Grounds for Jury Misconduct in Apple v Samsung Patent Trial

| Analysis

Apple Samsung Jury Deliberations

In the aftermath of the jury verdict largely against Samsung in its California patent battle with Apple, some questions have arisen in the legal community about possible misconduct by the jury during its deliberations. The concern over how the jury reached its decision followed several media interviews by the jury foreman in which he made statements indicating that outside information was a component of the jury’s decision making process.

It is important to state first that the word “misconduct” is used in this article strictly in a non-pejorative manner. “Misconduct” for the purposes of this article equates only with “improper actions,” and is not an attack on the credibility or character of the jury members.

In an interview with Bloomberg Tuesday, jury foreman Velvin Hogan made several statements that have caught the interest of patent attorneys, as they indicate that Mr. Hogan and other jurors used their own understanding of intellectual property to make decisions outside of the bounds of evidence and law set by the court.

Mr. Hogan, who holds a 2002 patent on video compression, said in his interview: “I found it all very interesting because of my tech background…I wasn’t confused, but there was [sic] some of the jurors that were confused, so what we did in the jury room before we did anything…I told them ‘let’s lay out on the table any concerns or open questions you may have that’s left over, and let’s just get that out of the way first.’”

“Some of the jurors weren’t sure of the patent prosecution process. Some weren’t sure of how prior art could either render a patent acceptable or whether it could invalidate it,” he added.

The primary question of concern is who answered the questions raised by confused jury members and what source they used to answer those questions. Speaking with The Verge Thursday, Mr. Hogan said that several jurors asked him questions about “the more nuanced issues in play.” Did Mr. Hogan answer those questions exclusively with the information provided by the judge’s instructions, or did he use his own knowledge and experience to instruct the confused jurors on the meaning of certain terms and theories?

The jury instructions (PDF) given by the court prior to the jury’s deliberations state:

“It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so,” Final Jury Instruction No. 1.

“The trial is now over. The evidence you are to consider in deciding what the facts are consists of: 1. the sworn testimony of any witness; 2. the exhibits which are received into evidence; and 3. any facts to which the lawyers have agreed,” Final Jury Instruction No. 5

Support for the idea that the jury instructions limit jurors to discussing facts, theories, and definitions that derive exclusively from those presented at trial and by the court comes from In re Malone, 12 Cal. 4th 935 (1996). Identifying that general personal experiences “necessarily inform” a juror’s view of the evidence, a juror “should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct,” Id. at 936.

Apple Samsung Jury Foreman Vel HoganApple v. Samsung Jury Foreman Velvin Hogan

If a juror uses or discusses with other jurors personal experiences that relate to the legal issue being decided but are not those based on evidence or definitions provided by the court, it can serve as grounds to overturn the jury’s verdict. There are many court decisions that uphold this principle, but we will focus on the ones that relate to California and the Ninth Circuit, where the trial took place.

“A jury should reach a verdict that is based solely upon the evidence admitted at trial.” United States v. Bagnariol, 665 F.2d 877, 844 (9th Cir. 1981).

Pure “personal experiences,” taken as a whole, do not constitute evidence. But statements or interpretations, based on personal experiences, become evidence if they are not identical to the ones directed by the court, and are unjust because they deny the parties a chance to object. “A juror’s communication of extraneous information implicates the Confrontation Clause.” Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000).

Mr. Hogan stated in his interviews that he helped other jurors understand the legal topics at issue and how they applied: “Some of the jurors weren’t sure of the patent prosecution process,” he told Bloomberg. If Mr. Hogan, using his personal experience with patents, provided a definition or clarification of any part of the process that was not brought up in trial or described in the judge’s instructions, that becomes testimony, a form of evidence.

Other California cases that address how personal experiences can become evidence in the jury room include the following:

In Whitlock v. Foster Wheeler, LLC, 72 Cal.Rptr.3d 369 (Cal. App. 2008), which dealt with asbestos exposure onboard a U.S. Navy vessel, the verdict was overturned after the court learned that a juror, a former Naval officer, informed the other members of the jury about his experiences in the way ship maintenance is performed.

In McDonald v. Southern Pacific Transportation Co., 83 Cal.Rptr.2d 734 (Cal.App. 1999), which involved an accident at a railway crossing, the verdict was overturned after it became known that a juror, who had worked in transportation, discussed with the jury technical and practical aspects about placing crossing gates and sensors at the track.

In Young v. Brunicardi, 187 Cal.App. 3d 1344 (1986), which dealt with an automobile accident, the jury verdict was overturned after a juror, a former police officer, instructed members of the jury on the applicability of the law, telling them that a defendant could not be negligent if there was no violation of the Vehicle Code. “Communication to fellow jurors of information on an issue under litigation except in open court and in the manner provided by law constitutes misconduct,” Id. at 1349. 

The Young court also made mention of the fact that the former police officer’s statements “carried substantial authority” with the other jurors because they were aware of his past employment. Id. at 351. Mr. Hogan’s “tech background,” and experience with the patent application process may have similarly caused some members of the jury to accept his interpretations on the applicability of the patent claims. 

Other jurisdictions agree:

Lumbermens Mutual Casualty Co. v. Cummings, 618 S.W.2d 883 (Tex. Civ. App. 1981): A worker’s compensation judgment was reversed and the causes remanded for a new trial because jurors discussed their own personal experiences with back problems.

Elston v. Sherman Coca-Cola & Dr. Pepper Co., 596 S.W.2d 215 (Tex. Civ. App. 1980): A negligence judgment was reversed and the case was remanded for a new trial because jurors discussed their own work experiences and these discussions had an effect on the award for loss of future earnings.

Russ v. State, 95 So.2d 594, 600 (Fla. 1957): “Where a juror on deliberation [relies on or] relates to the other jurors material facts claimed to be within his personal knowledge, but which are not adduced in evidence … it is misconduct which may vitiate the verdict.”

Patent Comlexity

The reasons for these limitations on what information jurors can use or discuss during deliberations are based on the inherent complexity of legal and technical issues. Patent law in particular is a highly complex and ever evolving topic that dedicated patent attorneys spend their entire careers attempting to master. While jurors may have experience in the patent process, drawing on their own knowledge to supplement or supplant that provided by the court is a recipe for disaster.

“Most inventors don’t actually know the law as well as they think they do,” Jonathan D’Silva, an intellectual property attorney with the firm MacDonald, Illig, Jones & Britton LLP, told The Mac Observer.

“Everyone comes in to a patent filing or a patent trial with preconceptions of intellectual property law and some think they know more than they really do. That’s because patent law is not a pool, it’s an ocean. Even the slightest variation of a term can completely change everything. So for a jury foreman to apply his experience, and to lead other jurors in their deliberations based on his experience, I can’t even begin to imagine what variations that might introduce. Depending on what he told them, he could have completely misled the jurors in making their decision,” Mr. D’Silva added.

Another attorney, who asked not to be identified due to potential conflicts of interest arising from matters not directly related to the patent litigation, told us: “The most troubling matter is the suggestion that the foreman may have introduced evidence in the form of his own interpretation of how to explain the claims and law to the other jurors. Regardless of which party his interpretation may have prejudiced, it is essential to the sanctity of our legal system that both parties know exactly how the foreman described the law and claims, as these are items that should not be up for debate during deliberations.”

Both Samsung and Apple are preparing for the forthcoming injunction and damages hearings in September and December. The Korean company is also preparing a series of appeals on various aspects of the case, including a request to overturn the jury’s verdict.

Teaser graphic via 12 Angry Men, MGM Pictures (1957).
Velvin Hogan image via Bloomberg.
Patent graphic via Shutterstock

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Comments

geoduck

I was wondering about that. When I read the foreman’s statements to the press I was thinking that it sounded like they may have screwed up, both with how they came to their decision and by blabbing about it afterwards.

daemon

Well….  You can’t cut corners and expect everyone to think you did it the right way.

Lee Dronick

How many of you have served on jury? I have been on about 8 now, you can’t but use your personal history and experiences to come up with a vote. Otherwise we could just use a truth table to try cases and take people out of the loop. Not that there isn’t such a thing as jury misconduct, in this case, as in others, it will be up to the courts to decide.

Interesting use of the still from Twelve Angry Men. Henry Fonda went out and bought a switch blade exactly the one in evidence, that may have been jury misconduct.

Jim Tanous

Interesting use of the still from Twelve Angry Men. Henry Fonda went out and bought a switch blade exactly the one in evidence, that may have been jury misconduct.

You bet it was! In our litigation class back in the days of law school we watched that film as an example of what you DIDN’T want a jury to do. Great movie, though.

PS - and this is similar to a nice debate I was having with iJack in a previous article, the debate that inspired this article in fact: none of the information above relates to personal experiences in general. It only refers to personal experiences that have a bearing directly on the case and its issues. The primary problem is that both Apple and Samsung let Mr. Hogan survive jury selection. I find that simply astonishing. It’s also why you’ll never see lawyers on juries, unless somebody screwed up big time.

Greycat

Times and practices change, sometimes drastically. In the early history of the jury system in England (after 1164 C.E.), juries did not hear evidence but decided cases based on their own knowledge of the facts or the general belief of the neighborhood. William Murray, Lord Mansfield, modernized commercial law in England (after 1754 C.E.) by (among other things) empaneling special juries of merchants to advise judges on the customs and usages of trade, which were to control the outcome of commercial cases in instances where there was no established legal rule. The modern rule is very different, as described above.

Having someone like Mr. Hogan on a civil jury who has highly relevant technical knowledge or experience is unusual, and the judge and the lawyers ought to have (and may have) addressed the limits on use of that technical knowledge or experience up front to avoid this problem.

It seems perverse to me that jurors are supposed to ignore available relevant technical knowledge and experience in reaching their verdict.

Lee Dronick

It?s also why you?ll never see lawyers on juries, unless somebody screwed up big time.

In one of the juries on which I served we had a lawyer and an ex deputy sheriff. The lawyer was in corporate law, not criminal. I am retired Navy and had served several years in military police. Note that this was double murder trial and the voir dire process was rather lengthy.

daemon

Otherwise we could just use a truth table to try cases and take people out of the loop.

Where does one get one of these “truth tables” you speak of?

Lee Dronick

Truth tables? Bing is your friend

daemon

Truth tables? Bing is your friend

Lee, how exactly does that determine the truth without human interaction?

Bosco (Brad Hutchings)

After mid-September, reforms to the patent law would let a defendant like Samsung request that a panel of patent “experts” adjudicate the matter. Clearly, any defendant who thinks they have a good prior art or obviousness case will go that route rather than go in front a jury.

The really unconscionable thing was what this guy said to Bloomberg about prior art. By the same logic he applied—that the prior art could not run on Apple hardware and vice versa—he really could not have supported the idea that Samsung infringed on the utility patents.

At any rate, this is why I think that Apple fans going over the top with “Samsung is a SLAVISH copier” smack (whether they actually believe it or are just spiking the football) is misguided. The whole premise falls down with the logical house of cards used to find Samsung infringing. And it’s why when Apple first tried spiking the football with their PR upon suing HTC, that I called it out then. RonMacGuy has that link for you if you want it. Companies that bring patent suits traditionally haven’t gone all moral high horse. It’s business. Apple broke one of the rules of war.

jsbow-long

Mr. Tanous, you seem to speak with great authority on these leagle matters. What is your claim to such authority, i.e., credentials?

Lee Dronick

Yes let us voir dire Jim smile

Jim Tanous

Mr. Tanous, you seem to speak with great authority on these leagle matters. What is your claim to such authority, i.e., credentials?

Went to Law School, but I’m not a practicing attorney, nor licensed to practice in any jurisdiction (decided that I didn’t want to be a lawyer, but a bit too late…).

Both prior to and during law school I worked on legal issue research for several firms/groups in Buffalo, NY, New York, NY, and Cincinnati, OH. Areas of focus during my time working were securities regulations, insurance, and family law.

I also worked for McKesson Provider Technologies, a health care technology company, and, among other things, worked on ensuring that the way we installed software at hospitals complied with each state’s health care laws and regulations.

I do have many years in which I’ve spent dealing with legal issues, but I am not an expert by any means. That’s why I sought the legal opinions of the attorneys who are quoted in the article. smile

RonMacGuy

RonMacGuy has that link for you if you want it.

Wait a minute, you’re actually calling me out when you totally refuse to acknowledge me when I call you out on the oh so many that you’ve gotten completely wrong over the years?  You need to play the game from both sides (or don’t play at all), Bosco, or else everyone will see you for what you really are here.  Oh wait, most of us do…

Jim, can I get a ruling?  There was no personal attack in there on Bosco, was there?  I’m being held to a higher standard now.  I may have implied something, but no direct personal attack, right?

RonMacGuy

Mr. Bosco, you seem to speak with great authority on these ‘legal’ matters. What is your claim to such authority, i.e., credentials?

Just asking here…

daemon

Jim, can I get a ruling?  There was no personal attack in there on Bosco, was there?  I?m being held to a higher standard now.  I may have implied something, but no direct personal attack, right?

What an angry person you are.

geoduck

RonMacGuy said
Jim, can I get a ruling?? There was no personal attack in there on Bosco, was there?? I?m being held to a higher standard now.? I may have implied something, but no direct personal attack, right?

What an angry person you are.

Bosco will do that to you. That’s why I blocked him.

RonMacGuy

What an angry person you are.

grin  Aww, Bosco’s little buddy coming to his rescue again.  Don’t pretend to know anything about me, daemon.  I’m having a great time!!  You’re still upset about that chill pill comment, aren’t you?

Bosco calling me out is a riot.  But if he can’t handle the game, he shouldn’t be playing.  That’s all I’m saying.  So why does that make me an angry person?

Bosco (Brad Hutchings)

RonMacGuy has that link for you if you want it.

RonMacGuy maintains an extensive collection of things I post here. I was simply noting that if anyone wanted to see that my initial reaction to the Apple PR on launching its war against HTC, he probably has the link nicely filed somewhere. I’ve been very consistent on the point. I apologize to RonMacGuy if he was offended that I praised his organizational skills. I will try to be more sensitive in the future.

RonMacGuy

Why, thank you, Brad, for your apology.  I accept.  I do appreciate your recognition of my organizational skills.  I am proud of those skills, and they do help me in my daily work.  Perhaps I was overly sensitive after a long week in the office.  I shall endeavor to be less sensitive in the future.

I look forward to reading your extensive, well thought out, occasionally borderline long-winded opinions on patent law.  I find them fascinating and, at times, utterly amazing.

Please enjoy your weekend.  Happy Labor Day.

iJack

The primary problem is that both Apple and Samsung let Mr. Hogan survive jury selection.

Bingo!  But…
Presumably in a high-stakes case like this, all prospective jurors endure voir dire, and also presumably, a question that either side might use is, “do you have any background in patents,” followed up by “was this patents experience in the electronics industry?”

I’m pretty sure I read that he was asked the former, if not the latter, but isn’t the real issue here that Samsung blew their chance (or right?) to challenge the verdict from a jury with said individual as a member?

I have a pretty firm grasp on the rules and limits of the voir dire process, but no knowledge at all about how, and to what extent the Q & A of a single juror could impact the right of appeal.

——————————-

I just watched the whole of the Bloomberg interview of Vel Hogan, and I am really, really impressed with him, the way he described the deliberations, and the whole jury, if Hogan is to be believed.

Unless several jurors come forward with alternative stories, I am going to believe that both the Law and Justice have been well served, by this decision.

If you haven’t watched the interview in full, do so now.  http://bit.ly/N4BcCG

PS ~ Thanks for being such a good sport, Jim.  And thanks for continuing and expanding this discussion.

Bosco (Brad Hutchings)

I just watched the whole of the Bloomberg interview of Vel Hogan, and I am really, really impressed with him, the way he described the deliberations, and the whole jury, if Hogan is to be believed.

He completely butchered the determination of prior art. His description even contradicts the written jury instructions, which were very clear on the issue. Under his test, if I had a system that drew a circle that ran on a PowerPC chip, and you somehow later got a patent for a system that draws a circle, the prior art would not nullify the claim in the patent because your system runs on x86 or ARM and the programs are not compatible. From even a lightly technical point of view, this is brain dead. From a heavily technical point of view, one then must wonder about the ABI (application binary interfaces) that are significantly different between Samsung Android phones and iPhones, because that infringing circle on the Samsung phone doesn’t run on that iPhone either, so how can it infringe?

That is the guy’s logic. This is like if you were watching a cooking show, and the cook puts cyanide in the meatloaf, and you find his whole presentation delightful. There is massive condemnation of this guy because (a) he does not know the law, and (b) he’s not even technically savvy enough to consider the ramifications of his misunderstanding in context.

brogan63

I have been on about 8 now

8? I call BS.

daemon

Brad,

I think the entire problem with Hogan is that he’s just savy enough to understand how to get a patent despite prior art or obviousness such as patenting swinging on a swing side ways but too stupid to understand why that shouldn’t be patentable, and should have been invalidated by obviousness and or prior art.

Seriously, it was all broken when he decided to figure out if he could have defended it to the patent office.

Lee Dronick

Yes 8, and one trial and deliberation lasted 4 months, but most have been 3-4 days total.

lrd555

Wow! Since when do we defend a company thats an obvious IP thief? Samsung’s so lazy they even copied the icons. Don’t look for excuses to let people get away with stealing. Instead, call it for what is theft!

Bosco (Brad Hutchings)

daemon,

Stupid or not—and this guy strikes me as insufferably pseudo on the intellectual scale—all he needed to do was RTFM that the judge handed them. Had they gone by that, they would not have fallen into the logical trap—ah, hell, it was a stupidity trap, no logic involved whatsoever—of prior art having to run on currently patented devices.

Lochias

RTFM?
What’s the big deal about reading the jury instructions??
The judge made a point of spending hours—with periodic stand-up and walk breaks—the entire one hundred and nine page document.

daemon

What?s the big deal about reading the jury instructions??
The judge made a point of spending hours?with periodic stand-up and walk breaks?the entire one hundred and nine page document.

The Jury failed to follow those instructions.

Bosco (Brad Hutchings)

They failed to follow the instructions on prior art and used a test that (a) isn’t correct and (b) would clear Samsung of infringement were they to apply it to that portion of the question.

factcheck20

Apple had its patent case accepted by a jury who live a few miles from its headquarters, led by a jury foreman who is a software patent holder, in a country with exceptionally lax patent law. Apple’s patent case has been rejected in the UK, Japan and Korea. Looked at from the outside, this result further undermines the reputation of the US justice system. This is all about restrictive practices and nothing to do with real innovation. They may have been the first to sell the US consumer on the idea of smart phones and their phones are well designed and well made. but double tapping on the screen worthy of patenting? Just like the Amazon one click patent its ridiculous.

JDSoCal

I know I look to “a photographer and technology enthusiast” to explain case law to me. And it’s especially nice coming here on Mac Observer and hearing such FUD advanced.

Most of your cases are CA state courts, irrelevant. And the Federal Circuit reviews patent cases, not the 9th Circuit.

Not one mention of the actual standard of review in the entire article. It’s “clearly erroneous.” And if the decision is so erroneous, what did the judge, a former patent lawyer herself, issue pre-trial injunctions? Which require a high likelihood that the jury will find infringement?

JDSoCal

The Jury failed to follow those instructions.

And this is based on your years of experience and expertise in patent law? And your interviews with all the jurys as to what the did?

Why do Android nerdboys come on a Mac site?

JDSoCal

Apple had its patent case accepted by a jury who live a few miles from its headquarters, led by a jury foreman who is a software patent holder, in a country with exceptionally lax patent law. Apple?s patent case has been rejected in the UK, Japan and Korea. Looked at from the outside, this result further undermines the reputation of the US justice system.

Nonsense. Apple has won in Germany, France, Italy, and the Netherlands. If there was ever a “rogue” homer country WRT patent it’s the Koreans.

Thanks Tanous for the troll bait article.

Bosco (Brad Hutchings)

And this is based on your years of experience and expertise in patent law? And your interviews with all the jurys as to what the did?

Why do Android nerdboys come on a Mac site?

For every patent lawyer who is expert enough to conclude that the jury got this right, I can find you one who is expert enough to conclude that the jury got it wrong. Patent lawyers don’t have a monopoly on interest in this or other IP cases. They affect the way many of us non-attorneys do business, use gadgets, and enjoy life. So you’re just going to have to tolerate strong opinions from lay-people, and you’re going to have to argue your counter-opinions with facts, not put-downs.

And Mac enthusiast is not the same as Apple enthusiast. Smart people pick and choose the best tools from many camps. Really smart people have a Mac and a Galaxy Nexus. I speak from experience.

daemon

And this is based on your years of experience and expertise in patent law? And your interviews with all the jurys as to what the did?

No, it’s based upon the interviews Velvin Hogan has given and a reading of the actual instructions given to the Jury.

You know, facts.

iJack

No, it?s based upon the interviews Velvin Hogan has given and a reading of the actual instructions given to the Jury.

You know, facts.

I downloaded the Instructions, examined it, and watched the complete video.  And yet, these facts brought me to an entirely different conclusion than yours.

Interesting, no?

Jim Tanous

Thanks Tanous for the troll bait article.

Hi JDSoCal,

Thanks so much for the kind words. Please note, however, that it’s not my opinion expressed in the article. I cite substantial case law and the opinion of two patent attorneys.

This isn’t about Apple versus Samsung. This is about the legal process that happened to coincide with these two companies. We’ve provided substantial coverage of this lawsuit over the course of the year, and this was an important issue to mention. Does it mean that I am “pro Samsung?” Of course not, and this article would have been prepared if the prevailing party was Samsung, too.

This doesn’t mean Samsung will “win” or that I agree with all of the opinions of those who wanted Samsung to ultimately prevail. It just means that many people who make their living covering patents and jury trials are concerned about the way this jury appears to have reached its conclusion.

Please, sir, try to separate your feelings about Apple and Samsung from the legal issues. As discussed in the article, this is merely an analysis of the jury deliberations and not an attempt to judge the merits or impact of Apple’s victory.

Jim Tanous

I downloaded the Instructions, examined it, and watched the complete video.? And yet, these facts brought me to an entirely different conclusion than yours.

Interesting, no?

“We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth.”
- Jean Giraudoux

smile

Bosco (Brad Hutchings)

I downloaded the Instructions, examined it, and watched the complete video.? And yet, these facts brought me to an entirely different conclusion than yours.

Interesting, no?

Let me direct your attention to the most relavent item that has garnered the most criticism. In the instructions, there is a section dealing with how the jury should evaluate prior art disqualification of a patent. Hogan makes a clear statement of how he convinced his fellow jurors of a different definition and standard of prior art.

Any reasonable person must conclude that the instructions and Hogan’s definition were entirely different. Any reasonable person must also conclude that by Hogan’s definition, prior art was not established. That conclusion was basically embedded in his definition.

The judgement call, and the difference of opinion, should occur then as to whether a jury following the instructions on prior art would find that Samsung demonstrated a prior art disqualification of the patent. Samsung presented a great deal of testimony attempting to establish prior art for the utility patents. Reasonable people can disagree about the extent to which they showed prior art and how high the bar should be to disqualify a patent. I happen to think that the bar should be low on software patents based on the reality that nobody can do anything that doesn’t infringe something these days, and I happen to think that Samsung made it over the bar on gestures and snap-back, and that (in the future) anyone will be able to make it over on data detectors with a defense of regular expressions and multi-case statements.

You may disagree about how high the bar is and whether Sammy made it over, but that is the debate we should be having if we are both reasonable people. You saying that you agree with Hogan even after having this spelled out for you tells me that you’re not reasonable. His approach to prior art question was not consistent with jury instructions, not consistent with patent law, and not consistent with reality. Its implication is that so long as an “inventor” implements something non-original on a new platform, they can get monopoly protection from the government against anyone else who comes along later and implements the same non-original thing. It defies belief.

Bosco (Brad Hutchings)

I want to expand on one issue… That of the jury being asked to evaluate prior art claims presented as evidence. It serves an important purpose in the patent system. It acknowledges that there is a chance that a patent might have been granted in error or that non-patented prior art might surface later.

For example, I might invent something completely new that’s never been invented before, but it might not occur to me to secure a patent. Or I may not see it as a worthwhile investment to secure a patent. A stat that has been floating around is that 99% of patented things don’t directly return the legal investment in licensing or sales. So it might be an entirely reasonable decision to not pursue a patent, unless there is some other value, such as company valuation or vanity or a roll of the dice or defensive portfolio, that might encourage an inventor to do so.

Or it might not be or seem patentable at the time, based on the permissiveness of the patent office. Amazon one-click would have been obscene at the beginning of software patents, and would be obscene now, yet was doable in September 1999.

At any rate, the fallibility built into the approval process demands that a jury have an opportunity to review claims of prior art at trial as part of determining the legitimacy of a patent. Hogan and his jury absolutely failed in their responsibility to even consider the prior art evidence. And he’s proud of it.

iJack

You saying that you agree with Hogan even after having this spelled out for you tells me that you?re not reasonable.

Yeah, I don’t care what it [profanity deleted by Bryan] tells you. 
It was quite clear that I was making a side comment to Daemon, so it’s really none of your business.

But since I felt compelled to answer your post, let me add the following;  I don’t like you.  I skip most of your posts because you are miserable person in general, and here on TMO, you are the turd in the punchbowl.

I would prefer that you never address me again, although I doubt you have that much self-control.

Bosco (Brad Hutchings)

Yeah, I don?t care what it fvckin tells you.?
It was quite clear that I was making a side comment to Daemon, so it?s really none of your business.

But since I felt compelled to answer your post, let me add the following;? I don?t like you.? I skip most of your posts because you are miserable person in general, and here on TMO, you are the turd in the punchbowl.

I like to think of myself as the punch in the turd bowl. Kidding. But seriously, if I took pen to Samsung tablet and tried to write the most damning caricature of an Apple fanbot, I could not match this. Kudos to you sir.

iJack

...the most damning caricature of an Apple fanbot, I could not match this. Kudos to you sir.

It’s an Apple products, fan-oriented website, Bevis.
And I wasn’t wrong about your self-control, was I?

RonMacGuy

Bosco will do that to you. That?s why I blocked him.

LMAO.

It does amaze me how those who are sore from the Samsung ruling are doing whatever they can to argue against it.  It’s obvious to most that the copying happened, the courts agreed, and yet the debating continues, down to the gnat’s a$$ detail.

How about we all just sit back and quietly wait until the appeals occur, and then onto the Supreme Court for a final ruling?  Then we’ll see the outcome.  And even after 10 years and the Supreme Court ruling in Apple’s favor we will still have to hear how wrong they were.  Talk about ‘tired and lazy’...

Why keep arguing about it?  If the jury screwed up, then let’s have a mistrial and a new trial.  Block the sale of the infringing devices until they fix them, or until they are found innocent in a new trial.  All of this debating is meaningless and exhausting.

TMO, how about a nice iPhone 5 or Mini iPad rumor to distract us from patent law?

Can’t we all just get along?!?!?

Kind Regards - Ron

Bosco (Brad Hutchings)

It?s an Apple products, fan-oriented website, Bevis.
And I wasn?t wrong about your self-control, was I?

From my private email, sender withheld:

Brad, Ease up. You’re coming off like a schoolyard bully wailing on a [mentally disabled child].

You know iJack, it is possible to be a fan of some Apple products without being an intolerant, insufferable jerk. I’d still like to give you the opportunity. Simply explain why you think Hogan’s substituting of his own test for the prior art question was a reasonable thing to do in light of the actual jury instructions. Maybe you can change my mind.

iJack

Can?t we all just get along?!?!?

Oh, yuck!

Lee Dronick

Another outburst and I will clear the Court!

iJack

Simply explain why you think Hogan?s substituting of his own test for the prior art question was a reasonable thing to do in light of the actual jury instructions. Maybe you can change my mind.

First you said I am unreasonable.  Then you said I am an intolerant, insufferable jerk.

Why would I want to engage you further?
Also, given that I don’t care what you think or believe, what’s the incentive for carrying on this conversation with you?

I’ll ask you again, do not address me further.

Bryan Chaffin

This conversation is teetering on the edge of inappropriate. I know the subject matter is incendiary to begin with, but keep it civil.

This is a very interesting topic that is worthy of polite discussion.

Stop calling each other names, for goodness’ sake.

iJack

I know the subject matter is incendiary to begin with, but keep it civil.

If I’m the problem Bryan, then say so, and I’ll go without regret.
While you’re considering that, you might also consider getting your own house in order.

Jim Tanous

Most of your cases are CA state courts, irrelevant. And the Federal Circuit reviews patent cases, not the 9th Circuit. Not one mention of the actual standard of review in the entire article. It?s ?clearly erroneous.?

Hi JDSoCal,

I missed this initial comment earlier, saw the one with my name in it first. Thank you for your thoughts on this article, but I’d like to add some points:

1) I’m sure you know there are two types of relevant cases in any legal dispute: mandatory and persuasive. Higher federal court decisions in this case would indeed be mandatory for the district court to consider. However, state cases from any jurisdiction, and especially those in the same geographic area, are certainly eligible as persuasive authority. The court is under no obligation to follow them but to say that they are “irrelevant” is incorrect.

2) I’m also sure you know that the Federal Circuit reviews patent appeals on the merits. Procedural issues are directed by the applicable circuit court. Why else would Judge Koh, who you speak so highly of, cite so many Ninth Circuit cases in her orders?

3) You’re right on this point. The article doesn’t mention the standard of review, which is an oversight on my part. In previous discussions with other readers, I mentioned repeatedly that “this doesn’t mean Samsung wins.” However, the comments that the jury foreman made about the process to multiple news agencies do serve, in my opinion, and in the opinion of every attorney I asked about the case, as “Grounds” to argue jury misconduct, as the article was titled.

Again, I appreciate your comments, and I always look forward to debate, especially from contrary points of view. However, after reviewing the article with two patent attorneys, a corporate law attorney, and a patent law jurist (who unfortunately got back to me after the publication deadline), I must say that I stand by its content.

Thanks, and I hope you have a pleasant holiday.

RonMacGuy

Sad thing is, a few bad ‘apples’ (ironically) are spoiling the entire TMO experience for a lot of us, under the guise of “educating us” or “just providing a different perspective”.  I’m borderline ready to leave myself for macrumors or appleinsider or some other site where I don’t have to deal with this garbage.  A lot of good people have already left, and you know it Bryan.  TMO is losing a lot of Apple enthusiasts that would love to have some pleasant discussion here, and only have to deal with an occasional troll who goes away after they post their junk.  Really sad thing is, there is absolutely nothing TMO can do about the long-term trolls.  Even if accounts are temporarily turned off, they can still post comments ‘anonymously’.

But you say, just block those individuals?  Not good enough really.  Still see the names and where people quote their stuff and are arguing back.  So many have asked why those who hate Apple don’t go to android sites for their own thrills, but in this case they get their thrills just riling up people here with half-truths and general insults directed at the Apple community.

Bosco (Brad Hutchings)

If I?m the problem Bryan, then say so, and I?ll go without regret.
While you?re considering that, you might also consider getting your own house in order.

The Fifth Amendment ought to be mandatory. Geez.

RonMacGuy

Oh no.  More logs for the fire.

S III now involved.

Lee Dronick

That is not a log, that is thermite.

Bryan Chaffin

Ron, traffic has never been higher at TMO, and comments are ever-increasing. If the level of discourse at AI or MR suits you better, you should hang out where you’re happy.

I don’t want you or any other member “leaving,” but I also have no interest in squelching dissenting discussion for the sake of keeping anyone happy.

What I do want, however, is everyone to be civil. It’s a simple thing, really.

To that end, iJack, I wasn’t singling you or anyone else out. Indeed, this discussion hadn’t stepped over into problem territory, it was merely teetering on the edge. People were getting hot and I didn’t want it to get out of hand.

Don’t demonize each other, even in your mind. There is so much in the Apple world today that is interesting, truly interesting, and worthy of discussion. The subject of Jim’s excellent analysis in this piece being one of the most interesting.

There was a lot in it that I didn’t know, and it’s very thought-provoking. How will the courts deal with the appeals process? Will the things that Mr. Hogan has said effect the process?

That’s interesting to me!

buddhistMonkey

For every patent lawyer who is expert enough to conclude that the jury got this right, I can find you one who is expert enough to conclude that the jury got it wrong.

That’s great news for Apple! If experts are so evenly split, it’s a certainty that the jury’s verdict will stand.

stilep

Lol bing

iJack

That is not a log, that is thermite.

Soooo.  What does this really mean?  Is Apple starting a proxy war against Google? SJ did say he wanted to go thermonuclear on them. 

Maybe Apple is laying the groundwork for protecting a yet-to-be-released product.

Lee Dronick

Who knows? However, I am sure that Apple is working on new products and services, at least improving existing ones.

Gotta run,  I need to pick my wife up at the airport.

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