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August 28, 2012


No time for the video just now, but see this recent post (c/o Slashdot) about invalid jury deliberations regarding prior art.

Now, that's interesting, Dean. Will this error of the foreman understanding 'prior art' to mean interchangeability of software be brought to the judge's attention, if so what happens?

Sujatha, I have no idea. There is an obvious incentive for Samsung to take some sort of action, but I don't know how that would work procedurally. Perhaps some sort of post-ruling motion, or a full blown appeal? Further, my ignorance extends to the kinds of jury activity that can be challenged. Flipping coins? Yes. Know-it-all foreman lecturing to a captive audience? Uhm, not sure.

Wow! I would like to know also how much celebrity awe plays into such decisions - shiny Apple vs boring Samsung.
We always hear how Bill Gates stole other people's ideas. Steve Jobs was one of his most vehement accusers. Apparently, Gates reminded the self righteous Jobs that they had both stolen from Xerox.
I hope this case goes into appeal and the ruling is reversed. That jury foreman is a joker.

After a little snooping, I see that opportunity for challenging a jury verdict is fairly slender. The trial court can grant a new trial where the jury's verdict is unreliable. As one federal procedural treatise puts it, "a motion for a new trial should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." That the court might have come out otherwise isn't enough to meet the high standard. There are also rules that strongly prohibit jurors from testifying as to how other jurors deliberated. Usually, the challenge is with the instruction itself, rather than with the jurors' strict obedience to it.

It's difficult for me to apply even these vague principles to the case. I don't know enough about patent law to feel confident guessing whether or not a misapplication of instructions about prior art can rise to the level of a miscarriage of justice.

Comments passing in the night, Ruchira. I'm now in the market for a Samsung device, their Chromebook. Boring is good in my book.

Anyway, my previous comment punted. Jury verdicts are challenged with motions for new trials. Perhaps appeal is appropriate, too, but it looks like federal rules make it difficult to upset a verdict where the jurors have simply botched the concepts. There is a literature pertaining to the inadequacy of juries in patent trials. This case is perhaps a good example of why it has emerged.

I have been thinking of purchasing a slender device for travel. As of now, I make do with my smart phone and borrowing my husband's/ son's / daughter's/ niece's/ hotel's computers when I am away from home. I toyed with the notion of getting an iPad. Just over the weekend, I jettisoned the idea, mainly because of its no keypad, touchscreen feature and felt kind of relieved that I resisted the lure of a popular toy. I will now buy a less glamorous notebook style laptop.

As of now, I do not own or use any Apple product and my smart phone is made by Samsung.

A tangent off the post has emerged. My serious consideration of a Chromebook includes at least three factors. First, it's not Apple. Second, a friend of mine had an earlier iteration of the device, and he loved it. However, he uses a large array of devices, so he could easily mitigate any ill consequences of the Chromebook's browser-only "operating system," the cloud-based applications, and the dearth of on-board memory. The thing "boots" really quickly, no waiting for that silly Windows whoosh, so brainlessly crafted, I'm told, by Brian Eno. Finally, remotely served applications and data have long been a desideratum among techies, never mind the current trendy b.s. about the "cloud" and the compounding of very real privacy issues. I remember hoping for the rise of the ASP (application, rather than Internet, service provider) back in the early '90s, the Citrix "thin client" workstation seamlessly networked with its more robust servers upstream. That approach never quite got off the ground, but the Chromebook seems to come close to implementing this ideal, thanks to the capacity and power distributed across the Web. So, Ruchira, think twice about another laptop and the dreary need to purchase and update applications and fret about the durability of a hard drive. Of course, you'll continue to need to backup data for safe keeping, but you already do that, right?

Failed to mention important factor four: with its integrated keyboard, the Chromebook looks and feels like a laptop.

The groklaw page seems to show the jury got things hopelessly wrong. Particularly interesting to me is that the judge instructed them to assign compensation, not punitive damages, and they seem to have ignored that. Re challenge, do they even need evidence of jury getting it wrong to take the case higher? I'd have thought decisions at this stage could always be appealed.

Re chromebook, doesn't it work only if you have an internet connection?

I myself am on the market for a phone, have a macbook and an ipod, and was waiting for the next iphone to come out. Now I really don't want to buy Apple. To be sure, all these companies hold bogus IP, and wield it both offensively and defensively. But trying to shut down your biggest competitor seems to take it that extra step lower.

Prasad, my Android 4G by Samsung seems to be quite "smart." I mostly use it as a phone and for checking e-mail when I am away from home. Most of the time, it is in my purse in the "off" mode. My husband has an iPhone (his university e-mail system did not support Android when he bought his phone) which he uses constantly but he is always lusting after my phone. So I am guessing that the Android has more bells and whistles.

Dean, I will end up buying a small laptop. I use a desktop and one of Sudhir's old laptops at home. The latter is very heavy, making it undesirable for carrying during my travels. I am leaning towards a 3.3 pound Sony Vaio laptop which will serve my needs very well.

Again, I'm way out of my league, but that circumstance really shouldn't stop anybody like me from opining out loud. The problem seems to be the difficulty in using remarks jurors make about what went on during deliberations. If the instruction was acceptable, i.e., not challenged, then I suppose there remain ways, albeit with demanding standards, for arguing that there's no way the jury could have taken that instruction and arrived at that conclusion.

Chromebook is working to enable offline access to, e.g., email, etc. But yes, primarily you have to have a 'net connection.

I lust after amplifiers and such, so I suppose getting hot and bothered about a phone isn't such a wild deviance.

Here is a discussion of the verdict that focuses on some of the objective inconsistencies and odd behaviors independent of any post-game commentary by the jurors themselves.

Ruchira, yea I think I'll get one of the android phones as well. Actually I've heard myself that these days they have more features than the iphone. The main reason I was going to get an iphone actually was I knew if I went the android route I'd unstoppably find myself researching and comparing features and spend three days picking out a phone :)
Btw, if you're on the market for a light laptop, I'd recommend looking at the Toshiba 'Portege.' I bought one as a gift last year (after a whole day of horrible decision making!), and it seems to be performing very well.

Dean, my confusion is at a much more basic level. Maybe they can't use media interviews by the jury in their appeal, or maybe they can, don't know. Independent of that, can't they always appeal the decision itself on other grounds? I've heard of a case where such a large lawsuit wasn't even appealed. How can this one court have so much power?

Prasad, yes, they can theoretically always appeal until they've heard from the court of last resort. (Speaking of which, have you all read Judge Posner's take down of Justice Scalia's and Brian Garner's latest book? H.t. Leiter.) I was going on about the talk of challenging the verdict on the basis of the foreman's interview. The Gizmodo article predicts a Federal Rule of Civil Procedure 50(b) motion, i.e., a post-verdict motion at the trial court challenging the jury's, uhm, sanity. That's not an appeal, of course, but it seeks an overturning of the verdict.

The Samsung sells very well in the Smartphone market. Apple is unlikely to step aside. They will think about their profits.

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