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To read comments to this article, go here
Apple Files Motion for JMOL, New Trial; Opposes Samsung's Do-Not-Contact-Jury Request ~pj
Wednesday, September 26 2012 @ 05:44 PM EDT

Apple has now filed its motion for judgment as a matter of law. Here's one sentence that will tell you exactly how rational and balanced it is in Apple's requests to the judge:
If the Court decides to review the damages award on a product-by-product basis, judgment as a matter of law increasing damages for some products to offset any reduction in other portions of the jury’s unitary award;
Yes, my friends, they want the judge to make sure they get every penny this jury irrationally decided to award to Apple, even if they made no sense in their math. 43 pages of that sort of request.

And Apple has also filed a partial opposition [PDF] to Samsung's equivalent motion, the part about asking the court to forbid the parties from talking to the jurors. Apple says there is no basis for such an order, but in any case Apple won't talk to them until the court rules on Samsung's request, accusing Samsung of using the media to get its message out about jury misconduct by failing to effectively redact its filing:

Samsung’s sealing motion is also defective, both because all the information it seeks to seal is public, and because Samsung failed to redact enough material from its jury misconduct motion and supporting papers to keep the substance of its allegations secret. Notwithstanding the flaws in Samsung’s sealing motion, Apple understands that accusations like the ones Samsung has made, however unwarranted, could cause a significant invasion of privacy of all the jurors and place an undue burden upon them. If the Court concludes that that would be the case, Apple would not object to sealing of the juror misconduct portion of Samsung’s JMOL Motion and related exhibits and to sealing of relevant portions of the opposition and reply on this issue....

Samsung asks that the parties be precluded from communicating with the jurors, but does not seek to bar the media from communicating with the jurors—even though Samsung identifies “further inquiries from . . . the media and others” as a basis for its motion.

There's no denying that the materials were not thoroughly redacted. Groklaw's readers had figured out what the redacted materials were about in no time flat without any special arrows pointing the way. On the other hand, we had already figured out from the jury's statements to the media that something had gone terribly wrong with this jury, and it was that voluntary media interaction that informed the world of the name of the foreman and the others who spoke freely about their deliberations. We for sure did not know if the foreman was the only juror accused until Apple filed its unredacted opposition, since it seemed they all failed to follow instructions given.

Jump To Comments

The filings:
1994 - Filed & Entered: 09/24/2012
Declaration in Support
Docket Text: Declaration of Cyndi Wheeler in Support of [1990] Administrative Motion to File Under Seal Samsung's Rules 50 and 59 Motion filed byApple Inc.. (Related document(s)[1990]) (Hung, Richard) (Filed on 9/24/2012)

1995 - Filed & Entered: 09/24/2012
Proposed Order
Docket Text: Proposed Order re [1990] Administrative Motion to File Under Seal Samsung's Rules 50 and 59 Motion [Proposed] Order Granting Samsung's Administrative Motion to File Documents Under Seal by Apple Inc.. (Hung, Richard) (Filed on 9/24/2012)

1996 - Filed & Entered: 09/24/2012
Order on Motion to Withdraw
Docket Text: ORDER GRANTING SAMSUNG'S UNOPPOSED MOTION TO WITHDRAW MOTION TO PERMIT EXPERT TO REVIEW MATERIALS DESIGNATED UNDER PROTECTIVE ORDER by Judge Paul S. Grewal granting [761] Motion to Withdraw [701] AMENDED NOTICE OF MOTION to Amend/Correct [691] MOTION to Permit Samsung's Expert Samuel Lucente to Review Materials Designated Under the Protective Order (psglc2S, COURT STAFF) (Filed on 9/24/2012)

1997 - Filed & Entered: 09/24/2012
Transcript
Docket Text: Transcript of Proceedings held on 08-21-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/24/2012. (las, ) (Filed on 9/24/2012)

1998 - Filed & Entered: 09/24/2012
Transcript
Docket Text: Transcript of Proceedings held on 08-20-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/24/2012. (las, ) (Filed on 9/24/2012)

1999 - Filed & Entered: 09/24/2012
Transcript
Docket Text: Transcript of Proceedings held on 08-24-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/24/2012. (las, ) (Filed on 9/24/2012)

2000 - Filed & Entered: 09/25/2012
Motion to Remove Incorrectly Filed Document
Docket Text: MOTION to Remove Incorrectly Filed Document Motion to Remove Exhibit 19 to the Pierce Declaration in support of Samsung's Rules 50 and 50 Motion (Dkt. No. 1991) filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Corrected Exhibit 19 to the Pierce Declaration)(Maroulis, Victoria) (Filed on 9/25/2012)

2001 - Filed & Entered: 09/25/2012
Exhibits
Docket Text: EXHIBITS re [1993] Declaration in Support,, [1991] Declaration in Support,,,,,,, Corrected Exhibit 19 to the Pierce Declaration filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[1993], [1991]) (Maroulis, Victoria) (Filed on 9/25/2012)

2002 - Filed & Entered: 09/25/2012
Motion for Judgment as a Matter of Law
Docket Text: MOTION for Judgment as a Matter of Law (Renewed), New Trial, And Amended Judgment [FRCP 50, 59] [Corrected Notice of Motion] filed by Apple Inc.. Motion Hearing set for 12/6/2013 01:30 PM in Courtroom 1, 5th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 10/19/2012. Replies due by 11/9/2012. (Attachments: # (1) Proposed Order Proposed Order)(Jacobs, Michael) (Filed on 9/25/2012)

2003 - Filed & Entered: 09/25/2012
Opposition/Response to Motion
Docket Text: PARTIAL OPPOSITION to ( [1990] Samsung's Administrative Motion to File Documents Under Seal And For An Order Prohibiting The Parties From Communicating With Jurors filed by Apple Inc.. (Attachments: # (1) Declaration Sabri Decl, # (2) Exhibit Exhibit A, # (3) Exhibit Exhibit B, # (4) Exhibit Exhibit C, # (5) Exhibit Exhibit D, # (6) Exhibit Exhibit E)(Jacobs, Michael) (Filed on 9/25/2012) Modified text on 9/26/2012 (dhmS, COURT STAFF).

As you see, we can't read the three transcripts until Christmas Eve.

Here's the introduction of the motion:

INTRODUCTION

Pursuant to Federal Rule of Civil Procedure 50(b), Apple renews its motion for judgment as a matter of law that Samsung’s Galaxy Tab 10.1 infringes and dilutes Apple’s protectable iPad Trade Dress; that the Tab 10.1 infringes the D’889 patent; and that Samsung’s accused smartphones dilute Apple’s combination iPhone Trade Dress. In the alternative, Apple requests a new trial pursuant to Rule 59(a) on these claims.

Further, Apple renews its motion for judgment as a matter of law that all of Samsung’s accused smartphones willfully infringe Apple’s D’677, D’087, ’163, and ’915 patents and dilute Apple’s registered iPhone Trade Dress and unregistered iPhone 3G Trade Dress; that Samsung’s patents are invalid; and that Samsung has breached its contracts and violated the antitrust laws.

Pursuant to Federal Rule of Civil Procedure 59(e) and Section 284 of the Patent Act, Apple also moves to amend the August 24 Judgment to include (a) supplemental damages for Samsung’s infringing and diluting sales between July 1, 2012 and the resolution of district court proceedings and (b) pre-judgment interest.

If anyone is free to do the Apple JMOL motion as text, I'll gladly post it all. I'll work on the other.

Here's Apple's opposition motion re contacting the jury, as text:

APPLE’S PARTIAL OPPOSITION
TO SAMSUNG’S
ADMINISTRATIVE MOTION TO
FILE DOCUMENTS UNDER
SEAL AND FOR AN ORDER
PROHIBITING THE PARTIES
FROM COMMUNICATING
WITH JURORS [DKT. NO. 1990]

Continuing the attack on the jury and the jury process that Samsung has waged in the press worldwide, Samsung has filed a motion for a new trial based on alleged juror misconduct. Samsung seeks to seal the arguments and certain supporting declarations and exhibits concerning the alleged misconduct, citing concern for the jurors’ privacy and the integrity of the proceedings. But Samsung’s actions belie its words, as it has publicly filed documents that reveal the very facts that it seeks to seal. As a result, the media were quickly able to discern not only that Samsung had accused the jury of misconduct but also which juror it accused.

Nonetheless, because it is the province of the Court to determine whether undue burdens are placed on those who serve on the Court’s juries, Apple would not object if the Court determines in its discretion that sealing Samsung’s allegations of misconduct is the best way to prevent such burdens.

Samsung also moves for an order “prohibiting the parties from any further communication with jurors” until after the matters raised in its post-trial motions have been “finally resolved.” (Dkt. No. 1099 (“Mot.”) at 2.) Apple objects because there is no valid basis for Samsung’s request, which is not supported by any of the authority Samsung cites and is not the proper subject of an administrative motion in any event. Nor does Samsung reveal whether it has already contacted jurors. Apple has not done so to date, yet Samsung is seeking to preclude Apple from equal access to information. Nevertheless, despite the lack of any merit to Samsung’s request, Apple will not contact any jurors until the Court resolves this administrative motion.

Finally, as to the portion of Samsung’s motion that addresses sealing of documents that Apple has designated as confidential, Apple already has made the appropriate showing as to the two documents that it seeks to have sealed.

I. APPLE DOES NOT OBJECT IF THE COURT DETERMINES THAT
SAMSUNG’S JUROR MISCONDUCT ALLEGATIONS SHOULD BE SEALED.

Samsung seeks to seal the entirety of its jury misconduct arguments, as well as the evidence submitted in support of that argument. (Mot. at 1.) All of that evidence is publicly available information. (See Estrich JMOL Decl. Exs. A-O.) Yet at the same time Samsung purported to seek privacy for the jury it attacked, it revealed that it was accusing the jury of

1

misconduct, both in portions of its filing that it made public and in its motion to seal. The public version of the jury misconduct motion referenced multiple cases involving juror misconduct and a bankruptcy court action involving a juror. (See Dkt. No.1990-3 at iii-ix.) Samsung also publicly filed excerpts from the voir dire trial transcript. (See Dkt. No. 1991-1.) Samsung’s motion to seal makes clear that its jury misconduct motion has the “potential to subject all of the jurors to extra- judicial scrutiny and public criticism” (Mot. at 1). As a result, the media are now widely reporting that Samsung is attacking the jury verdict based on alleged juror misconduct. See, e.g., http:// www.mercurynews.com/business/ci_21621841/ samsung-apple-seeks-new-trial-legal-feud-smartphone?IADID =Search-www.mercurynews.com-www.mercurynews.com (attached as Exhibit A to Declaration of Nathan Sabri (“Sabri Decl.”) filed herewith). One such article reports that the juror who is the subject of Samsung’s accusations recognizes that Samsung’s accusations are about him. http://newsandinsight.thomsonreuters.com/ Legal/News/ViewNews.aspx? id=57594&terms=%40ReutersTopicCodes+CONTAINS+%27ANV%27 (Sabri Decl. Ex. B).

Samsung’s attack on the jury’s verdict began with Samsung’s issuance of a stinging press release after the reading of the verdict on August 24, see http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-samsung-infringed (quoting Samsung press release) (Sabri Decl. Ex. C), and continues to this day. That attack is directed at, among other things, the same juror who is the target of Samsung’s jury misconduct motion. See http://www.koreatimes.co.kr/www/news/nation/2012/08/182_118662.html (Sabri Decl. Ex. D).

Samsung’s attacks are baseless, and its jury misconduct motion frivolous on its face. Among other failings, Samsung’s motion does not even address, let alone disclose, when Samsung learned the facts on which it bases its misconduct allegations, and in particular, whether Samsung impermissibly delayed raising this issue, as the facts Samsung does disclose suggest. See, e.g., Robinson v. Monsanto Co., 758 F.2d 331, 335 (8th Cir. 1985) (party waived jury misconduct arguments where information disclosed at voir dire could have permitted discovery of information at issue).1

2

Samsung’s sealing motion is also defective, both because all the information it seeks to seal is public, and because Samsung failed to redact enough material from its jury misconduct motion and supporting papers to keep the substance of its allegations secret. Notwithstanding the flaws in Samsung’s sealing motion, Apple understands that accusations like the ones Samsung has made, however unwarranted, could cause a significant invasion of privacy of all the jurors and place an undue burden upon them. If the Court concludes that that would be the case, Apple would not object to sealing of the juror misconduct portion of Samsung’s JMOL Motion and related exhibits and to sealing of relevant portions of the opposition and reply on this issue.

II. SAMSUNG’S “ADMINISTRATIVE” MOTION FOR AN ORDER
PROHIBITING APPLE FROM COMMUNICATING WITH THE JURORS
SHOULD BE DENIED.

The jury issued its verdict more than a month ago. The Court advised the jurors at that time that they were “free to discuss [the case] with whomever [they’d] like,” but “also free not to discuss the case with anyone.” (Trial Tr. at 4317:12-14, 21-23.) The Court noted that “often the attorneys in a case find it useful to talk to jurors after the case is concluded to get their impressions,” and “[t]here are also many members of the media here who would like to speak with you.” (Trial Tr. at 4317:14-20.) A quick internet search reveals that multiple jurors have spoken with multiple media sources since that time. See, e.g., http://online.wsj.com/article/ SB10000872396390444270404577612160843420578.html (Sabri Decl. Ex. E).

Despite this passage of time, Samsung now asks that the parties be “prohibit[ed] . . . from any further communications with jurors who served during the trial until the matters raised by [Samsung’s JMOL] motion have been finally resolved.” (Mot. at 1 (emphasis added).) This relief is not the proper subject of an administrative motion and can be denied on that ground alone. See Civil L. R. 7-11. Even if considered, Samsung’s request should be denied on the merits.

First, Samsung’s requested order would not serve Samsung’s stated purpose of protecting jurors from “extra-judicial scrutiny and public criticism.” (Mot. at 1.) Samsung asks that the parties be precluded from communicating with the jurors, but does not seek to bar the media from

3

communicating with the jurors—even though Samsung identifies “further inquiries from . . . the media and others” as a basis for its motion. (Id.; see also Dkt. No. 1990-2 (Proposed Order).) Apple has no intention of subjecting jurors to unwanted scrutiny or criticism, and Apple’s Rule 50 and 59 motion did not provide any grounds for doing so. Samsung offers no basis for the Court to prevent Apple from contacting jurors until Samsung’s JMOL Motion is fully resolved, which presumably includes any appeal. Apple notes that Samsung does not state whether Samsung has already contacted any of the jurors and is thus seeking now to bar Apple from an opportunity of which Samsung has already taken advantage.

Second, Samsung’s authorities do not support its requested relief and actually contradict its position. Kamakana v. City and County of Honolulu did not involve juror interviews at all, but rather the “compelling reasons” standard for sealing. 447 F.3d 1172, 1179 (9th Cir. 2006). Muhammad v. Woodford, No. 04-cv-1856, 2008 U.S. Dist. LEXIS 119841, at *6 (E.D. Cal. Apr. 11, 2008), and Bryson v. United States, 238 F.2d 657, 655 (9th Cir. 1956), both specifically note that post-verdict interviews may be proper under certain circumstances. Samsung’s requested order should be denied.

III. EXHIBITS 14 AND 28 TO THE PIERCE DECLARATION SHOULD
REMAIN SEALED.

Samsung also asks that the Court seal Exhibit Nos. 13, 14, 18, 19, and 28 to the Declaration of John Pierce in Support of Samsung’s JMOL Motion, which contain information previously designated as confidential by Apple and third party Intel.

Apple has submitted the required declaration to support sealing for Exhibit Nos. 14 and 28. (Dkt. No. 1994.) The Court previously ordered that both exhibits be sealed, in full or in part, as they relate to capacity information and source code. (See Trial Tr. 1993:18-19 (Ex. 14); Dkt. No. 1649 at 8 (Ex. 28).) Apple no longer maintains a claim of confidentiality as to Exhibit Nos. 13 and 18 and does not object to their public filing. (Dkt. No. 1994 ¶ 3 .)

Samsung filed a corrected Exhibit No. 19 that does not require sealing, as the version admitted at trial was redacted of Intel-confidential information, and requested to remove the previous incorrectly-filed version. (Dkt. No. 2000-1.)

4

Dated: September 25, 2012

MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs
Michael A. Jacobs

Attorneys for Plaintiff
APPLE INC.

___________
1 On the afternoon of September 24, Apple asked Samsung to disclose how and when it learned of each of the facts underlying its allegations and notified Samsung of its intent to file an expedited motion to compel such disclosure if Samsung does not provide it voluntarily. Apple is waiting for Samsung's response.

5

The exhibits attached to #2003 are mostly media accounts of the process. However, it leaves out the ones that most clearly show what the foreman and the jury did in deliberations. So for historians and the currently curious, I would point you to these (and here are the jury instructions [PDF], so you can compare):
  • Jury didn't want to let Samsung off easy in Apple trial: foreman, Reuters:
    "We didn't want to give carte blanche to a company, by any name, to infringe someone else's intellectual property," Hogan told Reuters a day after the verdict....

    "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."

    Hogan worked as an engineer for decades before he retired, and holds a patent of his own. He 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.

  • Exclusive: Apple-Samsung juror speaks out, CNET:
    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 similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...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."

    "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 flat screen 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." ...

    As far as the deliberation process was concerned, each of the jurors contributed some kind of expertise or played some role that helped the process go smoothly. Hogan, the jury's foreman, once owned a company that went through the lengthy process of obtaining a patent. He also served on a jury three previous times.

  • Ask Apple Vs Samsung Jury Foreman Velvin Hogan Whatever You Want, Gizmodo:
    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....

    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....

    RCU Celaya:
    In your opinion, would it make sense to invalidate Apple's generic patent of a rectangular screen on a phone or tablet?

    Velvin Hogan: @RCU Celaya
    My opinion does not matter the current law is what it is today and I swore and oath to abide by it and I did just that. However the what if do change the current law do they there is a conduit for that and this jury was not that conduit....

    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.

  • The Apple v. Samsung Jury Verdict Lacks Sufficient Detail To Support Enhancing More Than 6.4% Of The $1.04B Monetary Award For Willful Infringement, by Richard Rodano, Groklaw:
    High stakes design patent cases are rare. The recently tried Apple v. Samsung case2 is arguably the most important design patent case to be tried in a U.S. court, particularly if one defines importance in terms of monetary exposure. Now that the smoke has initially cleared on the field of battle in the district court, commentators can critically scrutinize the results i.e. “shoot the survivors.” The primary thesis of this paper is that no more than 6.4% of the $1.04B monetary award in the jury verdict3 can be enhanced for willful infringement, without being vacated and remanded on appeal. The reason for this assertion is that slightly less than 6.4% of the total monetary award is for infringement of only utility patents. Additionally, due to the lack of detail in the jury verdict regarding which Samsung products were used to commit willful infringement, it is quite possible that no enhancement of damages for willful infringement will survive an appeal.
  • Apple Jury Foreman: Here's How We Reached a Verdict , BBC News, YouTube, transcript:
    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. ...

  • Apple Jury Confuses Obviousness Analysis in Arriving at Record Damage Verdict?, Patents Post Grant Blog:
    When interviewed by Bloomberg (link here), the foreman explained (around the three minute mark) that his “aha moment” in assessing the alleged obviousness of Apple patents was when he realized that the Apple software would not work on the processor of the prior art. This is an odd statement considering that the test for obviousness is not whether features may be bodily incorporated into a prior art structure, but rather, what the combined teachings of those references would have suggested to one of ordinary skill in the art. In re Keller, 642 F.2d 413.

    It could be that the Foreman was simply being inarticulate in his explanation. However, it seems far more likely that the jury was confused as to a proper obviousness analysis; this is not at all surprising.

  • Brief Initial Thoughts on Apple v. Samsung, Michael Risch, Madisonian:
    3. More generally, then, this case is going to require courts to rethink (which assumes they ever thought about it in the first place) what it means to have equivalents in design patents. Apple’s argument was this: “sure, there are lots of little differences between the iPhone design and the Epic 4G Touch, but if you get the general impression that they are similar, that’s good enough to infringe.” And the jury agreed (and I presume the jury instructions allowed it). At a time when most view the doctrine of equivalents as dead with respect to utility patents, this expansion of equivalents in design patents to allow a very specific design to cover essentially all phones with a rectangle shape and full screen face is problematic....

    4. 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.

  • Samsung raises jury misconduct in bid for new Apple trial, CNET:
    In general, U.S. law discourages post-verdict probes into jury deliberations. There's even a formal rule in federal court, Rule 606(b), saying that "during an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations." One exception to that rule, however, is if "extraneous prejudicial information was improperly brought to the jury's attention."

    Courts have overturned verdicts because a juror misstated the law. In a 1986 civil case, a retired policeman on the jury erroneously described what he believed the law to be. A California appeals court tossed out the jury verdict, saying it was not a fair trial and amounted to juror misconduct, and sent the case back to a lower court.

    One of the cases that Samsung cites, Gibson v. Cannon, is a Ninth Circuit criminal case also dealing with juror misconduct. In it, a juror injected into deliberations outside information -- not presented in court -- about the effects of morphine.

    The jury delivered a guilty verdict, and the judge refused to grant a new trial, saying he thought the misconduct was "harmless." But the 9th Circuit overruled him, saying what matters is if there was a "reasonable possibility" that the outside material "could have affected the verdict."

    Love, the Santa Clara law professor, said that's what Samsung might be trying to do with Hogan, the loquacious jury foreman: "Imagine if I was on the jury and the trial is over and we're deliberating and I said 'I'm a lawyer -- I know all about the law and this is what we should do. I disagree with the judge cause I'm bringing my outside knowledge of the law.' They might be saying that Hogan is bringing his outside knowledge of the patent system and essentially trying to become a legal expert inside the jury room."

  • Apple v. Samsung: Meet the foreman of the jury, Fortune:
    On how the jury came up with $1 billion:

    [Hogan]"In the evidence, Apple had declared that Samsung had cost them in profits 35% of their revenue. On the other hand, Samsung said that it is because they took out operating costs and the value is 12%. Three of us had been through the process in our careers of dealing with financial documents. I understood P&L statements as well as the other to. What we did was look at it against our matrix of what infringed and what did not. We determined that in our experience, the percentage was not 12%, and it certainly was not 35%. It should be closer between 13% to 15%. We zeroed in on 14%. That became the magic number. Then we did our own calculations for each of the areas, adding those up with royalties that were entitled for some of the items. And we cut that value in half. When we added them together and tallied them up, that is the number we came up with."

Update: The propping up of Mr. Hogan as a perfectly wonderful, sophisticated juror has begun with this article on Reuters by David L. Newman of Arnstein & Lehr, "Apple v. Samsung: Proof of copying in the hands of a sophisticated jury results in large damages for the patent owner". The fact that this is happening is interesting. Of course the author also wrote an article about the preliminary injunction in this case, opining that it showed the value of design patents, “Egyptian God – Apple’s Award of a Preliminary Injunction Over Samsung Demonstrates the Potency of Design Patents,” (registration req'd). However, in the end the jury found the design patent was not infringed by the Samsung tablets.


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