If he were at least RIGHT about what is, or is not,
prior art that invalidates a patent, I might cut him
some slack. But he is just so wrong, it is painful
to listen or read or even follow his 'reasoning'.
And his wrong ideas are what the REST of the jury
had based their determinations upon.
No wonder this jury came to this mess of a verdict.
For his assumption that the code from one could
not run on the other, he would either need personal
knowledge of both, or had done some research which
is forbidden. And he is clueless that even if they
are not object compatible, it might be possible to
have source compatibility for both. And whether
or not code from one could run on the other doesn't
even have any bearing on whether the one is prior
art or NOT! It is just error upon error upon error.
When you have wrong assumptions and wrong reasoning,
if you come anywhere near a correct conclusion,
it would only be by accident. This guy isn't that lucky.
Had he by chance had his 'aha' while considering things
from the other point of view, the whole verdict might have
been completely opposite, and we might be congratulating
the jury, not realizing that they arrived at their conclusion
totally by accident.
Instead we get this.
I really hope the numerous errors and admissions and
the fact that this jury found the one device non-infringing
that the higher court thought would be most likely to
infringe, all allow some appropriate legal reconsideration
of the whole thing.
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Wasn't the 460 patent Samsung's? Amended verdict Docket Item 1931, Items
24, 25, 26. (U.S. Patent No. 7,577,460 (the “‘460 patent”) Docket Item 80, III.
COUNTERCLAIMS, PDF Page 35, line 2. "Portable composite communication terminal
for transmitting/receiving and images, and operation method and communication
system thereof". From the patent:
What is claimed is:
1. A
data transmitting method for a portable composite communication terminal which
functions as both a portable phone and a camera, comprising the steps of:
entering a first E-mail transmission sub-mode upon user request for E-mail
transmission while operating in a portable phone mode, the first e-mail
transmission sub-mode performing a portable phone function; entering a second
E-mail transmission sub-mode upon user request for E-mail transmission while
operating in a display sub-mode, the second e-mail transmission sub-mode
displaying an image most recently captured in a camera mode; sequentially
displaying other images stored in a memory through the use of scroll keys;
transmitting the address of the other party and a message received through a
user interface in the first E-mail transmission sub-mode; and transmitting the
address of the other party and the message received through the user interface
and the image displayed on the display as an E-mail in the second E-mail
transmission sub-mode.
I have no experience with email on an
iPhone, iPad or iPod Touch but Mail 5.2 under OS X Lion (10.7.3) has a photo
browser button which has a Photo Booth sub menu item (that sub-mode thing) you
can use to take a picture. The photo browser also makes your previously saved
pictures available (your Pictures directory (folder) found in your home
directory (folder)).
You'd need to read the patent to 'get' it (see Figure 7
and the Detailed Description of the Preferred Embodiment), I can easily imagine
Apple would be violating this claim. It appears to on a Macbook, though you
might question if it is a "portable composite communication terminal which
functions as both a portable phone and a camera", It has a front facing camera
that operates with the Mail app, and I can use it as a portable phone (including
video phone) with Google Voice and Video, Microsoft's Skype or Apple's
FaceTime).
Without seeing transcripts, testimony and exhibits I have a hard
time seeing how a non Apple owner/user as Mr. Hogan professed to be would be
able to properly form an opinion on whether or not Apple practiced the claim or
prior art was applicable from personal knowledge. (And yes I read Mr. Hogan's
patent).
The '460 instruction is mentioned in Final Jury Instruction 27
(Docket Item 1901, Page 40,
Apple Inc. v. Samsung Electronics Co. Ltd. et al, Justia - not currently
available on Groklaw):
If you decide that an accused Samsung
product does not literally infringe an asserted Apple utility patent claim, you
must then decide whether that product infringes the asserted claim under what is
called the “doctrine of equivalents.” If you decide that an accused Apple
product or method does not literally infringe claim 1 of Samsung’s ’460 patent,
you must then decide whether that product or method infringes the asserted claim
under what is called the “doctrine of equivalents.”
Under the doctrine of
equivalents, the product or method can infringe an asserted utility patent claim
if it includes parts or software instructions that are identical or equivalent
to the requirements of the claim. If the product or method lacks a part or
software instructions that is identical or equivalent to even one requirement of
the asserted utility patent claim, the product or method cannot infringe the
claim under the doctrine of equivalents. Thus, in making your decision under the
doctrine of equivalents, you must look at each individual requirement of the
asserted utility patent claim and decide whether the product or method has
either a part or software instructions that are identical or equivalent to that
individual claim requirement. ...
Jury Instruction 28 places
limits on 'comprising' in the claim. Nothing in Mr. Hogan's interview or
comments in the press seems to support the following of this particular
instruction, the question of patent validity doesn't appear to have been put to
the jury. Patent validity is a matter of law, isn't it? You might easily form
the impression that three days wasn't enough time to perform their duty as
outlined in the jury instructions in particular with the apparent segue here and
there.
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