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August 29 2012


Intressant intervju med juryordföranden Velvin Hogan

Velvin Hogan var en av jurymedlemmarna i rättegången mellan Apple och Samsung, och när det var dags för juryns överläggningar utsågs han till ordförande. I en relativt lång intervju för Bloomberg TV beskriver Hogan hur juryn tänkte och resonerade när de kom fram till deras dom, och det är en hel del intressanta saker som kommer fram.

Bland annat hade ingen av jurymedlemmarna en iPhone, och Hogan själv äger inte en enda Appleprodukt. Vidare förklarar han hur juryn kom fram till just det skadeståndsbeloppet som nu Samsung måste betala, och hur en “a-ha”-upplevelse en sen kväll fick honom att bestämma sig.


August 27 2012


3 reasons juries have no place in the patent system

Unless you spent the weekend under a rock, you’ve heard that a jury ordered Samsung to hand Apple $1.05 billion for violating its patents. The verdict and month long trial has captivated tech types but also provides more ammunition for critics who say juries shouldn’t be deciding these questions in first place.


The jury in Apple-Samsung confronted hundreds of questions, some of them on topics obscure enough to make an intellectual property lawyer blanche — design patents, patent exhaustion and so on. Yet, they were done in less than three days. As Abovethelaw editor, Elie Mystal, mused “It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin?”

A more damning criticism came from the popular Groklaw site which pointed out a series of basic errors by the jury: a decision to award $2 million for a patent that Samsung hadn’t infringed in the first place; a decision to assign damages based on punishment, not compensation.

This type of slapdash decision-making lends support to Judge Richard Posner and others who argue that it’s time to end jury trials in patent cases. Here are three more reasons Apple v Samsung should not have gone before a jury:

Reason 1: Jurors can be influenced by brand loyalty

Let’s remember that the jurors who decided the case were not Blind Justice but consumers who are influenced by brands.

That influence can be considerable. According to Robert Kozinets, a marketing professor at York University, “brand communities” that emerge around products like Apple’s are supplanting religions or neighborhoods as a source of personal identity. He says that Apple today has greater ideological power than many countries.

“That identification with Apple will lead to community and a sense of loyalty. It also leads to a sense of empowerment that can lead people to step up and protect it because they know there are so many others like them.”

There’s nothing wrong, of course, with defending Apple (or Google or Microsoft). The problem is that brand loyalty can interfere with patent policy. When asked to decide a patent case, juries are likely to go with emotion over evidence — deciding a case based on brand loyalty rather than the law at hand.

In the case of Apple-Samsung, the trial was about a beloved American brand versus a foreign competitor. Not only that, but the trial took place in Silicon Valley, right in the heart of Apple land. This was like asking Boston Red Sox fans to judge the conduct of the New York Yankees.

In this climate, it’s no wonder that the jury appears to have made their decision based on a desire to “send a message” to Samsung rather than parsing harder technical questions about whether Apple’s rectangle and “bounce-back” patents should have existed in the first place.

Reason 2: Juries are too easily swayed by “he’s a copycat”

During the trial, Apple offered an easy-to-follow narrative that is familiar to anyone who has been in grade school: “That’s my idea. He took it and pretended it was his.” Samsung on the other hand had to explain why, even though Apple had patents, it was not infringing and that the patents were not actually valid patents and so on. One story is crisp and clean, the other is furtive and guilty-sounding. Guess which story has more punch in the hands of a trial lawyer?

In the words of Posner: “patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats.”

Unfortunately, these simple narratives distort what patents are all about. Patents are not primarily about stopping copycats (that’s why we have trademarks) but are instead a form of industrial policy based on 20-year monopolies. If the policy is effective, it produces more innovation. If the patent policy is not effective, it creates monopolies that harm competitors and consumers. In Apple-Samsung, there’s a good chance we’re doing the latter; we may regard Apple as an innovator and Samsung as a copycat — but that doesn’t mean it’s a good idea to award Apple sweeping monopolies that may raise prices and stunt the smartphone market.

Patents are as complex as other industrial policies like subsidies or regulatory regimes. When disputes arise, they should be put before an expert tribunal rather than a jury that is easily swayed by schoolyard “copycat” narratives.

Reason 3: Jury trials over patents are a waste of money

Apple and Samsung will spend  from $20 million to $500 million in legal fees, according to sources surveyed by the Wall Street Journal. While the companies would have blown a bundle no matter what, the jury presence added millions to the tab. This figure doesn’t even take account of the costs to the federal justice system or to the jurors and their employers. And for what? To respond to questions likely beyond their capacity and that will, in any case, be picked apart on appeal.

There’s a faster, cheaper and more efficient way to handle this. As Judge Posner proposes, it makes sense to stuff future patent disputes into a corner of the US Patent and Trademark Office.

Juries are not responsible for all that ails the patent system. But getting rid of them would be a useful step.

(Image by Junial Enterprises via Shutterstock)

August 25 2012


Apple and Samsung respond to jury's decision in US infringement case

Apple and Samsung both issued statements in response to a California jury's decision that Samsung infringed upon Apple's patents. Apple won most, but not all of its claims, while Samsung lost all of its claims against Apple.

Apple's response from spokeswoman Katie Cotton was positive, according to a report in the New York Times Bits blog.

We are grateful to the jury for their service and for investing the time to listen to our story and we were thrilled to be able to finally tell it. The mountain of evidence presented during the trail showed that Samsung's copying went far deeper than even we knew. The lawsuits between Apple and Samsung were about much more than patents or money. They were about values. At Apple, we value originality and innovation and pour our lives into making the best products on earth. We make these products to delight our customers, not for our competitors to flagrantly copy. We applaud the court for finding Samsung's behavior willful and for sending a loud and clear message that stealing isn't right.

Not surprisingly, Samsung said that the decision is "a loss for the American consumer." The company said this about the verdict in a statement reported by the Wall Street Journal:

"Today's verdict should not be viewed as a win for Apple, but as a loss for the American consumer. It will lead to fewer choices, less innovation, and potentially higher prices. It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies. Consumers have the right to choices, and they know what they are buying when they purchase Samsung products. This is not the final word in this case or in battles being waged in courts and tribunals around the world, some of which have already rejected many of Apple's claims. Samsung will continue to innovate and offer choices for the consumer."

As noted by AllThingsD and The Verge, this is only the beginning. Apple will file for an injunction and Samsung will likely appeal the verdict.

Apple and Samsung respond to jury's decision in US infringement case originally appeared on TUAW - The Unofficial Apple Weblog on Fri, 24 Aug 2012 23:30:00 EST. Please see our terms for use of feeds.

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Samsung’s exposure: It can survive the Apple hit

Samsung reported $41.5 billion in revenues and profits of $4.5 billion for the second quarter alone, so it can absorb the $1 billion in damages awarded by the jury in “tech trial of the century” if the verdict won by Apple Friday holds. The bigger question is whether the jurors’ findings of patent infringements will allow it to keep its revenue and profit momentum going.

Samsung is much more than a phone maker, but its smartphone business has been a growth juggernaut in recent years as its Galaxy line has emerged as the flagship brand for Android phones and the iPhone’s one legitimate challenger in the smartphone wars.

Samsung sold 50.2 million smartphones in the second quarter, nearly doubling Apple’s iPhone sales of 26 million. What’s more, 10 million of Samsung’s sales were of the new Galaxy S III, it’s most direct competitor to the iPhone. Of course, Q2 isn’t the best indicator: iPhone 4S is past its half-life as Apple gears up for a new iPhone launch next month, and the S III is a new device. But 2011 sales showed that Samsung and Apple were evenly matched in 2011.

The danger for Samsung is the long-term repercussions of today’s verdict. If Apple’s patents are held to be valid, Samsung could be forced to redesign its phones and their user interfaces. It’s found a recipe for success in the Galaxy line, but now it may have to change up the ingredients.

August 21 2012


The next phase of the Apple Samsung case: straw polls and sandwiches

Lawyers will make closing statements today in what has been dubbed the technology trial of the century. The epic dust-up between Apple and Samsung is far from over, though. Here is a plain English guide to how the jury will decide the verdict, how the judge can overrule them and what happens next.

What exactly is going on today?

After almost a month long trial, this is the finale for Apple and Samsung lawyers. Each side will sum up for the jury why their opponent ripped off their technology, and why the other sides’ patents are not valid. The judge will then give instructions to the jury and tell them to complete a 22-page form that will provide the answers.

The form makes an IRS look simple by comparison. It requires the jury to say if a dozen or so Samsung-related products like the Droid phone and Galaxy tablets violate patents for the iPhone and the iPad. Likewise, jurors will have to say whether Apple’s products infringed the Samsung gadgets. If the jurors find infringement, they will also have to decide if the copycat did it on purpose and how much they should pay. And there is more. They will also have to plumb other arcane corners of intellectual property law like “trade dress” and “prior art.”

To get a flavor of what the jury will face, here are sample questions from the proposed jury form:

What will the jury do then?

Possibly as soon as today, the nine jurors will march off to the jury room to hash things out. Typically, they begin by electing a foreman although there is no requirement for them to do so. (Alas, there is no “hipster juror” like the one who provided laughs in a recent New York trial.)

Will they just dive right in or take a straw poll first?

According to Brad Lyerla, a senior patent attorney with Jenner & Block, the first thing most juries do is take a straw poll about the verdict. Lyerla says jury research shows that the outcome of this initial poll will almost always reflect the final verdict — even if that straw poll produces a tight 5-4 vote. What this means is that a majority of the jurors will have already made up their minds and will eventually persuade the others to join them.

Does the jury have to be unanimous?

In this court, yes.

What if they can’t reach a consensus?

If they can’t agree on anything, that means a mistrial and back to square one. But there are dozens of issues to decide in this case and the jury will almost certainly come to a decision on most or all of them. Those decisions will stand and a failure to reach agreement on some questions will not derail the whole case.

How long will it take the jury to reach a decision?

“There are many claims and different issues of law. This is not an up-or-down, yes or no type of verdict. It will be a matter of days. It won’t be less than a day,” said Peter Toren, a veteran IP litigator with Weisbrod, Matheis & Copley.

Will there be any clues ahead of time?

“The jury room is sacrosanct,” said Lyerla. Lawyers might hear rumors from a bailiff that the jurors were yelling but otherwise the process is secret. The jury may also send out a question to the judge. “People like to read those questions like the entrails of a goat.”

Does the jury get to leave? 

If Judge Lucy Koh orders them to remain in the courthouse, the court will pick up the tab for a lunch order. “One day it’s pizza day, or hamburgers or sandwiches .. It’s not lavish,” said Lyerla. “It’s like an office setting where you’re having a meeting at lunch time.”

Is it the end when the jury finally issues a verdict?

It’s the end for the jurors but, for Apple and Samsung, it’s more like the end of the beginning. Both Toren and Lyerla say the companies will likely ask for a “judgment not withstanding verdict,” a request for Judge Koh to replace the jury’s conclusion with one of her own. She can do this if she concludes no “rational jury” would have come to a particular decision. Once the final verdicts are entered, the companies can then appeal. “This could go on for a year,” said Lyerla.

(Images by Everett Collection and Alita Bobrov via Shutterstock)

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