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Authored by: macliam on Saturday, April 13 2013 @ 08:40 PM EDT

If I weren't posting on Groklaw, I wouldn't be posting on anything related to patents or law. And maybe I should break the habit of following Groklaw and other legal blogs before it becomes too much of an obsession. I will probably stop posting fairly soon.

What I have several times done, if I expect a long post, is to create a short container post, usually in Off Topic, and then attach the longer posts as comments to it, so that people working down the page would pass over them if they were not interested.

But I did want a top-level post for Velvin Hogan. I may be wrong, but, today, the more I look at Velvin Hogan's BBC interview, or watch to the YouTube, it seems to become clear to me what happened in the Apple v. Samsung jury room. You may not agree, and lawyers reading this may not agree.

Judge Koh told the jury (in instruction 24) that “There are two ways in which a patent claim may be directly infringed. A claim may be ‘literally’ infringed, or it may be infringed under the ‘doctrine of equivalents.’”. Therefore the jury had to determine whether the claim was ‘literally infringed’, applying instruction 26. If the patent was ‘literally’ infringed according to instruction 26 then infringement is proved and the jury should stop there. But if the accused infringing device does not ‘literally’ infringe, but comes close to doing so, then the jury were supposed to determine whether the claim was infringed under the ‘Doctrine of Equivalents’ under the rules set out in instruction 27. The same procedure ought to have been used to determine whether prior art invalidated the patent

But Velvin Hogan's interviews make it clear that the jury did not follow the above procedure. They skimped on carefully reading and applying the judge's instructions on determining infringement and invalidity, just as they skimped on carefully reading and applying the instructions with regard to damages for infringing utility patents.

What the jury seems to have thought it had to do to determine infringement or invalidity was to first determine whether the claim ‘literally’ infringed under rule 26, and, if there was ‘literal infringement’, they then thought that they had to go on to test for infringement under the doctrine of equivalents, applying rules set out in instruction 27. The jury thought that all the conditions set out in rules 26 and 27 had to be satisfied for infringement, so if an Apple device ‘literally’ infringed a Samsung patent under the rules of instruction 26, then the Apple device had only failed the first leg of the test, and they then had to move on to rule 27.

In the rules as the jury applied them, for an Apple device to infringe a Samsung patent, both the conditions set out in instruction 26 and the conditions set out in instruction 27 had to be satisfied. But what the law actually says (as one can see from instruction 24) is that, for an Apple device to infringe a Samsung patent, either the conditions set out in instruction 26 or the conditions set out in instruction 27 had to be satisfied.

If you read Velvin Hogan's words with this in mind, you should realize that he is saying that both 26 and 27 are required for infringement.

The same applies for invalidation by prior art.

[ Reply to This | Parent | # ]

  • Posting - Authored by: PJ on Saturday, April 13 2013 @ 11:02 PM EDT
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