically complicated in this litigation, a lot of it is over design patents.
When other members of the jury had doubts that the prior art invalidated patents, the foreman said he used his own patent(a patent on a TIVO like DVR) experience and then let out this gem about why the jury discounted the prior art.
"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."
How many really technical people(lets say the devs on HN) would agree with the statement that prior art has be run on the same processor to count? And to further corroborate that he did not just misspeak that, he says the following in a Gizmodo interview:
"I is not ignore prior art yes it was legitimate, however it was not interchangeable therefore it did not invalidate Apples patents....Under the current law the prior art must be among other things interchangeable. the prior art sighted even Samsung does not currently use. Read the law and the statues covering Prior art."
And he used his tech credentials and patent experience to convince the other jurors. Don't you see a problem with that?
> And he used his tech credentials and patent experience to convince the other jurors. Don't you see a problem with that?
I'd say there's a problem. Using his patent experience to convince the other jurors is pretty similar to a lawyer using his legal experience to convince other jurors. AFAIK, the latter is a very serious issue - no juror is supposed to substitute their legal opinions for the judge's.
Agreed. The guilty party, here, is either Samsung's lawyers for failing to convince the foreman of the law and its applicability to their case, the judge for refusing to permit prior art to be presented, or the laws themselves which were incomprehensible to a layperson.
It isn't Samsung's (or Apple's) job to convince the foreman of the law. It is the judge's job to tell the jury what the law is for the purposes of their deliberations. It is the jury's job to follow the judge's instructions with respect to the law and to reach factual (not legal) conclusions to determine their verdict. Even though the judge makes the jury instructions with input from the lawyers on both sides, the jury doesn't see that and, from their perspective, that's irrelevant.
We saw this very clearly in Oracle v Google. Judge Alsup told the jury that APIs were copyrightable and the jury found that Google infringed there. This is despite the fact that at least some jurors were uneasy about that conclusion (see, among other things, the deadlock over fair use). Judge Alsup later decided that APIs weren't copyrightable, so that portion of the jury's verdict turned out to be unimportant, but that's separate from the job the jury was asked to do. If the jury had found that Google didn't infringe because they decided APIs weren't copyrightable, that might have been the right bottom-line result, but they still wouldn't have been doing their job.
Or the jury can just do whatever: http://en.wikipedia.org/wiki/Jury_nullification . We had a case like this in NZ a few years ago, activists broke into and damaged an ECHELON spybase, admitted to it but said it was for the greater good, Jury agreed.
Jury nullifcation is applicable in criminal cases, this was a civil case.
In civil cases the jury can ignore the judges instructions but if the judge feels that in doing so they've rendered an unreasonable verdict, he or she can issue a judgement notwithstanding verdict which essentially amends or entirely over rules the jury's decision.
If you are incompetent to judge others and you pull the trigger on a verdict anyway... clearly, the fool deserves what he is getting. He has aided and abetted theft on a grand scale.
"Demon-Xanth:
Did you have the opportunity to ask 'Is this something that should be patentable?' during the trial?
Velvin Hogan:
No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system.
Groklaw Commentary: The law is that the jurors are supposed to decide whether or not a patent is infringed, which includes whether or not the patent is valid, because if it is not valid, it can't be infringed."
Whoever wrote the commentary doesn't understand the patent law. The question of "is the patent valid" actually encompasses several different questions, some of which are for the judge to decide and some of which are for the jury to decide. The jury foreman's characterization of "is this something that should be patentable?" is correct. This is the "subject matter" question. It asks: "in general, is this kind of thing the kind of thing that should be patentable?" This is a legal question that is in the judge's province, not the jury's.
The jury decides patent validity, which encompasses a separate set of questions. If a particular "kind of thing" is patentable, then the jury looks at whether a particular thing that is of that "kind of thing" has been validly patented.
A fair argument would be that author of the article interpreted the question differently than Hogan did, and should have been more charitable to Hogan.
But your argument that the Groklaw commentator interpreted the question in the same narrow way as Hogan, and does not understand the basics of patent law, is ridiculous.
The author of the article clearly posed a question about subject matter patentability rather than patent validity, given the terminology he used. Hogan responded with a correct statement of the law of subject matter patentability.
If the author had intended to ask a different question, he should have asked a different question. In general, the Groklaw coverage suffers from a lack of precision in writing. Law is all about breaking down a complex dispute into distinct questions, answering them separately, then synthesizing a result from answers to those distinct questions. Groklaw's coverage is very fuzzy about which legal questions it is talking about at any given time.
The term "patentability" also applies to inventions, and the questioner did not specify "subject matter patentability", which is only one of several factors that must be considered in deciding if a particular innovation is patentable. In fact, I would say that the question's phrasing makes it pretty clear that the intended meaning was patentability of the invention, not subject matter. To quote page 46 of the final jury instructions:
>Not all innovations are patentable. A utility patent claim is invalid if the claimed invention would have been obvious to a person of ordinary skill in the field at the time of invention.
So again, it is reasonable to say that Hogan may have simply misinterpreted the question he was being asked, and that whether he understood the jury instructions cannot be gleaned from this exchange. It is not reasonable to say that Hogan's interpretation of the question was correct and that Groklaw's interpretation was wrong.
I guess I see your interpretation, but that makes it a weird question. "Patentability" in that sense encompasses both legal questions and factual questions. A jury can't really consider the "patentability" of an invention because some of the elements of "patentability" aren't jury questions. They can only consider specific elements like obviousness, novelty, usefulness.
At best the interviewer asked an ambiguous question and the foreman gave a reasonable answer. In any case, this would all be obviated if Groklaw and the media were precise in their use of the terminology. The lack of precision in their discussion is really what makes me question the depth of their understanding of the law.
The judge will address that question in the opinion. The opinion has not yet been released. That of course makes all the hubub premature, since the jury verdict has no legal force in and of itself until the judge renders an opinion, but the tech media wouldn't be the same if it didn't continually jump the gun.
The below,from the groklaw.net comment section, might be of interest re: prior art.
_____________________________
Authored by: nsomos on Tuesday, September 04 2012 @ 09:57 PM EDT
I am guessing the foreman was confused by the last paragraph
of page 40 of the instructions.
---------------------
In deciding whether any difference between a claim requirement and the
product or method is not substantial, you may consider whether,
at the time of the alleged infringement, persons of ordinary skill
in the field would have known of the interchangeability of the part
or software instructions with the claimed requirement.
The known interchangeability between the claim requirement and
the part or software instructions of the product or method is
not necessary to find infringement under the doctrine of equivalents.
However, known interchangeability may support a conclusion that
the difference between the part or software instructions and
the claim requirement is not substantial. The fact that a part
or software instructions of the product or method performs the same
function as the claim requirement is not, by itself, sufficient
to show known interchangeability.
-----------------------
It seems that the foreman at least has the ideas
given here backwards. I suspect that he quickly
skimmed and basically cherry-picked those sentences
and paragraphs that allowed him to come to the
conclusion he already had decided he wanted to come to.
The interchangeability that is mentioned here
only applies to infringement, and not to prior art
which is invalidating.
It strikes me that if people have an issue with much of this, they have an issue with the concept of jury trials.
This guy isn't an expert on tech or on patent law, but the system isn't designed assuming that he is, actually the opposite. Jury trials are meant to put cases in front of 12 ordinary people and have them decide the facts with the judge guiding them through the law. Serving on a jury I (or rather we) were told that he was the judge of the law, it was not for us to interpret that, we were the judge of the facts.
If the jury does or seems likely to do something which contradicts the law then it is for the judge to direct them otherwise. If you believe that that should have happened and hasn't, then your issue is with the judge, not the jury (and here I would suggest saying he doesn't understand the law is probably a long shot, and if Samsung believe this then they will have grounds for an appeal.
But cases are meant to be judged by ordinary people, complete with their flaws and weaknesses, their biases and prejudices and their imperfect understanding because that is the standard the law is held to - the standard that "normal" people (rather than technicians or experts) see as appropriate.
Yes it's an imperfect system, but as with democracy, I'd suggest that it's the least bad system we've tried.
The smoking gun PJ decided to write 500 words on? The fact that he didn't answer a particular question. In fact there are hundreds of questions he didn't answer.
In fact he answered about 25-30 questions probably the number Gizmodo paid him to come and answer.
"And the more he talks, the worse it gets for that verdict."
Is that the case in the US? Can this gentleman's comments become evidence at the appeal?
In the UK, members of the jury are not permitted to discuss the case, their deliberations or aspects of the evidence during or after the trial. For ever. It is contempt of court if they do.
The design (chronologically threaded rather than rated, large repeating personal signatures, offtopic designated threads) puts its worst foot forward. Maybe I'm pampered by Reddit and ArsTechnica, which let relevancy move upward or be promoted, but Groklaw's comments section is ugly.
I get that people do not like the verdict, but save the vitriol for the lawyers and the law. Let's not hate on an American citizen who did his best when duty called.