Late in the process yesterday at the Apple v. Samsung trial, when the parties and the judge were reviewing the jury verdict form, Samsung noticed that there were, indeed, inconsistencies in the jury's verdict form, a possibility Samsung anticipated [PDF]. Here's the jury's
Amended Verdict Form [PDF], amended to fix the mistakes. Here's the original [PDF]. Here's the note [PDF] the jury sent to the judge when told to fix the inconsistencies. What are they, they asked? "Please let the jury know," they wrote in the only note ever sent in their deliberations, "of the inconsistencies we are supposed to deliberate on."
In two instances, results were crazily contradictory, and the judge had to have the jury go back and fix the goofs. As a result the damages award was reduced to $1,049,343,540, 1 down from $1,051,855,000. For just one example, the jury had said one device didn't infringe, but then they awarded Apple $2 million for inducement. In another they awarded a couple of hundred thousand for a device they'd ruled didn't infringe at all. This all was revealed by The Verge in its live blog coverage:
The jury appears to have awarded damages for the Galaxy Tab 10.1 LTE infringing — $219,694 worth — but didn't find that it had actually infringed anything....A similar inconsistency exists for the Intercept, for which they'd awarded Apple over $2 million
Obviously, something is very wrong with this picture. The Verge also reported that the jury foreman, who is a patent holder himself [this appears to be his patent, "Method and apparatus for recording and storing video information"], told court officials that the jury didn't need the answer to its question to reach a verdict:
Intercept: "The jury found no direct infringement but did find inducement" for the '915 and '163 utility patents. If a device didn't infringe, it would be rather hard for a company to induce said non-existant infringement.
The foreman told a court representative that the jurors had reached a decision without needing the instructions. That's why I don't think this jury's ruling will stand, among other reasons.
I thought it wise to highlight this, because I saw this morning that some missed seeing it. For example, James Niccolai at PCWorld quotes a "legal expert" who clearly didn't:
"It's surprising they came back so quickly, given that it was a complicated case and very complicated verdict form, but that said, it looks like they were thoughtful about it and they did their job," said Roy Futterman, director at DOAR Litigation Consulting and a clinical psychologist who works on trial strategies and the mindset of jurors. That's in an article titled "Quick Verdict in Apple Trial Doesn't Mean Jury Shirked Its Duty, Expert Says." If the jury instructions [PDF] are as long and complex as they were in this case, a quick verdict can indeed mean it shirked its duty. For example, if the jury rushed so much it assigned $2 million dollars to Apple, and then had to subtract it because there was no infringement, it raises a valid question: what was the basis for any of the damages figures the jury came up with? If they had any actual basis, how could they goof like this? Was there a factual basis for any of the damages figures?
"One sign of that is that the verdicts were consistent, they held together -- they voted one way on infringement and another way on invalidity; it all tells the same big story," he said.
Time will tell, but keep in mind that one of the plays you'll see next will likely be a Rule 50(b) motion by Samsung, and that's the one where you ask the judge for various relief on the basis that no reasonable jury could find what it did find on the evidence presented. Here's Google's still pending Rule 50(b) motion for judgment as a matter of law in the Oracle v. Google case, to give you an idea of what they look like. As you can see, you can ask for victory across the board or just on one part of what the jury decided.
This story is far from over, in other words, and while Apple's CEO, Tim Cook, waxed philosophical about the trial, and saying that it was about values, not money, one important US value is that the jury fulfill its responsibilities, one of which is to read and make sure they understand and follow the jury instructions they are given. I believe Cook would agree that trials are supposed to be fair, with everyone doing their part. If this jury thought they knew the right result without instructions, and if they hurried so much they made glaring mistakes, and they did, and all in Apple's favor, something isn't right in this picture. As the legal blog, Above the Law expressed it:
Here’s the thing, ladies and gentlemen of the Apple v. Samsung jury: It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin? If it would take a lawyer three days to make sure he understood the terms in the form, how did the jury not need the time to do the same? There were 700 questions, remember, and one thing is plain, that the jury didn't take the time to avoid inconsistencies, one of which resulted in the jury casually throwing numbers around, like $2 million dollars for a nonfringement.
Come on. This is farce.
Professor Michael Risch points out an even worse inconsistency:
How did the Galaxy Tab escape design patent infringement? This was the only device to be preliminarily enjoined (on appeal no less), and yet it was the one of the few devices to be spared the sledgehammer. And, by the way, it looks an awful lot like an iPad. This is the second lawyer I've seen predicting this case will go all the way to the US Supreme Court. He also compliments Groklaw for having "not only really detailed information, but really accurate information, and actual source documents. That combination is hard to find." Thank you.
Yet the Epic 4G, a phone I own (uh oh, Apple’s coming after me) — which has a slide out keyboard, a curved top and bottom, 4 buttons on the bottom, the word Samsung printed across the top, buttons in different places (and I know this because I look in all the wrong places on my wife’s iTouch), a differently shaped speaker, a differently placed camera, etc. — that device infringes the iPhone design patents (Turns out I was wrong on this, and that is a good thing. The Epic 4G didn’t even make the jury form. The 4G Touch did, and that is a lot closer to the iPhone Face design patent. I still think it is too broad, but it’s not as bad as I thought).....
Relatedly, the ability to get a design patent on a user interface implies that design patent law is broken. This, to me, is the Supreme Court issue in this case. We can dicker about the “facts” of point 2, but whether you can stop all people from having square icons in rows of 4 with a dock is something that I thought we settled in Lotus v. Borland 15 years ago. I commend Apple for finding a way around basic UI law, but this type of ruling cannot stand.
Update: One of the jurors has now spoken, and CNET's Greg Sandoval has it, in his article, Exclusive: Apple-Samsung juror speaks out:
Apple v. Samsung juror Manuel Ilagan said the nine-person jury that heard the patent infringement case between the companies knew after the first day that it believed Samsung had wronged Apple.... This gets worse and worse.
The decision was very one-sided, but Ilagan said it wasn't clear the jurors were largely in agreement until after the first day of deliberations.
"It didn't dawn on us [that we agreed that Samsung had infringed] on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about the same technology that Samsung said existed before the iPhone debuted]. [Velvin Hogan] was jury foreman. He had experience. He owned patents himself. In the beginning the debate was heated, but it was still civil. Hogan holds patents, so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art, that there wasn't something out there before Apple.
"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down." ...
"Once you determine that Samsung violated the patents," Ilagan said, "it's easy to just go down those different [Samsung] products because it was all the same. Like the trade dress, once you determine Samsung violated the trade dress, the flatscreen with the Bezel...then you go down the products to see if it had a bezel. But we took our time. We didn't rush. We had a debate before we made a decision. Sometimes it was getting heated."
Update 2: Dan Levine of Reuters has some words from the foreman:
"We wanted to make sure the message we sent was not just a slap on the wrist," Hogan said. "We wanted to make sure it was sufficiently high to be painful, but not unreasonable." Now the jurors are contradicting each other. Lordy, the more they talk, the worse it gets. I'm sure Samsung is glad they are talking, though. Had they read the full jury instructions, all 109 pages [as PDF], they would have read that damages are not supposed to punish, merely to compensate for losses. Here's what they would have found in Final Jury Instruction No. 35, in part:
Hogan said jurors were able to complete their deliberations in less than three days -- much faster than legal experts had predicted -- because a few had engineering and legal experience, which helped with the complex issues in play. Once they determined Apple's patents were valid, jurors evaluated every single device separately, he said.
The amount of those damages must be adequate to compensate the patent holder for the infringement. A damages award should put the patent holder in approximately the financial position it would have been in had the infringement not occurred, but in no event may the damages award be less than a reasonable royalty. You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer. The same instruction is repeated in Final Jury Instruction No. 53, in case they missed it the first time. Did they obey those instructions? Nay, did they even read them? The evidence, judging by the foreman's reported words, point the wrong way.
Update 3: Samsung lawyer John Quinn is quoted by USA Today saying they'll be asking the judge to toss this out and then appeal, if she does not:
Samsung, the global leader among smartphone makers, vowed to fight. Its lawyers told the judge it intended to ask her to toss out the verdict.
"This decision should not be allowed to stand because it would discourage innovation and limit the rights of consumers to make choices for themselves," Samsung lead lawyer John Quinn said. He argued that the judge or an appeals court should overturn the verdict.
Apple lawyers plan to formally demand Samsung pull its most popular cellphones and computer tablets from the U.S. market. They also can ask the judge to triple the damages from $1.05 billion to $3 billion.
U.S. District Judge Lucy Koh will decide those issues, along with Samsung's demand she overturn the jury's verdict, in several weeks. Quinn said Samsung would appeal if the judge refuses to toss out the decision....
Samsung said after the verdict that it was "unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners."
"This is by no means the final word in this case," Quinn said in a statement. "Patent law should not be twisted so as to give one company a monopoly over the shape of smartphones."
Update 4: One more quote from the foreman, thanks to Bloomberg News:
“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?’” Hogan explained. On the night of Aug. 22, after closing arguments, “a light bulb went on in my head,” he said. “I thought, I need to do this for all of them.” And in case you think Groklaw is the only one to notice, it's actually a known problem that juries tend to over compensate plaintiffs, as brought out in this AP article by Paul Elias:
Increasingly these highly complex disputes are being decided by juries, rather than judges, and the juries tend to issue more generous awards for patent violations.
Update 5: The foreman has now given an interview with Bloomberg News, which seemed to be giving him an opportunity to answer some of the above criticisms, among others. It's a
video on YouTube, and in discussing the first patent on the list, they got into a discussion about the prior art that was presented at trial. Here's why they discounted it:
That has companies on the receiving end of successful patent infringement lawsuits crying foul and calling for reform in the patent system, but it also has some legal experts questioning whether ordinary citizens should be rendering verdicts and fixing damages in such high stakes, highly technical cases.
"That's a great question ... and it's the subject of a fair amount of current debate," said Notre Dame University law professor Mark McKenna....
"This case is unmanageable for a jury," Robin Feldman, an intellectual property professor at the University of California Hastings Law School, said before the verdict. "There are more than 100 pages of jury instructions. I don't give that much reading to my law students. They can't possible digest it."
"The trial is evidence of a patent system that is out of control," Feldman said. "No matter what happens in this trial, I think people will need to step back and ask whether we've gone too far in the intellectual property system."
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.
My favorite comment on Hacker News about this video and the foreman's claims, from
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. By the way, hacker means something good to programmers. Crackers are the bad guys.
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 an 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.
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 Did you notice that prior art can be a piece of paper describing the invention. It doesn't have to run on any processor.
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.
This was regarding what the foreman in the video calls the '460 patent, but there was no such Apple patent in the case. 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. 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. The prior art Samsung listed in its trial brief 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. They don't count as prior art because you can't run Apple software on them? This is, to me, the biggest goof of them all.
[There's more on this in this later Groklaw article. And now this one. The man keeps talking.]
1 Is that math even correct, even after the fix? One reader did the math, and he or she thinks their
math is off, and the right total, even if all else is accurate, should be
$1,049,423,540. Here's the calculation, taken from the Amended Verdict Form [PDF], so you can do your own checking:
My math gives a different total
... in favor of Apple by a few 10,000's
Captivate . . . . . . . . . .80,840,162
Continuum . . . . . . . . . .16,399,117
Droid Charge. . . . . . . . .50,672,869
Epic 4G. . . . . . . . . . .130,180,894
Exhibit 4G . . . . . . . . . .1,081,820
Fascinate. . . . . . . . . .143,539,179
Galaxy Ace . . . . . . . . . . . . . .0
Galaxy Prevail. . . . . . . .57,867,383
Galaxy S . . . . . . . . . . . . . . .0
Galaxy S 4G . . . . . . . . .73,344,668
Galaxy S II (AT&T). . . . . .40,494,356
Galaxy S II (i9000). . . . . . . . . .0
Galaxy S II (T-Mobile). . . .83,791,708
Galaxy S II (Epic 4G Touch).100,326,988
Galaxy S II (Skyrocket) . . .32,273,558
Galaxy S (Showcase) . . . . .22,002,146
Galaxy Tab . . . . . . . . . .1,966,691
Galaxy Tab 10.1 WiFi . . . . . .833,076
Galaxy Tab 10.1 4G LTE . . . . . . . .0
Gem. . . . . . . . . . . . . .4,075,585
Indulge . . . . . . . . . . .16,011,184
Infuse 4G . . . . . . . . . .44,792,974
Intercept. . . . . . . . . . . . . . .0
Mesmerize . . . . . . . . . .53,123,612
Nexus S 4G . . . . . . . . . .1,828,297
Replenish. . . . . . . . . . .3,350,256
Transform. . . . . . . . . . . .953,060
Vibrant . . . . . . . . . . .89,673,957
TOTAL. . . . . . . . . . .1,049,423,540