Apple v Samsung: Can Look and Feel Be Patented?

[heySkippy]

Originally Posted by JoeD

With regards to the US, didn't a judge in the US on the recent google/oracle case, warn jurors that whilst they could discus the case they had to bear in mind that what they say could be taken as grounds for a retrial? If so, it's perhaps a good and bad thing that in the UK you can't discuss what goes on in the deliberation room.

It wouldn't be possible to prevent US jurors from talking about it after the trial unless you can get the SCOTUS to carve out an exception to the first amendment.

[JoeD]

Originally Posted by heySkippy

It wouldn't be possible to prevent US jurors from talking about it after the trial unless you can get the SCOTUS to carve out an exception to the first amendment.

That's why I think the judge stressed that whilst they could talk about it, they should be careful what they say as it could cause a retrial.

Not sure if this has already been posted, but since it's related to the current apple/samsung case and the issue of jurors talking about deliberations

http://www.techdirt.com/articles/201...-factors.shtml

@Harry:

It's an interesting issue for those of us in the UK.

If what the jurors (in the US case) have done really was to ignore prior art, the judge's instructions and try to punish samsung rather than just vote on the law at hand, in the UK we'd likely never have found out. Unless a juror reported concerns to officials at the court, but if they all thought what they were doing was perfectly acceptable (even if it wasn't), we'd likely never find out.

[HarryT]

Originally Posted by JoeD

@Harry:

It's an interesting issue for those of us in the UK.

If what the jurors (in the US case) have done really was to ignore prior art, the judge's instructions and try to punish samsung rather than just vote on the law at hand, in the UK we'd likely never have found out. Unless a juror reported concerns to officials at the court, but if they all thought what they were doing was perfectly acceptable (even if it wasn't), we'd likely never find out.

But was it the jury's job to determine whether or not the patents were valid, or simply to ascertain whether they'd been infringed? Surely it's the job of the patent office to determine the validity of a patent application, is it not?

[tubemonkey]

Originally Posted by JoeD

If what the jurors (in the US case) have done really was to ignore prior art, the judge's instructions and try to punish samsung rather than just vote on the law at hand, in the UK we'd likely never have found out. Unless a juror reported concerns to officials at the court, but if they all thought what they were doing was perfectly acceptable (even if it wasn't), we'd likely never find out.

Excellent point

[Graham]

Originally Posted by HarryT

But was it the jury's job to determine whether or not the patents were valid

Yes. That's why they were shown the extensive prior art evidence.

Graham

[JoeD]

Originally Posted by HarryT

But was it the jury's job to determine whether or not the patents were valid, or simply to ascertain whether they'd been infringed? Surely it's the job of the patent office to determine the validity of a patent application, is it not?

Jurors have to consider prior art don't they? I'm not sure though, anyone else know the details? But it sounds like they also ignored the judge's instructions and other misconduct.

http://www.groklaw.net/article.php?s...12082510525390

I won't pretend to know the ins and outs of it though, I could be talking rubbish.

Talking in general now, not specifically about the apple/samsung case, but what I found interesting was that if a jury can convince themselves that what they're doing is right, even when it's wrong and are forbidden from discussing their deliberations post trial, how will we ever find out that a miscarriage of justice has occurred.

Where as in the US, there's no restriction on discussion post trial, so there's every chance a juror will proudly explain their decisions and flaws come to light.

Granted, there's an appeals process which you'd hope with a new jury would avoid a repeat and there's the flip side of a guilty person suddenly getting their case overturned because a jury spoke about something that was then used as a technicality.

I'm honestly not sure which system is better, can (US) or can't (UK) talk about it. It's something I'd never actually considered until reading todays posts.

[Graham]

Here's a full 15 minute interview with the jury foreman, asked reasonably probing questions.

http://www.bloomberg.com/video/apple...g7xrWa5Wg.html

He does clarify some of his earlier statements, but tellingly, he repeats the comment about moving on after getting bogged down on the first day (which was previously noted as being related to prior art on the trade dress patent), and he never says that they went back and addressed this later.

He reaffirms that they moved on and went straight to the patent infringement checks and then the damage awards. He concentrates repeatedly on the wilful infringement of the patents, but it really does seem like they skipped going back to check whether the prior art invalidated the trade dress patents.

At about 13:20 in the interviewer asks specifically about the design patent and the fact that they found it to be valid. He doesn't answer along the lines of "we reviewed the prior art and found that it wasn't sufficient to invalidate the patent", instead he talks about checking the accused devices against the design patent to see if they infringed.

The closest he comes is at about 14:10 when he says regarding the Samsung devices and the iPhone:

"In the case of the design patent it was the look and feel of it, and how the device presented itself, and when you compared them side-by-side against the statements in the patent it was clear to every one of us that not only was the patent valid but that the Samsung products that were accused were legitimately a problem."

It's not a comparison between the accused devices and the iPhone against the patent that determines whether the design patent was valid, it's a weighing of the prior art.

The prior art was key to whether there was a valid trade dress patent for Samsung to infringe, and it is still appears that this jury foreman missed that point.

Graham

[kennyc]

Originally Posted by HarryT

But was it the jury's job to determine whether or not the patents were valid, or simply to ascertain whether they'd been infringed? Surely it's the job of the patent office to determine the validity of a patent application, is it not?

Once it is brought to court it can be challenged. The patent office does what it believes is it's job but that doesn't mean it is always correct. My opinion is that design and software patents should never be issued, but that have been in the last few decades and it's difficult to stop a ship that has already sailed.

I do think it is the patent office's job to prevent issuing of frivolous patents --this rounded corner rectangle being frivolous to the max.

The jury should have overturned it as well as the flat black screen patent...

there was clearly prior art for both.

[ScotiaBurrell]

Originally Posted by kennyc

My opinion is that design and software patents should never be issues,

design patents? wouldn't that diminish the existence of iconic shapes and figures?

fwiw, groklaw had a -epic rant- that said the same today. Pretty good.

Remember back when Microsoft helped SCO afford lawyers in the very early days of the SCO saga? What was the goal there? To slap royalties on Linux and get rid of the GPL, so as to block Open Source's free development model, and make it so expensive no one would want to use it any more.

now they have a new weapon of choice -- trade dress and design patents -- thanks to Apple. And that is why this case is so appalling, because Apple has now opened up a new area for litigation and exclusion.

The intention is to tie it up with royalties and IP law restrictions that limit what it can offer so that it dies there in that corner. Steve Jobs said so, that he intended to kill Android. We need to take him at his word. That is what we are watching play out.

Competition is fierce. And not always pretty. I understand how it seems to a de centralized bunch without access to high powered lawyers to fight for them like Samsung does. But he undercuts his point later in the commentary...and it is reason that I think some limited design patents have to exist. Reward research and first movers:

The market has spoken. It wants simple and clean design. Yes, Apple was the one that demonstrated that taste matters to the public. But now that everyone wants that, should it really be the law that only Apple can provide it?

[murraypaul]

Originally Posted by JoeD

It's an interesting issue for those of us in the UK.

If what the jurors (in the US case) have done really was to ignore prior art, the judge's instructions and try to punish samsung rather than just vote on the law at hand, in the UK we'd likely never have found out. Unless a juror reported concerns to officials at the court, but if they all thought what they were doing was perfectly acceptable (even if it wasn't), we'd likely never find out.

I don't think there would have been a jury in a patent case [in the UK], it is certainly common for there to be judge-only cases. They are such complicated issues that they seem frankly unsuited for a jury trial.

[Graham]

Originally Posted by murraypaul

I don't think there would have been a jury in a patent case, it is certainly common for their to be judge-only cases. They are such complicated issues that they seem frankly unsuited for a jury trial.

The jury here was certainly instructed to look for anticipation, obviousness and prior art and to invalidate the patents if they believed there was sufficient evidence.

Here's the link to the full jury instructions:

http://assets.sbnation.com/assets/13...structions.pdf

See pp 44 to 47 for the instructions regarding invalidation of the utility patents due to anticipation or obviousness, and pp 66 to 70 for the instructions regarding invalidation of the design patents due to prior art.

Graham

[JoeD]

Originally Posted by murraypaul

I don't think there would have been a jury in a patent case [in the UK], it is certainly common for there to be judge-only cases. They are such complicated issues that they seem frankly unsuited for a jury trial.

For patent/technical cases I agree a jury is ill suited to the task. A panel of experts would be better, although there's likely a can of worms involved in the selection of such a panel

I was thinking more general though and not just about patent cases. If a jury reaches a verdict based on flawed reasoning, in the US system it may come out, in our system it's likely that it wouldn't. In our system we're relying heavily on the jury understanding (and knowing whether they've understood) the judges instructions on what they should be deliberating on and what they shouldn't include in their decision making process.

Are there any recordings or transcripts made of the deliberations? If not, I wonder if it'd be a good idea to do so and to provide those transcripts to the judge (perhaps anonymised) so they can verify their instructions have been followed. Or to the appeals judge? Although, I've probably overlooked something and that there's sound reasons for why no transcripts/recordings are made (assuming they aren't')

We place a lot of trust in whether the jury has understood their instructions correctly. In most trials, it may be that it's hard not to understand them, but in technical cases, what seems logical to a non-technical person could be completely incorrect.

[Ekaros]

Specialy fun when patents seem to be written in the most complicated way. Or obscured just so the prior-art can't be noticed at one glance...

[Fbone]

Originally Posted by JoeD

Are there any recordings or transcripts made of the deliberations? If not, I wonder if it'd be a good idea to do so and to provide those transcripts to the judge (perhaps anonymised) so they can verify their instructions have been followed. Or to the appeals judge? Although, I've probably overlooked something and that there's sound reasons for why no transcripts/recordings are made (assuming they aren't')

Jury deliberations are not recorded. Here is one reason why stated by AG Brownell in 1955.

We in the Department of Justice [Brownell had said on Oct. 5] are unequivocally opposed to any recording or eavesdropping on the deliberations of a jury under any conditions regardless of the purpose. Such practices, however well intentioned, obviously and inevitably stifle the discussion and free exchange of ideas between jurors. They tend to destroy the very basis for common judgment among the jurors, upon which the institution of trial by jury is based…

[Dopedangel]

The major problem was that the jury foreman was a patent holder and that made him an expert in the eyes of the other jurors or he portrayed himself as such. And they took his words for whatever instead of asking for clarification etc.
The jury in Google vs Oracle was better if they did not understand anything they asked for clarification. Here it looks like the Foreman decided the verdict and railroaded the other jurors I do agree with the jury that samsung copied some of Apples design but I also think Samsung was able to show prior art for many of the patents so I don't think the verdict should have been so one sided.