33 questions @ $31.8 million—That’s a lot of apples

by James Maxeiner on August 27, 2012

By now everyone has heard that Apple took a $1.05 billion bite out of Samsung Friday.  The jury did not just say, we find for Apple for $1.05, but it did not tell us which facts it found or how these facts fit under the law. It filled out a 33 question twenty page form. It answered probing questions such as

7. For each of the following products, has Apple proven by a preponderance of the evidence that Samsung Electronics Co. (SEC) and/or Samsung Telecommunications America (STA) has infringed the D’305 Patent?

(Please answer in each cell with a “Y” for “yes” (for Apple), or with an “N” for “no” (for Samsung). Do not provide an answer for any cell that is blacked out.)

10. If you answered “Yes” to any of Questions 1 through 9, and thus found that any Samsung entity has infringed any Apple patent(s), has Apple proven by clear and convincing evidence that the Samsung entity’s infringement was willful?

(Please answer in each cell with a “Y” for “yes” (for Apple), or with an “N” for “no” (for Samsung).)

11. Has Samsung proven by clear and convincing evidence that Apple’s asserted utility and/or design patent claims are invalid?

You can find the jury form used at http://ia600609.us.archive.org/14/items/gov.uscourts.cand.239768/gov.uscourts.cand.239768.1890.0.pdf .

For $31.8 million per question, you might think that Samsung is entitled to more than a simple yes/no. If the judge triples the verdict because the infringement was willful (question 10), its $95.4 million per question. And just how will the Court of Appeals review this verdict?

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PointOfLaw Forum
08.27.12 at 8:38 am

{ 11 comments }

1 Don 08.27.12 at 10:28 am

I was curious about the actions of the jury foreman who admitted that he led the jury through these issues because of his experience as a patent holder.

My mother served on a jury where she was uncomfortable with some of the things other members said some things, during deliberations, she didn’t think was proper. A week later she wrote a letter to the judge about how the jury deliberations were conducted. Judge took depositions from her and a couple other jurors and threw out the decision for juror misconduct.

If the foreman was giving information to the other jurors, and they were treating him as an expert witness on this topic, wouldn’t that be inappropriate?

2 Hugo S. Cunningham 08.27.12 at 11:09 am

Don wrote:

>I was curious about the actions of the jury foreman who admitted that he led the jury through these issues because of his experience as a patent holder.
[end of quote]

Surely this is a blatant conflict of interest? How did such a person get seated on the jury?

The site of the trial was appropriate, most likely to draw from a relatively computer-literate jury pool. But apparently, while having a patent holder, the jury did not have a representative of those who decry the destructive impact of our current patent system on software development.

3 Hugo S. Cunningham 08.27.12 at 11:47 am

>And just how will the Court of Appeals review this verdict?

Your argument (one I sympathize with) unfortunately is with the Seventh Amendment to the US Constitution:

>In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
[end of quote]

In one of their greatest 20th Century decisions New York Times Co. v. Sullivan, the US Supreme Court recognized a conflict between Seventh Amendment jury supremacy and the free press guarantee of the First Amendment: partisan juries could shut down opposition newspapers with ruinous and unjust libel verdicts. The USSC correctly decided that freedom of the press was the more important of the two conflicting Constitutional rights.

Congress has the authority to revise patent law, eg by restricting or abolishing software patents. Maybe they will, if an unbridled lawsuit culture drives software innovation and product development abroad, leaving America with higher prices and inferior products from a handful of monopolists.

4 AMcA 08.27.12 at 2:53 pm

That many special interrogatories and there’s a very real chance that there’s something inconsistent in there that will require retrial. Special interrogatories are a blessing and curse – especially when there are 33 of them. The possibilities for disruptive interaction between the answers multiply exponentially. Hope they had a good reason for asking each and every one of them . . . .

5 AMcA 08.27.12 at 2:58 pm

I guarantee you the fact the juror held a patent was well known to everyone. And no, we don’t look for diversity of experience on a jury, or counter-balancing viewpoints. We look for people who are unbiased. And the court probably made a finding that this juror was unbiased, because I’m sure one side (if I were the defendant, I would have) objected and tried to get him struck for cause.

And his use of his knowledge of patents being useful to leading the jury through the process? The instructions explicitly tell jurors they may bring their experience in life with them into deliberations.

Barring evidence of actual misconduct (and we’d probably have some hint of that by now) the patent-holding juror is not going to be a basis for overturning the verdict.

6 wfjag 08.27.12 at 4:12 pm

” leaving America with higher prices and inferior products from a handful of monopolists.”

Hugo, are you aluding to the fact that the logic chips, and most of the advanced electronics now come from Asia? If so, there’s been little evidence of Congress (or executive agencies broadly exercising rule-making powers) attempting to make the US more competitive in cutting edge technologies in which we once led.

.

7 Ron Miller 08.27.12 at 6:44 pm

“If the foreman was giving information to the other jurors, and they were treating him as an expert witness on this topic, wouldn’t that be inappropriate?”

Firs, it is not a conflict as someone suggested. A criminal lawyer can serve on the jury of a criminal trial. No one is excluded for having knowledge and using that knowledge in deliberations. Jurors bring with them their life experiences.

AMcA, no one is really looking for unbiased jurors, right? It is an adversarial system. You want potential jurors who you think might be symptomatic to your case.

8 Titus 08.28.12 at 9:14 am

For $31.8 million per question, you might think that Samsung is entitled to more than a simple yes/no.

What, precisely, sort of question should the jury have answered? “Describe how each of the items below makes you feel?” Juries always answered yes/no questions: the entire point of the common-law legal system is to produce a question that can be answered “yes” or “no” by a jury. Maybe there are inconsistencies with that many special interrogatories, but I certainly wouldn’t want to try and make the jury answer a question in some way other than yes or no.

9 Hugo S. Cunningham 08.28.12 at 10:00 am

I suspect our guest blogger wanted a paper trail for appeal if the jury got a fact wrong, but under the USA’s Seventh Amendment, appeals on a jury’s determination of fact are not allowed.

10 AMcA 08.28.12 at 10:59 am

@Ron – you’re right, the parties want biased jurors. But the judge, who is the ultimate arbiter of whether persons are biased enough to be excluded, is definitely looking for unbiased jurors. The parties like to see a biased juror slip through. The judge doesn’t.

11 James Maxeiner 08.28.12 at 1:38 pm

Titus asks what do I want?

What do I want? Only that which we expect of others abroad: “The judgment should be accompanied by a reasoned explanation of the essential factual, legal, and evidentiary basis of the decision. Principle 23.2 ALI/UNIDROIT Principles of Transnational Civil Procedure, American Law Institute and UNIDROIT (2004)” See my post at http://www.pointoflaw.com/archives/2012/08/apple-v-samsung-part-i.php

Titus is right “that the entire point of the common-law legal system is to produce a question that can be answered “yes” or “no” by a jury.” I assume Titus means historic common law pleading. BUT that was a single question of fact. At common law, parties were allowed to pose only one question of law to the judge OR one question of fact to the jury. They had to agree on which. The jury had no role in applying law; the parties did that by choosing the form of action. In 1848 in Field’s Code we abandoned common law pleading. We have come a long way from the primitive principle of making one point determinative, but we have yet successfully to incorporate the jury into the systems that followed. Applying law is not simple; pretending that it is, produces injustice.

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