I think it would be near impossible for someone who has passed the patent bar to genuinely set aside their "specialized knowledge" when hearing a patent case. In fact, I will flat-out assert that it's impossible, because when you become a domain expert in that way, you internalize a great deal of the training. If one side flubs an explanation of prior art or of some other term of art, the rest of the jury may be confused or be under a misapprehension and the patent attorney will not be. You'd have to be both unusually self aware and a saint to i) recognize the misapprehension you would be under in that situation if you didn't have domain knowledge, and ii) try to reach a decision as if you were under that misapprehension.
In other words, I think it's a complete fiction to tell people to set aside professional training and the knowledge and background that comes with that when they're acting as a jury member. If you were hearing a civil case involving programming, would you be able to set aside your knowledge of programming and hear the case as if you were a layperson? I wouldn't.
Not only do I agree, I'd take it a step further: the jurors should be expected to use their specialized knowledge. Yes, they should rely primarily on what's presented, but the application of knowledge is important. Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful?
> Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful?
It's not really that domain knowledge isn't important or useful; it's that this isn't the place for it. If you have domain knowledge, its inclusion is meant to contribute to the process at the point of legislation, not the point of interpretation. If your domain knowledge disagrees with the law, then you should get the law changed, not misinterpreted.
If, like in Apple vs. Samsung, one juror has specialized knowledge and uses that to act as an authority, he's basically disemboweling the entire point of three branches of government, each disarming each other. He ignores the law, chooses his own interpretation, and gets it executed. If that's not clear, this is the "judge, jury, and executioner" powers vested in a single person.
> Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful?
The point of forbidding juror's own personal ideas about the law from the jury room, as you suggest people must do, is to reduce the likelihood that people screw it up. So there are less instances of this happening.
You're somehow arguing that the foreman's error, based on his own beliefs, is evidence of what already happens anyway (we can't do any better) and thus extrapolating that people should use their beliefs more.
Why don't we spend a little more energy and time teaching jurors how to read jury instructions? Teaching them to be confident enough with that reading to challenge bullshit like the foreman here presented? Make them better jurors, not just throw our hands up and say "use whatever you want when you deliberate, the trial was just for fun anyway."
I'm quite skeptical as to how you could ever come to a fair conclusion with a juror that isn't supposed to know about the field specifically.
How are you supposed to make an argument that some software patent is trivial to someone that hasn't programmed a single line in their life? It would take years to educate someone as to how computers and languages work for them to get any reasonable idea about what the case really is about.
> I'm quite skeptical as to how you could ever come to a fair conclusion with a juror that isn't supposed to know about the field specifically.
If the burden of proof wasn't solely on the lawyers, we'd end up with situations where jurors apply their own preconceived notions or misguided "knowledge" towards the case, much as the foreman has done here.
This seems to echo the reasoning for the patent system's definition of prior art. The burden of proof for prior art is scoped to the patent system itself. Something is prior art only if it's an obvious extension of something already patented, not if something else similar but unpatented exists in the wild. Not sure if this applies to the design patents of this case though.
> Something is prior art only if it's an obvious extension of something already patented, not if something else similar but unpatented exists in the wild.
Really? In the Reddit AmA thread by a patent examiner a month ago, he said that works publicly released anywhere in the world prior to the filing count as prior art, and gave the example of paper fans in Vietnam. The issue is that the patent examiners don't have the time or ability to seek out every possible piece of prior art in the world.
Hopefully the state of software patents can be changed at the source, when they tighten patent granting. But the patents already in the wild will need to be re-evaluated and invalidated in the court system, which is why judges like Alsup are so important.
One way to lower the workload on the patent office would be to allow non-parties to file objections before any patent is granted. This way Google could have a department that researches every new patent claim by Apple and file a counterclaim to the patent office showing prior art anywhere in the world.
Letting private companies with real interest in each patent given to their competitor allows a much thorough research.
I really can't see anything bad happening in a process that allows unchecked intrusion into one's IP grants by one's competitors.
The problem isn't so much the patent process, it's scope. Things that shouldn't be patentable are. You have the obvious, like software; but you also have the more challenging like a slight modification to the way a transistor is layed out (hypothetical example) leading to the one of tens of thousands of patents a smartphone needs.
The first is hard to deal with. It's a blurry line between hardware and software, but I could see some rules that could help a lot: things like "it actually requires more than a general purpose computer", "the item is a standalone item and not a piece of a bigger thing", etc.
I have no idea how to deal with the second. I think to solve that, you have to consider moving to a non-IP world (at least in some sectors).
I'm not completely convinced dumping IP protection is the right thing to do, but I think it might be. Clothing is a good example of a sector that has little IP protection (except trade dress, which was a big part of this case [an overplayed one by Apple, IMO]). Like tech, it is highly iterative on the last wave, moves very quickly, and old waves lose value very quickly. It has managed pretty well, but cheap clones have certainly had their impact.
Things seem to be moving in this direction. I'm not clear on details, but:
• "The USPTO Prior Art Submission Site, scheduled for launch on September 16, 2012, will deliver prior art directly to examiners at the USPTO." Any individual can make three submissions for free, beyond that I'm not sure how it works.
• "Google’s new Prior Art Finder searches for relevant inventions that precede the publication of a pending patent application."
• Stack Exchange is also going to launch a new site whose mission includes collaborative searching for prior art to submit through the USPTO's new system to block patent applications.
You're mistaken. The patent office typically checks prior patents, but prior art can be from anything. There have even been prior art cases where inventions in scifi shows were accepted as prior art.
I think you were just confused with their definition of "obvious". Something obvious is something that can be made with a combination of existing patents.
It is the role of the lawyers to explain their position in layman's terms.
Having programming experience is absolutely not a requirement for understanding the technicalities of what software does. If it was we would see Testers, Producers, Business Analysts, Project Managers etc with programming skills. But we don't. And yet almost every software project has these people deciding, testing and understanding what is being built.
Wow, so it's not just the duty of the Samsung lawyers to weed out trouble some jurors (from their perspective) but also the duty of the judge to educate the jurors on this issue. Of course, we don't yet know whether the judge in the apple trial has issued these instructions.
edit:
Also, this puts aside the debate about whether a more technical jury would have given a different verdict.
Absolutely. A judge's job is to make sure that everyone understands the law itself. That's one of two central purposes of a judge in a courtroom (the other being that he interprets what the law means in an official capacity).
It seems to me that all this wrangling and instructing juries is an argument for having dedicated, technically and juridically trained jurists decide these cases.
A random pool of people is nearly impossible to corrupt.
Make someone's full-time job as a juror and the system WILL corrupt. A pool of "experts" will become a bidding war and only the large pocketbooks will win. Everything from patent infringement to murder will be based not on the letter of the law but on how much money you are willing to use in bribes.
I'm really surprised to see this even be something that needs to be debated. Randomized juries is like a fail-safe against judicial corruption. Every case is a unique pool of individuals, you simply cannot take one person out of the country (say, a full-time expert juror) and blackmail them for life. You've got one trial, 12 random people, and only one shot to convince, appeal, coerce, intimidate or bribe.
> I'm really surprised to see this even be something that needs to be debated.
I've seen it come up in other places for other, arguably nobler, reasons. ("Fixing" unemployment by preferring the unemployed as jurors.) But yeah, taking out the randomness is a bad idea, with a huge, huge burden of proof on why it'd be better another way.
A solution used in many countries including some definitely first-world countries (Japan, Germany, France, Sweden) is to have a mix of professional judges and lay judges. Seems that it preserves the benefits you talk about, at the same time fixing a lot of the problems we see with jury incompetence.
It feels like the opposite of jury nullification. It grants more power to the state to protect patents than the law has ever been used for. Nullification is historically used as a check on the state, rather than a tool to make the law mean something completely different and much farther reaching. And, of course, it's generally used in criminal cases.
But I don't know how the appeals process will go. I have no idea what makes an appeal possible in a civil case.
It sounds like one of the few angles that possibly could be used as grounds for an appeal. Clearly the jury did not execute their duties correctly in this case and it's been fascinating and quite surprising how openly and freely they have revealed their own willful ignorance. But that ignorance is the product of three things: Samsung's failure to educate them, Apple's failure to educate them, and the judge's failure to instruct them well enough. Samsung and Apple's failure's are clearly not going to be grounds for an appeal ("Your honor, we need an appeal because our lawyers are incompetent!"). The only thing left is if Samsung could show that that Judge Koh did an unusually bad job in instructing the jury. If she instructed them just fine and they still completely ignored her - then I don't see how this will be useful in getting an appeal.
I'm hopeful that Judge Koh will be embarrassed enough by the outcome that she'll dramatically reduce damages or even facilitate the process of an appeal herself. It's pretty clear something has gone wrong here, and if I was a prominent judge I would not want my name attached to it in the history books.
While I find this all sad and disheartening, I really wish we'd get better insights into what Samsung's lawyers are doing about it rather than all the complaining about how badly the jury did their assignment.
Surely if there is a way to use this in either a motion for a mistrial or to force a judicial review they not doubt would be filing it.
When you read this line that the foreman "used knowledge from that experience to convince the other jurors that Samsung's prior art was not valid" you are led to believe coercion occurred. When in fact there is no evidence of this at all. Likewise the foreman "played his own role as an "expert", to decide the case" makes it seem like the foreman was the one making all the decisions.
I've been on two juries in the past and everyone takes the role seriously. Especially for a high profile and expensive case as this one. So are we really going to let this picture be painted that one person made the decision here ?
"Hogan said he was one of a pair of jurors that served as the de facto technical experts of the nine-person panel."
And:
"Except for my family, it was the high spot of my career," Hogan said about the trial. "You might even say my life." A holder of a patent on video compression himself, he said he recognized that the case represented a "landmark decision," and that he was pleased he'd been selected "because I wanted to be satisfied from my own perspective that this trial was fair, and protected copyrights and intellectual property rights, no matter who they belonged to."
"Apple said they owned patents, but we were debating about the prior art. Hogan was jury foreman. He had experience. He owned patents himself…so he took us through his experience. After that it was easier."
I don't see any hint of coercion in the article. It seems to me that you're showing bias in thinking so. The foreman is painted as using his prior experience to influence the other jurors, in a manner that he shouldn't have. He isn't painted as being a standover man.
>When in fact there is no evidence of this at all.
Choice quotes by the 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."
"I is not ignore prior art yes it was legitimate, however it was not interchangeable therefore it did not invalidate Apples patents....Under the current law the prior art must be among other things interchangeable. the prior art sighted even Samsung does not currently use. Read the law and the statues covering Prior art."
Excerpt from an interview:
Emily Chang: Were you ever confused? Were other people ever confused?
Vel Hogan: I wasn't confused but there was a, a few of the jurors that were confused so what we did in the jury room before we did anything after we did the election of who was going to lead the jury I told them let's just lay out on the table any concerns or open questions you may have that's left over and let's just get that out of the way first.
Emily Chang: Now when you first got into the jury room initially, this was Wednesday right?
Vel Hogan: Yes.
Emily Chang: Was? There are reports that you were initially divided but did you, did you have a feeling this was going to sway overwhelmingly in Apple’s favour?
Vel Hogan: No. No. In fact if you'd have asked me at that moment in time, I thought it was gonna ultimately maybe lean the other way.
Emily Chang: Why?
Vel Hogan: Why? We were at a stalemate but some of the jurors weren't sure of the patent prosecution process. Some weren't sure of how, ah, prior art could either render a patent accept... ah, acceptable or whether it could invalidate it and so what we did is we started talking about one and the day was over. When I was at home thinking about that patent, ah, claim by claim, limit by limit I had what we would call an aha moment.
Emily Chang: Um hmmm.
Vel Hogan: And I suddenly decided that I could defend this if it was my patent.
Emily Chang: Really?
Vel Hogan: Really. And with that, I took that story back to the jury, laid it out for 'em, they understood the points that I was talking about and then we meticulous, meticulously went patent by patent claim by claim against the test that the judge had given us because each area, each patent had a different ah legal premise to judge on. We got that all sorted out and decided which ones were valid, which ones weren't valid.
Emily Chang: So the initial stalemate that you found yourself in, what was that about?
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
In other words, I think it's a complete fiction to tell people to set aside professional training and the knowledge and background that comes with that when they're acting as a jury member. If you were hearing a civil case involving programming, would you be able to set aside your knowledge of programming and hear the case as if you were a layperson? I wouldn't.