SAN JOSE – On the third of four “stand up breaks” during the reading of 84 jury instructions in the Apple vs. Samsung case someone exclaimed in the overflow room “How can [the jury] keep track of all this!”
Indeed, just one instruction outlined at least 15 elements jurors should consider when determining whether either company owes royalties.
Jurors must determine whether either company has infringed any of ten total patents in any of more than a dozen accused products, Some are utility patents and others are design patents--each with its own set of rules. (Both Apple and Samsung are accusing each other of infringement, each with five patents at stake.)
Jurors may find any of the patents are invalid based on prior art submitted by both sides. There are all sorts of rules for that, too. If they find infringement they must determine when it began and what damages to award. More rules, and some formulas that can be applied in different ways.
Separately they have to review Apple’s allegation Samsung infringed one registered and two unregistered trade dress claims. Apple also accuses Samsung of antitrust behavior in failing to disclose patents in a timely way at Europe’s 3G standards organization—a group probably none of the jurors were even aware existed before the case.
Each of the areas have different standards of proof. Some involve “a preponderance of evidence.” Others involve “what an ordinary person skilled in the art would have known at the time.” Still others involve assumptions about what an average consumer might know or do or have done.
I give Judge Lucy H. Koh credit for carefully laying out exactly what the jury must do and how to go about it. Her instruction 18 is a great summary of the very complex case. (I hope to get and post a copy at the end of the day.)
That said, this is a humbling set of instructions for this diverse San Jose jury. It took more than two hours just to read the instructions to the jury. It could take several days at minimum for them to review all the evidence in the case through such a complex filter.
In the end, some suggest, emotional issues, not intellectual ones, could inform the verdict.