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Forum nameHigh-Tech
Topic subjectThe dissenting voices come out...
Topic URLhttp://board.okayplayer.com/okp.php?az=show_topic&forum=11&topic_id=266716&mesg_id=275145
275145, The dissenting voices come out...
Posted by wallysmith, Mon Aug-27-12 10:21 AM
http://www.groklaw.net/article.php?story=2012082510525390

In two instances, results were crazily contradictory, and the judge had to have the jury go back and fix the goofs. As a result the damages award was reduced to $1,049,343,540, 1 down from $1,051,855,000. For just one example, the jury had said one device didn't infringe, but then they awarded Apple $2 million for inducement. In another they awarded a couple of hundred thousand for a device they'd ruled didn't infringe at all. This all was revealed by The Verge in its live blog coverage:

"The jury appears to have awarded damages for the Galaxy Tab 10.1 LTE infringing — $219,694 worth — but didn't find that it had actually infringed anything....A similar inconsistency exists for the Intercept, for which they'd awarded Apple over $2 million
Intercept: "The jury found no direct infringement but did find inducement" for the '915 and '163 utility patents. If a device didn't infringe, it would be rather hard for a company to induce said non-existant infringement."

Obviously, something is very wrong with this picture. The Verge also reported that the jury foreman, who is a patent holder himself , told court officials that the jury didn't need the answer to its question to reach a verdict:

"The foreman told a court representative that the jurors had reached a decision without needing the instructions."

If this jury thought they knew the right result without instructions, and if they hurried so much they made glaring mistakes, and they did, and all in Apple's favor, something isn't right in this picture. As the legal blog, Above the Law expressed it:

"Here’s the thing, ladies and gentlemen of the Apple v. Samsung jury: It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin?"

If it would take a lawyer three days to make sure he understood the terms in the form, how did the jury not need the time to do the same? There were 700 questions, remember, and one thing is plain, that the jury didn't take the time to avoid inconsistencies, one of which resulted in the jury casually throwing numbers around, like $2 million dollars for a nonfringement.

One of the jurors has now spoken, and CNET's Greg Sandoval has it, in his article, Exclusive: Apple-Samsung juror speaks out:

"It didn't dawn on us on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art . was jury foreman. He had experience. He owned patents himself. In the beginning the debate was heated, but it was still civil. Hogan holds patents, so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art, that there wasn't something out there before Apple.

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down." ...

This gets worse and worse.

Dan Levine of Reuters has some words from the foreman:

"We wanted to make sure the message we sent was not just a slap on the wrist," Hogan said. "We wanted to make sure it was sufficiently high to be painful, but not unreasonable."
Hogan said jurors were able to complete their deliberations in less than three days -- much faster than legal experts had predicted -- because a few had engineering and legal experience, which helped with the complex issues in play. Once they determined Apple's patents were valid, jurors evaluated every single device separately, he said."

Now the jurors are contradicting each other. Lordy, the more they talk, the worse it gets. I'm sure Samsung is glad they are talking, though. Had they read the full jury instructions, all 109 pages , they would have read that damages are not supposed to punish, merely to compensate for losses. Here's what they would have found in Final Jury Instruction No. 35, in part:

"The amount of those damages must be adequate to compensate the patent holder for the infringement. A damages award should put the patent holder in approximately the financial position it would have been in had the infringement not occurred, but in no event may the damages award be less than a reasonable royalty. You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer."

One more quote from the foreman, thanks to Bloomberg News:

“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.”