By Dennis Crouch
The Apple v. Samsung verdict has generated a significant amount of talk about the patent system. One set of comments focuses on the US System of lay juries and what this decision tells us about that approach for patent cases. As it turns out, the jury in the Apple case might be better classified as an expert jury. The reason for this shift is that the jury foreman – Velvin Hogan – is a patentee and current patent applicant. Hogan's granted patent covers a "method and apparatus for recording and storing video information." Now, Hogan is not simply an intelligent silicon-valley engineer who happens to be listed as a patentee. Rather, Hogen owns his patent and went through the six-year process of obtaining patent protection. I would suspect that Hogan understands patents and the patenting process at a level much deeper than 99% of the population – including most federal judges. Hogan was just one person on the nine-member jury, but I also suspect that his voice was the most influential as evidenced by his nomination as jury foreman.
The fact that Hogan is knowledgeable about the patent system does not lead to any conclusion about whether he has any natural pro or anti patent bias. Someone knowledgeable about the system will know that the USPTO often conducts low quality prior art searches and incorrectly issues many patents that it should not. This knowledgeable person will also know that, despite their mistakes, the USPTO does conduct a substantial review of every patent claim before issuing a patent. This knowledgeable person will also understand that the precise language of patent claims mean that many similar products will not actually infringe. My friend, Sir Robin Jacob is exceedingly knowledgeable about the patent system, but sees a patent as little more than a license that is required before suing someone for infringement. In his view, validity and infringement are then to be proven in court. Here in the US, we tend to give more credence to issued patents, but that credence is limited.
It turns out that Hogan is more than knowledgeable. He also has a vested interest in valuable patent rights and his patent experience (as far as I know) has focused primarily on using the patent system to protect his own inventions. This setup is one that could easily lead to some amount of pro-patentee feels. Although I'm very much still working on analyzing the data, my recent survey of about 900 self-designated patent law professionals give some credence to this idea. The survey asked readers to speculate on the percent of patents that the USPTO issues despite them having invalid claims. The survey also asked respondents to indicate whether they tend to spend more time thinking about their own (and their clients') inventions/patents or instead spend more time thinking about patents held by others. Results: Respondents who focus on patents held by their own clients were much more positive about PTO issued patents than their counterparts who focus on patents owned by others. In particular, when asked to speculate, the first group indicated that the percent of wrongly issued patents was significantly lower than did the second group. This result also correlates with the behavioral economics literature as an "ownership bias." Lots and lots of studies show that we tend to place more value on items that we own and less value on items that we don't own.
Back to the Apple case: Despite the suggestion of potential bias, I don't think we can say that there was any bias in this case. In particular, since both Apple and Samsung were asserting patent right a truly pro-patentee ruling would have enforced the patents of both parties. What is interesting is that Mr. Hogan appears ready to talk about his experiences – that means that this case will be an excellent case study for trial lawyers going forward.