Misunderstanding of Prior Art May Have Led to Apple-Samsung Verdict 503
One of the interesting tidbits that came out of last week's billion-dollar verdict in Apple v. Samsung was that the jury's foreman, a patent holder himself, was instrumental in leading the other members through the various complicated infringement claims. Now, Groklaw analyzes an interview the man gave with Bloomberg News (video), in which his statements reveal a basic misunderstanding of what qualifies as prior art. Quoting Groklaw:
"In discussing the first patent on the list, he says they got into a discussion about the prior art that was presented at trial. Here's why they discounted it: 'The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.' That isn't disqualifying for prior art. It doesn't have to run on the same processor. It doesn't have to run at all. It can be words on a piece of paper. (If you don't believe little old me, here's a lawyer noticing the video too now.) ... The foreman, in answering criticisms, says that the jury paid close attention to the jury instructions. But looking at this one, did they? I'm sure they meant to, and I'm also sure they did their best according to what they understood. But this was an error, and it's one I don't think the judge can ignore, if anyone brings it to her attention."
Hey now, (Score:5, Insightful)
Being judged by an idiot who knows nothing about the law is a cornerstone of our civilization.
Can you imagine... (Score:5, Insightful)
That if you were on this jury, that foreman would be valuable ewed as the expert by easily impressed everyman and you'd be arguing how silly his position is while the other jurors shot you down because "he has expertise, where's your patent?" ugh. I am glad for my mental health I was nowhere near that jury room.
Why all the butthurt? (Score:5, Insightful)
Guys, this is just getting started. Samsung isn't going to let a 1BN judgement go un-apealed.
Samsung, though. (This case is about Samsung and not Andriod. Don't get your panties in a knot) really did go out of their way to copy apple design, look and feel. Touchwiz, the Samsung created UI addition to Andriod, really is a (bad) attempt at making devices more apple like. (I know. Ive got a galaxy tab and a galaxy S2 - I rooted them both to remove it)
One of Apple's biggest assets is their design, look, feel, etc (Trade dress). Did you expect apple to take it laying down?
Re:Why all the butthurt? (Score:3, Insightful)
How was it not returned to? (Score:0, Insightful)
"We skipped that one" turns into "we skipped that one and came back to it"
It didn't "turn into" anything.
What was the jury supposed to do other than to return to consider the item later? They had no choice, they HAD to consider it to arrive at a verdict.
You claim Slashdot is full of pro-Apple bias, but it seems equally clear it's full of Apple Haters not willing to consider basic facts.
The new statements however, make far less sense than the simple "we skipped a complex item to return to it later".
Did the jurors talk to Bill Buxton? (Score:5, Insightful)
Was it implemented on a computer you could hold in your hand? No, simply because the technology was not small enough to fit in your hand. But just because Apple was the first to implement it in your hand, does not mean they were in anyway inventing something novel, unique, and non-obvious that deserves patent protection. Apple made a logical, obvious, iteration to a decades old technology. I don't see how this is possibly a point of contention, and the fact the jurors went the other way on this leads me to believe the headline is 100% correct, or something else fishy is going on.
Interchangeable? (Score:5, Insightful)
The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.
That just doesn't make any sense. If the fact that the given prior art is not interchangeable disqualifies it to make Apple's patent obvious, then the fact that Samsung's code is just as not interchangeable should disqualify it too from infringing. Or this is bullshit but then that means Apple's patent is obvious. No matter which is true, I don't see how it can go one way for prior art and the other way for Samsung's code.
jury system a poor match for something so complex (Score:2, Insightful)
What I've seen & heard is that most juries and jury members take their role seriously, are diligent, want to do it right, and do so to the best of their ability.
And in a lot of more common cases -- especially the more basic ones like those from centuries ago when this system was just getting started -- they do fine. Their ability to judge who's lying, who's not, etc. is as good as anyone else's. Its all human nature.
But when that system got expanded to very intricate cases of highly technical laws and subject matter, the fundamental premise of the system was stretched past its breaking point. I've seen some of the closing instructions for cases like this. Even as a person with a top notch graduate degree, and directly relevant experience, and the luxury of seeing the instructions in print, and being able to review them at my leisure at the computer while looking up any more confusing terms, it can still be very difficult to follow.
The chance of a random juror, whose training and experience is in other areas, and has to hear many instructions primarily verbally, and at great length in one sitting, and without any modern technologies for making it better, actually fully understanding the material, is essentially zero. And that's no knock on the juror.
The article could well be right that jurors misunderstood. In fact most of the time, they almost certainly do. Its a problem with the system and not with the individual.
Re:Can you imagine... (Score:4, Insightful)
Re:Did the jurors talk to Bill Buxton? (Score:2, Insightful)
Why you make us think so hard? This guy has a patent. The patent makes him know all this stuff. Jeez, guys, no wonder they made him head jury guy. Now sign the papers before I start to yell!
Re:split. (Score:3, Insightful)
I don't think his participation on the jury is wrong. What is wrong is how he was able to basically act as an expert witness for Apple without chance for cross examination by Samsung. If he were cross examined, then his understanding of prior art would have been thrown out and the jury would be instructed not to use it.
Re:Here is the Copy/Pasted Context, Please Show Me (Score:2, Insightful)
Now tell me, tell me where it says they returned to it? In 2-3 days they skipped it and returned to it? It happened fast and they skipped at least one instance of prior art. Please come to terms with it and deal with it instead of being blindly pro-Apple.
Hmm, I notice you didn't actually include the "we skipped that one" quote in your quote. Anyway, in the original sentence, the most reasonable antecedent for "that one" is "the patent", not "the prior art" (especially since for "that one" they claim there was none). And they don't need to tell us that they came back to the patent later--we know they did because it's in the verdict.
It's possible he meant they skipped the "prior art", but it's a rather stretched reading of it.
Re:It's worse than that. (Score:5, Insightful)
Re:Hey now, (Score:5, Insightful)
Re:split. (Score:4, Insightful)
Jury misconduct (Score:4, Insightful)
Re:Use him for appeal (Score:5, Insightful)
Not really. She was repeatedly biased toward Apple. She allowed Apple to show their prior art to prove Samsung copied, but did not allow Samsung to show other prior art which would have invalidated Apple's design patents showing that everyone copies.
That doesn't seem like doing "pretty good". The whole point of a patent case is whether the patent was valid or not. And prior art is the top way to invalidate a patent.
Re:Why all the butthurt? (Score:5, Insightful)
The utility patents (bouncing stops and "pinch to zoom"), OTOH, had very easily found prior art [ted.com].
Re:It's worse than that. (Score:5, Insightful)
You can't read the summary of the patent, the summary is essentially meaningless. If you want to know what ACTUALLY is covered under a patent, you MUST read the claims. As a shortcut, you can read claim 1 (until you learn the difference between independent and dependent claims).
Re:split. (Score:5, Insightful)
Is it a conflict of interest if a jury member feels that he needed to send a murderer to jail because he didn't want himself or his family or anyone else to be injured by that person?
Absolutely. Because the statement assumes that the suspect is the murderer and makes no attempt to evaluate him based on the evidence.
Re:Hey now, (Score:3, Insightful)
Yeah, the police pretty much did their best job possible to fuck up their case against him. Johnny Cochran was basically handed the win.
Comment removed (Score:5, Insightful)
Re:Can you imagine... (Score:3, Insightful)
You don't read the news on the intarwebs much do you?
No, I'm just no so egotistical that I think I'm superior to a jury when I've only seen a tiny fraction of the evidence as presented on opinion sites.
Actually the jury was shown LESS than is available from "opinion sites" like little old slashdot. It's up to the judge to decide what's admissible (and for what reason) when it comes to the jury. When it comes to "opinion sites", anything goes. What sounds more thorough to you?
Firstly, a great deal of the stuff on opinion sites is not fact, it is opinion, so of course that's not admissible, as it shouldn't be. Secondly, It doesn't matter what is "more thorough" in your opinion. Lastly, the verdict is based on the ADMISSIBLE EVIDENCE and should NOT BE based on some allegedly more thorough evidence on opinion sites, so OP is tainted by inadmissible evidence and is not qualified to reflect on idiocy of verdict.
Runaway juror (Score:5, Insightful)
You are 100% correct. This guy is undoubtedly seeing dollar signs on his own patent, and if the jury had invalidated Apple's patents, I honestly believe that he thinks it would hurt his ability to monetize his own patent. It's very telling to me that he had an "aha" moment not about what the decision should be, but how to "explain" to other jurors why they should side with Apple. It seems to me that he had already made up his mind which way this trial must go, and he was just trying to figure out a way to convince the other jurors to go along with him.
The thing I'm wondering, though, is does that matter? I mean, once a jury has rendered a verdict, can you actually have it overturned because it's later found out that a juror has ulterior motives? Isn't that why the lawyers have an opportunity to strike jurors before the trial starts? And if so, why the hell didn't Samsung's lawyers ask the jury pool if anyone had any patents? It just seems to me that if I were Samsung, I'd want a jury that doesn't have any patent holders on it. Not that there's anything wrong with patent holders, but I would fear that any patent holder on the jury would be financially motivated to push for a system much more in favor of patents and would rule with Apple on the case to protect their own interests, which I'm convinced is what actually happened in this case.
IANAL though, so I can't answer these questions. Maybe someone else here who is a laywer can weigh in.
Re:Did the jurors talk to Bill Buxton? (Score:5, Insightful)
That pinch to zoom wasn't a question in the trial is immaterial; the pinch to zoom patent serves to highlight the fact that Apple holds very obviously questionable patents, which brings into doubt not only their other UI patents but also the entire patent system.
Actually if the people know nothing it often works (Score:4, Insightful)
The jury is supposed to consider just the facts put before them, and just in the context they are instructed to. They aren't supposed to be experts, and are not supposed to use outside information. The judge instructs them on what the law is and how to apply it, and decides on what facts are entered in to evidence. The jury then is supposed to make its decision on that alone.
The reason is if they don't, well shit like this can happen. Some juror thinks they know what is the law better than the court, and they go and cause problems.
Re:Can you imagine... (Score:5, Insightful)
The foreman drove the jury verdict, admitted it and exposed his own failure of logic. He made a giant spectacular leap of logic and ignored all directions given by the court. Usually that fits in the category of saying a jury has done a shit job.
That's not an ego issue, it's pretty much clear fact. [groklaw.net]
Re:Here is the Copy/Pasted Context, Please Show Me (Score:4, Insightful)
Now tell me, tell me where it says they returned to it? In 2-3 days they skipped it and returned to it? It happened fast and they skipped at least one instance of prior art. Please come to terms with it and deal with it instead of being blindly pro-Apple.
Well, let me walk you step-by-step through the way in which a skilled reader would parse it. Start with the original:
After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that one, so we could go on faster. It was bogging us down.
Now home in on the part in question:
After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that one...
Now, what does "that one" refer to? There are two possibilities, so let's substitute them both into the sentence and see which one makes more sense:
After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that patent...
Makes perfect sense.
After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that prior art...
Hmm. Skipped the prior art that did not exist? Skipped the prior art whose existence they debated? Maybe. But they just talked about debating it, so in what sense could they skip it? Kind of a strained reading of the quote.
Well, they could debate something that had been claimed to be prior art but skip making a decision on it, but then the reasonable course of action would be skipping the decision on the patent as well. But they did make a decision on the patent, and to do so without making a decision on the prior art would be unreasonable.
So your interpretation requires both an unlikely parsing of the actual quote, and unreasonableness from the jurors. I'll take the simpler explanation, no pro-Apple bias needed.
Re:Que the False Narratives (Score:5, Insightful)
The later section about how much they studied the instructions do not invalidate his rather shaky interpretation of what counts as prior art, esp since he did not use the same standard to determine what counted as infringement.
They did not follow the jury instructions completely. I was on a jury once (not at all related to patents) and one of the main instructions was to only allow the evidence shown during the trial influence your decision. Since the foreman used his own personal experiences to influence his (and others') decisions, he was not basing his decision on the trial evidence, but his own experiences.
Re:Que the False Narratives (Score:3, Insightful)
Ha, Slashdot is so pro-Apple it's painful
This is where I stopped reading, because if you can present an observation that blatantly flawed right out of the gate, then I expect nothing of value from the rest of your comment.
Re:Runaway juror (Score:2, Insightful)
You are 100% correct. This guy is undoubtedly seeing dollar signs on his own patent...
I love the way that slashdotters think they know what goes on inside other people's heads.
Has it ever occurred to you that maybe, just maybe, the foreman actually tried to do a good job, drawing on whatever personal experience he had to try and help the rest of his fellow jurors do a good job? Why is it that people think disagreeing over an outcome gives them license to slander and smear everyone involved? Whatever happened to agreeing to disagreeing? To having a civilized difference of opinion? Why is it now necessary not just to disagree but to insult and slander and demean?
And we wonder why the world is heading down the crapper.
Re:It's worse than that. (Score:5, Insightful)
Right.
This demonstrates pretty clearly that Hogan either doesn't understand prior art, or is very clever about misleading the PTO about prior art.
One basic fundamental principal of all Patents (well, all utility patents ... I have no idea what they're smoking over on the Design Patent side of things, but I'd like to try some, given a long weekend) is that of not being "obvious to one skilled in the art". The PTO's never been very good with this anyway, since every applicant tries to convince them they've invented something profound, when it's usually pretty ordinary. And obvious. Of course, one fundamental failing of the PTO, particularly at the dawn of software patenting, was the complete lack of examiners "skilled in the art" well enough to even correctly judge this level of obviousness.
One major point of failure is "X, but on Y". So personal computers have had removable storage at least since the PET 2001 by buddy had in 1977. Probably a bit before, but I can personally verify that one, having loaded and even written the cassette tapes myself. Given that pretty much every advanced set top box designed is a somewhat specialized personal computer (having designed personal computers for 11.5 years and STBs for 6, you can trust me on this), there's absolutely nothing not obvious to one skilled in the art about adding any kind of removable storage to an STB. In fact, I had one in the late 1990s that did USB, if not SD cards (in fairness, the original SD Card wasn't released until 2000, and no one would really want to use flash memory for video back then anyway, it was simply too small). Same goes for smartphones, tablets, etc.
Which means the invention might still be patentable, but it has to be implemented in a really unique way -- you need a real invention, not just copying the PC schematic over to a slightly different personal computer design and calling that an invention. But the patent files are full of things everyone did for years, with "on a smartphone", "on the internet", "on a tablet", whatever, pretty much just tacked on. And most applications are terrible about including the obvious prior art everyone knows about, even though that's a filing requirement. Even if it's not patented. I've written a few patents, analyzed dozens for various purposes (prior art, actual infringement, etc)... it's a heinous mess, overall.
And largely not because of clowns like Hogan, but because large companies learned to work the system, years back. They've mastered the art of getting nothing through the system, then claiming it covers everything. And they know, it's regular rubes will be judging the patents in court, much of the time. Look at Apple's '915 patent, which some people think covers all of multi-touch, pinch to zoom, and probably anything anyone's ever done with a touchscreen. But in the legal brew-ha-ha with Elan, the ITC determined that Apple's stuff was very, very specific to the way they did it, wasn't infringing on Elan, and neither were Elan's patents infringing on Apple... though Apple settled for paying them $5 million (pocket change) and a cross-licensing agreement. Given the VAST amount of prior art on touch (going back to the 60s) and multi-touch (early 80s), it's impossible to believe Apple really has anything fundamental here (see http://www.billbuxton.com/multitouchOverview.html [billbuxton.com]). But Apple knows that's rarely brought up in these kinds of cases... and it looks like Hogan did what he could to mislead the regular rubes, perhaps far worse than if know-nothing-specifics were on the case.
Re:Bad example (Score:4, Insightful)
Re:Runaway juror (Score:5, Insightful)
While it's true that assuming to know another's motivation is bad, the foreman relying on his personal experience is also bad, since you're supposed to use the facts presented in the case, along with the jury instructions, as the sole means by which to determine a verdict.
I'm a software engineer who believes that software is not patentable. Are you saying that if I was on the jury, it would be appropriate for me to advise the other jurors that all of the software-based claims are invalid? There would be a similar furor about that.
All of the jurors can see things differently, but they must all use the same set of facts, and those facts must have been presented as evidence...you can't bring extraneous evidence in as a juror.
Re:Can you imagine... (Score:3, Insightful)
Re:Here is the Copy/Pasted Context, Please Show Me (Score:2, Insightful)
Do you understand that the jury had of render decisions on all of the questions? If they skipped one they would have to come back to it later in order to reach a a decision and finish their deliberations.
Re:Que the False Narratives (Score:5, Insightful)
Conflict of Interest! (Score:1, Insightful)
That foreman is a patent holder. Therefore he should have never been allowed on the jury, let alone selected as the foreman. The conflict of interest is glaring. What we had there was a kangaroo court and a lynching, so to speak.
Re:Why all the butthurt? (Score:2, Insightful)
Re:Use him for appeal (Score:2, Insightful)
Agreed. Having served on a jury, this is the kind of thing a foreman is supposed to prevent / report. It turns out that they chose the wrong foreman.
You mean the kind of foreman that allows a decision that is contrary to the opinion of the slashdot crowd. That must surely be disallowed.
Re:Use him for appeal (Score:3, Insightful)
Oh for god's sake. It's not misconduct. It's a stupid, stupid, stupid verdict but it's not misconduct. No one took a bribe, or sat drunk in the jury box while the evidence and arguments were presented.
Re:Use him for appeal (Score:5, Insightful)
Ignoring the jury instructions is misconduct.
Go read Groklaw [groklaw.net]
Re:Use him for appeal (Score:2, Insightful)
I don't think jury misconduct [rotlaw.com] is as narrowly defined as you think it is.
That's moronic. (Score:4, Insightful)
Holding a patent should not invalidate one from serving on a jury on a patent related case; unless the case is related to your patent, in which case you never would have made it past jury selection.
Re:Runaway juror (Score:4, Insightful)
Yikes. That's going a bit far.
Disallowing patent holders from the jury would be just as unfair as requiring all jurors to hold a patent. (Thought in the latter case it'd be a lot harder to find 12 qualified, available people!)
Yes, owning patents will tend to make you favor patent-prosecuting plaintiffs, but the reverse is also true. What they should do is ensure that a patent holder is not unduly biased or opportunistic in favor of patents (or a non-patent-holder is not unduly hateful of patents), as seems to be the case here, not keep patent holders off of patent cases entirely.
Re:Why all the butthurt? (Score:4, Insightful)
...
Possible, but unlikely.
The spin people are more likely to believe is that Samsung's products are by definition rip-offs of Apple, and therefore anybody who pays money for them has been ripped off. And Samsung just doesn't have the marketing chops to beat that spin.
You say that in a world where people gladly pay money for knockoffs. Can't afford an iphone? Get a samsung, looks just like it. Can't afford that designer purse? Get a knock off. Want people to think you are in designer clothes? Buy knock offs.
Re:Hey now, (Score:5, Insightful)
>>>Finding someone who wasn't particularly familiar with him, or biased by existing coverage at that point meant finding absolute idiots or social pariahs who avoided all news outlets.
Hello!
I was vaguely aware of the Bronco chase & that OJ was a part of that, but knew little else. (1) I don't care about stupid sports. (2) At the time I was more-interested in a new channel called Sci-Fi. (3) And passing my college exams.
That does not make me an idiot. On the contrary I think it makes me highly intelligent because I don't pay attention to tabloid shit like the OJ Scandl, or the Cardassians, or the recent Twlight romnce cheating thingies. It's all mindless pap.
Re:It's worse than that. (Score:4, Insightful)
No no, you cannot put it into the same processor. That changes everything right there.
Heh. I have this image of millions of geeks hard at work writing patent applications for various Apple features, with the additional claim "on an ARM processor".
Re:It's worse than that. (Score:5, Insightful)
Absolutely and completely incorrect. During examination, claims are given their broadest reasonable interpretation consistent with the specification as one having ordinary skill in the art would understand them, without unduly importing details from the specification into the claims. The claims can encompass variations not disclosed in the spec, and the claims can be rejected with prior art that doesn't match what's disclosed in the spec.
In fact, the courts take an even narrower view of the claims than the PTO does, because the courts construe each claim term specifically according to the spec, as part of what's called a Markman hearing.
As Judge Rich of the CAFC once said, the name of the game is the claim.
Not the spec, not the drawings, not the abstract or title. The claims.
Re:Hey now, (Score:4, Insightful)
Here's a question for that idiot:
If using a different processor disqualifies it from being prior art, wouldn't the same logic mean Samsung's technology didn't infringe Apple's patent?
Re:Hey now, (Score:5, Insightful)
I'll grant you that although the OJ Simpson saga should have been just tabloid fodder, because of his celebrity it was widely covered by legit media.
But story of the year? Story of the decade? Are you insane?
Just that year, we had the Shoemaker-Levy 9 impact with Jupiter. Clinton signed the Assault Weapons Ban, and the Kremlin accords. Arafat got the Nobel Peace Prize. Nixon died. The Yugoslav wars were in full swing, THE RWANDAN GENOCIDE OCCURRED. Apartheid ended and Nelson Mandela was elected President of South Africa.
So seriously, this was the biggest news of the 1990s? The same decade that had the gulf war, Bill Clinton elected twice, and then impeached, the rise of the world wide web, (speaking of which, Netscape was 1994 also), the Oklahoma City Bombing, Columbine massacre, Branch Davidian Compound, Rodney King Beating and subsequent LA riots...
Yes, the media oversold the importance of the OJ Simpson story. Please don't perpetuate that today.