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Jury in Apple v. Samsung Goofed, Damages Reduced; What's Wrong With this Picture (groklaw.net)
253 points by GICodeWarrior on Aug 25, 2012 | hide | past | favorite | 149 comments

What people who have not been in court don't realize is that Apple won on the narrative. Find the good guy, find the bad guy, and the bad guy will almost always be found to "lose."

Many times, patent cases are argued like someone was trespassing: This idea is my property, and you started using it. What Apple did well in this trial is that it portrayed Samsung as a cheater—someone who looked over Apple's shoulder and copied down its answers. This portrayal obviously resonated with the jury leading to the overwhelming win.

Is that right? No, not really, especially for technical issues. Frankly, the most astounding part of this decision was that Samsung's standard-essential patents were not considered infringed. I fully expect Samsung to file (and win) a JNOV (a judgment notwithstanding the verdict) on that issue. But overall, I doubt this verdict will be overturned as a whole.

>"Frankly, the most astounding part of this decision was that Samsung's standard-essential patents were not considered infringed."

Apple submitted evidence (receipts) proving that they had purchased the chip from Intel, who had in turn already licensed the patents from Samsung[1]. A business cannot demand payment for a patent license twice. They also cannot dictate who the patent encumbered products may be sold to. This is not a matter of opinion, it is a matter of simple fact. If Samsung do file a JNVO, then it will be thrown out with prejudice for that reason.

[1]Known as patent exhaustion - http://en.wikipedia.org/wiki/Exhaustion_doctrine

I thought it was Qualcomm that supplied the offending chips.

Anyway, it's not a straight Apple win on the standards-essential patents. The jury didn't find that Apple violated the patents, but they did, at least, uphold the patents. The jury just determined that the patents were exhausted, so Apple couldn't have infringed.

This should give Motorola (Google) pause in their lawsuits too, since they had asserted standards-essentials patents against Apple too. I'm not sure where they are with these cases though, it's getting too hard to follow.

I think it's Intel, although Qualcomm chips are being used in their CDMA variants of the iPhone. Apple uses Infineon baseband chips, however the company (Infineon) was bought out by Intel, hence it is Intel who supplies the offending chips.

Apple tried to pay Samsung for the license after Samsung revoked it (probably to get more money from Apple), but Samsung turned down the license fee claiming they wanted more.

To me, this sounded like Samsung wanted Apple to violate some of their patents for some ammunition in the case.

I don't think Apple willfully infringed anything here. They just bought chips from a manufacturer, assuming that they can use the chips they paid for in their products. It seems crazy someone could sell you chips, and then sue you if you happen to use them in your products.

> I don't think Apple willfully infringed anything here.

Apple knew this was coming. See the stuff in the case about the Sherman act. They're "willfully infringing" to the extent that they are "refusing to end negotiations and pay the fee Samsung claims they own."

Samsung seems to have brought this in to show what the dispute was really all about. And that show with the Intel receipts didn't address the entire problem from my reading.

>Samsung seems to have brought this in to show what the dispute was really all about. And that show with the Intel receipts didn't address the entire problem from my reading.

That has never made sense to me, though. Unless Samsung could prove that Apple was actually assisting in designing the silicon of the chips(in which case, patent exhaustion would not apply), they were suing the wrong people. The infringement would have been on Intel/Qualcomm/whoever is supplying the chips.

There are appealable issues relative to exhaustion. If I were Samsung, I would file on both issues (infringement and exhaustion) to preserve for appeal.

I'd be careful if I were Samsung. Their motives over the FRAND patents are extremely questionable and they are already being investigated for antitrust over the abuse of these patents. The fact they revoked patents clearly in a bid to extort monies, either through relicensing or litigation, is an antitrust violation. Again, these are the facts as they stand.

Very interesting, thank you. Could you talk about what the liability is if you buy from someone who is (unbeknownst to you) infringing, and what your responsibility is if the seller turned out not to have a license?

What if the component you bought has already made it into your products?

Unless you directly designed the chip, you shouldn't be liable at all.

The liable one is the seller.

The rule is that you can be liable if you make, use, sell, or import the infringing device. In theory, end users are also liable. Individuals as end users usually are accused - no upside. Businesses as end users sometimes get sued.

An American success story of a company led by a recently deceased charismatic visionary entrepreneur vs a faceless Korean mega corporation. It sells itself.

Good point and this proves that such complex civil cases should not be decided by juries!

A patent case is not about moral questions and narratives, it's about technical, legal as well as economic questions. (I would perhaps even argue that intellectual property laws are ultimately entirely about economics.)

I don't think case is about anything technical. If you look deep into Samsung's history, you'll see they make a business out of copying other company's successful products by mimicking the product's form factor or appearance. For example, Samsung copied Motorola's RAZR with their own SYNC model.

Although this demands we ask the question, "Is this bad?" It's sort of inevitable that popular designs will be mimic'd in the industry. Why is it bad, so long as Samsung retains a positive and strong branding so that they're not confusing people about who made the product?

Samsung is not exactly a powerhouse of innovation, but they're part of a competitive ecosystem that we prefer to think drives innovation. Smaller companies come along with breakthroughs that bigger companies integrate. Said smaller companies need to continue to innovate and grow to be competitive; no one gets to just make one great invention and sit back laughing at the market.

And isn't this exactly Apple's success story? Their last decade has been an unchecked rampage from market to market in the consumer electronics sphere, quickly toppling incumbents before moving on to another focus when it's clear there's no more low hanging fruit to extract from the markets dominated by sluggish competitors like Sony.

But right now we've seen a series of reversals in the tablet and phone spaces as several other companies band together to try and compete directly. It's sort of amazing that Apple could only be matched in their current target by a massive federation stitched together by another of the most brilliant companies of the last decade, but it's sort of unsurprising that if EVERYONE else gangs up and tries to counter Apple, they might not be able to iPodify this particular market.

I think it's bad if the average consumer cannot tell the difference between an Apple product and a Samsung product. Right now Samsung is trying hard to look like a cheaper apple product -- they have the same "white" apple stores with an equivalent genius bar (smart tutors), and they even reuse apple icons at their physical store wall paper (safari icons, etc). Their boxes and cables are identical to Apple's, they made their onscreen keyboard identical (same white/blue style -- even the shading is identical). Some of Samsung's products will even fit in 3rd party Apple addons that make use of the 30 pin dock.

I honestly don't think a new consumer will be able to easily differentiate between the 2 products. My mom calls everything an ipad even if it's not -- I don't think she would know that she's buying a galaxy tablet and not an ipad.

I don't think copying drives innovation. If cloning products drove innovation, we'd see a ton of China companies making innovative products, but most of them just clone some website in the US, slap on a few features, and that's it.

The China company that cloned Impactjs pixel-per-pixel did not provide anything additional other than providing the same service at half the price.

If Samsung wins here, it's basically setting a precedent for future companies to clone anything successful. We'll probably see a lot more Chinese companies cloning YC startups without worrying about lawsuits.

If Samsung wins here... We'll probably see a lot more Chinese companies cloning YC startups without worrying about lawsuits.

You assume:

* That there is a law which prevents startups from being cloned.

* That Chinese companies would care about such a law even if it existed.

* That a YC startup could do anything about it even if the prior two points were affirmative.

You're 0 for 3.

> Some of Samsung's products will even fit in 3rd party Apple addons that make use of the 30 pin dock.

In this particular point, Samsung is 100% in the right. Interoperability is one of the explicit justifications for copying. Vendor lock-in is nor protected by law, and is one of Apple's borderline-illegal monolopy-protecting tactics.

I don't think copying drives innovation. If cloning products drove innovation, we'd see a ton of China companies making innovative products

KirinDave's point wasn't that cloners innovate themselves, but that they force others to keep innovating to stay in ahead of the pack.

>"I think it's bad if the average consumer cannot tell the difference between an Apple product and a Samsung product."

Apple just might be the strongest brand in history and is the most valuable corporation on the planet. Their products are must-haves. Are people really getting confused? Are people really going to settle for a "cheaper" brand, rather than the real thing?

If that's true, it's astonishing.

i don't consider _any_ Apple product as a "must-have".

> I don't think copying drives innovation.

Would you deny innovation in Japan tech sector for the last 30 years?

It's just that it takes some time, around twenty years, to switch from copycats to innovative products.

Hm, I don't believe the copycats actually succeeded here. I bet if they didn't copy, innovation could have happened sooner. Copying just lets the company stay alive for longer since consumers can't differentiate easily, and said company can use the money to research new innovations.

But that's not necessarily illegal. Only certain kinds of copying are disallowed by the law. And also, the patents that Samsung asserted in the countersuit were _quite_ technical.

And what law says that borrowing features and ideas from competitors is illegal or grounds for compensation?

If you quote the 43(a) of the Landham Act which covers trade dress, please specify which "word, term, name, symbol, or device" that Samsung used that was:

A) "likely to cause confusion, or to cause mistake, or to deceive" people into thinking these were Apple products, OR B) "in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."

If your argument is that people purchased Samsung products thinking they were Apple products, please provide evidence of this fact.

The idea that a jury from nowhere can judge on a technical case between two companies scares me. This is not an individual person vs. big corp.

Staggering how much ignorance there is about this case:

1) It was NOT TECHNICAL. It was predominately a lawsuit about trade dress and UI driven patent infringement. It is exactly the same as judging whether a Nike shoe has been copied or not. You don't need to understand the technicalities of the manufacturing process.

2) The Samsung standards essential patents WERE considered valid and infringed. Just that due to patent exhaustion Apple was exempt from infringement.

So maybe you should understand the very basics of the case first.

Umm, you are mistaken. Yes, they found there was patent exhaustion. They also found that the patents were not infringed.

Exhaustion is a completely separate issue from infringement.

If they found that there was patent exhaustion, Apple could not have been guilty of infringing on the patents.

The exhaustion doctrine is pretty clear on this.

Patent exhaustion is about liability for infringement, not infringement itself.

I'm strongly with you on (1). As people working within technology, we really want this case to be about a technical point which has some objectively correct conclusion.

The reality is that the US justice system doesn't work this way, and wasn't designed to. It's not technocratic in the way it reaches a verdict. The jury are not specialists, and aren't supposed to be. They are equals to every other citizen. They judge subjectively, representing the people. If they make a decision that doesn't align with the objective conclusion a specialist sees, that's still allowed.

Democracy is created with awareness of these kinds of 'mistakes'. See Aristotle's writing on democracy, and its benefits and pitfalls. It doesn't seem right sometimes, but it's a choice the US people have made actively.

"Just that due to patent exhaustion Apple was exempt from infringement."

Could you explain that?

Isn't a patent by its very definition "technical" in nature? Thereby requiring some technical know-how of the patents in question to adequately judge the case?

Hogan holds patents, so he took us through his experience. After that it was easier.

...we debated that first patent -- what was prior art -- because we had a hard time believing there was no prior art, that there wasn't something out there before Apple.

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."

This, as well as other accounts on groklaw, give the distinct impression that this jury was very much led by the foreman - both procedurally and intellectually. The latter being a little worrisome.

Additionally, the mention that they glossed over their debate on prior art because it was slowing them down is disturbing.

I suppose since they had, according to this juror, essentially made up their minds on day 2 - there was no need to get bogged down in these pesky details.

I expect Samsung's lawyers will focus some effort on this, the Foreman set him self up as an unacknowledged expert witness. And if the Jury member's statements are strictly correct, then a lawyer would argue that the Jury debate was tampered by evidence that was not introduced at trial. Judges go out of their way to point out to Jurors that the job requires considering just the evidence that was presented at trial and nothing else (which is why evidence rules see a lot of fireworks).

So the argument will go, this juror set their self up as an expert in the minds of the other jurors, gave testimony (evidence) on the veracity or relevance of the evidence presented, and that materially influenced the verdict. The client, Samsung, was denied due process because the were not allowed to cross examine this testimony.

Now it sounds simple but its not really as simple as that, because the Jury is expected to debate the evidence and trade opinions on whether or not they believed it. So what the lawyers would need to prove is that by creating the impression of being an expert, this jurors opinions carried undue weight with the other jurors and rose to the level of effectively new testimony. Its hard to prove a jury tampered with itself :-). I've got a fuzzy memory of something like this being pursued in either the Enron case ore of the AT&T cases but sadly I don't have access to Lexis.

More likely the speed of the verdict and the inconsistencies in the verdict will be sufficient for the court to take some action.

I do know that there will more motions and what not but I am not at all comfortable predicting the outcome :-)

When I was on a jury we were instructed to use only information provided through the trial. Not to rely on "expert opinions" within the jury pool.

I'm not sure if that always applies, though.

This is one of the best critiques so far of the decision.

There are two sides to this trial. On the one side is the emotional appeal: Samsung copied Apple, and documents detail the extent to which Samsung imitated the iPhone. On the other side are the various technical ways in which Apple claimed that Samsung copied them. But just as Apple engineers slaved for years over the technical details of the iPhone, it is incredibly important for the future of mobile innovation that all of the technical parts of the trial are correctly decided. If the jury finds no infringement but finds that infringement was induced, this indicates that technical mistakes were made. But in particular, I wonder if the jury was so swayed by the emotional appeal that sufficient attention was paid to the substantial prior art demonstrated regarding capacitive touch screen phones and multitouch displays.

According to the comments in the post, this is one of the infringements: http://androidheadlines.com/wp-content/uploads/2010/07/thumb...

If this is true, then it's hard to give this decision much weight at all. These two phones are vastly different and one literally says SAMSUNG on the front.

Just to remove all doubts about whether the jury was smoking crack or not, this phone is found to be infringing the iPhone's design patents:


Close the keyboard, then look at it. The jury, apparently, decided what their criteria were for infringement and then applied those criteria to all of the phones. The extra fact that this model had a keyboard wasn't one of the criteria.

Let's not assume that we have the whole story behind the way the jury decided anything, one way or the other.

Aside from the keyboard (which is significant IMO), this phone differs from the iphone in that:

* this phone has curved (not flat) ends

* four HW buttons on the front (rather than one)

* it's black with a black border (has any iphone had that? Usually the iphone border is in a contrasting color)

* has a big "samsung" on the front

It's pretty distinct, hardware-design wise.

From what I've read so far, the very existence of a full display and a bezel surrounding the front of the phone may have been sufficient in this case for damages.

That's obviously crazy, but that appears to have been criteria used.

I'm reminded of an old joke: "In Soviet Russia reasonable and appropriate considerations are made before awarding 1B in damages based on vaguely similar designs".

Thanks. While I'd like to see Apple gets it teeth kicked in as much as the next guy, the amateur analyses on HN about why the jury is obviously wrong are pretty frustrating to deal with.

True, though the professional analysis from groklaw is a pretty good read.

I purchased that exact phone, exactly because it wasn't an iPhone, had a keyboard (very important for mobile ssh), and ran Android. I knew exactly what I was buying, no confusion whatsoever. The presence of a keyboard is a significant differentiator between that phone and Apple's products.

Also, I thought the design of the home screen (a grid of icons with labels) also had something to do with it? Both of the linked phones have a grid very much like the iPhone.

icon grids predate the iphone, of course (windows mobile, palm pilot, newton?). I think Apple's claims were more specific, dealing with particular icons, colors, and the favorite apps at the bottom.

Did 16x16 (and then 32x32, and etc etc) icons get patents? Because someone, somewhere, lost a lot of money - and I got consistently sized icons for many years.

EDIT: This isn't as ridiculous as it sounds. See this 2002 article. BT registered a patent in 1976 for "double clicking hyperlinks" (or somesuch), and then in 2000 they realised that they owned this patent, and a bunch of people were clicking hyperlinks on the WWW, and they started suing people. They lost.



favorite apps at the bottom

Quicklaunch bars certainly predate the iphone

So did Windows 3.1.

The Samsung Gem was also listed with a $4 million infringement. http://www.samsung.com/us/system/consumer/product/sc/hi/10/s...

edit - The Replenish was also granted 3.3 million http://www.prepaidreviews.com/podcast/SamsungReplenish.jpg

These are just laughable

Which aspects did these two infringe? The only thing that even seems plausible is the home screen/icons part of the claim.

Well, they're phones. And black. And Samsung is the bad guy in this story. Alright then, 4 million.

If my old HP iPaq had a black, not silver bezel and had less hardware buttons, I imagine it would have looked something like that. Hmm.

Even if the jury took a month and asked 1000 questions, the losing side or those who align with the losing side would find something, no matter how minute, to question the decision.

The fact that your valid opinion got downvoted shows that the problem may not be an emotionally biased jury in the courtroom so much as many emotionally biased HN users.

Yeah, I feel like many HN readers think this is Apple vs Android, but it's not. HN readers want to defend Android, so they feel this is the case where Apple battles Android, but really the case has little to do with Android. In most of the cases where Samsung copies Apple, the Android default implementation would have prevented that. Android handsets usually have a micro usb connector, but Samsung chose to copy Apple's 30 pin connector over the Android default. Why would anyone do that unless they wanted to clone Apple?

Factually incorrect. All Samsung handsets have micro-USB connectors as mandated by EU rules. How Apple gets away with not having it, I don't know.

Granted, Samsung tablets have a similar wide connector, but so does almost all tablets I have seen due to regular USB not having enough power to charge them efficiently. And then you want it wide, not tall, not to impact tablet thickness.

Apple has no argument here.

About the EU rules:

- They only cover mobile phones

- The devices must be compatible with a micro-USB charger, but it's perfectly alright if you do this with an adapter piece. The charger that comes with the device must also be micro-USB compatible (apple chargers allow you to plug a different USB cord into them).


Was it plug-compatible with Apple's connector? That would seem open-and-shut for infringement. I thought it just looked similar, which makes it a judgment call for a jury.

I could accept most of what Samsung did as a technical choice, but that power charger really leaped out at me. Proprietary chargers suck for end users.

If it's compatible, it's open-and-shut for NON-infringement, since copying for compatibility purposes is protected by law.

It's similar, but not exact. You can actually plug the galaxy into apple addon products (the connector will fit), but you'll probably fry your galaxy. Maybe someone has already done this and complained to Apple.

However, even if the copy was exact, I think it would still be difficult to make the case for infringement.

It's a mirrored version of Apple's connector. This was an especially goofy choice, as there's already a standard called PDMI they could have used.

There's a detailed discussion here: http://www.pocketables.com/forum//showthread.php?p=55941

>Samsung chose to copy Apple's 30 pin connector over the Android default

Depends which phone. Some of their phones have BlackBerry-style micro-USB-esque connectors.

all their phones have micro usb connectors. the 30pin adapter is only for their tablets.

Not everything true is worth saying. I don't think the original comment particularly adds anything to the conversation.

And they wouldn't necessarily be wrong in doing so.

Whether you merely hold a press release saying that you have perfected cold fusion, or if you land men on the moon in front of the entire world, there will always be people who find something, no matter how minute, to question.

Of course in one extreme the questioning could not be more justified and in the other it is bordering on mental illness... but don't let that distract you. Surely everything in this world is black and white.

Samsung's own words:

The verdict form in this complex case necessarily spans 20 pages and requires unanimous answers to more than 500 discrete questions across 5 different legal disciplines. (Dtk. No. 1890.) The likelihood of an inconsistent verdict is a possibility despite the jury’s best efforts.


Groklaw even linked to the source of the above quote: http://www.groklaw.net/pdf3/ApplevSamsung-1927.pdf

Seems like a classic case of confirmation bias, by both Groklaw as well as a bunch of people here.

The argument is that they didn't make their best effort, because they couldn't have possibly done so in only 3 days.

To be honest though, a lot of the questions were checkboxes. Did this device infringe, Y/N...

Once they had their criteria for evaluating infringement, they could hammer through the devices pretty quickly. I suspect that most of the deliberation was on if the patents were valid or not. If so, how then to evaluate if a device infringed?

I'm more curious to know how they determined damages... it seems like there should be a worksheet or something on that.

There's no way of knowing, but having served on a jury where the foreman was a lawyer (he only handled civil cases), I think the most likely scenario was that most of the jurors just followed his lead.

People tend to defer to perceived experts, which is why I find it odd Samsung's attorneys didn't catch this guy.

If they didn't know about him, they were incompetent.

More likely, they knew about him and made a bet he would side with them. They were wrong.

I read once about a case where the foreman on the jury (in a personal injury suit) was both a lawyer and a state senator. The judgement was set aside on the basis that he exercised undue influence by explaining the law to other jurors (thus usurping the judge's role).

Of course the law is full of funny cases (like the time the Supreme Court filed a per curiam, and then along with it a unanimous partial concurrence). Figuring out what was meant there is... well, something lawyers can argue about forever.

Or they knew about him and made a bet that he would taint the decision and get the case dismissed on appeal in front of a judge, who understands and appplies law better than civilians.

I was surprised by the resumes of the people on the jury given the flack they've received from the tech press. These were some very qualified people, much more so than the tech press that criticized them.


The foreman holds a patent that could be the poster child for what's wrong with the software patent industry.

Being a Very Serious Person(tm) in an area that most people, who are paying attention, think has gone insane is generally not the kind of credential that should make people give your opinion more credence.

Compounded by, as Groklaw reports, he actively sheparded the other jurors into his point of view. It's much easier to understand the verdict (and especially its speed) in the light of this.

I would think you would want someone who actually understands the patent system and the patent process on the jury of a landmark patent trial.

By owning a patent, he's got a vested interested in patents in general being enforced broadly and damage judgments being high.

No, I don't think you want someone like that on the jury. I'd take ignorance over bias.

This trial is about Apple vs Samsung, not the patent system. Samsung filed counter-claims against Apple too. So I don't quite understand what you mean by the jury being biased.

I'm not saying that the outcome directly (or even indirectly) affects him materially. It clearly doesn't.

I'm saying that, as a patent holder and inventor, his perspective is going to be biased towards protecting the rights of innovators, beyond what would be sane from the perspective of the rest of society.

His profession puts him in the same boat as Apple.

You're calling him insane just because he's "a patent holder and inventor"?

> > Samsung filed counter-claims against Apple too.

Samsung also holds patents.

You know, I actually didn't miss that bit. It doesn't contradict what I've said.

If you disagree, this has already taken up enough space on HN. My email is in my profile and I'd be happy to discuss it.

Ok, but then let's say you are entirely right. Then the jury is bound to interpret the patents broadly and an outcome like this is inevitable as far as a jury verdict goes (I think something like this happened in the Oracle-Google suit). What then for the patent system?

What this does, IMHO, is it pushes all the interesting questions to the judge and the appeals court. These are questions like:

What is the scope of each patent?

Did the jury find that each patent was violated within the scope determined after trial? (Unknowable, gives judges an opportunity to decide the case as they see fit.)

What this does, if you take it that way, is put the jury in the role largely of hearing demurrers. A verdict of infringement becomes more or less a low barrier to entry to the interesting portions of the case which will all be decided by judges.

To hold a patent doesn't qualify one to automagically understand the patent system and the patent process. Or in the case of this jury, to be able to redact error free concensus from the group. The fact that one person on that jury has a patent on a "Method and apparatus for recording and storing video information" is a really disturbing factor that might explain a lot on how the jury deliberated.

This. At one time I had over a dozen patents where I was one of the inventors and every time I find something new about the patent system. I've got the bonus education in having been retained as an expert witness in two patent cases, which nominally would qualify me as an expert and I find the system quite murky still. I can categorically concur that just having at patent does not make you an expert on the patent system.

Well Samsung had the opportunity to strike him from the jury pool. This is the risk you run when going to trial.

Do you only want Forensic Scientists and Violent Crime Detectives on the jury in a murder case?

In fact, the phrase "actually understands the patent system and the patent process" is kind of loaded as the people mentioned only have experience being on the plaintiff's side.

From a jurisprudence POV, you can't depend on your jury having personal experience in anything, and so the whole system is built with the expectation that they don't.

I would think Samsung would like to cross-examine this expert witness.

It's worth pointing out that the US' system of justice and government cares little for the qualifications of the jury:

The US is a democracy (or some variation thereof), not a technocracy.

Whether people who work in specific fields think that's right or not is independent of the principles the US espouses. In the eyes of the justice system, all jurors are equal regardless of skill. They are disqualified primarily by their biases.

I think it is rather unreasonable for people to be doubting their qualifications if we hold them as equal citizens. If they make technical mistakes, I think it's important to consider that they are representative of the mistakes of the people as a whole.

Sure, the US government doesn't reach the technically optimal result every time as a result, but this is the form of government (democracy, not technocracy) we in the US have selected. Aristotle writes quite a bit about the merits and pitfalls of this, and we are quite aware of them.

Similarly, I know a patent examiner who holds dual PhDs in disciplines directly bearing on his work. The patent office actually asks its examiners not to rub their qualifications in people's faces because there is no upside.

I don't understand why everybody keeps saying that a win for Apple is a blow for innovation. Samsung didn't innovate. They flat-out copied. Seems to me that allowing blatant copying like this is what will suppress innovation, because why bother spending 5 years and a lot of effort/money designing something awesome if someone else can come along and clone your product in 3 months?

Its a question of scope. There are a lot of patents in this case that a majority of engineers or designers would not consider worthy of patent protection, the most infamous being the 'rounded corners' one. That these patents were upheld then has a huge chilling effect on everyone's design. Can I be sued because my device is rectangular? How about square? Are all quadrilaterals covered? Those are ridiculous questions on their face, but you've just seen someone who got hit with a billion dollar judgement and you can't tell that they did anything wrong, and it paralyzes you.

That is why its a blow for innovation. All the rabbits will freeze hoping the hunter can't see them.

No, it's not a blow to innovation. The only reason Apple went after Samsung and not HTC or other Android handset manufacturers is because Samsung has gone into detail copying every small feature from Apple. If you look into Samsung's prior history, you'll see they do this for every popular product on the market -- it's part of their business model, and it's not focused specifically on copying Apple. They copied Motorola products before the iPhone came on the scene. The details of the blatant copying are addressed in that 127 page "smoking gun" that was released recently.

I think businesses that focus on cloning other people's successful products actually reduce innovation because the innovation comes from the initial product inception, not from a copy. If cloning actually increased innovation, we should be seeing lots of innovative products come out of china since they're so good at making copies of other people's products.

Are you saying that now that this case is 'over' and Apple won it, they won't sue anyone else on the same patents? If so I think that is pretty naive. If you look at other cases you will see that Apple will be compelled to sue everyone else, and/or get a license from them for these patents. If they did not do that then Samsung would be able to argue that Apple didn't really believe in their patents, they were just trying to put Samsung out of business. That at least is well understood, you can lose the protection of your trademarks or design patents if you don't enforce them.

Sadly, the case is far from over. Both companies will say they will appeal until they win so it may last as long as SCO vs IBM. From Apple's statement, I believe they went after Samsung because of their blatant copying. There have been other manufacturers that Apple have not gone after because the copying was not as significant as Samsung's.

Personally, I think someone has to reprimand companies that make a business out of cloning others. It happens all the time, but it's often hard to enforce.

I think you're one of those HN readers that think this is Apple vs Android, but really it's a case against Samsung and their cloning behavior. Few companies out there act like Samsung and get away with it.

Also, I think you're a bit extreme in your arguments. Apple is not going to put Samsung out of business; Samsung makes everything from air conditioning units to memory chips.

Perhaps we're talking past each other.

"Personally, I think someone has to reprimand companies that make a business out of cloning others. It happens all the time, but it's often hard to enforce."

It is the nature of free market economies that successful products will get emulated. Compaq emulating the IBM PC, Char-Broil emulating the Weber griil, Ford emulating the Toyota Camry, Microsoft emulating Netscape, Apple emulating the Xerox windowing system, Burger King emulating McDonalds, Airbus emulating Boeing, it just goes on and on. That is what is generally referred to as competition, sort of "if you thing you can do it better, then bring it on."

And within that competition there are often signature "styles" which are distinctive to a company, so it would probably have been a bad idea if Airbus had given their A380 a 'hump' on the front like the Boeing 747. And there is a whole bunch or case law about what is and what is not acceptable.

The question on trial here was did Samsung cross the line in emulating Apple products. As you know, those of us outside the courtroom had access to all of the arguments and evidence about whether or not Samsung copied too much, or if Apple was accusing Samsung of copying their own copied work. The judge in this case emasculated Samsung's argument by denying the admittance of evidence which had exonerated them in other courts.

A number of folks (and I'm one of them) feel that many of the claims in Apple's design patents were flawed by both being obvious and there being prior art to indicate that any ordinary person skilled in the art who was given the task could have independently arrived at the same design elements.

So some folks, like me, don't think Samsung got a fair trial. That's just opinion of course and they've got one of, if not the top IP Litigation Firm working for them so if you can't get a fair trial (opinion) with Quinn Emmanuel, well it doesn't bode well for anyone.

So if you are a designer at a start-up, or even at a reasonably sized company, and your company is trying to compete against a market leading product that you think you can do better. But given that you now know that you can make no assumptions about what is 'fair use' or 'prior art' or 'obvious' you might be inclined to believe that if you made a device that had icons and made phone calls you were infringing on some random Apple patent and would get yourself sued out of existence. You see the way Samsung got treated and you say "Crap even if I've got a friggin' article in the New York times that pre-dates their patent they will figure out some way to keep that out of the trial and still kill me."

We can debate all day about whether or not Apple would do that to our hapless designer we know they just did that to Samsung so we know its possible. And if you are putting the company at risk by getting near that Apple monster your Board of Directors will fire you faster than a guy who lied about his degree on a resume. That is the way that intimidation works, the US Gov't hasn't used nuclear weapons in anger in nearly 70 years but they did that one time.

You claimed that this case was not 'a blow to innovation', I rebutted that by saying that the chilling effects of this case would lead to significantly less innovation. If you want to argue your case you have to show how people can continue to innovate in the smart phone space and defend themselves against a litigious competitor like Apple has been shown to be. And part of that rebuttal has to be some compelling narrative about how the trial was 'fair'. That, for me is a hard one to get past.

> Perhaps we're talking past each other.

You say "each other".

I see you revisiting the parts where you think he didn't hear you but should have. Which parts do you think you weren't hearing but should have?

There are great examples of innovative products that are the result of not copying another -- see the windows & palm phones. I don't believe that innovation comes from cloning -- it only helps that business stay alive for a longer period of time, but doesn't bring anything new to the table. The examples of emulation you provide are significantly less blatant than the way Samsung copies Apple. Samsung even uses Apple icons as part of their wallpaper at their own "white" brick & mortar stores. Even when products emulate one another, it's usually possible for the end consumer to differentiate between the two, however Samsung has gone an extra step to make it difficult.

I'm not sure I understand why you think the trial was unfair -- it was a jury who made this decision, and the jury consisted of untechnical people who would be the right types of people to make this decision. If the average Joe thinks that the Toyota is the Ford, then I think it goes beyond the line of emulation.

I would say HTC emulates Apple products, but does not clone the same way Samsung clones. For example, the boxes for HTC phones look nothing like Apple's, and the connector is the same micro usb everyone is familiar with. Samsung goes the extra step to make sure their brick and mortar store, the boxes, the connector, the interfaces, the keyboard, the genius bar, the physical phone, etc are all indistinguishable from Apple. I don't understand why Samsung would have to make their brick & mortar stores identical to Apple, and even have the same style of genius bar inside -- that's going an extra step to make a product identical. In the countries where the name "genius bar" is not a registered trademark, Samsung actually uses that exact name. For the countries that have the registered trademark, they call them smart tutors. It's crazy how deep the copying goes.

My hunch is that ethics in that region are a bit more "loose" than they are here. It's perfectly okay to butt-in line there, or cheat in certain situations. When I was there, I'd stand in line at the hotel like a typical westerner (even though I'm chinese) only to have people butt in front me every 5 minutes. Eventually I just forced my way in front of the line to speak to the receptionist. I asked why they butt in front of me and they replied "you let me". Old people there are even less respectful, they just don't care you exist. All of my relatives who went to school in china lied about their age so they would have an advantage by starting at a lower grade level than the proper age. I've been told this happens in Korea and Japan as well.

When does a company go beyond emulation and into cloning? Would you say something like this is okay: http://news.ycombinator.com/item?id=4426835 ?

>> the jury consisted of untechnical people who would be the right types of people to make this decision. If the average Joe thinks that the Toyota is the Ford, then I think it goes beyond the line of emulation.

Demonstrably false. The foreman, for instance, is the owner of a patent for a variant of DVR ("Method and apparatus for recording and storing video information").

>> Old people there are even less respectful, they just don't care you exist.

Agree to disagree.

>> Samsung even uses Apple icons as part of their wallpaper at their own "white" brick & mortar stores....I don't understand why Samsung would have to make their brick & mortar stores identical to Apple, and even have the same style of genius bar inside...In the countries where the name "genius bar" is not a registered trademark, Samsung actually uses that exact name. For the countries that have the registered trademark, they call them smart tutors. It's crazy how deep the copying goes.

You seem to think that this judgment is "fair" because Samsung is a "bad cloning company". That's fine, and you are entitled to your opinion. Please understand that their evilness is not really central here.

I don't think anyone here is arguing that Samsung is a particularly innovative company. However, their brick & mortar stores have very little bearing on whether or not UI elements in rows of 4 consist of an infringement on Apple's IP. Routinely bringing up their company (or country's) culture as an example for how terrible they are is essentially an ad hominem attack.

The fact is that the court did come down strongly in Apple's favor, and ruled that quite innocuous and non-obvious elements of Samsung's design were an infringement of Apple's IP. How anyone can think that this may not have far reaching implications for technological innovation is beyond me.

I think you're one of those HN readers that think this is Apple vs Android, but really it's a case against Samsung and their cloning behavior.

Except it's not, as one of the infringing phones was Nexus S, i.e., vanilla Android.

Well put. Dean is making a sort of karmic argument of the form "The punishment is just because of past mis-deeds" rather than a procedural argument (which is where I was coming from). I personally have always preferred that karmic backlash be a product of the market rather than the courts, but there are plenty of cases where plaintiff or defendant were made to be examples to discourage similar behaviors.

I don't believe I'm making the karmic argument here, hopefully you're not interpreting it as such. I was simply arguing that Samsung copies at a deeper level which borders the line of cloning a product. If it were up to the market to decide, we should be manufacturing identical Chanel handbags at 1/10th the price and making a killing. Those handbags sell for $10k and probably cost pennies to make.

Hmm, Ok. If you are not making a karmic argument then what argument are you making? Lets go back to square one, I claimed this was a blow to innovation because it would have a chilling effect on designers. And you responded with this argument:

"No, it's not a blow to innovation. The only reason Apple went after Samsung and not HTC or other Android handset manufacturers is because Samsung has gone into detail copying every small feature from Apple."

You claim that innovation is not harmed, and the basis for that claim is an assertion that Apple's motivation for pursuing a patent infringement suit against Samsung was due to poor behavior (detail copying).

And yet in every patent dispute, and there are many to choose from, Microsoft FAT file system, Intel frontside bus, Unisys GIF file compression, where the exact strategy was to assert the patent against the biggest and most difficult possible defendant, so that a win would cause everyone else to simply follow that decision rather than fight. If you do it the other way and start with the little guys, each time you sue the next bigger guy he's going to assume that because he has more resources he can win the fight and you're back in court. Doing it this way nobody thinks they are going do better than Samsung did and they will all submit to Apple's demands.

I claim it has absolutely nothing to do with Samsung's "detail copying" behavior and everything to do with the fact that Samsung is the single biggest, baddest, richest, manufacturer of smartphones after Apple.

I realize that I didn't respond directly to your claim of motivation because I did not feel it was supported by your evidence. You don't provide evidence of Apple's motivation, you don't provide a definition of 'detail copying', and you don't provide a rationale why details like 'rounded corners', which is one of the claimed infringements, should be protected.

When you re-iterated Samsung's bad behavior I guessed you were going for the karmic angle.

You've followed up your claim by trying a reductio ad absurdum [1] argument about copying. However it is trivially easy to poke holes in that argument by looking at the market we live in without the Apple lawsuit. There are no $10 Chanel bags being made by an otherwise reputable handbag maker.

So do you still think Apple was just mad at Samsung? And so you or I could make a rounded rectangle tablet device and they wouldn't sue us ?

[1] http://en.wikipedia.org/wiki/Reductio_ad_absurdum

The reason I bring up the Chanel bags is because Chanel also applies for patents as well. I'm not trying to bring up some crazy straw-man argument. There are actually such things called "design" patents that differ from your examples of "utility" patents (FAT file system, GIF, etc). The reason no other $10 Chanel bags exist is due to design patents being enforced. Rounded corners and icons would actually fall into the category of "design" patents.

The reason why detail copying matters is because this is how infringement is determined by an individual. If said individual is unable to distinguish between the two products, it is possible that infringement has occurred. If the product merely copied a single item/feature, it is unlikely a consumer would be confused by the two products.

Apple's core motivation is for trade dress protection. They need their design patents upheld so that others cannot challenge their registration. Samsung's tablet has very similar packaging to Apple and may be confused by consumers. Packaging matters in trade dress protection (see Two Pesos v. Taco Cabana).

FYI: Google's "Nexus S" was manufactured by Samsung.

You are clearly avoiding the point about a patent for rounded corners and rectangles, and instead relying on ad hominem attacks without providing any supporting evidence.

Your post is a blow to innovation.

> The only reason Apple went after Samsung and not HTC or other Android handset manufacturers is because Samsung has gone into detail copying every small feature from Apple.

I think it would be news to HTC that Apple didn't come after them. They must have just imagined the import ban that limited supplies of the One X and delayed the launch of the Evo 4G LTE: http://news.cnet.com/8301-13579_3-57435081-37/htc-phone-impo...

Throw in Motorola and you have Apple going after the top 3 Android manufacturers in the US market (and, until ASUS and the Nexus 7, the only three manufacturers of Nexus / Google Experience devices).

why bother spending 5 years and a lot of effort/money designing something awesome if someone else can come along and clone your product in 3 months

Um, because you'll be able to sell that thing over and over for gazillions of dollars and turn your company into the most valuable company in human history?

And because you're already rich, it is okay for people to rob you?

Who robbed what/who and when?

Consider that what you call innovation is seen by many as natural progression built on the shoulder of others and what you call blatant copying is in the same category. You just place each in different adjective narratives. The jury glossed over looking at prior art because it would "bog" them down, isn't that a tad more alarming then all the narrative provided for who is the "good" and who is the "bad" guy in this...


I love apple, they make great stuff and the eco system is a vision so well crafted it dominates anything else ever developed in that field... I had a MBP as my main machine on the road for some years even, don't make it sound like someone with another POV is simply discarding or "rewriting history". Apple copied a lot from several sources to make the original iphone, don't make it sound like they didn't because you prefer and love the brand. I get it, it's a good phone, it isn't a free pass to obliterate every other contribution to what made it great.

" It was -- literally -- like nothing that had ever come before it. It was -- literally -- like no other Android phone at the time"

No, it wasn't, it was progression on the work of many others and prior art that was discounted by the jury on the apple vs samsung case, is -- literally -- proof of that. Stay well. :)

are you really suggesting that the iPhone in all aspects had no precedent, at all?

That is completely absurd, sorry.

3 months? I think your math is a bit off.

http://en.wikipedia.org/wiki/IPhone_(original) - June, 2007 vs http://en.wikipedia.org/wiki/Samsung_i7500 - June, 2009

LG Prada - January 2007

Because all creation is built upon the shoulders of giants. How can you innovate and compete if you have to pick through a ridiculous web of patents for fairly obvious stuff at risk of having your company destroyed and being sued into oblivion? What if someone had patented the wheel?

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."


What is so incredible? If you run into a question that is slowing you down, why not skip it, and get back to it later? In the case of a jury, you may even find that you didn't have to decide in the first place, because the issue may be moot by the time you get back to it.

There isn't enough context in the quote here to tell what went on.

Well, FTA, they didn't just skip it, they assume Samsung was guilty. They stopped discussing it and just moved on with an assumption. They rest of the questions were answered based on that one question. This is all according to the statements made by the juror.

Sorry, I should have made the context clearer.

They never went back to the issue later. They were discussing whether a specific Apple patent should be invalidated because of the prior art. They were sick of dicussing it, so they just moved on. Hence, the patent was not invalidated.

I'm saying that we the news posts that we currently have don't give us enough context... the cnet post [1] doesn't explicitly say that they never went back to it. They explicitly decided that the patent was infringed, so they must have had some further discussions. From the article, though, it's hard to determine which patent they were talking about - likely '381.

[1] http://news.cnet.com/8301-13579_3-57500358-37/exclusive-appl...

I agree with you that the article doesn't give enough context. We can't know whether or not the jury came back to it. Though, by the same token I find your assumption that "they must have had _some_ further discussions" to be spurious for the same reasons. You're both reading assumptions into the quote.

The fact is, we can't really know whether they came back to it or not unless they tell us. I'm basically advocating that we can't assume the _did_ or _did not_ come back to it.

> They never went back to the issue later.

Do you have some evidence for this ? Or just making things up in your head because you're not happy with the verdict.

You get what you pay for. It's past time to pay minimum wage for jury duty.

What do others think of Hogan's patent?


It strikes me as just recording video and doing the standard things that people do with digital video.

Oh, good, a lynch mob to attack the foreman's professional work.

More like a demonstration of just what kind of flawed mindset he may have on patents, given that he holds such a silly patent.

It appears to be, essentially, a DVR patent. I'm very concerned with his ability to handle a case like this since he thought something very similar to a TIVO (1999) was patentable when his patent was filed in 2002.

Did Samsung get a chance to reject jurors in a voir dire process, as one does for a criminal trial? If so, it's hard to complain about the jurors after the fact.

The tl;dr jury: decided all 700 questions in 21 hours (time to read aloud all 108 pages, sure, but to understand and reach consensus?)

From the groklaw article:

> If it would take a lawyer three days to make sure he understood the terms in the form, how did the jury not need the time to do the same? There were 700 questions, remember, and one thing is plain, that the jury didn't take the time to avoid inconsistencies

> Had they read the full jury instructions, all 109 pages, they would have read that damages are not supposed to punish, merely to compensate for losses.

Stop supporting a particular company. The Appletards are worse but you all need to quit it. Apple copied the LG Prada when they made the iPhone and good on them. They helped move mobile devices forward and I now have a huge choice of amazing portable entertainment devices. This lawsuit is moronic.

UK comment: members of the jury giving interviews that include descriptions of their deliberations. I find this system amazing.


If a jury member volunteers information, I think that's fine. In fact, it's how we can learn about things like a jury failing do to its duty. (NB: I am not saying that happened in this case.)

I do worry that jury members' names are not kept secret. They are being asked to make what is possibly a very unpopular decision and shouldn't have to worry about what strangers think about them.

Read the link under 'responsibilities' - in the UK you can't even discuss the deliberation process with your own family, even after the court case is concluded.

I don't think there's ever been a patent lawsuit where I didn't root for the person being sued.

If someone sued North Korea for patent infringement, I'd root for North Korea to win.

It's a joke of a system, unfortunately too much money is being made by the lawyers for there to be any change anytime soon.

That site is such a massive eyesore, to the point where I struggle to have any motivation to read past the first paragraph.

Colors, typography, the massive line-lengths. It's a wall of text. Just an all-round horrible design.

Frankly if walls of text can turn you off something, you are probably not Groklaw's intended audience in the first place.

You have many options: stop maximizing your browser window, use a custom stylesheet, use Readability/Readable bookmarklets, etc. I'd guess Groklaw comes from the open source design philosophy, where user freedom (such as to resize the browser window to make the text the width they want) is more important than designer control.

There's any number of browser tools to let you adjust or disable a sites CSS or clean up the articles. I've never had a problem with Groklaw, but on the other hand I do have styles installed for HackerNews to darken the page considerably (dark charcoal background and near white text)... If I read Groklaw more often these days (not so interesting since SCO fell apart) I'd probably have done the same there.

How do you read the longer HN posts then?

Not a law expert, so my way to look at it is simply : - did samsung become number 1 smartphone seller with an original product or by copying apple work ? Obviously, yes ( and i'm talking memory here, the first time i saw a galaxy i took it for an iphone). - is it fair they pay something to apple for it ? Yes - is 1 billion $ fair ? Judging by market size and profits made by samsung, it doesn't seem an absurd amount. That's all we should matter.

Nope, that's not all that should matter. The reason is copyright vs. patents. Both are made to prevent copying but in different ways. Copyright says this product is not copyable. Patents say this aspect of the product is not copyable. HUGE difference. Now in this case Apple used several patents to act similarly to a copyright. The difference is that these patents were found valid meaning that if your product infringes even ONE of them, you can get sued big time. So if you create a product with rounded corners you could get sued, even if you didn't copy apple at all. Should Samsung get sued and pay $1 billion for copying Apple? Probably. Should Samsung get sued using individual aspects like having rounded corners? Definitely not, considering now several companies who have done nothing wrong will be liable.

This is the quality of work you get when you pay $20 a day.

The lawyers for both sides are making more per hour than the entire jury per day. What kind of performance do they expect?

The payment for jury duty is "the rights and privileges of US citizenship". It's a civic duty, not a work-for-hire.

Can somebody calculate the probability of assigning a jury foreman, on a very important case, whether a patent is crazy and then finding out he has a crazy patent himself? Life is full of coincidences hard to believe.

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