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Apple v Samsung Foreman Gets More Things Wrong ~pj
Tuesday, September 04 2012 @ 07:29 PM EDT

This is in the believe it or not category, but the foreman in the Apple v Samsung trial is *still* talking about the verdict and why the jurors did what they did. And the more he talks, the worse it gets for that verdict.

Gizmodo asked him to sit today for live questions. And believe it or not, he did it. And when asked if the jury was ever asking whether or not a patent should have issued, he claims that they never did because that wasn't their role and the judge told them to assume the patents issued properly and not to second guess that determination.

That is so wrong it's not even just wrong. The verdict form [PDF] and the jury instructions [PDF] specifically asked them to address that very question.

Here's what he said, starting with the question from Demon-Xanth:

Demon-Xanth:
Did you have the opportunity to ask "Is this something that should be patentable?" during the trial?

Velvin Hogan @Demon-Xanth
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.

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.

What a mess this jury made of things. IF you are ever on a jury, please use your common sense. The function of a jury is to decide facts, not just be little patent fascists. The USPTO issues patents that have the benefit of certain weight, but it is a challengeable assumption that they are valid. The USPTO leaves that to the courts. If in turn the jury leaves it to the USPTO, nobody ever decides whether or not a patent is valid.

And that is exactly what happened with this jury. They failed to fulfill their function.

He goes on to say that he understands prior art, but I think not. When asked, "Do you honestly believe that companies should be allowed to patent basic geometric forms?" he answers, Yes. He repeats the false claim that the prior art didn't count because it was not "interchangeable":

Wanhang:
Why did you choose to ignore prior art despite it being a legitimate claim?

Velvin Hogan @Wanhang
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.

Back at you, Mr. Hogan. Back at you. But someone calling himself Firewheels responded much more effectively:
Firewheels @Velvin Hogan
You're suggesting, then, that the patent is on the particular implementation, not the overall concept? In that case, isn't it clear that in many of the patents no infringement is possible, as clearly an implementation in Java (Android) is distinct from an implementation in Objective-C (iOS)?

If, however, you're suggesting the patent is on the concept, then clearly there IS prior art, and therefore the patents are invalid.

Either way, Samsung should not have been charged the exorbitant punitive damages you clearly believed were due.

Mr. Hogan has not replied, and it's been 4 hours. As another questioner, Bazzatoyou, phrased it after waiting an hour for a response that never came, "Looks like The Hogan has left the room ...!"

I hope Mr. Hogan's thinking deep thoughts about Firewheels' question.

One thing is for sure, this is going to be one fascinating appeal.


  


Apple v Samsung Foreman Gets More Things Wrong ~pj | 307 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SilverWave on Tuesday, September 04 2012 @ 07:39 PM EDT
:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Off Topic Here
Authored by: SilverWave on Tuesday, September 04 2012 @ 07:39 PM EDT
:-D

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Appeal Smeel
Authored by: Anonymous on Tuesday, September 04 2012 @ 07:40 PM EDT
I don't see how this judge can let the verdict stand.
Especially after Hogan is going around shooting his mouth off
about this. I don't see how anyone could argue sanctity of
the the deliberation process when the jury foreman is giving
, not just one interview, but a weeks worth of interviews
detailing the deliberations.

Mouse The Lucky Dog

[ Reply to This | # ]

News Picks Here
Authored by: SilverWave on Tuesday, September 04 2012 @ 07:40 PM EDT
;-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Comes Stuff Here
Authored by: SilverWave on Tuesday, September 04 2012 @ 07:41 PM EDT
:-|

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

When will Samsung move to have the verdict stricken.
Authored by: Anonymous on Tuesday, September 04 2012 @ 07:47 PM EDT
I think the one thing I am most eager to see are Samsung's
motions to reverse the verdict, Apple's response, and the
judges ruling.

[ Reply to This | # ]

Does what he says matter?
Authored by: Crocodile_Dundee on Tuesday, September 04 2012 @ 07:51 PM EDT
How much, if anything, of what the foreman says now is admissible in an appeal?

---
---
That's not a law suit. *THIS* is a law suit!

[ Reply to This | # ]

One thing is for sure, this is going to be one fascinating appeal.
Authored by: SilverWave on Tuesday, September 04 2012 @ 07:52 PM EDT
Oh yeah.

This guy made a huge mistake, actually a lot of huge mistakes....

But

He may be making up for them with his inability to keep quiet :-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Tuesday, September 04 2012 @ 08:04 PM EDT
Demon-Xanth: Did you have the opportunity to ask "Is this something that should be patentable?" during the trial? Velvin Hogan @Demon-Xanth 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.
I read this a bit differently than PJ. ISTM the foreman is saying that the validity questions were limited to whether things are patentable, and the jury couldn't ask whether they ought to be patentable. The things he's said about Prior Art needing to be 'interchangable' remain worrying, of course - and, I think, even moreso in light of this comment from the Gizmodo thread:
I am very familiar with prior art I had to defend the claims in my patents against prior art in order have my patents to be issued

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Tuesday, September 04 2012 @ 08:08 PM EDT
How much of this would really come into it on appeal? Isn't the question whether
ANY reasonable jury could come to these conclusions, not was this jury
reasonable in how it came to these conclusions?

[ Reply to This | # ]

Demon-Xanth's question
Authored by: calris74 on Tuesday, September 04 2012 @ 08:14 PM EDT
This question is open to interpretation...

Did you have the opportunity to ask "Are the software
algorithms or the 'rectangle with round edges' design
something that should be patentable?" during the trial?

And the response was 'It is not up to the jury to judge if
particular subject matter is or is/not patentable'

Firewheels' question on the other hand was right on the mark
- no wriggle room at all

[ Reply to This | # ]

Response to Wanhang's question most troubling
Authored by: calris74 on Tuesday, September 04 2012 @ 08:15 PM EDT
For me, the response to Wanhang's question has the most
disturbing content:

"Read the law and the statues covering Prior art"

Here we have a foreman who thinks he knows the law - Correct
me if I am wrong, but it is not up to the jury to 'know the
law' but rather to 'determine the facts'?

The foreman (thought) he 'knew the law', and in having that
knowledge, his determination of the 'facts' got skewed -
i.e. The determination of fact was based on something NOT
presented in evidence during the trial

[ Reply to This | # ]

PJ -- we need legal "expertise" on admissibilty of post trial jury statements.
Authored by: Anonymous on Tuesday, September 04 2012 @ 08:29 PM EDT
It's come up already twice in this discussion alone.
Very broadly jury testimony is considered sacrosanct, and
post trial statements generally are not enough to overturn
them. This however is the broad principle which is used as a
guide. Just as hearsay is broadly inadmissible. However
those of us who know a little bit more about the law then
the average person, know that there are 27 exceptions ( last
I heard ) to the hearsay rule.

I've tried to look up the case law on post trial statements,
and it's murky at best. Most importantly all the case law
I've seen is all in regards to criminal law, and civil law
can be a very different animal.

Since television came out it's been more and more of a
problem, and has gotten even bigger with the internet. I
think the courts are going to have to give some serious
thought to this. So if you or someone out there knows a
legal expert who might chime in, now is the time to do it.

Personally, if I were on SCOTUS, I would say something like
this: If there are public statements calling a verdict into
question, the judge can call in the jurors and ask them
about deliberations. The jurors have the right to answer
none or some of the questions, but if they fail to answer
questions then the public statements have to be considered
as "the best evidence of what happened during deliberations"
.

Mouse the Lucky Dog

[ Reply to This | # ]

Understanding Hogan.
Authored by: Anonymous on Tuesday, September 04 2012 @ 09:02 PM EDT
I think people are exaggerating Hogan's motives. It does
seem clear though that Hogan's motive's are not malicious.
That does not excuse them. I think Hogan did a poor job
based on mental laziness which is going to cost millions in
wasted court time. Not to mention wasting the time of the
lawyers, judge and jury. I do think however that we should
listen to the adage, "Never attribute to malice, which can
be attributed to stupidity."

Put simply, Hogan is an idiot too stupid to know he is an
idiot.

perhaps the dumbest interview question I have been asked as
a programmer is "Are you a great programmer?". The reason is
simple. The crappiest programmers I knew all would have
answered yes without a thought, and all the great
programmers would have answered "I'm good, but there are all
these things I don't know.". There was even a psychology
paper on this. I deduced that the better programmers were
the better programmers because they understood their
deficiencies, and the weaker programmers didn't understand
their weaknesses.

------------------------
Mouse The Lucky Dog

[ Reply to This | # ]

Worst possible jury forman selected
Authored by: Anonymous on Tuesday, September 04 2012 @ 09:11 PM EDT
It's clear that the jury picked the worst possible person to be its foreman.
It's hard to believe that Samsung allowed this person on the jury. It will be
interesting when the trial transcript is issued to see the voire dire process to
see how this person made it onto the jury.

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: charlie Turner on Tuesday, September 04 2012 @ 09:13 PM EDT
My goodness, Mr.Hogan seems to be converting Darl's patented footgun into a GAU-8 Avenger, straight out of an A-10, Warthog_cannon Really can't get any better than this. :D!

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: N_au on Tuesday, September 04 2012 @ 09:16 PM EDT
I thought the same as firewheel. If the prior art doesn't count because it is
not interchangable, then how on earth did Samsung when the code is not
interchangable. Me thinks he was fooled by his own self smartness.

[ Reply to This | # ]

  • Aye - Authored by: Anonymous on Tuesday, September 04 2012 @ 09:43 PM EDT
Grounds for a mistrial?
Authored by: Anonymous on Tuesday, September 04 2012 @ 09:34 PM EDT
Some of the foreman's statements are so patently (pun intended) absurd.

Can there be a mistrial?

Please, pretty please.

[ Reply to This | # ]

Perhaps last paragraph page 40 of instructions had him confused ...
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.

Pages 44 and 46-47 of the instructions make fairly
clear that at least some if not all of Apples utility
patents were invalid due to one or more reasons.
And I am guessing these either got short-shrift
or were misinterpreted due to an overly broad
application of the last bit on page 40.

I also think it an excellent point that whatever
'logic' or 'illogic' was being applied to the utility
patents, it was not uniformly applied.

The same knife should have cut both ways,
and not turned into rubber only when
being used for Samsung, while being 'diamond' hard
and razor sharp when being used for Apple.

[ Reply to This | # ]

Foolhardy Professionals
Authored by: Anonymous on Tuesday, September 04 2012 @ 10:55 PM EDT
We who inhabit arcane realms are oft wont to stray from the chief purpose
of our language. (My arcane realm is poetry)

Or more plainly. The jury instructions were written with all the skill of a
non-
English speaking technician in China preparing new product instructions with
the aid of a Chinese to Swahili dictionary and "English for Swahili
speakers, a
tourist's guide"

A suggestion for next time.

Instruction 1
Do not try to second guess the law. You MUST only use the judges
descriptions of the law not what you think you know.
Instruction 2
You MUST consider each question on this form in detail and in turn.
Instruction 3
Only evidence presented in court counts, if any juror tries to persuade the
rest of you he knows better, ignore him completely, he is a fool.


Then give the questions. Any longer set of instructions written in any more
complex language is very likely to be ignored.

[ Reply to This | # ]

Foolhardy Professionals
Authored by: cricketjeff on Tuesday, September 04 2012 @ 10:57 PM EDT
We who inhabit arcane realms are oft wont to stray from the chief purpose
of our language. (My arcane realm is poetry)

Or more plainly. The jury instructions were written with all the skill of a
non-
English speaking technician in China preparing new product instructions with
the aid of a Chinese to Swahili dictionary and "English for Swahili
speakers, a
tourist's guide"

A suggestion for next time.

Instruction 1
Do not try to second guess the law. You MUST only use the judges
descriptions of the law not what you think you know.
Instruction 2
You MUST consider each question on this form in detail and in turn.
Instruction 3
Only evidence presented in court counts, if any juror tries to persuade the
rest of you he knows better, ignore him completely, he is a fool.


Then give the questions. Any longer set of instructions written in any more
complex language is very likely to be ignored.

---
There is nothing in life that doesn't look better after a good cup of tea.

[ Reply to This | # ]

Inadmissable?
Authored by: shachar on Wednesday, September 05 2012 @ 12:47 AM EDT

Someone over at slashdot commen ted that the federal rules say that nothing the foreman now says, essentially, is admissible on appeal.

Now, this is not to say Samsung cannot bring this to the attention of the Judge in order to influence her decision on the JMOL motions, but strictly speaking, that would be two wrongs to correct a right, not proper procedure.

Shachar

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 12:54 AM EDT
Where are the rest of the jurors? Can't anyone get them for an interview?

[ Reply to This | # ]

Patent troll wannabe
Authored by: Anonymous on Wednesday, September 05 2012 @ 03:07 AM EDT

I urge everyone to read for themselves the patent this person holds.

Keep in mind: Tivo was shown as a product in 1999. His application is from 2002.

Of course he wanted every Apple patent to be upheld.

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 03:12 AM EDT
Jury verdicts have been tossed many times before for just this
reason

Here's a few good examples

http://www.capdefnet.org/hat/contents/constitutional_issues/ju
ry_misconduct/JUROR%20MISSTATEMENTS%20OF%20LAW.pdf

[ Reply to This | # ]

What does the foreman know about source code...
Authored by: Anonymous on Wednesday, September 05 2012 @ 04:47 AM EDT


I'm suprised that you haven't extracted some juicy quotes from the unedited BBC
interview too.


I know you linked it in a previous article, but Firewheels questions, is an echo
of this statement by the foreman....

"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."


I can read source code me, can I haz a patent?

[ Reply to This | # ]

Is the Foreman making up his own case law?
Authored by: yorkshireman on Wednesday, September 05 2012 @ 05:45 AM EDT

The foreman has got this "Interchangeable" concept regarding prior art in his head and takes that to mean that unless prior art runs unmodified on the patented device (and vice-versa??) the prior art is invalid.

I haven't read of anyone else, anywhere on the Internet who agrees with his view on this.

But assuming this is an honest mistake he must have got his idea from somewhere?

Could it be that he heard some discussion in the court about terms used in patent claims being interchangeable and mentally extended that to software being interchangeable - because, if that were true,then it would give him a faint chance to defend his own patent?
 

[ Reply to This | # ]

  • Making up the law - Authored by: Anonymous on Wednesday, September 05 2012 @ 04:38 PM EDT
    • Making up the law - Authored by: Anonymous on Thursday, September 06 2012 @ 04:10 PM EDT
      • Whoa - Authored by: Anonymous on Thursday, September 06 2012 @ 06:09 PM EDT
      • Making up the law - Authored by: PJ on Thursday, September 06 2012 @ 06:16 PM EDT
Let's Face It
Authored by: Anonymous on Wednesday, September 05 2012 @ 06:40 AM EDT
This was a one-person jury.

[ Reply to This | # ]

  • Let's Face It - Authored by: Anonymous on Wednesday, September 05 2012 @ 04:25 PM EDT
  • Yes - Authored by: Anonymous on Thursday, September 06 2012 @ 09:58 AM EDT
    • Yes - Authored by: Anonymous on Thursday, September 06 2012 @ 10:27 AM EDT
      • Yes - Authored by: Anonymous on Thursday, September 06 2012 @ 02:01 PM EDT
Did the Jury decide willfullness and adjust numbers accordingly?
Authored by: mossc on Wednesday, September 05 2012 @ 07:35 AM EDT
jonmpls 18 hours ago
Given that you were specifically told not to use the judgement amount
to punish, why did you and the other jurors do exactly that?

Velvin Hogan @jonmpls 17 hours ago
We did not punish, our judgement was fail and about half of what Apple
was asking for. When willfully infringed and get caught you must pay
the price. That is how our system works,

--------------------------------------------------

I thought the articles here implied the judge had the task of deciding whether
any infringement found was willful (and possibly tripling jury damage awards).

This quote implies they found the infringement willful and had to "pay the
price". Does this mean they tripled the damages themselves? If so is that
grounds for the judge to reduce damages?

Given that he groups "willful infringed" with "pay the
price", and the jury did not find any of samsungs patents infringed could
the jury have been confused and used willfulness as the criteria for finding
infringement rather than differentiating between willful/inadvertent
infringement?

Chuck

[ Reply to This | # ]

Pulling a "Hogan"
Authored by: Anonymous on Wednesday, September 05 2012 @ 09:36 AM EDT
Maybe something good can come out of this: i'm proposing a new figure of speech
- "pulling and Hogan".
Definition - making an argument or decision based on misinterpretation and
misunderstanding of reality and rules and laws regulating particular realm.
Example - "Oracle pulled a "Hogan" with overreaching copyright
claims"

[ Reply to This | # ]

Illustrating the problem
Authored by: jpvlsmv on Wednesday, September 05 2012 @ 09:58 AM EDT
To me, this case has illustrated the problem that the courts run into in patent cases:

We have court-designated experts trying to explain concepts written by patent lawyers, describing what someone of ordinary skill in the art would know, to a jury of peers (randomly selected people, with a selection bias against the informed or opinionated).

Is it any wonder that people who don't write software don't understand how software is written?

Is it any wonder that people who don't grok computers are confused when an expert tries to explain to them what "non-random, horizontal-spatially distinct and chronologically arranged" means? (Apple '134 patent)

--Joe

[ Reply to This | # ]

  • Jury of *peers* - Authored by: Wol on Wednesday, September 05 2012 @ 11:17 AM EDT
    • Jury of *peers* - Authored by: Anonymous on Wednesday, September 05 2012 @ 04:30 PM EDT
  • Illustrating the problem - Authored by: Anonymous on Wednesday, September 05 2012 @ 03:46 PM EDT
  • Yes - Authored by: Anonymous on Thursday, September 06 2012 @ 10:03 AM EDT
    • Yes - Authored by: Anonymous on Thursday, September 06 2012 @ 02:35 PM EDT
Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 10:09 AM EDT
Its entirely possible that the jury was asked not to decide on if something
should
be patentable (is that a word?)?

They probably were asked to decide if the patent was valid or not? They could
have been instructed by the judge not to first decide if something is patentable

or not.

Secondly if the law cannot be explained to ordinary people then how can they
obey the law. Even patent laws have to be understood by all.

Not knowing the law or not understanding it, correct me if I am wrong is not a
defense.

[ Reply to This | # ]

Interchangeable Question
Authored by: Anonymous on Wednesday, September 05 2012 @ 10:43 AM EDT
Seeing as how he continues to rely on the "interchangeable"
issue why then does an interviewer not ask the following
question:

You said the prior art was not valid because Apple's code could
not run on that platform and that code could not run on
Apple's. Why then does the Samsung code infringe since the
Samsung code can not run on iOS and Apple's code cannot run
on Android? Since they are not interchangeable, does that
mean they cannot infringe?

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 11:36 AM EDT
This guy must be absolutely brain dead. What a mouth breather.

They should have some kind of IQ requirement for jury foremen. He crashed this
entire trial almost single handedly.

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 12:16 PM EDT
I don't understand why an implementation in Java or Objective-C cannot be
identical. Implementation has nothing to do with the language used does it.

If the implementation calls for four distinct steps and you do those four steps
in
Java or Objective-C then you've infringed the patent. haven't you?

[ Reply to This | # ]

Best outcome... in my dreams
Authored by: Anonymous on Wednesday, September 05 2012 @ 02:42 PM EDT
Verdict thrown out due to jury misconduct or incompetence.
Judicial inquiry finds that it's not reasonable to expect
juries to understand such long complex instructions,and hard
limits are set for numbers of patents per case and
instruction lengths.

Subsequent investigation finds design and software patents
unsupported by common sense and they are banned.

Apple fined $3 billion for wasting everyone's time. Money to
be used to hire competent patent examiners and support prior
art research tools.

I can dream.

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 04:35 PM EDT
PJ,

Firewheels' last question misinterprets patent law even more egregiously than
you claim Hogan has.

Implementation and Language are different things. 'a=1+1' is the same
implementation as 'Add one and one, giving the result to the variable a', but
the language used is significantly different.

'a=1*3' and 'a=1+3' are different implementations, even though their language is
the same.

[ Reply to This | # ]

Apple v Samsung Foreman Gets More Things Wrong ~pj
Authored by: Anonymous on Wednesday, September 05 2012 @ 05:24 PM EDT
PLEASE keep talking Mr. Hogan. Everytime you speak, it's helping us consumers
(and "inventors") so thank you.

[ Reply to This | # ]

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