
Apple v Samsung Foreman Gets More Things Wrong - esolyt
http://www.groklaw.net/article.php?story=20120904190933195
======
snowwrestler
Can we please stop picking on the foreman? It's not like this person forced
their way into the trial--they were picked by the state at random, and oh by
the way, jury duty is not optional. Attorneys for both sides had their chance
to dismiss the guy and they did not. He's talking about his thought processes
which is a hell of a lot more "closure" than you typically get in a trial. So
the plan is to make him the villain?

I get that people do not like the verdict, but save the vitriol for the
lawyers and the law. Let's not hate on an American citizen who did his best
when duty called.

~~~
craigyk
Seriously. groklaw is starting to sound whiny with their unending criticism of
the guy. Argue the system not the verdict. I am for major reforms to the
current patent system, but deep down am secretly pleased that the jury decided
to stick it to Samsung for being, lets face it, arrogantly blatant copycats.

At the end of the day maybe the verdict was a form of reverse jury
nullification. I'm OK with that.

The second Apple or anyone else levels that patent system against small
players, I'll go run and grab my pitchfork and torch and join groklaw. We'll
see if it gets that far. I predict the big boys will blow through a whole pile
of time and money before this is all done, and only to further expose the
inherent problems in the system.

~~~
kenster07
Please clarify "arrogantly, blatant copycats." And please don't tell us about
rounded corners or tapping a touchscreen.

~~~
terhechte
Maybe because they had an internal 132 page document detailing every pixel
they want to copy from Apple? [http://www.bgr.com/2012/08/08/apple-samsung-
patent-lawsuit-i...](http://www.bgr.com/2012/08/08/apple-samsung-patent-
lawsuit-internal-report-copy-iphone/)

And maybe because even Google thought that their tablets were too much like
Apple's tablets. [http://allthingsd.com/20120725/apple-google-warned-
samsung-a...](http://allthingsd.com/20120725/apple-google-warned-samsung-
against-copying-us/)

And maybe because their stores look like Apple Stores, their chargers look
like Apple chargers, their Ultrabooks look like Macbook Airs, and some of
their phones look like iPhones.

Apple never went against Palm, nor Microsoft, nor any other manufacturer,
simply because these devices were distinctly different than Apple's products.
And yes, I know that the case verdict was only about some specific patents
(and no, these didn't include rounded corners), but it's probably clear that
the decision of the jury was also influenced by things like the above.

You see, even if, technically, the patent system is a mess, and technically
the verdict is therefore wrong (which I don't think), Samsung are still
copycats. They're not the good guy, just because they use Android. Instead,
they're just a capitalist company like Apple.

~~~
kenster07
Their ultrabooks don't look like MacBook Airs any more than other laptop
manufacturers.

Same with the cell phones.

Most tablets basically look the same and function the same to the end user.

------
rayiner
This article is wrong in several places. E.g.

"Demon-Xanth: Did you have the opportunity to ask 'Is this something that
should be patentable?' during the trial?

Velvin Hogan: 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.

Groklaw Commentary: The law is that the jurors are supposed to decide whether
or not a patent is infringed, which _includes_ whether or not the patent is
valid, because if it is not valid, it can't be infringed."

Whoever wrote the commentary doesn't understand the patent law. The question
of "is the patent valid" actually encompasses several different questions,
some of which are for the judge to decide and some of which are for the jury
to decide. The jury foreman's characterization of "is this something that
should be patentable?" is correct. This is the "subject matter" question. It
asks: "in general, is this kind of thing the kind of thing that should be
patentable?" This is a legal question that is in the judge's province, not the
jury's.

The jury decides patent validity, which encompasses a separate set of
questions. If a particular "kind of thing" is patentable, then the jury looks
at whether a particular thing that is of that "kind of thing" has been validly
patented.

~~~
mistercow
A fair argument would be that author of the article interpreted the question
differently than Hogan did, and should have been more charitable to Hogan.

But your argument that the Groklaw commentator interpreted the question in the
_same_ narrow way as Hogan, and does not understand the basics of patent law,
is ridiculous.

~~~
rayiner
The author of the article clearly posed a question about subject matter
patentability rather than patent validity, given the terminology he used.
Hogan responded with a correct statement of the law of subject matter
patentability.

If the author had intended to ask a different question, he should have asked a
different question. In general, the Groklaw coverage suffers from a lack of
precision in writing. Law is all about breaking down a complex dispute into
distinct questions, answering them separately, then synthesizing a result from
answers to those distinct questions. Groklaw's coverage is very fuzzy about
which legal questions it is talking about at any given time.

~~~
mistercow
The term "patentability" also applies to inventions, and the questioner did
not specify "subject matter patentability", which is only one of several
factors that must be considered in deciding if a particular innovation is
patentable. In fact, I would say that the question's phrasing makes it pretty
clear that the intended meaning was patentability of the invention, not
subject matter. To quote page 46 of the final jury instructions:

>Not all innovations are patentable. A utility patent claim is invalid if the
claimed invention would have been obvious to a person of ordinary skill in the
field at the time of invention.

So again, it is reasonable to say that Hogan may have simply misinterpreted
the question he was being asked, and that whether he understood the jury
instructions cannot be gleaned from this exchange. It is not reasonable to say
that Hogan's interpretation of the question was _correct_ and that Groklaw's
interpretation was wrong.

~~~
rayiner
I guess I see your interpretation, but that makes it a weird question.
"Patentability" in that sense encompasses both legal questions and factual
questions. A jury can't really consider the "patentability" of an invention
because some of the elements of "patentability" aren't jury questions. They
can only consider specific elements like obviousness, novelty, usefulness.

At best the interviewer asked an ambiguous question and the foreman gave a
reasonable answer. In any case, this would all be obviated if Groklaw and the
media were precise in their use of the terminology. The lack of precision in
their discussion is really what makes me question the depth of their
understanding of the law.

------
001sky
The below,from the groklaw.net comment section, might be of interest re: prior
art.

_____________________________

 _Authored by: nsomos on Tuesday, September 04 2012 @ 09:57 PM EDT I am
guessing the foreman was confused by the last paragraph of page 40 of the
instructions.

\---------------------

In deciding whether any difference between a claim requirement and the product
or method is not substantial, you may consider whether, at the time of the
alleged infringement, persons of ordinary skill in the field would have known
of the interchangeability of the part or software instructions with the
claimed requirement. The known interchangeability between the claim
requirement and the part or software instructions of the product or method is
not necessary to find infringement under the doctrine of equivalents. However,
known interchangeability may support a conclusion that the difference between
the part or software instructions and the claim requirement is not
substantial. The fact that a part or software instructions of the product or
method performs the same function as the claim requirement is not, by itself,
sufficient to show known interchangeability.

\-----------------------

It seems that the foreman at least has the ideas given here backwards. I
suspect that he quickly skimmed and basically cherry-picked those sentences
and paragraphs that allowed him to come to the conclusion he already had
decided he wanted to come to.

The interchangeability that is mentioned here only applies to infringement,
and not to prior art which is invalidating._

------
Tyrannosaurs
It strikes me that if people have an issue with much of this, they have an
issue with the concept of jury trials.

This guy isn't an expert on tech or on patent law, but the system isn't
designed assuming that he is, actually the opposite. Jury trials are meant to
put cases in front of 12 ordinary people and have them decide the facts with
the judge guiding them through the law. Serving on a jury I (or rather we)
were told that he was the judge of the law, it was not for us to interpret
that, we were the judge of the facts.

If the jury does or seems likely to do something which contradicts the law
then it is for the judge to direct them otherwise. If you believe that that
should have happened and hasn't, then your issue is with the judge, not the
jury (and here I would suggest saying _he_ doesn't understand the law is
probably a long shot, and if Samsung believe this then they will have grounds
for an appeal.

But cases are meant to be judged by ordinary people, complete with their flaws
and weaknesses, their biases and prejudices and their imperfect understanding
because that is the standard the law is held to - the standard that "normal"
people (rather than technicians or experts) see as appropriate.

Yes it's an imperfect system, but as with democracy, I'd suggest that it's the
least bad system we've tried.

------
Steko
"little patent fascists"

Wow someone's angry.

I just read through the actual responses at
<http://www.groklaw.net/article.php?story=20120904190933195>

The smoking gun PJ decided to write 500 words on? The fact that he didn't
answer a particular question. In fact there are hundreds of questions he
didn't answer.

In fact he answered about 25-30 questions probably the number Gizmodo paid him
to come and answer.

------
keithpeter
"And the more he talks, the worse it gets for that verdict."

Is that the case in the US? Can this gentleman's comments become evidence at
the appeal?

In the UK, members of the jury are _not permitted_ to discuss the case, their
deliberations or aspects of the evidence during or after the trial. For ever.
It is contempt of court if they do.

------
lazugod
What mess is that comments section?

The design (chronologically threaded rather than rated, large repeating
personal signatures, offtopic designated threads) puts its worst foot forward.
Maybe I'm pampered by Reddit and ArsTechnica, which let relevancy move upward
or be promoted, but Groklaw's comments section is ugly.

------
shmerl
Yeah, he avoided the killer question which busts his logic.

------
anuraj
Don't think a jury can validate or invalidate a patent. Their job was to see
if there was infringement.

~~~
learc83
Part of finding if there is infringement includes deciding the validity of the
patent--that's why prior art was introduced in this case.

