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.
Our legal education continues. In answer to my earlier question about how would the judge treat an error by the jury. The verdict is in and:
"After reviewing the complex decision. Judge Koh found two errors. The jury awarded about $219,000 in damages for infringement involving the Galaxy Tab LTE even though it found that the device did not infringe Apple's patents. In addition, it found the Samsung Intercept handset did not infringe but cited it in inducement, a legal impossibility. Judge Koh pointed out the errors to the jury and dismissed to continue deliberations to resolve the $2.5 million question. Both sides are standing by while the legal detail are resolved." -
What if the jury reaches a verdict that violates any of the complex instructions from the judge? Is there a mechanism for her to reject the verdict with reference to her instructions and send the jury back for further deliberations or is the only option for Apple or Samsung to appeal on the basis of that issue in another court?
I was not in court during jury selection but Charlie Babcock, my peer from InformationWeek, was. Here's his story here:
Are any of the jury members technically skilled? Or were all the scientists and engineers in the pool excused as soon as they stated their profession? If we think trials like these are head-scratchers, just imagine what it's like to be one of the actual jurors!
The possible outcomes are:
1) Samsung infringed
2) Apple infringed
3) Both infringed
4) Neither infringed
Any outcome other than the first will compell Apple to take it to Appeals court.
Best hope for ending this drama is to find Samsung guilty of infringement (not willfull however) but not to the degree claimed by Apple ...so the damages will be in the $100s of millions which will be further reduced by royalties that Apple will have to pay for Samsung's 3G patents.
Neither party is entirely innocent and the market is big enough for both (and a few more) ...it's not in the interest of the consumer or even the future of innovation to let one of these two to dominate the global market!
So if the jury would like to get home early, it behooves them to decide that nobody infringed. That way they don't have to deliberate over damages, which could take days. Oracle v. Google was similar, although in that case the trial over damages could not begin unless the jury decided there was infringement. They decided there wasn't any and went home early.