CyberTech Rambler

August 31, 2012

My Take on Apple vs Samsung Verdict

Filed under: Uncategorized — ctrambler @ 8:30 pm

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.

 

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