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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."
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Misunderstanding of Prior Art May Have Led to Apple-Samsung Verdict

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  • Hey now, (Score:5, Insightful)

    by Anonymous Coward on Wednesday August 29, 2012 @02:38PM (#41170053)

    Being judged by an idiot who knows nothing about the law is a cornerstone of our civilization.

    • Re:Hey now, (Score:5, Funny)

      by bshellenberg ( 779684 ) on Wednesday August 29, 2012 @02:43PM (#41170115) Homepage
      O.J. agrees, and says "thank you".
      • Re:Hey now, (Score:5, Funny)

        by jd2112 ( 1535857 ) on Wednesday August 29, 2012 @03:00PM (#41170409)

        O.J. agrees, and says "thank you".

        If the software don't fit, you must convict.

      • Re:Hey now, (Score:5, Insightful)

        by PRMan ( 959735 ) on Wednesday August 29, 2012 @03:09PM (#41170511)
        The problem with the OJ trial is that all the evidence failed on a chain of custody basis. Hence, the jury was left with the limo driver's testimony.
        • Re: (Score:3, Insightful)

          by Desler ( 1608317 )

          Yeah, the police pretty much did their best job possible to fuck up their case against him. Johnny Cochran was basically handed the win.

          • Re:Hey now, (Score:4, Informative)

            by Enderandrew ( 866215 ) <enderandrew AT gmail DOT com> on Wednesday August 29, 2012 @03:23PM (#41170733) Homepage Journal

            That and the jury was 12 idiots selected because they never read the news and weren't that familiar with the events. When the prosecution was able to show all their DNA evidence, they presented the evidence as a series of numbers and odds. The jurors said in exit interviews they had no idea what they were listening to, and thusly ignored all the DNA evidence.

            • Basically you are saying that anyone that doesn't watch tabloid news is an idiot? Because really, that's what you are implying, which is kind of funny when you think about it. There are a lot of people that don't keep up with Hollywood/tabloid news that are perfectly reasonable, sane, intelligent individuals.

              What's really funny is when people are elitist about it.
              "Anyone that doesn't know about X is an idiot!"
              "Really? How would they have known it?"
              "By staying glued to their TV set,that's how."
              "I see."

        • ...probably stands for Did Not Attack!

          (credit to Dana Carvey)

    • by msauve ( 701917 ) on Wednesday August 29, 2012 @02:59PM (#41170401)
      The forman, Velvin Hogan is, IMHO, a patent troll. His "invention" [] is a TiVo, with options for a few minor and obvious additions (removable storage!, how inventive). He filed for the patent 3 years after TiVo first shipped.

      Seems to me he's just an opportunistic SOB hoping to make some money from some company who would rather pay than fight. Of course he wants to defend patents against invalidation due to obviousness or prior art. His would be worthless if that were easy to do.
      • by Xiaran ( 836924 ) on Wednesday August 29, 2012 @03:08PM (#41170505)
        After reading the summary of that patent I realised I have had a device for years that matches that description. I like to call it my laptop.
        • by Anonymous Coward on Wednesday August 29, 2012 @03:14PM (#41170595)

          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).

        • by Vintermann ( 400722 ) on Wednesday August 29, 2012 @03:18PM (#41170663) Homepage

          No no, you cannot put it into the same processor. That changes everything right there.

      • Runaway juror (Score:5, Insightful)

        by KingSkippus ( 799657 ) on Wednesday August 29, 2012 @03:25PM (#41170763) Homepage Journal

        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.

        • by aepervius ( 535155 ) on Wednesday August 29, 2012 @03:35PM (#41170893)
          If the fact that finding out that a jury royally fucked up, does not lead to a judgement to be overturned, then I would rather never be judged by my "peer" like in the US system. Imagine that the judgement is not about patent law but a death penalty case. You would be on death row because of a fucktard in the jury decide you are guilty no matter the evidence.
          • Criminal verdicts have to be unanimous so one idiot on the jury won't condemn you to death, at worst it would be a mistrial. But as we saw in the OJ case it is sometimes possible to get twelve idiots.
        • Re:Runaway juror (Score:5, Informative)

          by tattood ( 855883 ) on Wednesday August 29, 2012 @03:56PM (#41171171)
          I am surprised that this guy was ever allowed to be on the jury. The lawyers on both sides must have screwed up royally to allow a person with their own patent to sit on a jury about patent infringement.
          • Re:Runaway juror (Score:4, Insightful)

            by DriedClexler ( 814907 ) on Wednesday August 29, 2012 @06:06PM (#41172713)

            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:Runaway juror (Score:5, Informative)

            by CaptBubba ( 696284 ) on Wednesday August 29, 2012 @06:31PM (#41172981)

            They had already used up all their jury strikes on people with more patents (one had 120!), as well as excluding owners of Samsung/Apple products, people who had read the Steve Jobs book, anyone who had worked for Apple, Samsung, or Google, people who worked for companies which did work for A/S/G, and anyone who developed for the iOS/Android ecosystems. I mean this was in San Jose... that doesn't leave you much left to choose from!

        • by hazydave ( 96747 )

          Actually, the guy seems to have abandoned the patent, at least that what the patent search I did showed. Even if he did basically patent existing technology from the 70s, and TiVo, and a few other existing things, he didn't have any way to make money on such an obviously bad patent. Waste of time and money, unless he just wanted a wall decoration.

          But it sounds like he's definitely of the opinion that prior art doesn't really matter much. Or he's got a complete misunderstanding of how prior art should be app

      • I have a bigger problem with that person being the jury foreman than the prior art problem.

        It certainly has the possibility of impropriety. Wouldn't you think a patent holder would resist the idea of saying that a certain patent was unfairly given? Especially if his own patent was rather shaky. You wouldn't want to throw doubt on your own patent by saying it's possible that the patent office screws up.

      • by hazydave ( 96747 ) on Wednesday August 29, 2012 @04:05PM (#41171305)


        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 []). 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.

    • by Sycraft-fu ( 314770 ) on Wednesday August 29, 2012 @03:30PM (#41170835)

      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:Hey now, (Score:4, Insightful)

      by cbiltcliffe ( 186293 ) on Wednesday August 29, 2012 @10:56PM (#41174853) Homepage Journal

      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?

  • by MindlessAutomata ( 1282944 ) on Wednesday August 29, 2012 @02:39PM (#41170061)

    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.

    • by hazydave ( 96747 )

      I'd show him my patents, then. And point out that I also did patent defense (while at Commodore), so I not only know how to write one (I've written several, actually, both mine and for others), I know how to critically examine one against prior art. And I know the real meaning of "obvious to one skilled in the art", not the one the patent examiners often use, just to avoid work.

      Of course, Apple would have DQed me in jury selection.

  • Use him for appeal (Score:5, Informative)

    by Spy Handler ( 822350 ) on Wednesday August 29, 2012 @02:39PM (#41170073) Homepage Journal

    Samsung can use his misunderstanding during their appeal.

    On the other hand, there's no guarantee that the next jury will be any better than this one.

    • by icebike ( 68054 ) * on Wednesday August 29, 2012 @02:46PM (#41170165)

      Jury Misconduct. Plain and Simple.

      If the trial judge doesn't reject this verdict outright, it gets immediately appealed, and taken out of her hands.

      Further Apple's requested ban pretty much is Dead On Arrival with this kind of stuff floating around.
      Usually, on appeal, you don't go back to another Jury.

  • by Anonymous Coward on Wednesday August 29, 2012 @02:44PM (#41170131)

    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: (Score:3, Insightful)

      by Githaron ( 2462596 )
      I would argue that Apple's biggest asset is the apple symbol they stamp on all their products. It seems to have magical properties to make the average consumer deaf to all other alternative products.
    • by msauve ( 701917 ) on Wednesday August 29, 2012 @03:13PM (#41170583)
      I have no problem with finding Samsung in violation of Apple's design patents. Their copying there was pretty blatant. It's not "round cornered rectangles," as is often said by those who can't be bothered to understand the issues.

      The utility patents (bouncing stops and "pinch to zoom"), OTOH, had very easily found prior art [].
    • by Anonymous Coward on Wednesday August 29, 2012 @03:16PM (#41170643)

      One of Apple's biggest assets is their design, look, feel, etc (Trade dress). Did you expect apple to take it laying down?

      Eh, Apple is getting screwed either way. Even if they win, they lose. Before this trial, consumers in the US mentally lumped Samsung in with Motorola, Sony, and a half-dozen other also-rans. Now Apple is claiming "Samsung copies our products!", "Consumers can't tell the difference!". The longer this case drags out, the more coverage it gets, and the more consumers are going to believe those claims through repetition.

      Apple has rebranded Samsung to be in their league. Normally, you can't buy that kind of advertising at any price. Samsung got a bargain at $1B

  • split. (Score:4, Interesting)

    by jythie ( 914043 ) on Wednesday August 29, 2012 @02:47PM (#41170183)
    I am kinda caught between 'shouldn't being a patent holder be considered a conflict of interests and caused the defense to disqualify the person?' and 'wait, a jury member with actual knowledge of a field? that is almost like a peer!'.

    Meh, at this point I try not to follow these case too closely... while I hate software patents and think they need to be abolished, I find the reporting and oversimplification almost as bad...
    • I don't think the fact that there was a patent holder on the jury is a big deal; after all, a jury is ostensibly comprised of your peers. However, the problem is that he was the *only* "peer" on the jury, and in fact acted as an authoritative figure in making decisions. It seems like other jurors deferred to his "expertise" because they were not as well informed as him. There was no "balancing force" behind closed doors, which seems to be why the decision is not nuanced at all, and completely one sided.
    • Re: (Score:3, Insightful)

      by Anonymous Coward

      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.

  • by Missing.Matter ( 1845576 ) on Wednesday August 29, 2012 @02:49PM (#41170205)
    Microsoft Engineering Bill Buxton has this nice collection of multitouch systems [] going back to the early 80s. Pinch to zoom dates back as early as 1982. This collections of prior art makes it plainly obvious that people "skilled in the art" not only would find something like pinch to zoom obvious, the in fact did and implemented it long before the iPhone ever existed.

    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)

    by Anonymous Coward on Wednesday August 29, 2012 @02:53PM (#41170283)

    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.

  • by thebrieze ( 1102809 ) on Wednesday August 29, 2012 @02:53PM (#41170285)
    If a gesture to produce a result can be patented "Pinch to Zoom", maybe I should then patent the following.
    * Swallow pill to cure: Every orally delivered medicine, past and future now owes me big time
    * Push button to Switch on: Every device in existence will now have to invent a new gesture to switch itself on.
    * Click button to Submit: Most websites and applications..
    * Pull handle to open: All doors.

    This isn't about prior art, it is about what is patentable: The implementation (invention) or the gesture to interact with the implementation.
  • This Works Both Ways (Score:3, Interesting)

    by Anonymous Coward on Wednesday August 29, 2012 @02:55PM (#41170321)

    Doesn't this prior art argument apply to Samsung's device as well? If the iPhone processor isn't the same as Samsung uses, then Apple's software doesn't run that processor and no patent was violated.

  • Jury misconduct (Score:4, Insightful)

    by symbolset ( 646467 ) * on Wednesday August 29, 2012 @03:10PM (#41170529) Journal
  • by ThatsNotPudding ( 1045640 ) on Wednesday August 29, 2012 @03:15PM (#41170617)
    In gigantic lawsuits involving the deepest of pockets, there should be an alternative 'fast track' available. Both parties (corporations, natch) pony up 25 million dollars (non-refundable, win or loose) and the initial trial is heard by the Supreme Court instead. With this much money and ego on the line, these suits always end up with the Supremes anyway, so why not pay a voluntary tax and shave of years of pointless, plodding (but billable) years, so we can all get on with progress - which ususally goes to the highest bidder anyway.
  • by Sarten-X ( 1102295 ) on Wednesday August 29, 2012 @03:18PM (#41170677) Homepage

    Of course prior art was misunderstood. It usually is, including the misunderstanding that Groklaw is propagating. For the purposes of dismissing a patent, prior art does not just have to be something similar, but must be something that is, in whole or in part, exactly the same as what's claimed in the patent. If the patent claims a specific processor function that the prior art didn't have, it's not prior art!

    Software is algorithms, and algorithms are mathematics. That's why they should never be allowed to be patented in the first place, which would have avoided all this Apple v. Samsung trial about bounceback anyway.

    The algorithms are not patentable, but their assembly into a system is, just like a screw conveyor is not patentable, but its use in a new material feeder is.

  • Rule 50 (Score:5, Interesting)

    by reimero ( 194707 ) on Wednesday August 29, 2012 @03:21PM (#41170713)

    This case is a prime candidate for a successful Rule 50 motion, which states essentially that in a jury trial, if a court finds that a jury would not have sufficient evidentiary basis to rule as it did, the judge may overrule the jury's decision or, alternately, vacate the jury's verdict and order a new trial. The judge can't use it to impose his or her own opinion; it has to be a fairly clear-cut case in which the jury acted unreasonably or contrary to law. So, for instance, if a jury finds a criminal defendant not guilty and the judge thinks there was enough evidence to convict, that's too bad. In the Apple-Samsung case, though, there was a clear and articulated misapplication of the prior art standard, which causes the verdict to fail as a matter of law.

  • Jury selection FAIL (Score:4, Interesting)

    by McSnickered ( 67307 ) on Wednesday August 29, 2012 @04:10PM (#41171379)

    I was recently called to report for jury duty on a patent litigation trial at a US District Court. The patent involved "computer code" as the judge put it. Weeks before arriving, I filled out a questionnaire which included questions about my occupation, which I stated as Software Engineer.

    As we went through jury selection, it quickly became clear that the attorneys wanted to state their case in their own way without anyone on the jury attempting to re-explain or translate for the others. Out of the first 14 jurors interviewed, only 1 person had had ANY experience with "computer code" (30 years ago in the Navy, and he mentioned COBOL). One side or the other threw that guy off the jury. We didn't get past Juror #15 before they had agreed on the jury pool. I was juror #28!

    I can't believe that Samsung allowed this guy anywhere near the final jury. Well, unless there were 10 other patent trolls in the pool that they needed to get rid of before him.

  • by OrangeTide ( 124937 ) on Wednesday August 29, 2012 @04:29PM (#41171609) Homepage Journal

    Maybe I don't understand the role of a juror. Are they allowed to present new evidence, or cover arguments that were not covered in a case? Isn't it the role of the lawyers on each side to provide details like if prior art can be considered or not?

    It would be like a juror deciding he was an amateur forensic investigator, and chose to add additional evidence based on his observations. Such possibilities don't inspire confidence in our legal system.

    • No, the jurors are not allowed to present new evidence about the case that wasn't brought up in the court room. But they are allowed to judge the case using their personal experiences as a basis. In this case, Hogan juror personally believed prior-art doesn't mean anything, and this is obvious from the fact that he owns a patent for TiVo despite the fact that TiVo was invented half a decade prior. What Hogan did wasn't illegal....

      BUT, Hogan should not have been allowed on the jury, as he clearly has a bia

  • by tgibbs ( 83782 ) on Wednesday August 29, 2012 @05:47PM (#41172483)

    If you actually watch the video, you'll see that the patent he is talking about is the "460" patent, is a Samsung patent on a method of transmitting emails from a mobile phone with a camera []. Indeed, the jury did rule that Apple had not proved that Samsung's patent was invalid []. However, they also ruled that Apple did not violate it, so even if the jury had found Samsung's patent invalid based on prior art, it would not have changed anything.

Information is the inverse of entropy.