
Judge in Oracle v. Google Explains What Jurors Must Not Do - esolyt
http://www.groklaw.net/article.php?story=20120908144706110
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d0de
I think it would be near impossible for someone who has passed the patent bar
to genuinely set aside their "specialized knowledge" when hearing a patent
case. In fact, I will flat-out assert that it's impossible, because when you
become a domain expert in that way, you internalize a great deal of the
training. If one side flubs an explanation of prior art or of some other term
of art, the rest of the jury may be confused or be under a misapprehension and
the patent attorney will not be. You'd have to be both unusually self aware
and a saint to i) recognize the misapprehension you would be under in that
situation if you didn't have domain knowledge, and ii) try to reach a decision
as if you were under that misapprehension.

In other words, I think it's a complete fiction to tell people to set aside
professional training and the knowledge and background that comes with that
when they're acting as a jury member. If you were hearing a civil case
involving programming, would you be able to set aside your knowledge of
programming and hear the case as if you were a layperson? I wouldn't.

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alttag
Not only do I agree, I'd take it a step further: the jurors should be
_expected_ to use their specialized knowledge. Yes, they should rely primarily
on what's presented, but the application of knowledge is important. Yes, there
may be instances where a jury foreman misinterprets the law, but that can
happen anyway, so why attempt to enforce the unenforceable and pretend domain
knowledge isn't important or useful?

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saraid216
> Yes, there may be instances where a jury foreman misinterprets the law, but
> that can happen anyway, so why attempt to enforce the unenforceable and
> pretend domain knowledge isn't important or useful?

It's not really that domain knowledge isn't important or useful; it's that
this isn't the place for it. If you have domain knowledge, its inclusion is
meant to contribute to the process at the point of legislation, not the point
of interpretation. If your domain knowledge disagrees with the law, then you
should get the law changed, not misinterpreted.

If, like in _Apple vs. Samsung_ , one juror has specialized knowledge and uses
that to act as an authority, he's basically disemboweling the entire point of
three branches of government, each disarming each other. He ignores the law,
chooses his own interpretation, and gets it executed. If that's not clear,
this is the "judge, jury, and executioner" powers vested in a single person.

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tjoff
I'm quite skeptical as to how you could ever come to a fair conclusion with a
juror that isn't supposed to know about the field specifically.

How are you supposed to make an argument that some software patent is trivial
to someone that hasn't programmed a single line in their life? It would take
years to educate someone as to how computers and languages work for them to
get any reasonable idea about what the case really is about.

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jallmann
> I'm quite skeptical as to how you could ever come to a fair conclusion with
> a juror that isn't supposed to know about the field specifically.

If the burden of proof wasn't solely on the lawyers, we'd end up with
situations where jurors apply their own preconceived notions or misguided
"knowledge" towards the case, much as the foreman has done here.

This seems to echo the reasoning for the patent system's definition of prior
art. The burden of proof for prior art is scoped to the patent system itself.
Something is prior art only if it's an obvious extension of something already
patented, not if something else similar but unpatented exists in the wild. Not
sure if this applies to the design patents of this case though.

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creamyhorror
> Something is prior art only if it's an obvious extension of something
> already patented, not if something else similar but unpatented exists in the
> wild.

Really? In the Reddit AmA thread by a patent examiner a month ago, he said
that works publicly released anywhere in the world prior to the filing count
as prior art, and gave the example of paper fans in Vietnam. The issue is that
the patent examiners don't have the time or ability to seek out every possible
piece of prior art in the world.

Hopefully the state of software patents can be changed at the source, when
they tighten patent granting. But the patents already in the wild will need to
be re-evaluated and invalidated in the court system, which is why judges like
Alsup are so important.

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badclient
One way to lower the workload on the patent office would be to allow non-
parties to file objections before any patent is granted. This way Google could
have a department that researches every new patent claim by Apple and file a
counterclaim to the patent office showing prior art anywhere in the world.

Letting private companies with real interest in each patent given to their
competitor allows a much thorough research.

~~~
SoftwareMaven
I really can't see anything bad happening in a process that allows unchecked
intrusion into one's IP grants by one's competitors.

The problem isn't so much the patent process, it's scope. Things that
shouldn't be patentable are. You have the obvious, like software; but you also
have the more challenging like a slight modification to the way a transistor
is layed out (hypothetical example) leading to the one of tens of thousands of
patents a smartphone needs.

The first is hard to deal with. It's a blurry line between hardware and
software, but I could see some rules that could help a lot: things like "it
actually requires more than a general purpose computer", "the item is a
standalone item and not a piece of a bigger thing", etc.

I have no idea how to deal with the second. I think to solve that, you have to
consider moving to a non-IP world (at least in some sectors).

I'm not completely convinced dumping IP protection is the right thing to do,
but I think it might be. Clothing is a good example of a sector that has
little IP protection (except trade dress, which was a big part of this case
[an overplayed one by Apple, IMO]). Like tech, it is highly iterative on the
last wave, moves very quickly, and old waves lose value very quickly. It has
managed pretty well, but cheap clones have certainly had their impact.

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option_greek
Wow, so it's not just the duty of the Samsung lawyers to weed out trouble some
jurors (from their perspective) but also the duty of the judge to educate the
jurors on this issue. Of course, we don't yet know whether the judge in the
apple trial has issued these instructions.

edit: Also, this puts aside the debate about whether a more technical jury
would have given a different verdict.

~~~
saraid216
Absolutely. A judge's job is to make sure that everyone understands the law
itself. That's one of two central purposes of a judge in a courtroom (the
other being that he interprets what the law means in an official capacity).

In a very real sense, he is the Law Incarnate.

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DirtyCalvinist
It seems to me that all this wrangling and instructing juries is an argument
for having dedicated, technically and juridically trained jurists decide these
cases.

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columbo
A random pool of people is nearly impossible to corrupt.

Make someone's full-time job as a juror and the system WILL corrupt. A pool of
"experts" will become a bidding war and only the large pocketbooks will win.
Everything from patent infringement to murder will be based not on the letter
of the law but on how much money you are willing to use in bribes.

I'm really surprised to see this even be something that needs to be debated.
Randomized juries is like a fail-safe against judicial corruption. Every case
is a unique pool of individuals, you simply cannot take one person out of the
country (say, a full-time expert juror) and blackmail them for life. You've
got one trial, 12 random people, and only one shot to convince, appeal,
coerce, intimidate or bribe.

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saraid216
> I'm really surprised to see this even be something that needs to be debated.

I've seen it come up in other places for other, arguably nobler, reasons.
("Fixing" unemployment by preferring the unemployed as jurors.) But yeah,
taking out the randomness is a bad idea, with a huge, huge burden of proof on
why it'd be better another way.

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jerrya
That's an interesting article, but is it grounds for an appeal? Or could it be
seen as an instance of jury nullification?

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SwellJoe
It feels like the opposite of jury nullification. It grants more power to the
state to protect patents than the law has ever been used for. Nullification is
historically used as a check on the state, rather than a tool to make the law
mean something completely different and much farther reaching. And, of course,
it's generally used in criminal cases.

But I don't know how the appeals process will go. I have no idea what makes an
appeal possible in a civil case.

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ChuckMcM
While I find this all sad and disheartening, I really wish we'd get better
insights into what Samsung's lawyers are doing about it rather than all the
complaining about how badly the jury did their assignment.

Surely if there is a way to use this in either a motion for a mistrial or to
force a judicial review they not doubt would be filing it.

~~~
blrgeek
They still have time to file their appeal - since they're going to be filing
against the whole jury verdict.

Eagerly waiting for that and the groklaw review.

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taligent
PJ's bias is getting ridiculous now.

When you read this line that the foreman "used knowledge from that experience
to convince the other jurors that Samsung's prior art was not valid" you are
led to believe coercion occurred. When in fact there is no evidence of this at
all. Likewise the foreman "played his own role as an "expert", to decide the
case" makes it seem like the foreman was the one making all the decisions.

I've been on two juries in the past and everyone takes the role seriously.
Especially for a high profile and expensive case as this one. So are we really
going to let this picture be painted that one person made the decision here ?

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johsoe
From: [http://www.theverge.com/2012/8/31/3280361/apple-samsung-
jury...](http://www.theverge.com/2012/8/31/3280361/apple-samsung-jury-foreman-
velvin-hogan-interview)

"Hogan said he was one of a pair of jurors that served as the de facto
technical experts of the nine-person panel."

And:

"Except for my family, it was the high spot of my career," Hogan said about
the trial. "You might even say my life." A holder of a patent on video
compression himself, he said he recognized that the case represented a
"landmark decision," and that he was pleased he'd been selected "because I
wanted to be satisfied from my own perspective that this trial was fair, and
protected copyrights and intellectual property rights, no matter who they
belonged to."

