Samsung & Mobile Carriers Working to Out-Innovate Apple

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Samsung Out-Innovate Apple

Following its initial defeat last week in its patent infringement battle with Apple, Samsung is moving quickly to change its products and develop new mobile technologies so that it can escape the patent stranglehold that U.S. courts have placed on the company, according to a report Wednesday from The Korea Times. While Samsung’s legal battle with Apple, pending a multitude of appeals, is far from over, the Korean company is already in talks with mobile carriers and other mobile technology companies such as Verizon Wireless and Microsoft.

“Samsung has been in talks with major U.S. carriers to jointly develop modified design technology. This will be effective, though we can’t unveil more details for the time being,” said an official from Samsung’s telecommunications division.

Last week’s jury verdict in the U.S. District Court for the Northern District of California was a major blow to Samsung, with the jury finding that many of the company’s key products and software infringed upon patents held by Apple. However, inconsistencies in the jury’s findings, revelations about possible juror misconduct in reaching a decision, and fundamental disagreements with legal interpretations have all led Samsung to prepare appeals for nearly every aspect of the litigation.

“Samsung was defeated in California, however, the fight isn’t over yet. The company briefly suffered from a 7.5 percent plunge in its stocks after the verdict, but the company has the capability to recover from a one-off injury. What really matters is the leadership of Samsung Chairman Lee Kun-hee is being put on the test as Samsung is in crisis, at least for the time being,” Kim Sang-jo, a professor of economics at Hansung University, told The Korea Times.

The two companies will face an injunction hearing on December 6 to review Apple’s request for treble damages and injunctions against the sale of several models of Samsung devices in the United States. Apple has already released its list of Samsung products that it will seek to have removed from the market.

Samsung, in addition to appealing nearly all of the court and jury’s findings, said that it would take future legal action against Apple if the Cupertino company released any future products that infringed on Samsung patents. Specifically, Samsung owns a sizable number of patents related to LTE technology.  The Korean company threatened that if Apple were to release a smartphone with the high speed data capability, as the company is widely expected to do with the next iPhone, Samsung would “immediately sue” to protect its interests.

Samsung is also looking to strengthen parts of its product line that use alternative software to Google’s Android operating system. Although Samsung is the largest maker of Android-based devices, it also distributes phones running “bada,” it’s own mobile device OS, and Windows Phone. With the imminent launch of Windows Phone 8, the next iteration of Microsoft’s mobile OS, Samsung was the first company to reveal new hardware based on the platform.

While some have argued that Apple’s patent victory will stifle innovation in the mobile device market, if Samsung and other companies can innovate around Apple’s patents, the end result may be good for both consumers and the industry.

Teaser graphic via Shutterstock.

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26 Comments Leave Your Own

Lee Dronick

“escape the patent strangleholds that the courts have placed on the company.”

They put their own neck in that garrote and dared it to be twisted.

Ghodagadi

Really what was the jury misconduct? There were two inconsistencies in a 700 question document, both were corrected at the trial.  The judge had a session to review the responses because she expected errors to be made in such a large questionnaire.  But the fact is they were fixed at the trial.

Samsung can disagree with the law all it wants, fundamentally or otherwise, so can Apple.  Unless they can show the law is unconstitutional or something its not going to help.  An appeals cannot easily overturn a jury’s finding of facts either, so its going to be hard for Samsung.  But they will appeal yes.  Even on the damages its going to be hard because Samsung suggested a penalty rate of 12% during the trial and Apple 35%.  But the jury used 14% so its going to be hard to convince a judge that the jury was very harsh on damages.

So I am curious about jury misconduct, what did they do that was misconduct?  For example the juror who was the foreman had already declared he had a patent and Samsung accepted him.

Jamie

I agree that they put the noose around their own neck on that one, but I say, ‘Hallelujah!’. I would love to see something truly cool and different, as opposed to all the Samsung branded ‘iPhones’. Give Apple a run for their money with something really innovative! Let’s push things forward rather than stagnating the market with clones. It’ll make everyone’s products better. smile 

Was reading somewhere earlier about the extreme bastardization of the word ‘innovation’ these days, to which I agree (using someone else’s work as the basis for yours and making modifications is not creating something, folks, be it hardware design or software. Inspiration is catalyzation, not imitation). There are so many brilliant minds chomping at the bit to do something unique, and I sincerely hope that they finally have their opportunity. Tie that to Apple’s seemingly increasing concern with bottom-lining everything (which is different from Steve Jobs streamlining everything back in the late 90s), and it could be interesting times for awesome new things.

Keep Apple on their toes. wink

Holden Mygroin

Bring it on!!!!!!! Innovation is in Apple’s DNA, has been from day one. Photocopying is not innovation. Come on Jonny, show them what good, sorry, what great design is all about. Apple’s engineers (in my opinion) are like NASA’s scientists. Simply brilliant. As for Samsungs engineers, village idiots spring to mind.

Jim Tanous

So I am curious about jury misconduct, what did they do that was misconduct??

The jury foreman, in his interviews after the trial, made comments that he thought about and researched his own patent and how he would “defend it.” Jurors in the U.S. are prohibited from making any part of their decision based on facts, legal theories, or personal experiences outside of the information presented at trial.

In practice, this is very hard to control, and as humans jury members often consciously or subconsciously use outside information in making up their minds. We don’t know the extent to which this occurred in this case, but the fact the foreman publicly admitted that he used his own patent as a basis for determining Samsung’s infringement means that Samsung’s lawyers absolutely have grounds to overturn the verdict on that point.

I don’t think they’ll necessarily succeed, or that they should succeed, but you can bet that one of the many motions that Samsung’s legal team is working on right now has to do with this issue.

Aftermac

Specifically, Samsung owns a sizable number of patents related to LTE technology.  The Korean company threatened that if Apple were to release a smartphone with the high speed data capability, as the company is widely expected to do with the next iPhone, Samsung would ?immediately sue? to protect its interests.

I suppose this is what I’m most worried about… as well as a potential blackballing of Apple in the mobile device world.

ghodagadi

made comments that he thought about and researched his own patent and how he would ?defend it.?

Ok so I went back to the video and reviewed what he said.  He only said when he thought about his own patent, he would be able to defend this one claim by claim.  I think it will be a stretch to conclude there was misconduct.  Although I am sure they will try.

JN81

Apple innovate? LOL. Most of their patents were ‘innovations’ from someone else. Also, the iPhone looks almost identical to Sony’s prototype phone that was thought of before the iPhone came out. Why do people give Apple more credit than they desrve? In some ways they are just as guilty of copycatting as Samsung, Sony, and other mobile carriers….Also where does it stop? TVs all look alike…so do laptops and desktops, chairs, tables, etc… You get the point.

1stplacemacuser

Good for them.  That’s good for them, good for Apple and good for consumers.  That’s the way capitalistic competition should be done.

1stplacemacuser

Apple innovate? LOL. Most of their patents were ?innovations? from someone else. Also, the iPhone looks almost identical to Sony?s prototype phone that was thought of before the iPhone came out. Why do people give Apple more credit than they desrve? In some ways they are just as guilty of copycatting as Samsung, Sony, and other mobile carriers?.Also where does it stop? TVs all look alike?so do laptops and desktops, chairs, tables, etc? You get the point.

I don’t know about you, but when the iPhone came out, I thought, “WOW!  Here’s a device with no keyboard, until you needed one, one that knows whether the device is held upright on in landscape mode, can store 1000 songs or so, has apps that interact with each other: go to address book, tap on address and google maps pops up with location… ”  Those are indeed innovative things to put all into one coherent package.  Separately, no biggie, but together in a working product without too many unnecessary bells and whistles… that takes innovation.

Ghodagadi

?m most worried about? as well as a potential blackballing of Apple

There is no need to worry about it.  So far only a South Korean court has taken the position that FRAND patents can be used for injunctions.  In the US the ITC can block devices on FRAND patents but its now facing pressure not to do that.

Secondly Samsung can only make money if it licenses those patents to Qualcomm or Intel and those companies are not going to accept a contract that says you can license excluding Apple. 

Not only that the standards bodies are going to become more careful with South Korean companies that submit their technologies to standard bodies, so there will be balance.

Even Apple is going to license its patents to Samsung with an anti-cloning clause.  It will happen it will just take some time.

Holden Mygroin

Apple innovate? LOL

That’s why the iPod, iPod Touch, iPhone, MacBook Air, iMac, MacBooks were such flops, that they didn’t sell in the millions. Even BMW today admitted, Apple made the colour white popular. When Apple launched the coloured iMacs, everything was available in those colours from irons, to lamps, to tables, to chairs. No other company influences its competitors or companies not in electronics more than Apple. It’s a shame you can’t see that. So why do Samsung even copy Apple’s packaging???? When you see brilliance humans tend to want it or copy it in some form.

trrll

The jury foreman, in his interviews after the trial, made comments that he thought about and researched his own patent and how he would ?defend it.? Jurors in the U.S. are prohibited from making any part of their decision based on facts, legal theories, or personal experiences outside of the information presented at trial.

I’ve seen nothing in which he claimed to “research” his own patent during the trial (and it hardly makes sense that he would need to research his own patent). Jurors are not prohibited from using their own personal experiences to help them make decisions, so thinking about his own patent in searching for guidance about how he should think about Apple’s and Samsung’s patents would not constitute misconduct

Mustanotagottalotta

  Specifically, Samsung owns a sizable number of patents related to LTE technology.  The Korean company threatened that if Apple were to release a smartphone with the high speed data capability, as the company is widely expected to do with the next iPhone, Samsung would ?immediately sue? to protect its interests.

I suppose this is what I?m most worried about? as well as a potential blackballing of Apple in the mobile device world.

But I believe these are all FRAND patents that several players, including Apple, have already joint ownership.  Pointless other than a lot of bluster.  If they had merit you think they wouldn’t have brought it up already.  This guy must be Kim Jong Il’s cousin or something.

Jim Tanous

Jurors are not prohibited from using their own personal experiences to help them make decisions

While it’s impossible to separate one’s experiences from one’s ability to make a decision, in determining matters of fact, no, a jury cannot (or is not supposed to) use experiences from their own life and history. Jurors are required to base their decisions SOLELY on the evidence presented in the courtroom.

Here, the foreman talks about how he took the legal issues and applied them to his own patent. He then used this example, due to his “tech background,” to lead the jury in an evaluation of how issues like prior art or patent invalidation applied to the each claim. That’s not supposed to happen. At all. Jurors, regardless of background, cannot use their own interpretation of an issue of law. The court tells the jury what the law is and the jury determines if the evidence presented meets that standard.

There was also troubling commentary from the foreman that seems to indicate that he may have coerced or influenced other jurors. From the way he describes the deliberation, it would not be surprising to learn that a less tech or patent-savvy juror would have thought: “Well, this guy knows what he’s talking about so I’ll agree with his interpretation.”

Now, don’t forget to take all of my commentary as a whole. I do not think that Samsung has a chance of winning on this point, because it would have to prove that, absent any alleged misconduct, it would have won. But the issue is whether it is grounds for Samsung to request a JNOV or to appeal. And, as I said above, you can count on it. Other jury verdicts, although mostly in criminal cases, have been invalidated or sent back for less than this.

lrd555

I don’t think this is the case @ all. @ least not the whole story. Samsung, I think, is trying to re-negotiate its contracts with the major two carriers so that it can more easily sue Apple for LTE patent infringements. You see, Samsung’s out of ammo and is falling back on an old trick used by Motorola not too long ago. Maybe Google even came up with suggestion?

vanax

To introduce the issue of so-called “jury nullification,” around which some commentors are dancing around, I want to believe that the jury has significant primacy over the judge.

Also, the foreman’s not owning any Apple products, while he admits to holding patents so knows something about the problems and tribulations of patent holders, means that this is an informed citizen which the us values as an important principle of the electorate.

That he uses a non-Apple phone, presumably a smartphone, and the jury is being asked to decide on smartphone intellectual properties, means that, if anything, if he has a bias, it would be against Apple’s devices. This means that, at least for his own vote, it would bolster the justice found in favor of Apple.

vanax

Ow, come on! All of a sudden a company is going, not only begin to innovate, but to “out-innovate” the competition? While possible, and a good rah rah slogan for the troops, it’s unlikely when the corporation’s MO is to generally copy, thus is unable to make that magical jump to something new or to something that looks like it’s new.

On the other hand, Apple out-innovated the competition seemingly out of the blue by the introduction of the first iPhone to great acclaim on the creative and operational level. Perhaps some company, not necessarily Samsung, can do just this, but it has a big hurdle to jump as first it has to change its whole mindset, or else hire away most of Apple’s top people.

KH

Samsung is really coming off like a little B! You got sued validly without any jazzed up defense. You lost!!!! Stop complaining and get back to work.

iJack

I?ve seen nothing in which he claimed to ?research? his own patent during the trial (and it hardly makes sense that he would need to research his own patent). Jurors are not prohibited from using their own personal experiences to help them make decisions, so thinking about his own patent in searching for guidance about how he should think about Apple?s and Samsung?s patents would not constitute misconduct

Quite right.

This is from a typical Pattern Jury Instruction, coming right after all the dos and don’ts of communicating with anyone outside the jury room, and using TV, Internet, etc., for other opinions.

“Illinois Pattern Jury Instructions-Civil

[11] The reason for these instructions is that your verdict must be based only on the evidence presented in this courtroom and the law I [will provide] [have provided] to you in my instructions. It would be unfair to the parties and a violation of your oath to base your decision on information from outside this courtroom. You should feel free to remind each other that your verdict is to be based only on the evidence admitted in court and that you cannot use information from any other sources. If you become aware of any violation of these instructions, it is your legal duty to report this to me immediately.”

Nothing here is prohibitive of a juror’s life-experiences in helping him form an opinion.  However, the attorneys for both sides have a chance to eliminate certain jurors during voir dire, and apparently Samsung’s attorneys had this chance also.

You can look up “Pattern Jury Instructions” by simply Googling those words.  You’ll get lots of hits.

Jim Tanous

...your verdict must be based *only* on the evidence presented in this courtroom…

...remind each other that your verdict is to be based *only* on the evidence admitted in court and that you *cannot use information from any other sources*...

My emphasis on the word “only” in the quote above.

Personal experiences, if they have a bearing on the facts or legal issues, are prohibited. I’m not saying nobody does it, but you’re not *supposed* to do it. I personally think it’s crazy that the legal teams let this guy survive voir dire, but he discusses in his interviews how he has his own experiences and interpretations of patent law and applicability. That’s the problem.

All of these cases (federal and California state courts) upheld vacating a jury verdict because one or more jury members used definitions of issues of law that were outside of the court’s instructions:
Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919 (10th Cir. 1992)
Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987)
United States v. Heller, 785 F.2d 1524 (11th Cir. 1986)
Gibson v. Clanon, 633 F.2d 851 (9th Cir. 1980)
Glage v. Hawes Firearms, 276 Cal.Rptr. 430 (Cal. App. 1990)
Jones v. Sieve, 249 Cal. Rptr. 821 (Cal. App. 1988)

Does anyone honestly believe that the foreman completely set aside all of his personal knowledge on patents and used only the definitions and interpretations provided by the judge? He admitted that he had to explain certain concepts to other jurors. Do you think he explained them as the judge did or as *he* interpreted them? There is a legitimate cause for concern on this issue for any party to the litigation.

Jim Tanous

Some more examples:

In one case, a juror used an Almanac to determine what time the sun rose on the date of the crime (Evans-Smith v. Commonwealth, 361 S.E.2d 436 (Va. App. 1987)). Even that completely objective piece of information was enough to get the verdict thrown out.

Here’s one where merely referencing a map, even though it contained the exact same information as a different map used during the trial, caused the court to overturn the verdict: Kirby v. Rosell, 648 P.2d 1048 (Ariz. App. 1982).

And then there’s these cases, that deal specifically with personal experiences, if they relate to the trial:
“[W]here 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” (Russ v. State, 95 So.2d 594, 600 (Fla. 1957))

In a civil case by serviceman involving asbestos exposure, the court affirmed a grant of a new trial where juror discussed his personal experience in the Navy which supported defendant?s position that it was not proven that the plaintiff was exposed to an asbestos-containing product which the defendant supplied to the ship on which plaintiff had served. Whitlock v. Foster Wheeler, LLC, 72 Cal.Rptr.3d 369 (Cal. App. 2008).

In personal injury suit where plaintiff?s truck was hit and damaged by train, the verdict was overturned when a juror, a career transportation consultant, shared evidence with the jury from his own experience. McDonald v. Southern Pacific Transportation Co., 83 Cal.Rptr.2d 734 (Cal.App. 1999)

A negligence judgment was reversed where a police officer juror presented his own experiences on ticketing procedures. Young v. Brunicardi, 232 Cal. Rptr. 588 (Cal. App. 1986)

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. Lumbermens Mutual Casualty Co. v. Cummings, 618 S.W.2d 883 (Tex. Civ. App. 1981)

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

A suit over oral contract was reversed and remanded for a new trial because jurors discussed their own personal experiences with having wells drilled and, as a result, several jurors changed their votes. Vincent v. Goodman, 568 S.W.2d 907 (Tex. Civ. App. 1978)

“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.” Russ v. State, 95 So.2d 594, 600 (Fla. 1957).

And, finally, from the Ninth Circuit’s standard jury instructions, section 1.1A:
“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.” http://www3.ce9.uscourts.gov/web/sdocuments.nsf/1ae2dda702db203388256aae0064d796/$FILE/8_2012 final civil.pdf

It’s not that any misconduct on the part of the Apple jury will be sufficient to overturn the verdict in this particular case, but if you find yourself on a jury, don’t tell anyone that you used “personal experience” to make up your mind unless you want the decision overturned.

iJack

iJack said:
”...your verdict must be based *only* on the evidence presented in this courtroom?”

”...remind each other that your verdict is to be based *only* on the evidence admitted in court and that you *cannot use information from any other sources*...”

Jim said:
“My emphasis on the word ?only? in the quote above.”

I think you overlooked the key word, “evidence.”  Or are you suggesting the foreman introduced evidence into the jury room?

Jim said:
“Personal experiences, if they have a bearing on the facts or legal issues, are prohibited.”

You will have to prove that, because it’s utter nonsense. You carry your personal experiences with you where ever you go.  You can’t prohibit them.  I’d like to see where you found that prohibition.

And again, there is no evidence that the foreman introduced his personal experiences into the jury room.

Jim said:
“All of these cases (federal and California state courts) upheld vacating a jury verdict because one or more jury members used definitions of issues of law that were outside of the court?s instructions:”

And I looked each one of them up, and couldn’t find any parallels to this foreman, or this case.  (Relevant portions in quotations below.)

Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919 (10th Cir. 1992)
“As the government was unable to rebut the presumption of prejudice that arose from discovery that during deliberations a juror made an unauthorized Wikipedia search…”

Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987)
“One incident involved a juror’s unauthorized use of a dictionary to define ‘malice,’...”

United States v. Heller, 785 F.2d 1524 (11th Cir. 1986)
“During the course of this trial, a juror asked a “reliable accountant” the following question (outside the jury room)...”

Gibson v. Clanon, 633 F.2d 851 (9th Cir. 1980)
“In Gibson, a juror consulted an encyclopedia to confirm his belief that a particular blood type was rare…”

Glage v. Hawes Firearms, 276 Cal.Rptr. 430 (Cal. App. 1990)
“In an affidavit submitted after trial, Isaac declared, among other things, “In 1972, I sustained an injury in a motorcycle accident and as a result of that accident lost my left leg. Because my injury was similar to the plaintiff’s, I discussed my experiences with my fellow jurors…”

Jones v. Sieve, 249 Cal. Rptr. 821 (Cal. App. 1988)
“The first concerned Juror Villas who discussed and described to the jury her own personal experiences with the condition of preeclampsia, one of the basic subjects of the instant medical malpractice action. The second involved Juror Robinson who had consulted a reference for the definition of terms that were the subject of deliberation and then explained to the jury her understanding thereof based upon that outside reference.”

As far as I can tell, nobody is claiming that the foreman in the Samsung case used any external references (only what was in his head), nor attempted to persuade or even discuss with other jurors his on patent experience.

wab95

Jim, iJack:

Edifying set of citations; thank you.

While I don’t believe that one company, let alone a consortium of them (the coordination alone of companies with different and competing agendas is staggering - just look at the PC industry, even with starter material like the Intel initiative to ‘innovate’ ultrabooks) can simply decide to out-innovate another, perhaps the California court battle loss to Apple was just the kick in the arse that Samsung needed in order to up their game and truly compete with Apple.

If Samsung can maintain their current consumer lustre, this may be just the wedge that MS need to gain a toe-hold in the smartphone and tablet spaces.

Jim Tanous

iJack,

Nice debat with you. I had more to say and the comments are word-limited so I researched and wrote up an article today: http://www.macobserver.com/tmo/article/grounds_for_jury_misconduct_in_apple_v_samsung_patent_trial/

I think you’re getting caught up on the definition of “personal experiences.” I don’t mean to say that any personal experience is prohibited, because that’s obviously impossible and insane. But personal experiences, if they relate to the issues, have repeatedly been grounds for finding jury misconduct.

This is based on my own experience (pun) and the information I’ve learned from attorneys and jurists over the years: in law school, I spent some time during the summer working on child welfare cases. Whenever a juror who was the victim of child abuse or sexual assault got on the jury, there was always an issue because it’s difficult to separate one’s personal experiences from an unbiased ability to measure the evidence objectively without interjecting your own interpretations.

The patent attorneys I spoke with, who are quoted in the article, also agreed that Mr. Hogan’s statements are troubling and serve as grounds for overturning the verdict.

This isn’t about Samsung or Apple, this is about the legal process. Will Samsung “win” because of this? Probably not, but it’s important to discuss and analyze.

And again, thanks for the respectful debate. It is most appreciated smile

iJack

You are quite welcome, Jim.  I too enjoy a vigorous debate, even (or maybe, especially), where a bit of research and scholarship is required ? a rare commodity on the Internet.  I’ll check out your new article later tonight.

I am a frequenter of Quora, but the folks there are usually so smart, and so good at writing about their experiences and knowledge, that I am mostly just a wide-eyed reader, rather than a contributor.

You should check it out, if you haven’t already.

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