

Samsung/Apple Jury Foreman Shows He Doesn't Understand Prior Art - mtgx
http://www.techdirt.com/articles/20120830/02063020214/samsungapple-jury-foremans-explanation-verdict-shows-he-doesnt-understand-prior-art.shtml

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brittohalloran
"I wasn't confused, but some of the jurors were". Does it seem crazy to anyone
else to have non-experts making _enormous_ rulings like this? This bumbling
fool did some "calculations" to "zero in on 14%" ("I'm familiar with P&L
statements") and decide that Samsung owes Apple a _billion_ dollars!?!? I'm
not saying that Samsung is innocent, but this seems like a ridiculous process.

~~~
bpatrianakos
That's how our justice system works. I'm glad that any citizen gets to be on a
jury rather than some elite set of experts. We can't have it both ways. If
given the choice between "experts" and average citizens on a jury I'd go with
average citizens every time. I don't care how dumb or smart they are. What I
care about is if we decide that a certain kind of person should be on certain
juries then that creates a new kind of class system and would hurt us more
than help. The job of the lawyers throughout the trial was to explain these
things to the jury and give them the information they need to make a decision.
It's fine to have a jury full of people who have no clue about the patent
system because the onus is on th lawyers in the trial to present the facts. If
they fail to do so on either side then they have to deal with the
consequences.

It's not fair but it's equal. America's judicial system is not about fairness
so much as it is equality. Equality isn't always fair but in a country like
this it's the best we can do.

Now what I'm about to say isn't an attack on you but instead just am
observation. When people disagree with something they always try to explain
why the bad thing happened. In this case it sounds like you're looking to
explain away a decision you disagree with by saying the jurors should have
been experts. If the jurors were experts and someone disagreed with the ruling
then inevitably someone else would be sayng they should _not_ be experts
because of bias or some such reason.

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pygorex
_I'm glad that any citizen gets to be on a jury rather than some elite set of
experts_

Expert testimony is used in trial all the time and is given great weight by
jurors. Experts parse out highly technical details and draw conclusions to
help the jury. Now, I'm not disagreeing with your initial assertion, but am
pointing out that our justice system depends mightily on technical and
professional elites.

The problem with this case is that a set of very complex and technical
questions ( _did one or more patent infringements occur?_ ) are being decided
by non-experts. Having a lay jury decide these questions is as absurd as
having the jury determine the caliber of gun used in a murder. Technical
questions require expert/elite knowledge to untangle.

~~~
bpatrianakos
I comppletely agree but my point was that since we can't have it both ways, a
jury comprised of average citizens is preferable to a jury of elites no matter
the profession or industry. I'm sure an expert jury would have made a far
better decision but I'm in favor of the lesser of the two evils.

~~~
fakeer
_in favor of the lesser of the two evils_

It can be (and is) extremely dangerous at times. Leave the billion dollar
aside for some time. It can kill an innocent and set a culprit free, if that's
the valid rationale of yours.

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angdis
Don't blame the jurors. They're just regular folks who are earnestly trying do
their best as though they're performing a civic duty. In reality, they're
being played like a fiddle.

Instead, blame the f'ed patent system, the lawyers who exploit it for every
last dime, and the companies that wield patents as a weapon against
competition. We've come a very, very long way from the true meaning and intent
of intellectual property protection.

~~~
mwctahoe
I agree, I doubt anybody that doesnt have a law degree would really know how
to interpret any of these laws in a normal environment with google to help,
let alone being on the jury of a high publicity dispute like this with all
that added pressure

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runako
You can add most lawyers to that group; most of them avoid IP law like the
plague.

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gokhan
One comment is quite insightful:

 _Since prior art is invalid because it can’t run on the apple processor and
vice versa then these patents can’t apply because they cannot be ran on the
Samsung device and vice versa_

[http://www.techdirt.com/articles/20120830/02063020214/samsun...](http://www.techdirt.com/articles/20120830/02063020214/samsungapple-
jury-foremans-explanation-verdict-shows-he-doesnt-understand-prior-
art.shtml#c81)

~~~
geophile
By that token, isn't Samsung non-infringing? This rationale isn't even
internally consistent.

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eumenides1
IMO the verdict is the polar opposite of the verdict from Judge Alsup on
Oracle v. Google.

One took it's time, the other rushed. One made sound decisions based on
evidence, the other was off the cuff. One is clearly designed to be resistant
to appeals, the other was in appeals before the first trial even finished.

I wish there was some way to incentivize the former instead of the latter.

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hythloday
In an article from 2004, the author of Freakonomics argued that we should do
exactly that: "Should we punish juries that get it wrong?"

[http://www.slate.com/articles/arts/everyday_economics/2003/0...](http://www.slate.com/articles/arts/everyday_economics/2003/05/we_find_ourselves_guilty.html)

~~~
fkdjs
If anyone should be punished it's the judges. When lawyers tried to use
copyright arguments where they should have used patents, Alsup was all over
that. Where Apple should have used copyright claims if they wanted to talk
about similarities w/ icons, etc., Koh should have been on that. Koh's
leadership of the courtroom was weak, she let too much slide. Alsup made sure
everything was by the book with no emotions. Koh's courtroom was an emotional
soap opera, which Apple thrived in since legally their case was weak.
Emotionally, they had the jurors. Yes Samsung copied, but copying by itself
isn't illegal. Koh compared to Alsup, showed that she really isn't fit to lead
such a high profile case, or any case for that matter.

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randallu
It would have completely sucked to have been on the jury for this one. You
don't get paid while you're not at work; you have to listen to expert bozos
who have been paid millions for their testimony and who say some strange
things under cross-examination; the lawyers all got paid handsomely too and
you're basically only there because the patent system isn't working properly
(why doesn't USPTO decide about prior art? aren't they required to do this
when initially examining the patent?).

Then, once you've made a decision to the best of your ability, all of the tech
press poops on you for weeks. Weaksauce!

Hopefully, the USPTO will re-examine the patents in question and resolve the
prior art discussions in a better way than a jury could/has.

~~~
mullingitover
> You don't get paid while you're not at work;

Speak for yourself. I work at a Fortune 500 company and jury duty is paid, and
I don't think this is at all uncommon.

That being said, I'd rather be at work than on jury duty any day of the week.

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esolyt
Based on that logic, Android manufacturers can simply move to Intel processors
and repatent all UI interactions for x86.

~~~
wccrawford
Not if I do it first!

... Which sounded less horrible in my head. Ugh.

~~~
vidarh
And you wouldn't be first - there is at least one x86 Android phone: Orange
San Diego.

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zackmorris
In the end it doesn't matter, Thomas Jefferson was looking a dozen moves ahead
when he helped lay the groundwork for a free society. Other
checks/balances/appeals, and the incredulousness of the people, will
eventually win out over special interests.

The patent system won't change until people are affected personally, when they
realize that it's costing them jobs and money. I'm always astounded when
people stand up for the rich people and organizations who have already won,
and give them even more, like they owe them something.

My main complaint with this whole case is that the jurors completely ignored
their own power. They could have nullified or come up with any way they wanted
to handle the case, including setting a real precedent like saying since there
is prior art everywhere, there's really no case, and thrown it all out.

I worry that we've become so uneducated about civics that we may no longer be
capable of cultivating a free and evolving organic government. We're going to
find ourselves stuck with archaic laws invented by people who have long since
died.

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ChuckMcM
In the US, and in the Bay Area where I live, it is not uncommon to have an
acquaintance notify folks that they may be on "Jury Duty" so schedules need to
be flexible. And then to have that same person get advice from well meaning
individuals about ways to answer questions so that they will be excused.

I've sat on two juries (both pretty minor, and one where the defendant
switched their plea to guilty on what would have been the first day). It isn't
a waste of your time, it is useful to know how this system works and to do you
part to make it as effective as it can be.

The question I ask people trying to get out of a jury duty commitment is
whether or not they would want someone like them who could be on _their_ jury
trying as hard to get out of it. Sort of a "pay it forward" way to look at it.

Going back and forth over this particular Juries deliberation and verdict is
something Samsung is paying their lawyers to do, still haven't seen what the
lawyers plan is for this case going forward.

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FreeKill
What I don't understand is the Judge/Lawyers must know that the Jury aren't
experts in technology or the law. Why do they not spend a substantial amount
of time explaining prior art, the laws pertaining to prior art, and the Jury's
options with regards to prior art?

For example, after the two sides have presented their case, why not spend a
day or two just explaining the basics of the laws in play to the Jury before
they start deliberations?

~~~
thezilch
Easy, Judge Koh set forth an extremely limited pool of time each party was
allowed in front of jurors. And what about putting it in the brief /
instructions the jurors are intended to read? Easy, the jurors didn't read it;
they were nearly prepared to execute maximum damages against Samsung before
entering deliberation.

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smackfu
I'm surprised they didn't boot him after finding out he had a patent to his
name. That seems like it would obviously put you on the pro-patent-issuer
side.

~~~
tptacek
Legally, that is like booting someone out of a jury case in an auto accident
because they have a driver's license. You can simultaneously believe, as most
of us do, that the software patent system is in dire need of reform while at
the same time understanding that individual patent lawsuits aren't
opportunities to relitigate patent law.

~~~
AndrewKemendo
I think that is a poor comparison. I think a better one would be booting
someone out of a jury in an auto accident case if they work in/own an
insurance agency.

The juror has something to gain with the legitimization and precedent that his
jury will decide especially in such a high profile case. Diminishingly so for
someone in an auto case.

~~~
tptacek
It's clear why computer enthusiasts who oppose the current software patent
system (I count myself among them) would see things this way, but I put the
word "Legally" in front of that sentence for a reason: to the law, there's no
such thing as a "conflict of interest" in support of the law. The law is the
law.

~~~
smackfu
Yeah, I meant that the lawyers should have used a "peremptory challenge"
rather than "strike for cause".

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drcube
We don't need to get rid of juries, we need to get rid of bad laws that allow
these suits to exist in the first place.

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alok-g
How then will we deal with cases where jury makes a misjudgement for good
laws?

~~~
drcube
How do we deal with it when a judge makes a misjudgement for good laws? Or a
panel of experts?

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alok-g
Are you saying that there is no difference between a judge/panel-of-experts
and a jury?

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Tycho
I'm amazed that the press are allowed to approach jurors (or vice versa) after
a trial. I think that's strictly forbidden in the UK.

Makes quite interesting reading in this case though.

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RyanMcGreal
Is this a good time to roll out the old joke about cases being decided by a
group of people who weren't smart enough to get out of jury duty?

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donatzsky
No. The problem isn't that the jury wasn't smart enough (they may or may not
have been), but that they had a foreman that was just a bit too smart.

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Jarihd
1) Patent filing must be made a really cheap process; so that even an
individual earning a normal salary is able to file patents. This way Prior
idea(art) comes to focus immediately.

2) There should be "no country(area) boundary laws" for Patents. A patent
filed in particular country should be applicable world wide.

~~~
jeremyarussell
That would require all the world governments to agree on what a patent is and
what it can protect. As it stands now the nations don't agree much on
anything, let alone something as important as patent law.

Edit: clarification

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lttlrck
Its more than that I think, international laws require internation courts so
all countries would have to relinquish control of intellectual property to a
central authority and world patent court. It would create as many problems as
it creates.

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lftl
Does jury selection for civil cases work similarly to how it does for criminal
cases, with both sides questioning jurors and getting a certain number of
strikes? If so, I can't help but think that whoever was responsible on
Samsung's side for letting this guy through is getting reamed right now.

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ktizo
_"Basically, he's admitting that he doesn't understand how prior art works.
The fact that the software wouldn't run on the same processor is
meaningless."_

He also doesn't seem to understand how software works either. More worryingly,
neither does techdirt, assuming they do think that it is a fact. It would run
really bloody slowly, admittedly.

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alanctgardner
I think you missed the entire point. Someone could have demoed this on an
i386, it doesn't mean implementing it on ARM is a novel, patentable invention.

~~~
ktizo
I didn't miss the point, I am saying that there are two points, one of which
was addressed in the article, which is that the prior art doesn't have
anything to do with the specific hardware implementation, and the other, which
the article was happy to leave stated as fact, which is the claim by the
foreman that the software couldn't be run on other processors.

The first point is only to do with an incorrect interpretation of the law,
whereas the second is to do with being uneducated about the content of the
case itself and I felt that techdirt should really have picked up the second
point as well as the first rather than treating his assertion about the non-
universality of software as somehow valid.

~~~
erik
I'm confused by what you are saying. Are you suggesting that techdirt should
have explained processor emulation in their article?

