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It's curious that Samsung's lawyers didn't manage to bring about the invalidation during trial, if its lack of validity was evident enough that the patent office is now retracting it. I'm curious if

a) Samsung did present the evidence that the patent office relied on to invalidate but it was rejected by the jury

b) Samsung wasn't allowed to present it for some reason

c) Samsung didn't try to present it

Option a) or b) would provide yet another indication of a miscarriage of justice in the trial. Option c) would be be an indictment of Samsung's lawyers who seem to have performed quite poorly in many respects.

The law imposes different burdens of proof for invalidating a patent in court, versus in a USPTO reexamination proceeding.

In court, a party asserting that a patent is invalid must prove invalidity by "clear and convincing evidence," which is the highest standard of proof in U.S. civil law (that is, non-criminal law).

In contrast, suppose that the USPTO decides that a "substantial new question of patentability" exists and therefore initiates a reexamination proceeding. In that situation, the patent examiner need only show invalidity by "a preponderance of the evidence," which is colloquially summarized as 50.000001%, just enough to tip the balance of probability. It's also commonly phrased as "more likely than not."

(EDIT: Strictly speaking, the burden of proof applies only to facts, not to the ultimate conclusion. Here, the facts --- namely what the Hillis and Nomura prior-art references say --- are are essentially beyond dispute, although I suppose conceivably Apple might find some technical grounds to allege, as a matter of fact, that at the time in question, persons of ordinary skill supposedly would not have understood those references to mean A or B or C.)

Perhaps more importantly, in the court case, a non-expert judge and jury had to assess the prior art. In the USPTO reexamination proceeding, three experienced patent examiners did the assessment.

Yeah, I don't get the impression that Samsung's lawyers were the snappiest sharks at the beach. Their incompetence at letting Hogan slip through voir dire is hard to get past... unless they saw it as a deliberate opportunity to have an unfavorable verdict thrown out, I guess.

I would give the team some credit, given the time constraints (they had a lot of other jurors to check, too), and the degree of apparent deception or confusion on Hogan's own part.

Consider timelines, too. Even with all of the oddities in the jury results, the degree of Hogan's specific involvement in swaying the jury only came light after his own public interviews.

Are you sure that pinch to zoom was one of the issues for the Samsung suit? All I recall is the "rebound effect" when you reach the end of a page, and the physical design of the galaxy tab

Yes it was. According to Groklaw, Samsung has already pointed the re-examination results out to the court, as this patent made up a solid chunk of the infringement the jury found, and hence the damages number presumably needs to at the very least be adjusted. However, the jury didn't indicate how they apportioned the number, so this might be another way for Samsung to get a new jury trial on at least parts of the issues.

Yeah, I had the same thought ... but multiple sources are reporting that it was one of the patents at issue in the trial. I think it's not a generic "pinch to zoom" patent but specific logic for distinguishing a pinch to zoom from other gestures.

The "office action" that rejected the patent was just issued (mailed) today, which is why it wasn't brought up before.

Samsung is from Korea, Apple, the judges and the USPTO are from the US.

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