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Jury Instructions in Apple v. Samsung, 109 pages ~pj - Updated
Tuesday, August 21 2012 @ 03:30 PM EDT

Here's what they are reading today in the Apple v. Samsung trial, the final (yes, really final final) jury instructions [PDF]. The judge, poor thing, is reading it all aloud to the jurors, having them all stand up from time to time to make sure everyone is still awake. It's 109 pages long. It begins with the jurors' duty, in case they felt like leaping through the window like the Hulk to escape, and heaven only knows we all appreciate their efforts.

Our reporter is there today, as well. Hopefully, if anything unusual happens, he'll be awake to tell us about it.

: D

Early on, he sent this note:

There was initial some debate in the court room about the ordering of closing arguments. Since there are claims in both directions, they're staggering the order in which they discuss and rebut evidence. In this case Apple had misunderstood the judge's intentions and had to adapt. Samsung was already in agreement with the judge and could simply proceed as planned.
I'll keep you posted. Meanwhile you can read this magnum opus too.

And I hope you do, because the judge gives the jury a course in patent law, which might come in handy for us too, so we can use the new Google Prior Art Finder tool effectively and know when we have found something of actual value.

Here's how the jury is to evaluate fact witnesses:


In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness said, or part of it, or none of it. Proof of a fact does not necessarily depend on the number of witnesses who testified about it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness’s memory; (3) the witness’s manner while testifying; (4) the witness’s interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness’s testimony; (6) the reasonableness of the witness’s testimony in light of all the evidence; and (7) any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

So they can decide if they believe a witness or don't. Note the "any other factors that bear on believability" language.

What about experts, though? Do they have to accept what they testified to? Here's the instruction regarding the experts that have testified, and whether the jury has to believe them:


Some witnesses, because of education or experience, were permitted to state opinions and the reasons for those opinions.

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.

Despite being paid tens or hundreds of thousands to testify, the jury can ignore everything they said, if they feel they should. Note the "reasons given for the opinion" could include that they got paid a bundle.

Here's the two standards of proof, remembering that this is a civil, not a criminal, trial, and that some claims get one and others the other:


When a party has the burden of proof on any claim or defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or defense is more probably true than not true.

You should base your decision on all of the evidence, regardless of which party presented it.


When a party has the burden of proving any claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or defense is highly probable. This is a higher standard of proof than proof by a preponderance of the evidence.

You should base your decision on all of the evidence, regardless of which party presented it.

There was a dispute about this next one, and here's how it was resolved, by stipulation:

Device Handling Directions

The physical devices you received are evidence in this trial.

You may use them in your deliberations, and may connect to the Internet through the Web Browser application, but must not alter or modify the devices in any way.

Some of the devices have SIM cards in their packaging. These SIM cards are not to be inserted into the phones.

Some of the devices have a mobile data connection, and you will not need to take any additional action to use the Web Browser application.

Others must first be connected to the Court’s Wi-Fi network to access the Internet.

Once connected, you must decline any software update notifications that may be presented to you.

You also must not download any content, such as apps, music, photographs, or games, to the devices.

The debate was that Samsung didn't want them going on the Internet and updating anything, because, I assume, it can greatly affect how the phone looks. So the jurors can modify and try them out, but there's no SIM card and they are told that they must decline update notifications.

Apple wanted them to be able to get on the Internet, and this is how they argued for it [PDF]:

Early in the trial, the Court made the following suggestion for jury deliberations: “The jurors will have all of these phones in the jury room. Why don’t we let them just play with them?” (Trial Tr. 1274:13-15.) On Friday, Counsel for Samsung identified a risk inherent in the jury’s use of the accused Samsung products: “There’s some design around activity that happens with over-the-air updates, so you don’t want that to get in the phones.” (Trial Tr. 3557:15-17.) Apple agrees that this is a risk, and urges the Court to provide the jurors with the information they need to avoid inadvertently updating the products and potentially downloading to the devices certain design-arounds precluded from evidence by Judge Grewal. See Dkt. No. 898 at 9; see also Dkt. No. 1545 at 5.

The accused Samsung products in evidence are capable of accessing the Internet. Some devices have active mobile data connections and will automatically connect to the Internet when powered on. Others can connect to the Internet through the Court’s Wi-Fi network. Jurors will need Internet access to use the Web Browser application on the accused Samsung products during their deliberations. This is important because many of the examples of utility patent infringement provided by Apple were demonstrated on web pages viewed in the Web Browser application.

Both parties are aware of these issues and previously requested during their respective inspections of each other’s physical devices that the inspecting party avoid installing updates. Because the jury is not as familiar as the parties with these issues, Apple proposes that the Court provide the Device Handling Directions, attached as Exhibit 1, to the jury. It provides clear directions on how to connect to the Court’s Wi-Fi network correctly and directs the jury not to accept any software updates. Despite being focused on the exact concern raised by counsel for Samsung, Samsung opposes this request.

Samsung objected [PDF], no doubt because it works against Samsung if the jurors update their phones by mistake or because it happens without them even realizing it -- remember that in the voir dire, we learned that this jury pool were not all owners of smartphones:

Apple’s request to allow jurors to access the internet on devices in evidence during their deliberations should be denied because there is a substantial risk that the admitted exhibits will be unintentionally modified, resulting in risk of juror error. The parties had the opportunity to put their evidence in the record and to object to the evidence coming into the record. That carefully controlled procedure should not be jeopardized by now allowing the jurors to access the internet on the devices in evidence and potentially download electronic updates that change the devices that were admitted as joint exhibits.

Denying Apple's request would be consistent with the emphasis throughout this case on ensuring that the exhibits are closely monitored, joint exhibits remain unchanged after being admitted into evidence, and all parties know exactly what is being provided to the jury. Id. at 1323:18-21 (“It’s important to have both sides confirm that whatever is being shown to the witness or the jury is the joint exhibit that both parties have stipulated to.”) The Court and the parties have emphasized many times during these proceedings that it is critical to maintain the integrity of admitted evidence. See e.g. Trial Transcript at 1320:20-22 (Apple represented, “We have done everything we can to preserve the integrity of the exhibits we’ve used in the case”). Indeed, when Samsung’s counsel raised a concern about whether the home screen icons on a joint exhibit reflected what the phone looked like immediately after purchase, Apple’s counsel argued: “We can’t have a redo of the joint exhibits at this stage. They’re in evidence.” Id. at 1325:18-19

He further argued, “To now do a redo of this in the middle of trial would create the potential for serious error.” Id. at 1326:2-4. The Court stated that the parties had stipulated to the joint exhibits, they needed to remain unchanged after being admitted into evidence, and requested that Apple confirm it had not modified any of the joint exhibits. Id. at 1324:21-1325:5, 1325:22-23, 1326:10-24. Despite its prior statements, Apple now seeks to throw caution into the wind and authorize the jurors to access the internet from the devices in evidence without any supervision or involvement on the part of the attorneys or Court. Apple’s proposal flies in the face of its prior position that devices must be left unchanged after they are admitted. Apple’s proposal would dramatically increase the chance that the physical devices will be altered.

The risks of allowing the jury to access the internet are substantial. When these physical devices are connected to the internet, as Apple requests, software updates may automatically be sent and downloaded. The updates could noticeably change the functionality of the device. Id. at 3557: 3-8. There is also design-around activity that occurs with over-the-air updates and a risk it could be incorporated into the devices. Id at 3558:9-13. Instead of being given access to the internet, the jurors should be provided the devices that are in evidence but prohibited from accessing the internet. Under this approach, the jurors will still have the opportunity to turn on the phones and use them during their deliberations. The jurors will also have all of the information provided by the attorneys during the trial at their disposal. But there is no reason to jeopardize the integrity of the proceeding by opening up the risk that a phone will be inadvertently updated.

Although Apple proposes to give the jurors instructions about accessing the internet, its proposal would not necessarily prevent accidental or automatic updates. The jurors do not have experience with each of the devices in evidence and there is too great of a risk that they will inadvertently not follow the instructions or mistakenly allow the devices to be updated. It would be logistically impossible for the entire jury to hold the phone and respond to queries regarding updating the phone. As a result, this work would likely fall to just one juror and there is no way to know if that one juror will be familiar with operating the devices that have been admitted as physical exhibits. Moreover, the parties will never know if the updates are installed because the deliberations are secret. If any updates or patches are inadvertently installed by any of the jurors, neither party will ever find out.

Apple had its opportunity to present its evidence to the jury and to display any aspects of the phones that it believed were necessary to support its claims and defenses. The evidence is closed and the risk that the jury will potentially be exposed to updates on the admitted devices weighs dramatically against granting Apple's request. As a result, Apple’s request should be denied.

Certainly somebody could take a look at the phones when the jurors are done, and the jurors could be questioned afterward. Some of the phones, as we saw in the YouTube videos the other day, update without a notification at all.

And here's what the jury has to figure out, the contentions after some claims were dropped:

SUMMARY OF CONTENTIONS I will now again summarize for you each side’s contentions in this case. I will then tell you what each side must prove to win on each of its contentions. As I previously explained, Apple seeks money damages from Samsung Electronics Company (“SEC”), Samsung Electronics America, Inc. (“SEA”), and Samsung Telecommunications America, LLC (“STA”), for allegedly infringing claim 19 of the ’381 patent, claim 8 of the ’915 patent, claim 50 of the ’163 patent, and the D’889, D’087, D’677, and D’305 patents. Apple also argues that SEC actively induced SEA and STA to infringe the patents. Apple also contends that Samsung’s infringement has been willful.

Samsung denies that it has infringed the asserted claims of Apple’s patents and argues that, in addition, those claims are invalid. Invalidity is a defense to infringement.

Samsung has also brought claims against Apple for patent infringement. Samsung seeks money damages from Apple for allegedly infringing the ’941, ’516, ’711, ’460, and ’893 patents by making, importing, using, selling and/or offering for sale Apple’s iPhone, iPad and iPod products that Samsung argues are covered by claims 10 and 15 of the ’941 patent, claims 15 and 16 of the ’516 patent, claim 9 of the ’711 patent, claim 1 of the ’460 patent, and claim 10 of the ’893 patent. Samsung also contends that Apple’s infringement has been willful. Apple denies that it has infringed the claims asserted by Samsung and argues that the claims asserted by Samsung are invalid, and for the ’516 and ’941 patents, exhausted due to Samsung’s license to Intel and also unenforceable. Invalidity, exhaustion, and unenforceability are defenses to infringement. Apple also contends that, by asserting its “declared essential” patents against Apple, Samsung has violated the antitrust laws and breached its contractual obligations to timely disclose and then license these patents on fair and reasonable terms.

For each party’s patent infringement claims against the other, the first issue you will have to decide is whether the alleged infringer has infringed the claims of the patent holder’s patents and whether those patents are valid. If you decide that any claim of either party’s patents has been infringed and is not invalid, you will then need to decide any money damages to be awarded to the patent holder to compensate for the infringement. You will also need to make a finding as to whether the infringement was willful. If you decide that any infringement was willful, that decision should not affect any damage award you give. I will take willfulness into account later.

To resolve Apple’s claims regarding Samsung’s “declared essential” patents, you will need to make a finding as to whether Samsung violated the antitrust laws and whether Samsung breached its contractual obligations. If you decide that Samsung violated the antitrust laws or breached its contractual obligations, you will then need to decide what money damages to award to Apple.

Apple accuses Samsung of diluting Apple’s Registered Trade Dress No. 3,470,983. This trade dress relates to the iPhone. Apple also accuses Samsung of diluting two unregistered trade dresses relating to the iPhone. Finally, Apple claims that Samsung has diluted and infringed its unregistered trade dress relating to the iPad.

For each of Apple’s trade dress dilution and infringement claims, the first issue you will have to decide is whether the Apple trade dress is protectable (or valid). An asserted trade dress is only protectable if the trade dress design as a whole, as opposed to its individual features standing alone, is both distinctive and non-functional.

For Apple’s trade dress dilution claims, the next issues you will decide are whether Apple’s trade dress was famous before Samsung started selling its accused products, and whether Samsung’s accused products are likely to cause dilution of the asserted Apple trade dresses by impairing their distinctiveness.

Apple’s trade dress infringement claim will require you to resolve different issues. You will need to determine whether Apple’s trade dress had acquired distinctiveness before Samsung started selling its accused products, and whether Samsung’s accused products are likely to cause confusion about the source of Samsung’s goods.

If you decide that any Apple trade dress is both protectable and has been infringed or willfully diluted by Samsung, you will then need to decide the money damages to be awarded to Apple.

Samsung denies that it has infringed or diluted any Apple trade dress and argues that each asserted trade dress is not protectable. If a trade dress is not protectable, that is a defense to infringement and dilution.

Because we're involved in trying out the new Google Prior Art Finder, I'll put some of the relevant jury instructions, as text, in that article, so you will have them handy when trying to evaluate if something is or is not novel or whether a patent has met the written description requirement.

  View Printable Version

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