LWN: Comments on "There's a Verdict in Apple v. Samsung (Groklaw)"

There's a Verdict in Apple v. Samsung (Groklaw)

xyzzy — Thu, 13 Sep 2012 22:42:11 +0000

It takes a sufficient number of compliant jurors as well as a foreman to get a quick slapdash verdict. I was a foreman on a jury trial here in NZ and the jurors definitely ranged from "will go with whatever everyone else seems to think" to "I have to think this through properly" to "this guy has to be found guilty/not guilty no matter what evidence I hear". Thankfully most were in that think-this-through group.

If your fate is being decided by a jury, pray that you get enough people who care about doing a good job, and/or a foreman who will *make* everyone go through a proper decision process.

There's a Verdict in Apple v. Samsung (Groklaw)

paulj — Fri, 07 Sep 2012 08:02:15 +0000

The accounts I've read from jury members in that case suggest the jury had plenty of different points of view and they debated their way to a conclusion.

Going nuclear

JanC_ — Thu, 30 Aug 2012 18:25:33 +0000

I think what drag means is that the MP3 algorithm is safe to use as long as you don't use it in a device that compresses or decompresses digital audio samples.

So doing the computations mentally or on paper is okay, doing it in any device is supposedly covered by the patents. Which is totally absurd, of course, but unfortunately it is how patent law is interpreted currently.

Personally, I think a general computation device that can be programmed by its user to do many different things should not be covered by such patents, as the computer is only used there as a help to do the computations faster. (And of course "general" means that you can run on it whatever you want, not a locked down & restricted system... ;) )

There's a Verdict in Apple v. Samsung (Groklaw)

Wol — Wed, 29 Aug 2012 16:32:29 +0000

Then the US is going to suffer.

What's going to happen when companies decide that the US market isn't *worth* going after? If HTC and Samsung decide that they're going to abandon it for Europe and Asia?

If all that's available in the near future in the US is Apple and Nokia, then there's going to be a LOT of grey importing.

Cheers,
Wol

There's a Verdict in Apple v. Samsung (Groklaw)

dlang — Tue, 28 Aug 2012 18:31:42 +0000

you can ask anything you want, it may be that the Judge decides not to do anything with the request, but you can ask :-)

There's a Verdict in Apple v. Samsung (Groklaw)

Kluge — Tue, 28 Aug 2012 17:28:21 +0000

>actually, during the trial the Juror's can send questions to the Judge. A couple years ago when I was on a drunk driving case, I did exactly that, and after the next break there was testimony on exactly what I had asked about.

Wow. I had no idea that such things happened. I thought that jurors were only allowed to ask about evidence already introduced and points of law. I wonder how general this is in US jurisdictions.

>There are a LOT of landmines out there if the Jury starts investigating.

True. But as long as jury questions are mediated by the judge, it doesn't seem like that much of a problem (except for the judge, that is).

Going nuclear

man_ls — Tue, 28 Aug 2012 12:49:57 +0000

It was not personal use but corporate use, in fact developers using the product. Here is an example.

Going nuclear

hummassa — Tue, 28 Aug 2012 11:25:56 +0000

Do you have a link? I was under the impression that US patents, like our patent law here in Brasil, did not apply to personal use.

Going nuclear

man_ls — Tue, 28 Aug 2012 11:02:18 +0000

That is a good one: at the next WWDC Apple is going to present the iPaid 2 Much.

Going nuclear

HenrikH — Tue, 28 Aug 2012 10:58:13 +0000

No, I think that pure software patents are allowed in the US. Just look at the various compression patents: mp3, gif etc. A Microsoft SQL _user_ in the US got hit and lost a patent case due to a function in MSSQL.

Going nuclear

jezuch — Tue, 28 Aug 2012 07:50:12 +0000

From Glyn Moody's article:

> An optimist would say that it has enjoyed some of the best global advertising in recent years, and that $1 billion is a fairly low price to pay for that. After all, there can't be many potential buyers of smartphones who are not now aware that Samsung is a rival of Apple, and in many respect highly similar. Some of them might well take a look at Samsung's offerings, and might be pleasantly surprised at the lower price of many models compared to Apple.

And it looks like he's exactly right:
https://plus.google.com/114476892281222708332/posts/246sr...

> Husband: "... Samsung's iPad is the same as Apple's iPad, and I paid how much for the Apple one? Honey, I told you they were a ripoff", after looking up the Samsung tablet on his iPhone.
> Wife: "Oh wow," looking at the screen, "... that's a lot cheaper. Think we can return it?"

Looks like Apple has blown off its own foot.

There's a Verdict in Apple v. Samsung (Groklaw)

dlang — Tue, 28 Aug 2012 06:11:01 +0000

> did the Jury actually read all 100 pages of instructions?

remember that the Judge read the instructions to the Jury aloud. Also, many of those pages were very short. Each instruction has it's own page, so many of the pages are a paragraph or so. printed normally they would have been about 30 pages (still a lot)

There's a Verdict in Apple v. Samsung (Groklaw)

dlang — Tue, 28 Aug 2012 06:09:14 +0000

actually, during the trial the Juror's can send questions to the Judge. A couple years ago when I was on a drunk driving case, I did exactly that, and after the next break there was testimony on exactly what I had asked about.

This was a question to an expert witness.

However, remember that as much as you may want to know something, there may be legal reasons why it's not allowed to matter.

Again in the drunk driving case, while the Jury was deliberating, one Juror mentioned that she wished that she knew why the defendant didn't take the stand, and several of us pointed out that the Judge had told us that we weren't allowed to speculate on that. There are a LOT of landmines out there if the Jury starts investigating.

a Grand Jury is a different story, they are empowered to do exactly that, but they don't decide that someone is guilty, they only decide that someone is likely enough to be guilty that the state is allowed to file charges against the person.

you really don't want the people directing the investigation to be the ones deciding guilt.

There's a Verdict in Apple v. Samsung (Groklaw)

pr1268 — Tue, 28 Aug 2012 04:50:54 +0000

This article seems to sum up some key points: It's not just the U.S. Legal System to blame, but also a quot;dysfunctional" patent system. (Actually, Mr. Hiltzik asserts that the USPTO is "understaffed" and "underfunded"—likely explaining how bogus patents all-to-often get by them.) I agree. If the USPTO hadn't granted the patents to Apple, then this lawsuit mess wouldn't have happened to begin with.

Of course, now there appears to be all sorts of legal criticism in how the verdict was reached (did the Jury actually read all 100 pages of instructions?).

There's a Verdict in Apple v. Samsung (Groklaw)

Kluge — Tue, 28 Aug 2012 04:25:15 +0000

>Agreed, but if the two sides don't disagree on a fact, then the Jury should be informed of the fact if it affects their deliberations (for example, when determining the amount of a penalty), but there's nothing that they need to decide related to that fact.

Yes. I'm certainly in favor of the bias being toward giving the jurors more information, not less.

>In any case, Jurors are not supposed to be introducing evidence or providing testimony on 'how things work'.

It sounds like the jury foreman did cross a line in this case. But jury decisions will inevitably be informed by the knowledge and experience of the jurors. Which is why counsel are given so many opportunities to exclude potential jurors. I can't imagine why Samsung didn't bounce this guy.

>Yes, Juror's have the option of sending a question to the Judge, but since that goes through the foreman, it really doesn't work in this case.

I think that interfering with another juror's desire send a question to the judge would be an even grosser violation than "advising" the jurors on patent law.

My point was that it would be worthwhile to allow jurors to make requests for additional *evidence*, not merely clarifications of points of law, as is currently the case. While this would certainly have downsides, I think it would be preferable to the current "management" of the jurors.

There's a Verdict in Apple v. Samsung (Groklaw)

bojan — Mon, 27 Aug 2012 22:35:50 +0000

> including one viewpoint of a patent holder

Please do yourself a favour and read his patent:

http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&...

Obvious, non-inventive, too general and filed 3 years after Tivo was a product.

More like viewpoint of a patent holder wannabe...

There's a Verdict in Apple v. Samsung (Groklaw)

dlang — Mon, 27 Aug 2012 21:55:49 +0000

>> If it's a matter of "the undisputed facts are this, how does the law apply", it's something that the Judge is supposed to decide.'

> This case is complicated by the fact that the Judge is deciding *which* fact the jury will be evaluating. And that decision will often decide the outcome.

Agreed, but if the two sides don't disagree on a fact, then the Jury should be informed of the fact if it affects their deliberations (for example, when determining the amount of a penalty), but there's nothing that they need to decide related to that fact.

Sometimes a fact becomes "undisputed" at the end of closing arguments. One side may claim some fact, and if the other side doesn't present any contradictory evidence, that fact is assumed to be proven. This came up during the Google/Oracle case where there were some things that Google decided not to spend time arguing, and at the end of the trial Oracle filed a motion to have the Judge declare those items decided as there were no facts in dispute (and the motion was granted)

In any case, Jurors are not supposed to be introducing evidence or providing testimony on 'how things work'. The fact that in this case, reports are saying that the Jury Foreman did exactly that doesn't indicate that the Jury deliberations need to be more interactive, it indicates that the Jury foreman was doing something that he was not supposed to be doing.

Yes, Juror's have the option of sending a question to the Judge, but since that goes through the foreman, it really doesn't work in this case.

one thing to think of for those who say laymen can't understand the technology

dlang — Mon, 27 Aug 2012 21:47:56 +0000

having a "Special Master" to investigate and provide explanations and education to the court is very different from having that person decide the entire case.

Part of this case is "are the patents valid", but there is also a substantial part of this case that boils down to "did Samsung intend to infringe" and other "who knew what when and what were they thinking" types of questions. It's exactly this type of thing that a random jury should be deciding, not a panel of experts.

I raised the example of medical malpractice because I was on a Jury for such a case last year. And afterworlds I spoke with the lawyers and they mentioned that there has been talk among the medical community questioning if Jurors are able to understand enough of the medical terminology and other information to be able to make a fair ruling in such cases (among other things, just because there is a test that could have been run, and with 20-20 hindsight may have provided information that changed a diagnosis, was the Doctor negligent in not ordering the test)

This sounds eerily similar to the logic that laymen can't handle the complexities of a case like the Samsung/Apple case.

There's a Verdict in Apple v. Samsung (Groklaw)

raven667 — Mon, 27 Aug 2012 21:28:32 +0000

I believe it was a 9 person jury, randomly selected, and they did represent different viewpoints, including one viewpoint of a patent holder. Do you really think that juries should have their deliberations challenged by the lawyers of the case or did you just say that because you don't like the outcome? Fairness doesn't mean always getting what you want or everyone always agreeing, in fact that would be definitely un-fair.

Going nuclear

drag — Mon, 27 Aug 2012 21:19:42 +0000

I am a bit shady on the details and could quite easily be wrong...

I believe that 'pure' software patents technically are 'illegal' in the USA also. Just like in the EU they are not patentable. However the combination of 'software' and 'hardware' creates a patentable invention.

So to get around this limitation every single 'software patent' references many times to the fact that it involves running on actual hardware. Since software is nothing without hardware then this means that pretty much any software algorithm is patentable as soon as you try to actually use it.

The key thing is that you can't try to make sense of it. Patents and what is patentable and is not patentable is completely arbitrary. People try to draw lines about physical inventions or algorithms and such things, but that isn't really relevant. It's purely 'decide by committee' law that is not based on any naturally occurring concept or natural practice by human beings... therefore common sense doesn't apply.

There's a Verdict in Apple v. Samsung (Groklaw)

geofft — Mon, 27 Aug 2012 20:30:24 +0000

I am. This site managed to grow a persistent troll named slashdot, and the community recently made it clear that they were unwelcome. I was curious if reddit was slashdot under another pen name.

There's a Verdict in Apple v. Samsung (Groklaw)

Kluge — Mon, 27 Aug 2012 20:04:05 +0000

Nevermind, it looks like Ars Technica has the goods.

There's a Verdict in Apple v. Samsung (Groklaw)

Kluge — Mon, 27 Aug 2012 20:01:30 +0000

Given that a (12 person?) jury does *not* and cannot represent many viewpoints, and in this case appears to represent the viewpoint of the single self-appointed expert who was the jury foreman, whose views could not be challenged in court by Samsung, I don't see how this verdict is "more fair" in any way.

There's a Verdict in Apple v. Samsung (Groklaw)

Kluge — Mon, 27 Aug 2012 19:58:10 +0000

'The thing to keep in mind is the split between what is the Judge and the Jury are each supposed to be doing.

If it's a matter of "the undisputed facts are this, how does the law apply", it's something that the Judge is supposed to decide.'

This case is complicated by the fact that the Judge is deciding *which* fact the jury will be evaluating. And that decision will often decide the outcome.

Also, this case raises a tricky issue. In court, the structure of the trial is supposed to ensure that all evidence will be critically examined by the opposite side. That is *not* the case for "evidence" introduced by a member of the jury during deliberations. Of course, you can't prevent jurors from introducing their own knowledge and experience. However, I think this case (if yokem_55's statement about the jury foreman is correct) demonstrates that the in court portion of the trial and jury deliberations need to be more interactive. For instance, if the jury foreman introduces "facts" from his own experience, another member of the jury should be able to ask questions of the judge or counsel.

In general, I don't see why jurors can't ask questions about facts as well as points of law.

one thing to think of for those who say laymen can't understand the technology

Kluge — Mon, 27 Aug 2012 19:36:45 +0000

I'm not suggesting that professional panels replace courts for these kinds of torts, but your example has a significant flaw.

There's a difference between this case and a medical malpractice case. In a malpractice case, you have a doctor (or other medical professional) on one side and a member of the (non-medical) public on the other. Any chauvinism on the part of the medical community will favor one side only.

In the case of Apple vs Samsung, both sides consist of multinational corporations and their associated lawyers and software developers. It's not clear that a panel of their professional peers would favor one over the other.

I do think that there should probably be greater use of special masters in this kind of case, but that's not a guarantee against bias.

There's a Verdict in Apple v. Samsung (Groklaw)

Kluge — Mon, 27 Aug 2012 19:30:17 +0000

Do you have a link for that (the jury foreman being a patent holder)?

Going nuclear

dashesy — Mon, 27 Aug 2012 17:37:09 +0000

Software patents are disgusting and these iTouch, iPinch ones in particular are even more so. It is funny how software patents are worded starting with "method and apparatus" as if it is a machine they describe.

Going nuclear

man_ls — Mon, 27 Aug 2012 17:15:57 +0000

I have found information clearer than Groklaw's massive document collections from Glyn Moody: apparently the patents include several software items, e.g. one covering:

touchscreen interactions, including dragging documents, multi-touch, pinch-to-zoom, twist-to-rotate and that nifty little scroll bounce when you’ve reached the end of a list of items

Disgusting. Interesting article, by the way.

There's a Verdict in Apple v. Samsung (Groklaw)

jmalcolm — Mon, 27 Aug 2012 14:44:20 +0000

I assume that you are familiar with Reddit.

There's a Verdict in Apple v. Samsung (Groklaw)

donbarry — Mon, 27 Aug 2012 04:49:25 +0000

Aristedes: have you actually read accounts of 18th and 19th century court proceedings? The jurors got a much fuller dose than in today's proceedings.

dlang: the division between the trying of facts and law is not so clean cut. John Jay, first supreme court chief justice, in an unusual case with the justices actually hearing a case before a jury, in charging the jury (Georgia v. Brailsford, 1794), spoke, "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision - you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy".

Going nuclear

Cyberax — Mon, 27 Aug 2012 02:06:01 +0000

They're easy to work around, though.

Going nuclear

man_ls — Mon, 27 Aug 2012 01:50:38 +0000

Oops, I stand corrected. Suddenly it is not funny anymore! Design patents are valid in Europe, and seem to be even a bigger mess than software patents.

Going nuclear

Per_Bothner — Mon, 27 Aug 2012 01:34:54 +0000

Most of us euro-geeks we have not suffered the evil consequences of software patents yet.
If I understand this correctly, this case was not (primarily?) about software patents but about design patents, a very different kind of beast.

There's a Verdict in Apple v. Samsung (Groklaw)

bojan — Mon, 27 Aug 2012 00:49:02 +0000

In fact, if this article is correct (http://arstechnica.com/tech-policy/2012/08/apple-v-samsun...), he was instructing other jurors about the patent system, using his own experience. This, according to at least one other juror, made it "easier" to decide.

BTW, the jury foreman holds a patent on a DVR, filed in 2002 (Tivo was shown at CES in 1999). No, really, it is actually a patent on a DVR!

I'm really not surprised that the patent system is a complete mess when generic and obvious stuff like that can be patented after working machines are being offered for sale. And I'm also not surprised he convinced other jurors that Apple's patents are oh so precious.

one thing to think of for those who say laymen can't understand the technology

dlang — Sun, 26 Aug 2012 22:09:18 +0000

If yo think that laymen can't understand the issues for a technical case and it should instead be decided only by technically trained and certified people, think about how you would feel if this were to happen in other fields

How much would you trust the results if medical malpractice cases could not go to trial and were instead always decided by a board of medical professionals.

Or if all financial related cases were decided by a board of finance people.

Yes, the "jury of our peers" approach does have problems, but all attempts to form "panels of experts" to evaluate things have had much bigger problems.

There's a Verdict in Apple v. Samsung (Groklaw)

dlang — Sun, 26 Aug 2012 21:52:30 +0000

The thing to keep in mind is the split between what is the Judge and the Jury are each supposed to be doing.

If it's a matter of "the undisputed facts are this, how does the law apply", it's something that the Judge is supposed to decide.

The Jury comes in when the facts are in question (including things like "this undisputed action was done as the result of this disputed motivation"

This calls for deciding what is probably true in the face of conflicting statement, In most cases with the people making the statements having some self-serving motivation for their statement.

The Jury needs to not only listen to what is said, but evaluate the reliability of the people making the statement.

This is not something that it is good for a single person to do.

The hard thing in a trial like this is to separate out the two aspects, have the Judge decide the matters of Law, and have the Jury decide the matters of fact (i.e. what probably really happened). Trials try to work with the Judge deciding the Law matters by allowing the Jury to only hear the relevant information, and the laws related to that information to keep them from straying 'out of bounds' into areas that they don't have the legal background to understand.

There's a Verdict in Apple v. Samsung (Groklaw)

robert_s — Sun, 26 Aug 2012 16:53:26 +0000

Not if it means the foreman, of all people, leads the jury through a quick slapdash verdict without heeding judicial instructions.

There's a Verdict in Apple v. Samsung (Groklaw)

raven667 — Sun, 26 Aug 2012 16:49:30 +0000

One might not agree with their conclusion but I think that this makes the jury verdict even more fair, more like a jury of peers. Having more viewpoints represented is more fair but it means that you have to accept decisions that not everyone likes.

Going nuclear

man_ls — Sun, 26 Aug 2012 15:05:41 +0000

Most of us euro-geeks we have not suffered the evil consequences of software patents yet. Or at least not in full force. If this nuclear winter scenario develops, we will be able to watch the evil consequences of software patents from a distance, without suffering. Then we will have a solid argument against them when they try to reenact them once more via some sneaky EU directive. We have not won the war against them, you know.

To be honest it will be mostly sad to watch, as this whole swpat farce has been so far.

There's a Verdict in Apple v. Samsung (Groklaw)

robert_s — Sun, 26 Aug 2012 14:14:12 +0000

"It turns out that the foreman of the jury is a patent holder and in the deliberations he used his own experience as a patent holder to argue successfully that the prior art Samsung argued invalidated Apple's functional patents didn't apply."

Not only that - it turns out the foreman is a holder of a rather silly trivial patent and thus has a vested interest in setting a precedent for trivial patents being upheld.

He has even admitted almost as much, in saying that he specifically wanted to "send a message" with their judgement.