My Take on Apple vs Samsung Verdict

A lot of digital ink had been written. Some say the jury got it right, some say they got it wrong. Me? I would like to see what is Samsung’s lawyers’ next step.

Given the number of questions asked we know the jury will find some for Apple and some for Samsung. It is, however, fair to say that the findings were virtually all in Apple’s favour.

The jury verdict is what it is. Period. We have to and I will respect that. However, I do feel that it is reached too quickly. In my mind there are two possibilities: Most of not all jurors’ first instinct is Samsung had violated the patents or there is one dominant juror that dominated the deliberation. Given the number of jurors is two hands full, the first possibility is not very likely but still possible.

I do not like to comment about individual juror as I feel that it is not the right thing to do. However, I would advise the jury foreman to shut his mouth. He appears to be very happy to bask in the limelight. That is always going to cast the jury in a bad light in the public arena. Nobody likes a juror that take to the limelight like fish to the water which the foreman did. The most important thing is, the more he speaks, the more wary I am of the jury’s verdict. Take his interview with the BBC. While claiming to be skilled in the topic on trial, his understanding of what prior art is is wrong. When looking at prior art we do not need the source code to be able to run on the old machine, or the old source code on the new machine. In other words, there is no need for prior art to be ‘interchangeable’ with the invention in question. In fact, instead of a one-to-one prior art to invention match, a much lower standard, i.e., a person ordinarily skilled in the craft can foresee the the invention from the prior art, is the yardstick here. For a person claimed to be skilled in the topic, even claiming he read the source code in the jury room, I expected him to at least know that. As for the inventors not practicing the prior art being a factor in his deliberation? I expected better of him. As a person who is ordinarily skilled in the topic, he should know that this is never a factor to consider on whether a prior art is valid or not. If the fact that the prior art does not run on the new machines or the new code cannot run on older machine is the dominant reason why the jury find for Apple, then a mistrial is definitely on the cards. It is going to be difficult to put the jury back to the box and ask them for another consideration. This is why I want to see how Samsung’s lawyer response to the verdict. I am not ordinarily skilled in litigation, so I will have to leave it to Samsung’s lawyer to weigh up the significant of the foreman’s misunderstanding. After all, they are the one with the most to lose. What I do not want to see is we  summon the jurors back to the courtroom and poke them with questions on how they arrived at the verdict. What is said in the jury room should stay there. Period. It is unethical to question the jury this way.

The other problem I have with the verdict is it is inconsistent with the same litigation over in other countries, including United Kingdom, Korea and (now) Japan. Even in Netherland and Germany where Apple found sympathetic hearings, the judgement is at best a mix for Apple and Samsung. With different jurisdictions one expect different results, but most of the time the results should just be a variations of the  (same but unknown) “average” judgement. This looks more like an outliers. It will be interesting to see whether the judicial system in the United States react to harmonize the results with the other jurisdiction, and if so, how.

The next step is for Samsung to file motions dissecting the trials and jury decision and Judge Koh’s reaction to it. Her reaction will give us a clue and an independent view on the trial. Her options are quite limited. She is required to respect the verdict as much as she can if possible. It will be interesting to see whether she move to support the verdict wholeheartedly,  or take steps  to steer a course away from it.

It is now Samsung’s lawyers’ turn to shine and turn the tables around for Samsung. Their lawyers are quite competent so it will be interesting to see how they choose to play the next chapter. There appears to be a lot of acrimony among both sides. Given Apple’s history, I am tempted to say that they are the instigator but I just  do not know enough about both sets of lawyers to say that is definitely it. I am expecting Apple to say No and fight tooth and nail for even the most insignificant thing that normally both sets of lawyers can agree to. They demonstrate it when they say no to even want to give Samsung  30 minutes to read a complex verdict and workout the inconsistency. Do they really have to fight that?

As for the ban on Samsung phones to be decided in December. I do not think it is likely to be granted, especially after Ebay vs MercExchange says a ban is not inevitable.

 

Judge Koh won storm in the teacup [Updated]

[Updated 23th Aug: Big oops. Two judges were involved in this issue so all analysis down here were invalid. Chances of the two judges colluded to engineer the situation I discussed. A BIG SOLID ZERO. At the minimum they have better thing to do. Nevertheless, would had been nice if either one of the judge had. ]

The storm I am referring to is to ask the Jury to do an adverse inference on Samsung’s failure to preserve evidence.

Groklaw’s latest write up gives you a favour of what is involved. In my opinion, the Judge executed a skillful maneuver to throw the issue of the start date for preserving evidence on both sides into the long grass permanently.

Here is how I see it. Two possible start points. The one I favour is the judge thinks that both sides should had preserved evidence earlier than both sides had. Thus, she has no choice but to deal with this issue head on. She had to or the losing party will appeal it. The way both sides behaved means she will have a drawn out fight on her hand if she is not careful. The normal way of sanctioning both sides simultaneously will led to one motion after another asking her to reconsider her decision. Not to mention both sets of lawyers will take every opportunity to ask her to change her mind. That is at best a distraction, at worse affecting the trial. She need a better way if the opportunity presents itself.

The other starting point is she was presented with Apple’s motion for adverse inference against Samsung. After saw the bitter fighting between the two sides and seeks to deal with the issue in the least fuss way possible and to deal with the issue once and for all. Afteer all, If they were chefs tasked with frying an egg and boiling another,  these two sets of lawyers will argue over which egg  to fry and which one to boil. Regardless of whether she grant or reject it God knows how many times and how many times both sides will revisit this subject.

Either way the aim of the exercise is to ensure that the issue of evidence preservation will not become an issue either side can appeal on.

The opportunity presented came when one realized Apple ask for an adverse ruling on Samsung but Samsung did not. This is her chance.

I believe she knows that it is  ruling she will be reversing. The risk here is she can be accused of double standard for sanctioning Samsung but not Apple who arguably is the worse offender. However, because Samsung did not ask for such a sanction, procedurally and technically, she did not have a choice. She know Samsung will ask her to reconsider and will ask for Apple to be sanctioned as well. That is when she will pounce and show the two sides what she is made of. That is a brilliant chess move.

She engineered a situation where she holds two cards, one she is going to play and the other is the card she will use to get Apple to fold. During jury instruction conference, she play the first card by declaring, that she is going to instruct jury that adverse inference will be made to both Samsung and Apple, but offer to drop the instruction altogether if both side agrees. The triumph card is, as reported by Groklaw reporter bruno,  to tell Apple that as plaintiff, they would know better than the defendant when they need to preserve evidence. That is a hint to Apple that they would be worse off if they pick the fight instead of folding. The judge was anticipating Apple’s lawyers manuvering to keep the status quo, demonstrated by her cornering Apple on their failure to preserve evidence from Steve Job’s the same time as others.

It is a storm in the teacup as I cannot see how the actual date to start preserving data really matter in this case. Otherwise, we would had seen more fireworks on the topic.  It just seems like one lawyer trying to make life more difficult for the other by kicking up dust at every available opportunity. In this trials, it does not seems to be limited to only one side.

Bottom line:

Both Apple and Samsung expected this outcome.

Samsung’s Lawyer: Surprised by the original ruling. followed by a lot of work to pull things back to norm. Panic? No. Uncertainty? Yes. Prepared to appeal and expect appeal to be granted? Yes.

Apple’s Lawyer: Surprised that original ruling was successful. But soon after that, reality sank in and realized the ruling will be reversed. Luckily they are American, if they were Asian, they would had taken the fact that the judge insist they withdrawn their complain as a condition of not putting the “Adverse Inference” on them as  slap on them. But because they are not Asian and American, they won’t take the Judge’s hint when she said that they as plaintiff should know better on when to preserve their records, to back down and necessitate a discussion about Steve Job’s emails.

Judge: Executed what we Asian regard as the highest form of tatic, i.e., successfully get others to go where you want and even if they felt being coerce into doing it, they cannot blame you since from the view point of a third party, they either went in on their own accord or had fallen into their own trap (and deserving so).

The rest of us: Digital age equivalent of “My dog ate my homework”, i.e., “The system automatically deleted my emails”, does not fly in the courtroom.

SCO legacy on Linux and why I think the Chapter 11 Trustee wants to keep SCO vs IBM alive

Brian Proffitt has an excellent post on the legacy of SCO, focussing on SCO itself and how it influences Microsoft’s handling of patent assault on Linux.

The strategy that SCO choose to pursue, in my view, is two prongs: One, to sue big fish (IBM) in the hope of intimidating enough small fishes to make the effort worthwhile. [They did sue two baby fishes (DaimlerChrysler and AutoZone), but that is just for show. They sued knowing that no business is at risk since the two migrated away from SCO and is unlikely to be SCO customers in the short and medium terms.] and two, it provide incentive for IBM or other big fish to buy it go away. It is certainly cheaper than the lawsuit in terms of money, effort and the uncertainty the lawsuit created.

From a pure business point of view there is nothing wrong with it. In fact I will give Darl McBride a business prize for dreaming this up and actually pursue it.

Microsoft did learn from SCO strategy: It has been carefully avoiding gigantic fish (Google, IBM) and unlike SCO, is quite successful in catching large fish (HTC, Samsung and other companies just to name a few). To be  fair, Microsoft would had probably pursue the same strategy without learning from SCO, but the whole SCO saga shows Microsoft it must not bite more than it can chew. Again to be fair to SCO, it does not have Microsoft’s clout. If it choose  to go after small  fish the small fish will probably laugh at it. It needs the intimidation effect and the publicity that suing a big fish brings.

As for Linux, it is stronger now than when SCO started the campaign. Groklaw itself is the biggest positive legacy of this saga. A lot of open source people got an education on the law via Groklaw. Developers are more familiar with and is better placed to legal issues. The second biggest advantage is we now have so much scrutiny of the Linux source code it is going to be difficult for others to try to do the same. Take for example the aforementioned Microsoft’s claims that Linux violates it patents, its edge got blunted by the fact that Linux source code had been scrutinized during the SCO saga. In fact so much so that I believe a direct confrontation between Microsoft and Linux will result in a MAD (Mutually-assured Destruction) scenario where nobody wins. The other positive development from the SCO saga is the proof that open source people can be galvernized or organized to put up defenses against attack at open source.

Finally, some people is wondering why the Chapter 11 Trustee wants to keep the SCO vs IBM alive, writing along the line “the mind is willing, but the body is weak” in its petition to  convert the case to Chapter 7 bankruptcy. It is his duty to preserve whatever asset SCO has (or perceived to have). For the IT world we would like to see the lawsuit dies with SCO, especially now we got our pound of  flesh. Taking a look at it from a business perspective says there is nothing in the lawsuit itself that makes it a worthwhile adventure, i.e. SCO does not appear to have a chance in hell of winning it. However, to the correct investors, there may be  value in buying and taking over the lawsuit. One of the incentive is to keep on harassing IBM and Linux. Another is to continue SCO original dream of pursuing the lawsuit in the hope of IBM (or others) buy out the lawsuit. That is why the Trustee list the lawsuit as an asset. Finally, for a business with no other goods to take to the tade show,  anything that resembles something that can be sold will be taken out for the sake of putting something on the  stage.

Extremely unscientific poll on copycat

Inspired by this site, here is my take on similarity between the some of the phones identified by good old wikipedia as in the lawsuit between Apple and Samsung.

Can you tell which one is the iPhone? Answer later, i.e., after I tell you what I think this test represents, and how I doctored the images. Here is a comparison of iPad vs Galaxy Tab, by IOL.

On first glance, I did think they are all iPhone, but after just approximately 2 seconds, I say, hang on, something not right here and can quickly identify which is the iPhone. Question to jury if I were the only witness in the trial, is my “2 seconds” confusion good enough to say Samsung copied iPhone on appearance ?

Note that I did not follow the trial closely enough to say whether Apple claims that the appearance of the phones are too similar. The storm in the teacup over Samsung’s ‘Press Release’ appears to say it is one of Apple’s contention. Note that this is not the entirety of Apple’s claims (see CNET article for the  claim on icons)

How did I doctor the images?

1. Screen capture the image from Samsung and Apple website promoting the phones in question. I did take special care to make sure I find the phone with the black plastic frames. I could had equally chosen all white frames if we have white frames for the Galaxies. The purpose here is to find things as similar and thus is as potentially confusing as possible. A second, implied assumption is by taking images from the manufacturers’ website, the phones are shown in their best light. This means if there is any intention for one party to confuse consumers, presumably they will make theirs look as close as possible to the other.
2. Trim as much of the background away as possible.
3. For the first two picture, black out the screen as I am not interested in the screen display.
4. Resize all three to the same height, keeping aspect-ratio intact

Answer as if you need it: [From left to right] Galaxy S2, iPhone, Galaxy S

I think it is fair to make companies responsible for comments on their social network site

Via Slashdot, this article says that the Australian Advertising Board might rule that companies are responsible for comments on their social network website or page even if they had not posted the comments themselves. The ruling might imply that moderating the comments twice a day is not enough.

I think that is fair. Why? We cannot treat social network, or internet or any other communication technology as “special case”. They have to abide by the same rules as other. In return, we will apply the same rules and  considerations to them.

If the social network page/site is operated as an advertisement, it has to abide to the rules and regulations governing advertisements. If CUB wants a social network site for their brand, then they must put in the effort to meet the burden, however high the burden is. Thus, if the ruling says the page/site is an advertisement site and thus, moderating the comments  twice a day is not good enough and CUB has to screen all comments, then so be it. CUB’s argument that “the comments on the site reflected conversations that might go on between people in any pub” actually reaffirm CUB’s role for moderating the comment. In a pub, the owner or the manager is always on hand to stop a conversation that can be overhead by other patrons, its equivalent on the net is live moderation, isn’t it? Do you really think a pub owner or manager can get away with “I was not there at the time” when something offensive was overhead?

CUB argument that screening all comments “contrary to the spirit of social media” completely ignores that social media has no duty to provide a avenue for advertising CUB. Perhaps more serious is it is sidelining a commonly agreed convention that nobody, let alone reputable advertisers like CUB, can hide behind technology (i.e.,  social network in this case) for breaches of their duty. If they want to use social media as an advertising media, then it is them who have to find a way for their content to work within the spirit of social media _and_ within the rules governing advertising. If they can, then good luck to them, otherwise they will have to either work harder or walk away.

Later in the article, Google is appealing against a decision that they are responsible  for misleading Ads on their self-service AdWords program. Same argument says that Google can be held responsible if there is too many misleading Ads, i.e., above the norm expected from print media. After all, as far as the AdWord program is concerned, Google is no different from a traditional print media that offer to take and display advertisements. It has to abide by the same rule and we give them the same considerations as we do with print media. The fact that it delivers the advert  via the internet does not matter, nor is the fact the system is automated. If any, the latter means we are expecting less misleading ads, not more. After all, automation is suppose to improve quality, not an excuse for decrease in  quality.