SAN JOSE -- The nine regular Joes and Janes of the San Jose jury in the Apple vs. Samsung patent infringement case have quite a task ahead of them when they arrive at work on 9am Wednesday morning.
They must consider a case that has expanded into more than 1,900 pages of legal filings and tens of exhibits including dozens of smartphones and tablets they will have available to examine. At the end of the day, they have to answer 33 highly specific and complex multipart questions on a 20 page verdict form.
To help them do that work, they have been given by Judge Lucy Koh 84 instructions that span another 109 page document. They include explanations of arcane legal concepts such as patent exhaustion and--ironically--obviousness.
Here's a look at what they will be looking at to do their duty. Just for fun, I'll start with the instruction on the legal term of obviousness.
As far as I know, the all "patents" in question are "design" patents for the "trade dress" (that is the non-functional aspects of the designs) of Apple produts and not for "utility" patents. In which case, does the "non obvious' rule apply? Don't "trade dress" issues, like trademarks hinge on "confusion" rather than copying what most people would consider a real "invention"? So would Apple have us believe that from more than a couple of feet away any reasonable person with normal eyesight can tell any of the smartphones apart? Or even distinguish them from a giant Chiclet?
Apple is alleging infringement of three utility patents on user interface and two design patents on industrial design issues as well as infringement of registered and unregistered trade dress.
For the latter, buyer confusion called dilution is one of the legal criteria.
Or is some totally clueless person going to wander into Best Buy intent on buying an iPad and wander out with a Galaxy Tab (or whatever it's called) instead? There was a case where Harvey Comics sued the Ghostbusters people because one of their ghosts looked sort of like one the ghost in the Ghostbusters logo.The judge threw the case out saying, "There are only so many ways to draw a ghost." There are only so many ways to fit an LCD panel from one of the two firms that make them in a case no wider and thicker than most hands can hold yet will contain all the parts, battery, and antenna necessary for...um...utility. And, let's face it, phones are really fungible items. They all make calls, text, surf the web, etc. and meet the same international specs.
There actually was a survey Samsung did at Best Buy to investigate unusually high rates of return that suggested users were confused about whether or not Galaxy Tabs were iPads.
This was presented in court.
The only way to peddle such a fungible item is to artificially "uniquify" it with marketing dodges and "style cues," IMHO. Further, you engineers could do your fellow citizens a favour by doing the simple math to convert texts, minutes of voice, and bytes of data to bytes of data and thereby show the public how badly cell phone companies and their "packages" are rooking everyone. And how the cell phone companies (most of whom do not own a single site) could simply, like gas, electricity, and water vendors simply send you a bill at the end of the month for total bytes used. And have a gauge on your phone that would show, in dollars, your bill to date, right? Would be easy to do technically, right? If one cell phone company went to a flat rate, the rest would have to follow or shrivel up and die of embarrassment, right?
Most tech-savvy consumers understand that it's all just data, whether that data represents a voice call, a text message, a photo, a video or a website.
Verizon is moving in the direction you want -- a flat fee per device and just pay for data. But you still have to guess in advance how much data you think you will need per month.
The LAST thing you want is your cell phone bill charged in bytes-of-transmitted-data. With 1080p video and 16MP images flowing back and forth you'll max out the plan (or your wallet) in no time - and we'll all be thrown back to txt msg and tweets in 140 character spaces. As it is we're fighting the ISPs to not charge us by the megabyte.
Far worse is the utility companies wanting to charge more for electricity drawn during peak hours (yet they don't give it to you for free at 3am!) Next thing the gas station will charge more to fill up between 4 and 6 when the pumps are all busy - I don't want that either, even tho I've come to expect 30c of popcorn to cost $5 at the cinema and 25c of Coke to cost $5 at the ball park.
Rick, Obviousness is a "term of art" in this field. You cannot interpret it using the simple dictionary definition. Some of the most elegant inventions are the simplest to understand, and there is a strong temptation among the unschooled to point at those and say "Oh, that's obvious."
The description in this field which you included on the first page of the article is straightforward. Let me illustrate by example.
Suppose you submitted a patent application for a squeeze-bulb horn which clamps onto the tubular handle of a coaster wagon. The patent examiner is not allowed to dismiss your application by stating "Oh, that's obvious." But he can show you two pieces of prior art: a horn which clamps to the handlebar of a bicycle and a coaster wagon with a tubular handle, both of which predate your invention. The examiner can state that given the problem of needing a horn on a coaster wagon, and having both pieces of prior art before him, it would be obvious to a person with ordinary skill to combine them to achieve the desired result.
"and having both pieces of prior art before him, it would be obvious to a person with ordinary skill to combine them to achieve the desired result."
Larry, I think you just described the majority of U.S. patents issued in recent years.
Actually I think the case has been very carefully constructed to walk a jury through the issues they must decide, and I credit Judge Koh for a big piece of that work.
The jury can decide on each count whether Samsung does or does not infringe based on defenses presented such as invalidity due to prior art.
Yes Rick, I would agree. I think the judge realizing the gravity of the case, was very methodical in her preparations both with how she organized the case, and the instructions to the jury to enable them to make a decision, probably to prevent its being overturned by higher courts.
I'm not sure I even know what "preponderance" means. It's one of those legal terms that I've never heard except in TV and movie courts. "Honey, I find a preponderance of the shoes sold at Macy's to be in our closet."
I'm a normal intelligent human and have never heard the term "trade dress" unless two little girls were playing dress-up. The jury instructions also act like the common citizen has great knowledge of antitrust laws and contractual obligations. I have an opinion, but wouldn't claim to understand the laws regarding either, legally. Maybe that's summarized in the other 90 pages. Will the jurors be given a Labor Day, Thanksgiving, and Christmas break?
Gotta love the requirement of "level of education".
The most innovative ideas I have seen have come from people who were not taught what you cannot do via the education system and were free to learn what could be done using their imagination and ingenuity. In other words these were the strikers out there who educated themselves by success or failure rather than presuming that all of their educators did not limit their curriculum to the content and included what is probable as well.
This case makes my head hurt. I wish there was a way to punish both companies equally, and the lawyers as well, for wasting everyone's time on this. It's dumb. Apple has forever been stealing ideas, inventions, and design from other people. Now they are mad that someone thought their re-mixed ideas were good enough to steal. Samsung never would have bothered trying to enforce their patents if that had just been left alone. Embrace the remix.
10 years ago...
Steve Jobs, Bob Hope, and Jonny Cash!
Now we have:
No Jobs, No Hope & No Cash!.
Does anyone else find it odd that Apple seem to think that $450 million is a ridiculous amount to pay Samsung for infringement, yet does not bat an eyelid asking for $2500 million from Samsung for infringement?
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