That's one of those things that really came out when comparing the instructions to Hogan's post-trial statements. The jury didn't do its duty, or at least gravely misinterpreted it. And the verdict form didn't really reflect that adequately (see below).

Regardless of whether they decided the patent was valid or not, they still needed to rule on infringement. This is even made clear in the Court's official Model Patent Jury Instructions. See Appendix C.3 (Sample Verdict Form)on page 56 ("Findings on Infringement Claims"). In my mind, filling out this form for each product and each patent would have taken at least a week of deliberation, but would have forced the jury to consider all the possibilities.

Koh's final verdict form basically was set up to fail, and to be inadequate in regards to dividing up the damages by patent and device. She knew there would be appeals, and should have considered that a monolithic damages amount would make things harder for appeals.

Now that several patents are invalid, she's got a major mess on her hands. Well, maybe she doesn't, but the appeals court does. If I were them, I would probably consider remanding it. Or declaring a mistrial. Either way, trying to get into the mind of the jury is going to be problematic.

Also consider that there iss psychology involved in forms like this, too. Even simply comparing the presentation of the Samsung claims vs. the Apple claims seems to me like it would make it less likely that the jury would rule in favor of Samsung on anything (you've go to rotate the page to view the form, the fields are bigger, etc.). From my lay perspective, that would seem to me to make marking an infringement more weighty. Did I mention the annoyance factor of rotating the page?

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IANAL
Linguist and Open Source Developer

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