11 myths about the Apple vs. Samsung verdict

Posted by Niels Leenheer on August 29, 2012 08:54 am 43

The last couple of days I've heard many reasons why the judge should throw out the verdict. Unfortunately there are also a lot of myths and misinformation. Below are some of the more persistent ones and why I think they will not help Samsung’s case one bit.

Myth 1: One of the jurors said they already made up their minds on the first day!

This is based on a quote taken out of context. What the juror actually said was that the jury was pretty much in agreement after the first day of jury deliberations. That is after 30 days of seeing all the evidence and hearing all testimony. This doesn't mean the jury was prejudiced or biased from the start.

Myth 2: They said they wanted to punish Samsung!

A quote taken out of context. Apple asked for 2.5 billion, but they awarded only 1 billion. That certainly does not sound unreasonable. In fact, they dismissed Apples calculations, because they were too high. Instead they felt that Samsung’s own calculations were much more reasonable and use those to base the damages on. If they wanted to punish Samsung, don't you think they would have awarded Apple the full 2.5 billion?

Myth 3: The jury admitted they did not look at prior art!

This is also based on a quote taken out of context. The juror did not claim they just skipped prior art altogether. He said that when they were bogged down on the prior art and could not come to a decision, they skipped the question and went on the next. The foreman has stated in multiple interviews that they certainly did look at prior art. They revisited the question later on and because of the extra experience they got from answering the other questions it became easier to answer that original question.

Myth 4: The jury didn't even use the jury instructions!

Once again, this is based on a quote taken out of context. While the verdict was read it became apparent there were a couple of errors in the verdict. After the judge send the jurors back to fix the mistakes they asked for directions on what to fix. The judge then send them instructions, but they already figured out the mistakes before they got the instructions. So the foreman told the court they did not need the instructions.

The foreman isn’t talking about 109 pages of the jury instructions. Those were read aloud in court by the way, so nobody can claim they didn’t know them. Besides the foreman said in multiple interviews they used the jury instructions to determine their verdict.

Myth 5: 109 pages of jury instructions! 700 questions! Even a lawyer couldn't properly understand these issues in just 3 days!

A team of lawyers can argue for days about a single sentence.

And no, there were not 700 questions. There were 700 checkboxes for 33 questions covering 18 issues. I’m not saying all questions will be easy or quick to answer, but those 700 checkboxes are not an unsurmountable obstacle. Not every one of those 700 checkboxes need to be discussed for hours.

The 109 pages of jury instructions are actually 84 instructions. Some of them as large as a single page, some of them only a couple of sentences. Some of them simple procedural instructions, some of them detailed explanation on how to interpret the evidence.

By saying that there were 109 pages of jury instructions and 700 questions you are making it sound more complicated than it is in reality.

Myth 6: The jury foreman was biased, because he owns a patent!

Both parties in this lawsuit were trying to enforce its patents. And both parties tried to invalidate the patents of the other side. Why would owning a patent predispose the foreman to one side?

Besides, this was known before hand and didn't bother Apple and Samsung. They could have send him home, but they didn't.

Myth 7: The jury foreman convinced the rest of the jury to follow him!

The foreman does not have any special powers or authority. He is just one of the members of the jury.

The jury is encouraged to discuss the issues among them and to change their minds if the discussion warrants it. If the foreman had a good argument (or the others thought he did) and he convinced others that his position was correct, that is perfectly acceptable.

Myth 8: They found that the Nexus S 4G infringed the bounceback patent. But it doesn't!

When the Nexus S 4G first shipped it used stock Android 2.3.4. That version used the bounceback animation in the app drawer. About a month and a half after it first went on sale the software was updated to Android 2.3.5, which removed the bounceback animation.

Myth 9: The jury said Apple did not infringe Samsung's standard essential patents. How is this possible?

The jury never ruled that Apple did not infringe. They ruled that Samsung did not show that Apple did. There is a subtle difference.

Perhaps Samsung did a sloppy job presenting the evidence. Perhaps Apple did a better job convincing the jury they did not infringe. We don't know the reasons. In any case, we should not confuse what we - as insiders - know about this case with what the jurors heard in court.

Myth 10: There is an inconsistency. You must have infringement, otherwise you cannot have patent exhaustion!

It is perfectly reasonable to rule that Apple did not infringe certain patents and at the same time rule that Samsung is barred from enforcing those patents due to patent exhaustion.

The jury instructions state there are only three issues that need to be answered:

1. Was Intel authorized to sell the chips,
2. Was the sale made in the United States,
3. If the product infringes, it is due to use of the chips bought from Intel.

Please note the word "if". Infringement is not a requirement to pass the test for patent exhaustion.

Myth 11: This case is too difficult for a jury to decide!

Perhaps. But both Apple and Samsung requested a jury trail. No point in complaining about it now.