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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj - Updated
Wednesday, August 29 2012 @ 09:23 AM EDT

The foreman in the Apple v. Samsung trial has now done an interview with Bloomberg News, giving him an opportunity to answer some of the criticisms of the verdict. It's a video on YouTube, titled "Apple Jury Foreman: Here's How We Reached a Verdict", and while he answers the criticisms, he describes how the jury, under his instructions, decided that the Samsung prior art didn't invalidate an Apple patent. In doing so, I think he has revealed the biggest mistake of all made by the jury, one so large I don't believe it can be ignored. At a minimum, Apple shouldn't want to win like this. His aha moment, as he calls it, and assuming what he says on the video is accurate, was based on a misunderstanding of what constitutes prior art.

In discussing the first patent on the list, he says they got into a discussion about the prior art that was presented at trial. Here's why they discounted it:
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.
That isn't disqualifying for prior art. It doesn't have to run on the same processor. It doesn't have to run at all. It can be words on a piece of paper. (If you don't believe little old me, here's a lawyer noticing the video too now.)

Here is the jury instruction given on what is prior art, on page 44 of the instructions PDF, which you can find here:

FINAL JURY INSTRUCTION NO. 31
UTILITY PATENTS—ANTICIPATION

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.

Here is a list of the ways that either party can show that a patent claim was not new:

– If the claimed invention was already publicly known or publicly used by others in the United States before the date of conception of the claimed invention;

– If the claimed invention was already patented or described in a printed publication anywhere in the world before the date of conception of the claimed invention. A reference is a “printed publication” if it is accessible to those interested in the field, even if it is difficult to find;

– If the claimed invention was already made by someone else in the United States before the date of conception of the claimed invention, if that other person had not abandoned the invention or kept it secret;

If the patent holder and the alleged infringer dispute who is a first inventor, the person who first conceived of the claimed invention and first reduced it to practice is the first inventor. If one person conceived of the claimed invention first, but reduced to practice second, that person is the first inventor only if that person (a) began to reduce the claimed invention to practice before the other party conceived of it, and (b) continued to work diligently to reduce it to practice. A claimed invention is “reduced to practice” when it has been tested sufficiently to show that it will work for its intended purpose or when it is fully described in a patent application filed with the PTO.

– If the claimed invention was already described in another issued U.S. patent or published U.S. patent application that was based on a patent application filed before the patent holder’s application filing date or the date of conception of the claimed invention.

Since certain of them are in dispute, you must determine dates of conception for the claimed inventions and prior inventions. Conception is the mental part of an inventive act and is proven when the invention is shown in its complete form by drawings, disclosure to another, or other forms of evidence presented at trial.

Did you notice that prior art can be a piece of paper describing the invention? It doesn't have to run on *any* processor. It's the claims that have to match, not what it runs on. For example, when Red Hat was accused of patent infringement by IP Innovation, they rolled in a 1985 Amiga computer that a Groklaw reader still have running to demonstrate prior art, and they won. Otherwise, by his logic, Samsung couldn't infringe any of Apple's patents, in that Android and Linux don't run directly on iOS.

The foreman, in answering criticisms, says that the jury paid close attention to the jury instructions. But looking at this one, did they? I'm sure they meant to, and I'm also sure they did their best according to what they understood. But this was an error, and it's one I don't think the judge can ignore, if anyone brings it to her attention. Incidentally, just in case he said prior art and he meant obviousness, the jury instruction on that is No. 33.

Let's look at some details. The foreman says that the jury started out in a stalemate, because some on the jury were not clear how prior art can invalidate a patent. At that point, he thought it was going Samsung's way. So he went home and had his aha moment. He felt he could defend it if it was his patent. So he explained it all to the jury. And that turned the tide. But if he told them that interchangeability was a requirement for prior art, he goofed big time.

A volunteer did a partial transcript of the relevant section, so you can see his quote about the patent in context:

Emily Chang: Were you ever confused? Were other people ever confused?

Vel Hogan: I wasn't confused but there was a, a few of the jurors that were confused so what we did in the jury room before we did anything after we did the election of who was going to lead the jury I told them let's just lay out on the table any concerns or open questions you may have that's left over and let's just get that out of the way first.

Emily Chang: Now when you first got into the jury room initially, this was Wednesday right?

Vel Hogan: Yes.

Emily Chang: Was? There are reports that you were initially divided but did you, did you have a feeling this was going to sway overwhelmingly in Apple’s favour?

Vel Hogan: No. No. In fact if you'd have asked me at that moment in time, I thought it was gonna ultimately maybe lean the other way.

Emily Chang: Why?

Vel Hogan: Why? We were at a stalemate but some of the jurors weren't sure of the patent prosecution process. Some weren't sure of how, ah, prior art could either render a patent accept... ah, acceptable or whether it could invalidate it and so what we did is we started talking about one and the day was over. When I was at home thinking about that patent, ah, claim by claim, limit by limit I had what we would call an aha moment.

Emily Chang: Um hmmm.

Vel Hogan: And I suddenly decided that I could defend this if it was my patent.

Emily Chang: Really?

Vel Hogan: Really. And with that, I took that story back to the jury, laid it out for 'em, they understood the points that I was talking about and then we meticulous, meticulously went patent by patent claim by claim against the test that the judge had given us because each area, each patent had a different ah legal premise to judge on. We got that all sorted out and decided which ones were valid, which ones weren't valid.

Emily Chang: So the initial stalemate that you found yourself in, what was that about?

Vel Hogan: It was about a particular, ah, patent, ah, the '460 patent, and whether or not the prior art really did invalidate that pattern, that patent and so with that moment I had, I realized that the software on the Apple side could not be placed into the processor on the prior art and vice versa.

Emily Chang: Um hmm.

Vel Hogan: And that means that they're not interchangeable and that just cha..., that changed everything right there.

Emily Chang: You know it's all obviously extremely technical. there has been a lot of talk since this verdict has come down. How did you guys make this verdict so quickly. There were more than a hundred pages of jury instructions. There are even reports that you didn't read all of those instructions.

Vel Hogan: Oh. We read. First off, before closing arguments was given, the judge read to us the final instructions, instruction by instruction. Then she allowed the closing arguments, then she dismissed us. And so we had those closing argue..., those ah, instructions and we had them open there and then we took patent by patent and got hung upon the first one but the day was almost over by then and so I said to the jury, "We're not going to allow ourselves to get hung up. We're going to, if we find a debate like this, we'll move on. We'll do the simplest things first.” So then when I came back the next day...

This was regarding what the foreman in the video calls the '460 patent, but there was no such Apple patent in the case listed on the verdict form that I could find. That's why I can't be sure what he said on the video was accurately portraying the event. But the other jurors surely could speak to clarify. I would certainly like to hear from the youngest juror, who apparently held out against the tide until the foreman's "explanation" seemed to settle the matter.

Here's the Amended Jury Verdict [PDF] form, so you can see for yourself. You'll find the list on page 9. That mistake in speaking makes it impossible to understand what he is referring to, so as to check it with certainty. He also says it was the first one on the list, though, and that would be the '381 patent [PDF], "List Scrolling and Document Translation, Scaling and Rotation on a Touch-Screen Display", or the bounce-back patent. (You can confirm that this is the patent they were arguing about by what another juror said earlier about the dispute. CNET's Greg Sandoval interviewed juror Manuel Ilagan, and he said the argument was over Apple's bounceback and pinch to zoom.) The prior art Samsung listed in its trial brief for bounceback included: the Tablecloth program installed on the DiamondTouch system developed by Mitsubishi Electric Research Laboratory ("MERL"), the LaunchTile and XNav programs developed by Dr. Benjamin Bederson, and International Publication Number WO 03/081458.

I don't know about the rest, but the Tablecloth system was demonstrated at trial by Adam Bogue. Another witness, Benjamin Bederson, presented as prior art his Launch Tile invention, a system of icon tiles in an interfact allowing users to zoom in and out. It had a snapback feature too.

Please read the patent now, if you are free to do so, and you'll see that there is no limitation in the claims to just Apple software or Apple devices. It's claiming funcionality on "portable multifunction devices". Anybody's. That's the only reason it *could* be infringed by Samsung, despite any differences as to what each runs on.

Of course, in a way it doesn't matter which patent they were discussing, because prior art is prior art. What has to match are the claims, not what it runs on. If, for example, Microsoft had invented the bounceback feature for its tablets and phones, it would be prior art for Apple, even though you can't run Apple software directly on Microsoft's operating system.

This statement by the foreman is, to me, the biggest goof of them all. And since his story is that this is what he used to persuade the rest, who were otherwise favoring Samsung, it means the entire verdict is now seriously in doubt.

My favorite comment on Hacker News about this video, from ktizo:

I think he may have a valid point. Perhaps apple have invented some new numbers, like eleventy-four, that don't fit into the old computers properly due to magic and stuff.
He's kidding around, of course, with a touch of despair. Software is algorithms, and algorithms are mathematics. That's why they should never be allowed to be patented in the first place, which would have avoided all this Apple v. Samsung trial about bounceback anyway. And by the way, how does the foreman know what processor is being used and what can and can't run? Was that *evidence* at trial, or his personal "expertise" in play? If the latter, are jurors supposed to decide matters based on their own personal evidence offered to the jury without cross examination? And would he qualify as an expert at trial? Is he supposed to play that role in the jury deliberations? See the problem?

By the way, for any who might not know, hacker from the beginning usage of the word means something good to programmers. Crackers are the bad guys. The non-technical world gets that mixed up all the time, but programmers know the difference.

And it is irresistable to point out that Andrew Orlowski may wish now to edit his paen of praise in The Register to the foreman's "clarity of thinking" and common sense approach and how great patents are for us all and how the verdict is "GOOD for YOU, your KIDS and TECH". He writes that "When ordinary citizens gather to assess an intellectual property decision, they don't let us down."

Except sometimes they do.

They just did. That's one reason why the new patent rules soon to go into effect give you a choice, a jury trial or a decision by a panel of experts, as Patents Post Grant explains:

After September 16th, defendants will have a choice to continue on to roll the dice at the district court with a jury trial of laypeople, or avail themselves of the new USPTO patentability trials of the AIA. The new trial proceedings of the AIA will be completed within 12-18 months of initiation and will be conducted before the USPTO’s Patent Trial & Appeal Board (PTAB).

Unlike jurors, the decision makers of the PTAB are not laypeople. Rather, PTAB judges are experienced in the application of U.S. patent law and must additionally have an engineering and/or science background. In addition to the established expertise in technology and patent law, unlike the courts, PTAB judges do not accord patents a presumption of validity, nor do they require clear and convincing evidence to invalidate a patent. Indeed, patent claims are accorded a broadest reasonable interpretation at the USPTO, which makes them that much easier to invalidate.

Update: Mr. Hogan continues to respond to criticism. And he never makes it better. The BBC has a full transcript of an interview they have done with him. He tries to clarify, but in doing so, it does not fix the legal problems we have identified, although he seems to think it does.

He states, for example, that when he said the jury wanted to send a message by their damages figure, he didn't mean a message to Samsung alone. They meant to send a message to the entire industry not to infringe. Again, damages are only to be based on making the victim whole for any actual losses, not to send a message to anyone.

This is proof, once again, that this jury didn't follow instructions. If there is a message to be sent, that's up to the judge. The judge can order triple damages if there is a message to be sent. It's outside the jury's authority to do that. And it means that their damages figures is inevitably and demonstrably not the correct figure. The jury took it upon itself to play the judge's role, and that isn't following the jury instructions.

It's amazing that after all these days, he apparently has not reread the jury instructions. Or if he has, he still doesn't understand them.

As for his aha moment, he adds that he looked at source code and showed it to the rest, to show them that the Samsung prior art was unable to run Apple code. That is NOT the way you decide whether prior art invalidates a patent. He claims that the instructions given were that the prior art and the patent must be "interchangeable". There is no such word in the jury instructions.

I don't know why he keeps talking, but I'm sure Samsung hopes he keeps it up. Here, then, are two snippets from a much longer interview, on those two points:

BBC: A lot has been made about the original interview you gave to Reuters in which you said you wanted to make the award sufficiently high to be painful to Samsung, but not unreasonable. There has been concern raised by some people that that may have been prejudicial and the awards should have been based on the facts alone. I wonder if you would like to clarify that.

Hogan: Yes I would. Bloomberg asked me that question and others that have interviewed me asked that question and I have tried to make it clear that it wasn't an attempt from a punitive standpoint.

And it wasn't necessarily focused at Samsung - that is where it had been taken out of context.

What was actually meant by that statement when I made it was that what I wanted... the jurors wanted to send a message to the industry at large that no matter who you are - whether you are Apple, whether you are Samsung, or anybody - if you wilfully take the risk to cross the line and start infringing and you get caught, and again I emphasise wilfully, you need to be prepared to pay the cost for that....

BBC: There were two issues, looking at Apple's case: Whether Samsung had infringed their patents and whether the patents were valid. Why weren't you convinced by Samsung's arguments that some of the patents that Apple had put forward shouldn't be allowed to stand? There has been a lot made in the media and elsewhere that Apple wasn't the first with some of the ideas that they had patented.

Hogan: To try to make it as easy as possible - I have addressed this in other interviews that I have had - what it amounts to is there has been a big fuss since the deliberation that prior art was not considered. Prior art was considered.

When we had to determine the validity of Apple's patent against the charges of Samsung's with the prior art examples, what we had to do - to make it clear - is that not only did we have to validate, if you will, the Apple patent, but in looking at the prior art we had stipulations in the law that tested both sides and if the test wasn't passed then it was clear either the patent was valid or it wasn't.

Prior art didn't mean that the prior art wasn't valid. It was valid. But the stipulation under the law is for the prior art to be sufficient to negate or invalidate the Apple patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.

And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error.

And vice versa of that was also true. So the point being, at the 40,000 foot-level, even though the outcome of the two seemed similar, the internal methodology of how you got there was entirely different.

One could not be exchanged for the other. And that is the thing that most people at large do not understand about the legal system. And as a result of that you have heard a lot of hype in the media about did we turn our back on prior art? No.

Did it mean prior art could not have been used to compete against anything any other company had done? No, I'm not saying that.

I'm saying both could have existed independently of each other and been used. The thing you have to remember is that the prior art that belonged to Samsung, or belonged to somebody else that they had the ability of using, they had not used for quite some time.

And the methodology that they had implemented was just right up against the line of infringement and went beyond it in most cases. And not all cases.

Not everything that Apple accused of Samsung was correct and we made those stipulations as we filled out the form, and well, you know how it played out.

My point is that there were substantially difference between the prior art and the new method, but the key was you could not replace one for the other.

BBC: There had been a lot of speculation that although Apple might get damages, Samsung might get damages as well. Why did Samsung's case fail?

Hogan: Whenever we considered the prior art and we looked at those patents, and specifically the claims that were involved, and the claim limitations that were involved, we had the instruction from the judge who had given us the stipulation of the precedent in the law that for the prior art in this case to negate or invalidate the patent on Apple's side - that was being involved in the allegation from Samsung that the patent was invalid because of the prior art - we had to establish that number one, the two methods were substantially similar; that the outcome was the same, in other words the functionality was the same, that would be at the 40,000-foot level. But what was key to us, and it was a very important piece, is that the stipulation in the law, they had to be interchangeable.

And so consequently, when we looked at the source code - I was able to read source code - I showed the jurors that the two methods in software were not the same, nor could they be interchangeable because the hardware that was involved between the old processor and the new processor - you couldn't load the new software methodology in the old system and expect that it was going to work, and the converse of that was true.

And we're talking about Samsung's patent claim about combining a mobile phone with email [and a camera]?

Hogan: Exactly, in fact that is the one issue that we left on Wednesday night, the first day of deliberation, that had hung us up. And I, being the foreman, said because we had ran over and the US marshals had already told us that we could not work past six o'clock, and we were approaching six o'clock.

And we had hung up on this for over an hour and 45 minutes. I told them let's leave it, let's come back fresh in the morning and then let's deal with this.

And it was that evening that when I was sitting at home relaxing - and I have the type of mind when I'm relaxing doing one thing, my mind is running 90 miles an hour typically thinking about my distraction.

In this case, I was thinking about that specific patent and I was thinking of each and every claim and each and every claim limitation. And I know there are people out there that question what I have said and why it was important. But the task that I put it to, for myself, while I was going through this thought process is: let's pretend that this patent is mine.

And what I mean by the term "can I defend this patent", there's a process you go through in this country that you go through before a patent issued.

When the patent office determines that they are going to reject your patent based on a claim you are making against prior art - and in my case I had several of those - you have to be able to lay the groundwork and defend your claim that in light of the prior art it would not have been obvious to the individual who drafted that prior art that the new methodology could have been accomplished.

So that's the comparison and that's what I meant by defending the patent. And I'm going through this thought process of the patent that was involved and the prior art example that was involved, and making that comparison.

And when I got through with that comparison and that test, I asked myself the question: could I defend this patent, not in the court, could I defend this patent through that process just like I had to do my own if this were mine? And that's the "aha" moment that you hear talked about out there.

The answer to that question for me was yes. And so it just hit me that evening that that process I needed to explain to my fellow jurors because I was the only one that had ever gone through that process among them.

And there's a lot of misconception - even in the engineering community today among individuals who have never had to go through that process - of what that process consists of.

BBC: Do you think if you hadn't been on the jury then we might have ended up with a very different verdict?

Hogan: I think so. But let's not say me specifically. ...

And that, ladies and gentlemen, truly says it all.

  


The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj - Updated | 484 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: nsomos on Wednesday, August 29 2012 @ 09:28 AM EDT
Please post corrections in this thread.
Using the posts title for a summary is appreciated.

Thanks

[ Reply to This | # ]

By the same Logic, isn't Samsung innocent?
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:35 AM EDT

Can the "invention" on the Apple device be moved straight over to run on Samsung and Android?

After all:

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.
Logically - if it isn't prior art for that reason, how can it infringe?

Caveat: the above doesn't speak to the Law. After all, it appears quite clear the Jury ignored the Jury Instructions on the Law. The above simply speaks to the contradiction employed by the Jury to reach their decisions.

RAS

[ Reply to This | # ]

A man with an answer looking for a question to apply it to
Authored by: artp on Wednesday, August 29 2012 @ 09:40 AM EDT
A man with an answer looking for a question to apply it to.
That is what the foreman looks like to me. I think that is
why he sounds so incoherent - he is so excited about what he
has "learned" and so eager to convince everybody else of it,
that he can't get the words out right.

I am very suspicious of his technique of skipping over
controversy to settle the simple matters. If the jury wasn't
allowed to discuss something that was a basic disagreement,
and come to terms on those disagreements first, then they
were never able to come together as a team, and any
other decision would be very suspect in my mind. He would
just be manipulating them to get the right decision. It just
sounds so very manipulative. It might have been
subconsciously manipulative, but the results were the same.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

The lawyer that you link to seems to have goten it wrong.
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:42 AM EDT
The link that you provided to a lawyer (Scott A. McKeown on the
patentspostgrant.com web site) "saying it too now" seems to be talking
about obviousness, not prior art, which I thought were 2 different reasons that
a patent can be found invalid and which have different rules as to how they can
invalidate a patent. Mr. Jury Foreman specifically stated that he was
considering prior art in the Bloomberg video, but Mr. McKeown only talks about
obviousness. I don't understand.

[ Reply to This | # ]

The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:42 AM EDT
Does it actually matter what he says, or what happened in the deliberation room?
They reached a verdict, what are the odds of any judges overturning it in this
country?

[ Reply to This | # ]

Jury instructions
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:42 AM EDT
PJ, given the amount of prior art produced by Samsung was
there any specific instructions regarding prior art in the
jury instructions?

If not than it seems that would be an error of more than
three groups; judge, Samsung, Apple and Jurors.

[ Reply to This | # ]

Prior Art Literary Example
Authored by: TheOldBear on Wednesday, August 29 2012 @ 09:45 AM EDT
When Charles Hall attempted to patent the water bed, the application was rejected due to prior art.

The prior art was in Heinlen's 1942 novel Beyond This Horizon

Apparently back in the 1960's, patent examiners could read things other than patents to locate prior art

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Wednesday, August 29 2012 @ 09:47 AM EDT
First things first.

See link above for "Comes v. MS" for further instructions.

Off to take my wife to work. I hope somebody finishes the
canonicals.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Trial by jury
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:47 AM EDT
Is the USA the only country in the world that uses trial by jury for this sort
of case? Do people in the USA still believe that trial by jury is a good thing?
Who would you want to decide your fate in a trial, civil or criminal? Vel Hogan,
or someone with relevant training and experience?

[ Reply to This | # ]

"Apple shouldn't want to win like this."
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:48 AM EDT
> Apple shouldn't want to win like this.

HAHAHAHAHAHAH! That is hilarious.

Of course Apple wants to win like this. They want to win anyway they can. That
is why they filed like 60 motions to sanction or default Samsung, and why, when
Samsung files a motion to vacate the verdict, Apple will oppose it vigorously.

They are ATTORNEYS. They don't care how they win, as long as they win.

[ Reply to This | # ]

I'm not sure trial by the USPTO panel would be much better for a defendent
Authored by: Anonymous on Wednesday, August 29 2012 @ 09:51 AM EDT
Even considering non presumptions etc noted above, there's an
issue of basic soundness of the organisation.

Frankly with some of the nonsense that seems to pass for a
patent these days I think many might rather roll the jury
dice no matter how lacking in understanding of complex
technical and legal subjects any jury might be.

Is it a choice between ignorance and active incompetence?

[ Reply to This | # ]

The software is indeed "interchangeable"
Authored by: Anonymous on Wednesday, August 29 2012 @ 10:08 AM EDT
Of course it is not required that prior art be "interchangeable" in order to invalidate; nonetheless, if the original prior art device is a general purpose computer then there is no reason the Apple code could not be executed on it (or rather, on a virtual machine running on it), and vice versa.

[ Reply to This | # ]

The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 10:24 AM EDT
According to the interviews on WSJ or LA times, the jury was hung the first day
because of the bounce back patent. So I think the foreman was talking about
that one, and he just mistakenly use 460 as the patent number.

[ Reply to This | # ]

Point some are missing ...
Authored by: nsomos on Wednesday, August 29 2012 @ 11:09 AM EDT
Some folks are getting hung up on '460 and whose that was,
and if the guy mis-remembered or mis-spoke.
Some also think that only that portion of the ruling
specifically tied to that utility patent would be affected.

If the jury did not properly follow the instructions
on what constitutes prior art, then you cannot count
on ANY of their utility patent related findings,
or anything that then stems from those.

We have an indication that due to this guy, the whole
jury was misled and did not do their job properly.
There is no reason to expect that they did any better
on any other utility patent, regardless of whose it was.

[ Reply to This | # ]

Can the foreman's words be used in appeal?
Authored by: Anonymous on Wednesday, August 29 2012 @ 11:16 AM EDT
Since the foreman has made public statements about the trial that indicate it
was a questionable verdict, can Samsung use his public statements in the appeal
process?

-DSW

[ Reply to This | # ]

So... how can Samsung be infringing?
Authored by: Anonymous on Wednesday, August 29 2012 @ 11:20 AM EDT
How can Samsung be infringing, if the Prior Art is not
applicable?

If the Prior Art does not invalidate the patents because it
ran on a different processor, how can Samsung be infringing,
running their application on a different processor?

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Wednesday, August 29 2012 @ 11:21 AM EDT
For those who can break away from commenting on the expert
jury foreman.

Posting On Topic will make us force you to support the
foreman.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

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News Picks Thread
Authored by: artp on Wednesday, August 29 2012 @ 11:22 AM EDT
URL please.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 11:45 AM EDT
It is not about a particular patent. It doesn't matter the
foreman was talking about the bounce back patent or the
Samsung's 460 patent (more on this later.) His statement
indicated that:
(1) He ignored the Jury's instruction on prior arts, and
unfortunately, his interpretation of prior art is very
wrong.
(2) His judgement on the patent validation is not based on
the evidences, but based on if he could defend it as his
own. Also, his defense is not based on the evidences, but
based on his own thought.
(3) He passed his idea to the rest of jury and they use this
very wrong way to try all the patents in this case.

Now, back to which patent he was talking about. He said
that it was the "460" patent, which is actually a Samsung
patent. However, all other information indicates that he
got the patent number wrong and he was indeed talking about
the "bounce back" patent. Several interviews suggests that
the jury was discussing the first patent (bounce back
patent) on the list and couldn't reach an agreement by the
end of the first day. Many got confused by the prior arts.
Then that night, the foreman's aha moment came, and he laid
out his idea on the table next day, and they made progress.
Indeed, in the interview, after he said the "460" patent, he
started to talk about how apple's code couldn't run on a
prior art.

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Runaway Jury
Authored by: Anonymous on Wednesday, August 29 2012 @ 11:46 AM EDT
The foreman's whole conduct brings the movie "Runway Jury" to mind -
in that movie jurors with agendas were preferred.

His somewhat self-congratulatory behavior subsequently will probably have
consequences.

Personally, I think he should keep talking; the more he says the harder it will
be for Judge Koh to ignore.

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  • Runaway Jury - Authored by: Anonymous on Wednesday, August 29 2012 @ 02:43 PM EDT
  • Runaway Jury - Authored by: Anonymous on Wednesday, August 29 2012 @ 04:57 PM EDT
Case law on on admitting jurors statements to nuullify a verdictr.
Authored by: Anonymous on Wednesday, August 29 2012 @ 12:08 PM EDT
Anyone know what it is?

I don't think there is a hearsay problem, the press reports
might present such a problem, but not the video tape..

The thing is that most of the case law I found concerns
criminal not civil cases.

Mouse the Lucky Dog

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One more flaw in the understanding of Design Patent by the Foreman?
Authored by: Anonymous on Wednesday, August 29 2012 @ 12:33 PM EDT
Starting time 13:21 in the video, the Foreman discusses how did they view the design patents for about a minute.

At time 13:51
Foreman: ... and so in case of the Design Patent, it was the look and feel of it. And how the device presented itself. And when you compared them side-by-side against the statements in the patent, it was clear to every one of us, not only was the patent valid, but the Samsung products that were accused were legitimately a problem.
So, basically, Mr. Foreman claims that design patents have "statements" describing the design, which is not true. He also states that they just looked at these products side-by- side ignoring any obviousness tests and functional aspects of the Design on a touchscreen only device. Effectively toeing Apple's line that overall look and feel is important, ignore the details like absence of round home button, etc.

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The Aha moment that Groklaw seems to miss
Authored by: celtic_hackr on Wednesday, August 29 2012 @ 12:46 PM EDT
Clearly, the jury got the whole prior art thing wrong.

But, here's the all time best clincher of the whole thing.

Wait for it.

EVEN under this bizarre, twisted, demented application of Patent Law, the
Samsung Tablet STILL was found not to infringe any of Apple's patents.

It's devastating to Apple's hopes and dreams of banning the Samsung Tablet. The
only device that actually got banned before the trial started. Meaning, as PJ
has said, Judge Koh got it right, and the Appeals Court got it wrong. This is
hopeful news for justice. Since Judge Koh apparently has a clue, even if she has
a prejudice against Samsung. And I'm not saying she does, but some here have so
intimated.

[Sorry Mr. Lynch, 5th Grade Teacher, about starting a sentence with
"and". PS. you were the best teacher I ever had.]

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Ah ha moment == phone call ?
Authored by: SpaceLifeForm on Wednesday, August 29 2012 @ 12:48 PM EDT
Something smells funny to me.

Multicast Labs incorporated in Nevada also 2 years after incorporating in California. Other corps also probably for tax reasons.

Only your hairdresser^NSA knows for sure.

---

You are being MICROattacked, from various angles, in a SOFT manner.

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Language, please.
Authored by: Anonymous on Wednesday, August 29 2012 @ 01:02 PM EDT
From PJ's policies (link near top of page):

"No foul language or links to porn or other such things. That includes
initials and ****s."

Thanks for helping to keep Groklaw family-friendly. :)

-- Anonymous

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Computer Programs 'as such'
Authored by: kawabago on Wednesday, August 29 2012 @ 01:41 PM EDT
If the magic words 'as such' can magically transform a
general purpose computer into a 'specific machine', then the
magic words in the Samsung device transform it into an iPhone
or iPad when it uses Apple's inventions. Of course, it
happens too quickly to be seen with the naked eye. A lawyer
is required to be able to see the change occur. Why don't we
call lawyers wizards?

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Beyond crazy
Authored by: Anonymous on Wednesday, August 29 2012 @ 01:51 PM EDT
One can't even begin to express how mindbending the foreman's
revelations are. To think that a "trial" like this happened
in this age, in America.

Truly, truly, truly insane.

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Rubberman on Wednesday, August 29 2012 @ 02:01 PM EDT
The foreman's behavior and actions are just so egregious that
the judge should summarily declare a mistrial! Bogus doesn't
even do the situation justice!

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Jury instructions wrong?
Authored by: whoever57 on Wednesday, August 29 2012 @ 02:04 PM EDT
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
I thought that a case a few years ago (relating to something automotive, throttle pedals, I think) that established that just putting together 2 existing inventions was not patentable. This flies in the face of the idea that prior art must describe all the claims of an invention for it to be relevant.

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The jury system indicted
Authored by: BJ on Wednesday, August 29 2012 @ 02:16 PM EDT
I am speechless over this travesty of justice.

bjd


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Andrew Orlowski
Authored by: FrankH on Wednesday, August 29 2012 @ 03:08 PM EDT
...Andrew Orlowski may wish now to edit his paen of praise in The Register to the foreman's "clarity of thinking" and common sense approach...

Andrew Orlowski loves to write provocative pieces about freetards* as he likes to call those of us who prefer the freedom of the GPL to his wonderful world of locked in software. If you expect a retraction I think you'll be waiting a long, long time.

* I think "freetard" is a contraction of freedom loving retard. I'd be insulted if I didn't think that's exactly what he intended. The man is a fool.

---
All right now, baby it's all right now.

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processor and samsung
Authored by: Anonymous on Wednesday, August 29 2012 @ 03:11 PM EDT
The interesting part is that Samsung makes the processors in the iPhone/iPad
devices...wonder if the foreman knew that when he used the "processor"
(il)logic

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 03:16 PM EDT
" Software is algorithms, and algorithms are mathematics. That's why they
should never be allowed to be patented in the first place, which would have
avoided all this Apple v. Samsung trial about bounceback anyway."

Really? By extension of that logic books are just words, words are letters,
and since letters aren't copyrighted then books shouldn't be allowed to be
copyrighted either. Or, airplanes are just applied physics, physics is an
extension of mathematics, so airplane designs shouldn't be patentable
either.

It's an absurd position. What matters are the combinations of algorithms,
words, and physics. Unless you really want to argue that there is
equivalency between the scribblings of my 4 year old and the works of
William Shakespeare. Just because the underlying building blocks of
EVERYTHING are non-patentable doesn't mean that we should eliminate
patents altogether. It's complete rubbish.

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 04:04 PM EDT
If you look at some of the prior art claims made by Samsung
they are 100% legitimate.

http://www.theverge.com/2012/8/15/3244581/samsung-expert-
apple-bounce-back-patent-invalid

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I smell a rat--or at least a mouse...
Authored by: Anonymous on Wednesday, August 29 2012 @ 06:53 PM EDT
I realize (as another commenter pointed out) that the foreman may have been excited and jumbled the words. But, this section of the interview speaks volumes to me. To me, it sounds like he started to answer truthfully, realized the implications, and corrected himself.... What was it?
Emily Chang: You know it's all obviously extremely technical. there has been a lot of talk since this verdict has come down. How did you guys make this verdict so quickly. There were more than a hundred pages of jury instructions. There are even reports that you didn't read all of those instructions.
Vel Hogan: Oh. We read. First off, before closing arguments was given, the judge read to us the final instructions, instruction by instruction. Then she allowed the closing arguments, then she dismissed us. And so we had those closing argue..., those ah, instructions and we had them open there and then we took patent by patent and got hung upon the first one but the day was almost over by then and so I said to the jury, "We're not going to allow ourselves to get hung up. We're going to, if we find a debate like this, we'll move on. We'll do the simplest things first.” So then when I came back the next day...
Specifically this line: And so we had those closing argue..., those ah, instructions and we had them open there and then we took patent I don't think they used the instructions--as much as they did Apple's closing arguments to decide things. At least that's how I think the foreman rolled. Have a great day:) Patrick.

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 07:20 PM EDT
Hacker was first used to describe unauthorized users from
the phone system at MIT, in 1963. Modern usage neither
hacker nor cracker means morally 'good' or 'bad'. A hacker
is someone who is very talented, how the apply their skills
is another matter. A cracker is someone who cracks
encryption. Generally starting around when games on floppy
disk used techniques to prevent copying.
linkypoo:
http://duartes.org/gustavo/blog/post/first-recorded-usage-
of-hacker


Regarding the issue at hand: Can a member of the jury
instruct other members to thing not specifically brought up
at the trial? seems wrong.

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Does what the jury did actually matter?
Authored by: Anonymous on Wednesday, August 29 2012 @ 11:26 PM EDT
I'm not sure I understand all the discussion about how the jury made its
decision
and why it might be invalid or subject to appeal as a
result.

Isn't it the case that how the jury arrives at its verdict is totally
irrelevant? All
that matters is that they reach a verdict. They can ignore
the jury instructions. They can flip a coin. They can consult their
horoscopes.
They can even ignore the law (see 'jury nullification').

The whole idea of a jury system is that a jury makes the decision. They don't
have to give their reasons. Historically, the jury's
decision would have been inscrutable. The only thing that has changed is that
now we have virtually instant media reporting and jury
members who are happy to talk.

Or am I totally wrong about this?

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj
Authored by: Anonymous on Thursday, August 30 2012 @ 01:11 AM EDT
Is there any room for dissent on this blog? Everyone has their mind made
up before cases go to trial? without ever seeing the actual evidence?

The posters yell bloody murder if the trial doesn't go the way sj
recommends?

This informative website has gone downhill in order to appease the
ignorant who won't read a whole patent filing, just the summary.

When I read biased comments by people that can't bother to read the full
articles or think for themselves, I look forward to our ape overlords. The
human race is damned by our collective ignorance.

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Even FM appears to think the jury is nuts on this
Authored by: Anonymous on Thursday, August 30 2012 @ 02:47 AM EDT
While he tries to soften what he's saying at the same time, it's pretty clear
what he thinks. Eg "there's no question that Apple hit the lottery jackpot
with this foreman". And that it's ridiculous to suggest all the patents in
question were invalid.

Given his uh... "consulting work", maybe even Apple was taken aback by
how crazy the jury was on prior art?

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Velin Hogan had every motivation to orchestrate, rig, and subvert the jury deliberations.
Authored by: Anonymous on Thursday, August 30 2012 @ 05:30 AM EDT
The jury foreman Velin Hogan has a patent for a Tivo that is
invalidated by prior art (the Tivo and other devices that
preceded his "invention") - a very similar situation to
Apple's patent claims for things like the rectangle with
rounded corner and bounce back patents that make up most of
Apple's claims.

He certainly has a strong motive to rig and orchestrate the
deliberations to serve his own interests - in this case if
Apple wins its patent claims and sets a precedent through
the foreman's totally novel concept of judging prior art,
then perhaps his claims for the Tivo, which carry some
weight, since they are similar in terms of prior art to
Apples - ie. claims of ownership to things that others had
invented and had used before, and if this case results in
very high penalties, it increases his chances of
intimidating smaller manufacturers into paying him off to
avoid the nuisance of lawsuits even though his patents may
be invalidated by prior art.

Indeed judging from the discussion of what happened in
deliberation, it certainly looks like this is exactly what
happened - that he wanted Samsung to lose all the patent
claims from the beginning regardless of any evidence
presented in the case, and wanted them "punished" with a
huge penalty, and therefore disregarded jury instructions
and rules, posed as an expert and on that basis orchestrated
the remainder of the jury to also ignore the evidence, jury
instructions, and rules.

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Bounce-Back is Functional
Authored by: Anonymous on Thursday, August 30 2012 @ 12:18 PM EDT
If you are following something with your eyes that is moving quickly,
particularly for an extended time period, and that thing suddenly stops dead (an
occurrence that rarely happens in nature), then your eyes can play tricks on you
and perceive things that aren't happening. By simulating a more natural
deceleration or even a bounce of that moving thing, a better approximation to
what happens in nature occurs and your eyes/mind can deal with it that much
better.

Bounce-back isn't just a fancy, jazzy effect; it approximates nature and
improves perception.

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Latest Apple Lawsuit
Authored by: Anonymous on Thursday, August 30 2012 @ 04:43 PM EDT
Breaking NEWS!

Apple are to sue the London Olympic Committe (LOC) for breach of copyright and
design patents.

An apple was used in the opening ceremony of the 2012 paralympics to salute the
enlightenment, and Newton's fabled discovery of gravity when an apple fell on
his head.

An Apple spokesperson said: 'We spent billions in marketing to promote apples
and their link with Apple products, and any other organisation using any form of
apple shaped fruits would dilute our famous brand. Furthermore, there is no
evidence that the the apple account of Newton actually happened, and we will
ask
Cambride University to desist from mentioning any form of apples in connection
with Newton or gravity in future.'

With regards to the LOC suit, the spokesperson added: 'They could have used
falling metal balls, or the motions of the planets, or a thousand different
images to depict the discovery of gravity. To use an apple is slasvishly
copying our brand and innovation, and an attempt to ride on the back of our hard
work and sucess. It took us over 40 years to establish Apple as an unique icon.
They should do their own research rather than steal our ideas.'

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He's done an interview for BBC
Authored by: Anonymous on Thursday, August 30 2012 @ 10:27 PM EDT

Another interview and in my opinion, it just gets worse and worse. As I understand it, he demonstrates clearly that he doesn't understand prior art.

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Slight diversion: Software != Maths
Authored by: emmenjay on Friday, August 31 2012 @ 02:03 AM EDT
> Software is algorithms, and algorithms are mathematics. I hate it when people say that, it just isn't true.
  1. Software is algorithms
  2. Software contains algorithms. Not the same. It also contains other stuff like data structures and interfaces.

  3. algorithms are mathematics
  4. Not necessarily. An algorithm is like a recipe. Steps to perform some task. I could easily write an algorithm to make a cup of tea.

    At the bare metal level, most of the CPU instructions are maths operations, but that is not about algorithms.

    A compiler or interpreter translates Java or Python or Visual Basic (or whatever) into the binary code that is executed, but it would be the high-level techniques that might be patented. Those techniques could be translated into many different binary representations.

    Some algorithms are mathematical, such as encrypting text or computing sales tax. Others are not really, such as displaying a (uncompressed) bitmap image.

    Many programmers are (sadly) almost innumerate.

    As an example: autocompletion of text, as you type involves a bit of maths in its implementation, but the big innovation was the idea to perform autocompletion.
There are a lot of ingredients that make great software and maths is only one of them.

Note: None of the above is a comment on whether patenting software is a good idea. Just on the definition of software.

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You may find this useful
Authored by: Anonymous on Friday, August 31 2012 @ 04:56 AM EDT
You may find this useful since Hogan appears to have shot himself in the foot
yet again to the BBC

http://www.bbc.co.uk/news/technology-19425051

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj - Updated
Authored by: eggplant37 on Friday, August 31 2012 @ 09:02 AM EDT
I wonder, how was it again that this jury foreman survived
voire dire challenges? Someone didn't do their job correctly;
otherwise, this guy would have been at home eating a sandwich
when a possibly more correct verdict was rendered. The
verdict is a travesty led by a lone idiot in the quest for
his own brand of patent justice.

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The Foreman's Aha Moment
Authored by: LuYu on Friday, August 31 2012 @ 09:28 AM EDT

While PJ's analysis is as complete as usual, I feel that people are missing the bigger picture. The foreman confessed his bias in the first press statement. He stated, "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?'".

This means that he was not trying to come to an objective decision based on the evidence in the case. Rather, he was attempting to defend the patent system from what he perceived as a threat to his patent.

Further, he went on to say he convinced the rest of the jury to see things his way. I cannot believe there has not been more outrage over this perversion of the entire concept of juries. Juries, like judges, are supposed to make fair and mostly unbiased decisions based on the information presented in court. They are not supposed to bring their prejudices with them into court. This is why they are always barred from reading the press around important cases.

If this case is not dismissed, I will lose all faith in the US legal system. This foreman has betrayed the People of the United States and the world with his dereliction of duty. The judge should reprimand him severely and throw the case out.

---
If you believe in "intellectual property,"
you are an enemy of Free Speech and
the Constitution.

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Did he effectively amend the claims in Apple's patent to avoid prior art?
Authored by: Anonymous on Friday, August 31 2012 @ 10:37 AM EDT
--From the BBC interview --

And what I mean by the term "can I defend this patent", there's a process you go through in this country that you go through before a patent issued.

When the patent office determines that they are going to reject your patent based on a claim you are making against prior art - and in my case I had several of those - you have to be able to lay the groundwork and defend your claim that in light of the prior art it would not have been obvious to the individual who drafted that prior art that the new methodology could have been accomplished.

So that's the comparison and that's what I meant by defending the patent. And I'm going through this thought process of the patent that was involved and the prior art example that was involved, and making that comparison.

And when I got through with that comparison and that test, I asked myself the question: could I defend this patent, not in the court, could I defend this patent through that process just like I had to do my own if this were mine? And that's the "aha" moment that you hear talked about out there.

The answer to that question for me was yes. And so it just hit me that evening that that process I needed to explain to my fellow jurors because I was the only one that had ever gone through that process among them.

In the prosecution history of Hogan's patent application, like most applicant's, Hogan overcame prior art through a combination of argument and claim amendment. Mostly claim amendment.

The quotes from the BBC interview suggest that he performed a mental exercise of "defending" the Apple claims from the prior art, as if he was responding to Office Action rejections during the prosecution of the application. In Hogan's experience, that defense was done by amending the claims to distinguish from the prior art.

I'm beginning to believe Hogan saw a way to amend the Apple claims, perhaps by adding a limitation for a certain type of processor, that effectively distinguished the prior art.

Does the judge have discretion to bring Hogan back to court and ask him how he defends the Apple patent "as if it's his own" against the prior art? I.e., take the court through the process that he took the other jurors through.

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Source code
Authored by: Anonymous on Friday, August 31 2012 @ 11:05 AM EDT
[...] when we looked at the source code - I was able to read source code - I showed the jurors that the two methods in software were not the same [...]
Where there any source code in the evidence? or where did this source code come from? I don't seem to remember any being mentioned, but perhaps it was just not used in open court. If it was downloaded by the jury from the net, it would be bad.

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The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj - Updated
Authored by: Anonymous on Friday, August 31 2012 @ 02:04 PM EDT
I love this "Aha moment" simply because Samsung can use it as
a "Derp derp moment" when they appeal. In combination with
the USPTO reviewing the validity of Apple's rectangle with
round corners patent and more than likely invalidating it
this could turn the $1 billion into a few million at best.

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It's getting even more insane
Authored by: eric76 on Saturday, September 01 2012 @ 09:43 PM EDT

From Apple v. Samsung jury foreman: only the 'court of popular opinion' can change the patent system:

and that he was pleased he'd been selected "because I wanted to be satisfied from my own perspective that this trial was fair, and protected copyrights and intellectual property rights, no matter who they belonged to."

In other words, he wanted to protect the copyrights and intellectual property. If this indicates that he wanted to do that when he was selected, then he was working on a hidden agenda the entire time he was on the jury.

Hogan said he was one of a pair of jurors that served as the de facto technical experts of the nine-person panel. There was a sense amongst the jury that at times Samsung had been trying to muddy the technical waters, he admitted, with several jurors asking questions about the more nuanced issues in play.

In other words, he served as an expert witness who was entirely beyond the reach of the court itself -- neither the attorneys nor the judge were able to hear his testimony to the jury. He basically played everyone in pushing his agenda.

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