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Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done ~pj
Saturday, September 08 2012 @ 03:51 PM EDT

We've begun posting the transcripts from the Oracle v. Google trial, and the first one shows the entire voir dire, the choosing of the jury. I've had a chance now to read it all more carefully, and I've added some updated explanations as a result. But I wanted to highlight something here that relates to the concerns many feel about the verdict in the Apple v. Samsung case.

The judge, the Hon. William Alsup, in Oracle v. Google tells the prospective jurors that if they have some special knowledge on topics that will be important in the case, such as from a prior patent case, they can't use that in deciding this case but must only go by the evidence presented. If you recall, that is precisely how the jurors in Apple v. Samsung, in my view, failed. I'd like to show you what Judge Alsup said to his prospective jurors about this, so you can understand what bothers me so much about that Apple v. Samsung verdict, that is, the way it was reached. Thanks to the foreman giving multiple interviews to the media, we know how they reached a verdict, and it's very, very disturbing to anyone who knows what the rules are.

Jump To Comments

In the Apple v. Samsung case, the foreman has told interviewers that he had had to defend his own patent before the USPTO in order to get it issued, and he told the BBC and others that he used knowledge from that experience to convince the other jurors that Samsung's prior art was not valid, because it was not "interchangeable". He explained to them that you couldn't run Apple software on it or vice versa -- which is not a prior art requirement, but he thinks it is. He convinced the others by showing them software code to demonstrate that they were not "interchangeable", so in two different ways he used prior knowledge, if I can loosely call it that, and external "evidence" not presented by the lawyers, from what we've seen in the media, and played his own role as an "expert", to decide the case. Keep in mind that up to that point, he says he thought the verdict was going to be for Samsung, but after his "testimony" and show and tell, it went for Apple.

So, that is what he says he did. Now, let me show you what the judge said during the voir dire in the Oracle v. Google case to a prospective juror. The man was involved in a patent infringement case in connection with his work. It was being appealed, but he'd been told perhaps he'd still have to testify. So here's what the judge told him and the entire group of prospective jurors after he told the judge he might be somewhat influenced by what he'd seen, and the judge asks him if he can set that aside and not let it influence him:

PROSPECTIVE JUROR RICHARDSON: Well, I mean, being involved in a patent infringement, you tend to, you know, learn a little bit more. You have a little bit different insight. So I would like to believe I can do that. So, yes.

THE COURT: Well, you just have to forget about what you learned in those other cases and, you know, hold the lawyer, whoever -- here is the way it works. I'll tell everybody.

One side or the other is going to have the burden of proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide.

Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here.

You understand that part?


Later, the issue comes up again, this time with a lawyer, who does patent prosecutions at the USPTO. Asking her questions is Google's lead attorney, Robert Van Nest of Keker & Van Nest:
MR. VAN NEST: Okay. Are you also -- are you certified to practice in the PTO?


MR. VAN NEST: So you passed all the --


MR. VAN NEST: The Patent Bar and studied infringement, validity, prior art, and all that?


MR. VAN NEST: Judge Alsup asked you this question, but I want to probe a little more.

You obviously have a lot of specialized knowledge about how the patent system works. Do you feel as though you could really exclude all that knowledge in terms of interacting with your other jurors in applying the law as Judge Alsup gives it to you to the facts here?

PROSPECTIVE JUROR MS. BALAKRISHNAN: I think I would be maybe more interested in the case because I have a background. But I feel confident that I can be impartial.

MR. VAN NEST: Thank you....

THE COURT: All right. Okay. So, now, can you -- just ask you the general question I've asked everyone else. I think I have. If you're selected to serve, will you be fair and impartial to both sides, listen carefully to all of the evidence, ignore all of the specialized training that you have from the past, and decide this case in accordance with the law as I give you the law?


There was more said on the same topic in connection with two other prospective jurors:
THE COURT: ... So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying?

You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works.

As you can see, you are not necessarily excluded from a jury if you have specialized knowledge relevant to the case. The question is, can you set it aside and not try to use it instead of relying entirely on the evidence the lawyers present at trial.

Did the foreman in the Apple v. Samsung case set aside knowledge from a prior patent case? Didn't the other jurors, according to his interviews and one by the only other juror to speak to the media, base their verdict exactly on outside materials, including the foreman's so-called expertise? Are they supposed to?

Now, there is a line, in that having some knowledge of a topic can actually be a good thing, but you are not supposed to make your decision based on anything but the evidence the lawyers presented, not on evidence presented by your fellow jurors.

We'll have an opportunity to check whether something like what Judge Alsup told his prospective jurors was also said in the other trial, but my guess is it would be, because it's pretty much standard. I wish we had the transcripts now, but I'm betting that the Samsung team are poring over them like they were nearly sacred, that is, with enormous diligence and zeal.


Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done ~pj | 149 comments | Create New Account
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Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done ~pj
Authored by: Anonymous on Saturday, September 08 2012 @ 04:04 PM EDT
"Did the foreman in the Apple v. Samsung case set aside knowledge from a
prior patent case"

In jury interviews after the case they even said they put prior art aside cause
it was "bogging them down"

[ Reply to This | # ]

What you point out is a difference in judges.
Authored by: Anonymous on Saturday, September 08 2012 @ 04:29 PM EDT
This is what I have been saying all along. Koh seems to be under powered for
this case. Smart enough, yes. Experience is the problem, imo.

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Saturday, September 08 2012 @ 05:00 PM EDT
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan see what needs to be corrected and to avoid duplication of

[ Reply to This | # ]

News Picks Threads
Authored by: bugstomper on Saturday, September 08 2012 @ 05:04 PM EDT
Please type the title of the News Picks article in the Title box of your
comment, and include the link to the article in HTML Formatted mode for the
convenience of the readers after the article has scrolled off the News Picks

Hint: Use Preview to check that your links are ok. Avoid a Geeklog
"feature" that posts long links broken by inserting line breaks in the
URL at punctuation points such as
<a href="

[ Reply to This | # ]

Did the foreman ask the wrong question?
Authored by: Anonymous on Saturday, September 08 2012 @ 05:04 PM EDT
The foreman said he realized he could defend the patent.
Since the burden of proof was on Apple, should his point of
view been, "Can I attack the patent?"

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Saturday, September 08 2012 @ 05:05 PM EDT
Please stay off topic in these threads. Use HTML Formatted mode to make your
links nice and clickable.

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Saturday, September 08 2012 @ 05:12 PM EDT
Please post your transcriptions of Comes exhibits here with full HTML markup but posted in Plain Old Text mode so PJ can copy and paste it

See the Comes Tracking Page to find and claim PDF files that still need to be transcribed.

[ Reply to This | # ]

Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done ~pj
Authored by: Zenock on Sunday, September 09 2012 @ 03:40 AM EDT
This is exactly what I though as I read the transcript.

Question... What happens next?

Will there be an evidentiary hearing?

How long does Samsung have to file motions for the judge to
do something about this?

What can the Judge do? Declare a mistrial?

I would love not only to see the instruction given to the
jury but the whole jury selection process as we see it in
the other case.

In that case it seems to me that the judge and Lawyers went
to a LOT of work to ferret anyone out who had any experience
with patents so they could address exactly these kinds of
issues. In the end the end they got rid of pretty near
everyone who had ever been associated with patents in
anyway. To much of a chance of bias I suppose.

So I would very much like to know what they knew about Mr.
Hogans experience going in. Did he hide his experience? Or
did no one try to find out about it.

I have to admit, after reading the transcript for Oracle vs
Google I am very very very very impressed with Judge Alsup.
I think he would make the Lawyers stand on their heads and
sing the national anthem if there was any chance it would
make the jury's job easier.

I thinking breaking up the case and simplifying it was
brilliant. I think this is where Koh fell down. I don't
think she made the job easy enough for the Jury. She gave
them way to much to try to process all at once. She should
have broken it into parts for the Jury like Alsup did. Just
my opinion.


[ Reply to This | # ]

Where does “common sense” end?
Authored by: Anonymous on Sunday, September 09 2012 @ 04:26 AM EDT
Just quoting from wikipedia, common sense is “the knowledge and experience which
most people already have, or which the person using the term believes that they
do or should have”. This obviously leaves room for interpretation.

Now it is clear for me that someone making up theories about applicablity of
prior art having to be interchangeable (blah.. blah.. blah) is wrongfully
putting in false facts from a fringe-field of his earlier experiences. This is
easy to decide as not to be “common sense”.

But we are living in times where there are computers in classrooms, children are
tought how to use them (or, more often, educate their teachers how to use them
:-) ), and maybe we can assume that 50% of a population has been exposed to
"programming" in one way or the other during their time in school,
maybe even in a very basic "Hello World" way, or writing macros in

And these people might as well use this knowledge to decide that some argument
of a lawyer in curt might have been unconvincing or false. And things like
explaining the interface of a Maximum or Square-Root function, that were
presented in the Java case, are clearly in the scope of even the most basic
education on programming.

So putting my long rambling to an end: Is there some applicable definition of
“common sense”, or is discussion about this in practice only relevant to edge
cases that clearly lie outside or inside the realm of common sense?

(Chris [currently no new accounts can be created...])

[ Reply to This | # ]

The jury foreman in Apple v Samsung case was wrong
Authored by: Anonymous on Sunday, September 09 2012 @ 11:02 AM EDT
The jury foreman was just wrong no matter how he explains
it. Even his reasoning of "interchangeable" doesn't hold.

He says (no exact quotes here, I'm paraphrasing):
"Samsung violated Apple's patents because it was a blatant
copy ... and interchangeable."

And: "Apple did NOT violate Samsung's patents because it was
NOT interchangeable."

??? Mind-blown!!!!

[ Reply to This | # ]

Judge in Oracle v. Google Explains What Jurors Must Not Do -- And It's What the Jury in Apple v. Samsung Seem to Have Done ~pj
Authored by: jacks4u on Sunday, September 09 2012 @ 02:17 PM EDT
So, has there ever been a case where a Juror was tried for Jury tampering? It
should be fairly easy to show, from his own admissions to the media. And isn't
that a criminal offence? Does the FBI investigate? There are a number of related
questions that come easily to mind, but I'll let others ask those

[ Reply to This | # ]

The future
Authored by: Anonymous on Monday, September 10 2012 @ 02:07 AM EDT
This is not over as we all know.

I think Samsung has enough to work with they can demonstrate that the procedure
the court and jury had them go through was way below an acceptable bar for
anything that could be called justice.

[ Reply to This | # ]

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