Apple v. Samsung: An Expert but Pro-Patent Jury?

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.

60 thoughts on “Apple v. Samsung: An Expert but Pro-Patent Jury?

  1. Not derailing is a good, but insufficient, first step.

    Let’s see such averments by all. If the averments are forthcoming, then evidence, if such does later appear, might have a real legal impact.

    Or is there a reason to read into the situation that you refuse to make such an averment?

  2. Regarding the quality of issued patents falling, I’d agree with Alun Palmer that the curse is key word searching. Some rejections are so cobbled together that on appeal, the case is withdrawn by the supervisory examiner after submission of the opening brief to avoid total embarrassment by the board of appeals. What a waste of money.

    Worse, in recognition of the key word search, patent prosecutors are drafting applications that issue because of a deliberate change in terminology, a practice that is clearly gaming the system.

  3. I will further add that at no time EVER and under ANY pseudonym have I posted in exchange for ANY type of payment, or in affiliation with ANY entity.

    Did you ever accuse anybody of doing otherwise without any evidence?

  4. Let me address something that MM is not addressing by reposting one of my posts from link to patentlyo.com made 4:11 PM on August 17, 2012:

    I don’t think it is meant as a ban against commenting at all, but more so a “let’s make sure that everything is on the up and up.”

    I applaud the move as a step towards clarity that in no way impedes any First Amendment right. Just as you cannot yell “Fire” in a crowded theater, legal discussions when policy matters and money is involved is a volatile mix that needs to be controlled (controlled is not the same as banned).

    I make these comments with no affiliation to, or payment from, any entity.

    I will further add that at no time EVER and under ANY pseudonym have I posted in exchange for ANY type of payment, or in affiliation with ANY entity.

    I welcome such averments by all.

    Dennis, you might put this in your database in case you are subpoenaed in any future court case.

  5. Here’s a little investigation for you, Dennis: what percent of claims reciting a computer are limited to a particular operating system?

    I’m guessing less than 0.1%.

    Think about it.

  6. So you’re also on board for our own little grass roots civil society push.

    You can’t have a civil society when you have people (1) running around changing identities every hour while accusing other people of doing the same thing and (2) using their ever-changing identities to attack the rest of the commenters day in and day out with ad hominems merely because those commenters express coherently defensible opinions that aren’t obviously “pro-patent”, whatever the h— that means.

    Are you actually going to remove the professional sockpuppeteers? Or is it going to be the same old same old?

  7. Perhaps I have misread the jury instructions, but my recollection is that the issue concerning prior art was limited to 102.

  8. Jim – this is an interesting point.  I'd like to here more.  I'm certainly naive about some aspects of patent prosecution, but the basics of getting a patent involve convincing the USPTO (usually a patent examiner) that you have provided an enabling specification and claims that are definite and nonobvious.  These are are the same issues that the jury had to decide in the Apple case. 

  9. There are several levels of levels of dealing with prior art for obviousness.  The first threshold question is whether the evidence (such as a prior patent) counts as relevant prior art.  So, I'm not saying that it would be proper to exclude the evidence from consideration.  However, my point is that the fact that a similar computer program worked on a different operating system does not necessarily render the patent invalid.  It would have been better prior art if the similar computer program had been shown to have worked on the same operating system.  It still would have been an obviousness question, but one that was even easier. 

    I should add a big caveat here because, at this point, I have not reviewed the apple patents in any detail nor have I considered the prior art nor have I watched the foreman video.  So, my statements are made at a level of abstraction about how the law might be applied. 

  10. Dennis has achieved the impossible! anon and I are in complete agreement. On the other hand, it may be a different “anon” …

  11. “The demographics race we’re losing badly,” said Sen. Lindsey O. Graham (S.C.). “We’re not generating enough angry white guys to stay in business for the long term.”

    All the angry white guys are too busy trolling patent law blogs, Lindsey. Of course, they are still obsessed with “integration.”

    LOL.

  12. To be fair, the foreman said “I realized that the software on the Apple side could not be placed into the processor on the prior art and vice versa.”

    That’s not relevant to the obviousness analysis. One of ordinary skill in the art is not a automaton.

    The foreman’s test, which you seem to be supporting, would eliminate all 103 prior art in the electronic arts because hardware systems are rarely compatible–e.g., Apple software would not be prior art to Microsoft patent applications.

  13. Your entire comment flies in the face of years of jury studies that show how seriously juries take the cases they are empaneled to.

  14. Rather naive of Crouch to think that owning a patent bears much relation to knowledge about patent law–as opposed, say, to knowledge about the administrative hassles involved in getting a patent. The jury’s actual ignorance of patent law as well as the superficiality of its decision-making–under the influence of the foreman, apparently–is reflected in the interview with the foreman that was published on the Bloomberg web site.

  15. NAIL MEET HAMMER.

    This is unquestionably my experience as well.

    And to boot, the worst references are the ones that Examiners tend to stick with even when they get an RCE and chance for a new search. The failure to find anything even remotely relevant (which I sometimes do for them to move prosecution along) indicates that they’re pocketing the additional search time and just repeating bad rejections.

    It’s sooooooo obvious when I get a keyword search. You get a rejection combining a barber chair, a hospital information management system, and an ink pen. You kind of look at it for a bit like “what the heck do these things have in common?”…… Then it hits you: your claim terms are what they have in common.

  16. If you want to see prior art of Apples alleged design patent, check out the 2006 LG Prada phone next to an iphone 4….when you do you will instantly see that Apples have very obviously copied the LG phone. This was part of the prior art that Hogan and the jury ” skipped because it was bogging us down “….if he is a patent expert as discussed in the article, how come he missed this?….The fact is before you can find someone guilt, you first have to establish that a crime has been committed whi9ch in patent law means check the validity of the patents first. Had they done that, they would have found no infringement because prior art, in this case the LG phone, a Sony phone and others, makes Apples design patent obvious and therefore invalid. There are also many other point of prior art in other Apple’s patents, but this one is enough to show that the verdict has to be legally questioned and will very likely be over turned.

  17. If we were talking about a specific piece of code, you might have a point. But we’re not talking about that at all. We’re talking about user interface functionalities that are claimed using hand-wavey language because “any skilled programmer” can implement it without undue effort. There is no “interchangeability” issue. None.

  18. Notably, what we need is the ability for the examiners to plug the whole specification and claims into a search engine and have the most relevant documents found. I have actually seen search engines that can do this. They are a marvel.

  19. MM, agreed. He clearly had an agenda of his own which affected the case in more than a minimal fashion. I am not an expert on whether this is cause for a new trial, but I think it should be.

    Mr. Hogan’s obvious agenda in this case is also why I think we need fewer patent attorneys on the Federal Circuit, not more. Rich was a patent attorney and he was a disaster caused not because he was not well educated, or a good attorney or anything of that ilk. It was because he had agendas, and that clouded his jurisprudence.

  20. To be fair, interchangeability is at least relevant to the obviousness analysis.  Pretty clear that if it was simply plug-and-play then it is more likely to be obvious to plug it in. 

  21. Foreman “The software … 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.”

    I wonder if this joker used the same argument to get his doo-doo patent granted.

    Wouldn’t surprise me at all.

  22. Looks like the jury foreman misinterpreted the legal meaning of “prior art” and persuaded the jury to do likewise.

    “[Foreman] 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.”

    “[Groklaw] 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.”

    link to groklaw.net

  23. It’s one thing to know its wrong

    It’s one thing to know it’s actionable. It’s another thing to know it’s wrong.

    This guy “knows” it’s wrong because it has the potential to hurt his personal finances. So basically he championed a huge monetary award that he might have known (or decided not to know) was wrong, because it presented a favorable risk/reward profile for him.

    So how do we know it’s wrong?

  24. It’s one thing to know its wrong and decide to do it anyway because of a risk/reward calculation.

    It’s another thing altogether to champion the known wrong.

  25. My input as to lower quality stems from the keyword search as well – but add in the not bothering to read the specification and only doing an initial search on keywords period.

    Although admittedly this has been getting better, far too many first office actions are rejections based on cobbled references that have no business being put together by anyone even remotely familiar with the art.

    My clients should get a rebate from the Office for this muck.

  26. “Because it’s Lawful Stup!d and anti-capitalist. ” You must be kidding. The capitalists I know want to see that the new invention is likely patented before plunking their capital down to fund development, production and marketing.

    “Not to mention circular if the patent being infringed is invalid or unenforceable.”
    That may be the case, but you gotta prove it to be invalid or unenforceable, and apparently our juror was not convinced by the invalidity proof. So what? that is what our system does: it gives factfinding to laypeople who make up juries. Been that way for, …hmmm …umpteen centuries??

    “Exceeding the speed limit isn’t always “not the right thing to do” either. Nor is breach of contract. We all do it when it’s economically or otherwise justified, or even when it presents a favorable risk/reward. Or even when we think the law is wrong and should be changed.”
    Nah — most folks speed if they think they can get away with it because there are no cops around. Infringers infringe if they think the little guy does not have the cash or cahunas to sue.

    “I can’t even begin to count the ways that the sentiment of “obey the law because it’s the law” is un-American. Pick up a history book.”
    That ‘logic’ justifies robbing a liquor store.

  27. Ooooh, it’s so technical that a biochemist can barely understand it.

    wherein the system controller module provides a user-selectable option of editing one or more sections of the one or more video files, and wherein the system controller module does not include a separate program information receiver;

    I assume this is the allegedly magical part of the claim? All the rest of that junk seems to be ancient history.

    I’m really, really impressed.

  28. I responded to the survey, but I’d like to go on the record publicly to say that searches by Examiners are not of very high quality, or even of as high a quality as they once were.

    I am on the patent prosecution side, and regret to say that I am not surprised that my colleagues think the patents they obtain are stronger than is really the case.

    I spent many years as a searcher before getting a registration number, and worked as much for litigators as for prosecutors.

    Generally, searchers spend from half a day to a full day on a novelty search versus anything from three days upwards on a validity search. IME, if you put in the latter amount of time, then the odds of finding art good enough to knock out most patents are around 50/50 or better, and verdicts tend to support my experience.

    Examiners, OTOH, tend to perform a lower quality search than even the average novelty search carried out by most professional searchers. I’m not saying that to knock the Examiners, and no doubt they will point to time constraints, but that is my opinion.

    As to why the quality of Examiner searches have fallen, the answer is the availability to them of keyword searching. If you add a keyword search to a manual search, it improves the results, but if you replace a manual search with a keyword search, it results in lower quality without fail. Saves time of course, but at a cost.

  29. Aharonian informs me that it’s US 7,352,953.

    1. A video system comprising: a system controller module, consisting of one tuner, wherein the tuner is configured to receive a process one or more input signals and provide one or more video signals, with at least one processor module coupled to the tuner, wherein the at least one processor module is configured to receive and process the one or more video signals from the tuner and to provide at least one output video signal, with a decoder coupled to the tuner, wherein the decoder is configured to receive and decode the one or more video signals from the tuner to provide at least one decoded video file, and a memory unit configured to store the at least one decoded video file, wherein the system controller module is operative to receive and process the one or more input signals to provide the one or more video files, wherein the system controller module provides a user-selectable option of editing one or more sections of the one or more video files, and wherein the system controller module does not include a separate program information receiver; an internal fixed storage device operatively coupled to the system controller module, wherein the internal fixed storage device is configured to store the one or more video files from the system controller module; and an internal removable media storage device operatively coupled to the system controller module, wherein the internal removable media storage device is configured to store the one or more video files from the system controller module or the internal fixed storage device.

  30. Who wants to say he is wrong… and why?

    Because it’s Lawful Stup!d and anti-capitalist. Not to mention circular if the patent being infringed is invalid or unenforceable.

    If nobody ever infringed a patent, we wouldn’t have cell phones at all until all the essential patents expired. There are tens of thousands of them, owned by a variety of mutually hostile companies.

    Exceeding the speed limit isn’t always “not the right thing to do” either. Nor is breach of contract. We all do it when it’s economically or otherwise justified, or even when it presents a favorable risk/reward. Or even when we think the law is wrong and should be changed.

    I can’t even begin to count the ways that the sentiment of “obey the law because it’s the law” is un-American. Pick up a history book.

  31. In this thread one man handed someone a billion dollars that probably never should have even changed hands solely to help out a system that he himself stands to benefit from.

  32. Vel Hogan: It was about a particular, ah, patent, ah, the ’460 patent, and whether or not the prior art really did invalidate that pattern, that patent and so with that moment I had, I realized that the software on the Apple side could not be placed into the processor on the prior art and vice versa.

    Emily Chang: Um hmm.

    Vel Hogan: And that means that they’re not interchangeable and that just cha…, that changed everything right there.

    Good lord.

  33. to the jury mind, the lawsuit was really about America v. Korea in a tough economy. perhaps, the jury did not foresee how much they will have to pay more for the phone after they allow apple to monologize the shape of “wheel.”

  34. Velvin: “When I got in this case and I started looking at these patents I considered: ‘If this was my patent and I was accused, could I defend it?’” Hogan explained. On the night of Aug. 22, after closing arguments, “a light bulb went on in my head,” he said. “I thought, I need to do this for all of them.”

    Where did they find this clown?

  35. You have to remember that this was not entirely a utility patent case. Samsung was also found liable for inferencing design patent and trade dress. The design patent statute explicitly allows for disgorgement of profits. Or, in other words, causing pain to the infringer.

  36. I remember there was an “expert” on design patents who once posted here that the simplest designs were the most difficult to create.

    That still cracks me up.

  37. “Foreman Velvin Hogan, 67, told Reuters that jurors were able to reach a quick verdict—they did so on the third day of deliberations—because some had legal and engineering experience. He told the San Jose Mercury News that the intent was to send a message to Samsung that “patent infringing is not the right thing to do.” “We wanted to make sure the message we sent was not just a slap on the wrist,” Hogan told Reuters. “We wanted to make sure it was sufficiently high to be painful, but not unreasonable.”

    LOL. Another old white guy with a self-interested ax to grind in the world o’ patents. There’s an endless supply.

    Hogan’s granted patent covers a “method and apparatus for recording and storing video information.”

    Someone please post the claims.

  38. Fyi, above comment is not from the usual “MM”.

    There can be little doubt about this mistake (the other obvious mistake being their selection of attorneys).

  39. Seems Samsung’s biggest mistake may have occurred during jury selection. Future defendants may be very reluctant to have an inventor-patent owner on their jury.

  40. This is what concerned me about juror Hogan:

    “Foreman Velvin Hogan, 67, told Reuters that jurors were able to reach a quick verdict—they did so on the third day of deliberations—because some had legal and engineering experience. He told the San Jose Mercury News that the intent was to send a message to Samsung that “patent infringing is not the right thing to do.” “We wanted to make sure the message we sent was not just a slap on the wrist,” Hogan told Reuters. “We wanted to make sure it was sufficiently high to be painful, but not unreasonable.”

    So, according to Hogan, the world did not know that “patent infringing is not the right thing to do” and it was his job to teach that lesson and “send a message” and with a $1 billion exclamation point. Also, according to Hogan, the new standards for compensatory damages are “not just a slap on the wrist” and “painful but not unreasonable.” I am guessing that these standards were not found in the jury charge.

    Hogan is not alone in going off the reservation in patent cases. He is just one of the more vocal ones.

  41. While I agree with your analysis of the jury really having more patent knowledge than the judge and litigators in this case, it’s important to note that the infringement was for design patents, not utility, so there were no real claims, and examination for design patents is far, far poorer than for utility patents. And Samsung’s counterclaims were for utility patents, for which the claims never really mattered since the jury found exhaustion.

    I’m a strong patent proponent, but we have to recognize that design patents don’t quite have the rigorous examination and claim construction that utility patents do.

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