back to article Apple-v-Samsung $1bn iPhone fine: 'Jury foreman was biased'

Apple's billion dollar patent court victory should be dismissed, Samsung say, because the jury foreman in the case was biased. Samsung's call for a retrial in the fight between the two tech giants will be heard on 6th December by judge Lucy Koh in the same San Jose court where the original verdict was handed down. New …

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  1. David Hicks
    Meh

    Well that and...

    ... that the guy, despite being a patent holder himself, didn't understand the concept of prior art and has been quoted thusly -

    "The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there. "

    That was his reasoning for dismissing and ignoring all prior art claims. This verdict is so full of holes I could use it to drain my pasta!

    1. This post has been deleted by its author

    2. deadbeef
      Coat

      Re: Well that and...

      > This verdict is so full of holes I could use it to drain my pasta!

      Not unless you want your pasta in the sink and down the plug hole.

      1. Anonymous Coward
        Anonymous Coward

        Re: Well that and...

        You make out like these people did not sit through the trial and the judge is an idiot but YOU know better - grow up.

      2. Anonymous Coward
        Anonymous Coward

        Re: Well that and...

        Just because you don't like the verdict does not mean the jury and judge were corrupt etc.

        1. Naughtyhorse

          Re: Well that and...

          just because you did like the verdict doesn't mean they weren't

        2. Anonymous Coward
          Anonymous Coward

          Re: Well that and...

          @AC 16:08 GMT x2

          "You make out like these people did not sit through the trial and the judge is an idiot but YOU know better - grow up." & "Just because you don't like the verdict does not mean the jury and judge were corrupt etc."

          The issue being commented is outwith the trial in the court, it is about the evidence subsequent to the trial by the jury foreman.

          What the jury foreman did in the jury room, on his own evidence to several journalists reporting him verbatim, was contempt of court. In an English court that would almost certainly have resulted in imprisonment, not very long after the reports of what he said.

          I don't know about the contempt of court time-scales in the USA, but certainly jurors are also jailed for contempt. Beyond any reasonable doubt, what the jury foreman did in this case was wilfully contrary to the Judge's instructions, and the jury instructions require that his conduct should have been reported to the Judge. Evidently it was not, and prima facie that evidences that the remainder of the jury were acting under the undue influence of the jury foreman, which given what he has said is sufficient grounds for a mistrial.

      3. Naughtyhorse

        Re: Well that and...

        I do hope that pasta is not in the form of rectangles with rounded corners.

        litagliatelli i think its called

        1. John H Woods

          Re: Well that and...

          Oh no, there's gonna be a fusilli comments now.

    3. Anonymous Coward
      Anonymous Coward

      Re: Well that and...

      Not only the prior art interpretation that the jury foreman used to mislead the jury, but also the fact that the jury foreman interpreted source code and probably mislead the jury on the basis of his interpretation of that as well. (Same program is coded differently by SDK for each system - did the jury foreman tell the other jury members. He told the jury that the coding was different, but the programs could have been copied.)

      The jury decided the case, but not on the evidence presented in court. Samsung have a good appeal case. What the jury foreman said afterwards was almost unbelievable, but read the BBC transcript of the the interview yourselves:

      http://www.bbc.co.uk/news/technology-19425051

      For non-UK readers, in English civil proceedings, what happens in the jury room stays in the jury room.

    4. Shagbag
      Thumb Down

      How is this 'news'? El Reg trying to improve their numbers?

      I must be missing something. This stuff has been out in the open for weeks. What is 'new' about it?

      Is this a cynical attempt by El Reg to improve their numbers?

      1. Anonymous Coward
        Anonymous Coward

        Re: This stuff has been out in the open for weeks

        But has only just been presented to the court and given a date for hearing.

  2. Silverburn

    Oooooh

    Samsung might have a case here...

    ...but damn, they're really stretching the case here, no matter how much you'd want to see Apples win turned over. Then again, with a billion dollar fine due to be paid soon I guess it doesn't harm them to try appealing it.

    1. dotdavid
      Facepalm

      Re: Oooooh

      I am not a lawyer, but if there's one thing I've noticed about Samsung's case, it's that they have their good points but they seem to bury them under a heap of only-vaguely-likely conspiracy theories. It's very much quanity over quality of evidence. And it seemed to annoy Judge Koh before, so perhaps isn't the best strategy for the appeal.

      1. aj87

        Re: Oooooh

        I hope they are also pursuing this line as well

        http://www.theregister.co.uk/2012/09/25/samsung_new_trial_attempt/

        ... because its much more convincing that Hogan used his own tainted technical knowledge to help sway the jury, than that he had a vendetta, especially when its straight from the horses mouth.

      2. Paul Shirley

        Re: Oooooh

        @dotdavid:

        They have no choice but to add every possible currently known issue *now* or lose the right to ever raise them. That's the way the US system works. While I suspect the Seagate issue is imaginary only 1 man knows for sure. His real reasons for corrupting the jury process may never be known.

        What's important to remember is today's report is only about Koh responding to recent filings, over this specific issue and the more dangerous 'when did Apple know' question. Hogan's reported behaviour in the jury room is already part of the proceedings and will be handled in the same Dec6 hearing.

        If Koh doesn't void the result there are so many procedural errors in the jury verdict it's unlikely to stand anyway. In fact if Apple cared about collecting the $1bil they would be trying to rehear the case, the verdict wording prevents them collecting triple damages! They don't because they actually only want the bad Samsung PR and to prolong the legal harassment, a 2nd trial with a fair jury, with Samsung allowed to present all the evidence, with so many opposing precedents accumulated round the globe isn't likely to go well for Apple.

  3. dogged

    They could throw in "also, he said a lot of retarded shit indicates that he totally ignored the judge's instructions". Which, cleaned up, might play slightly better than this Kevin Bacon stuff.

    1. Bob Vistakin
      Stop

      Agreed - if he ignored the judges instructions then by definition this was a mistrial.

      1. Anonymous Coward
        Anonymous Coward

        Yes yes Rumpole - calm yourself. Get a law degree then comment. I said VANILLA milkshake and don't spit in my burger.

        1. Anonymous Coward
          Anonymous Coward

          Ooh, the return of the anonymous spit eating lawyer! Please explain to us why it's ok for the jury foreman to claim prior art means "must run on the same device"? And maybe you could also explain why we allow people who aren't politicians to have an opinion on politics, why people who aren't musicians are allowed opinions on music, and why your ridiculous "get a law degree then comment" statement should be respected.

  4. Alan Denman

    Bias training.

    Considering the public had been trained on this by an emotional media and fans egged on by Apple's words, how could the jury not be biased?

    The jury surely had already been near enough rounded up into a corner.

    1. Oliver Mayes

      Re: Bias training.

      "Rounded"? "Corner"? Those are dangerous words you're using there!

  5. frank ly

    How long before ....

    .... a drama-documentary is made, based on all this (and more to come)?

    I could put together a rough and generic script, have it registered with the appropriate organisations, then sit back and wait to sue anybody who makes a successful product.

    1. PhilBuk

      Re: How long before ....

      You could call it 'Twelve Confused Men'.

      Phil.

  6. Steve Todd

    Since one US Jury was drunk or stoned through most of a case

    And their verdict STILL wasn't overturned then Samsung are likely to have a tough time selling this one.

    1. hplasm Silver badge
      Devil

      Re: Since one US Jury was drunk or stoned through most of a case

      As well as the Apple/Samsung one?

      Outrageous!

  7. Esskay
    Thumb Down

    Good luck to them, but

    No doubt this will be portrayed in US media as "Massive Faceless Korean Corporation goes after little freedom-loving American Inventor who loves kittens and Apple pie".

    Ever since the beginning this case seems to have been devoid of all logic, I don't see why anything would change now.

    1. Anonymous Coward
      Anonymous Coward

      Re: Good luck to them, but

      What pie did you say?

      I think you'll find that Apple invented Apple pie (that have any form of rounded corners). Mind you , if somebody volunteered to mince up the Apple lawyers I'd gladly turn the oven on to bake them in a pie.

      1. Esskay
        Pint

        Re: Good luck to them, but

        Hah! I didn't even spot that. Well picked.

        Here's an upvote to counter the lawyer who obviously didn't appreciate your good humour.

    2. Anonymous Coward
      Anonymous Coward

      Re: Good luck to them, but

      "Massive Faceless Korean Corporation"

      The truth then.

      1. Anonymous Coward
        Anonymous Coward

        Re: Good luck to them, but

        Yeah, Apple has a massive face!

  8. PaulR79
    Facepalm

    Clutching at straws

    I hate Apple for many reasons but this does seem to be clutching at straws. Why not point out that he lied about other stuff? I'm sure there was mention before about him having been involved in court cases and he said he hadn't, claiming he'd been asked "in the last 12 years" when nothing like that had been added. Isn't there also the huge matter that the jury is *not* supposed to come up with the figure as a way of punishing a company and setting an example? The fine is up to the judge, the jury just come up with the decision based on facts. Supposedly.

    1. Anonymous Coward
      Anonymous Coward

      Re: Clutching at straws

      The guy wants his moment of glory - the jury are advised on points of law by the lawyers (on both sides) as well as the judge. People make out as if this one guy put a gun to the other jury members heads and made them vote his way. With or without him I'd expect the same result.

      1. sabroni Silver badge

        Re: With or without him I'd expect the same result.

        Yeah, have faith in the "good ole boys"...

  9. Silverburn

    A technical question occurs...

    ..if Samsung manage to discredit the foreman, sure that's only 1 vote, and unlikely to swing the majority decision?

    Assuming that a majority verdict is even a requirement, of course?

    1. Kevin 6

      Re: A technical question occurs...

      Not really if you read what he said to places after the trial he told the people what to do basically, how to interpret things, and told them to ignore the judges instructions so pretty much he lead the jury to their decision it wasn't based on what the judge's instructions.

      1. aj87
        Thumb Up

        Re: A technical question occurs...

        Who knows why you are being downvoted, he says in a video interview the jury wasn't in agreement and he says he personally thought "how could I defend this if this was my patent", then he goes on to say how because the prior art chipset wouldn't run Apple's code then its not the same, his influence is how a jury managed to decide the outcome to such a complex case in what was it 48 hours?

        Essentially I don't think the Seagate information is as damning as the interviews he gave after the verdict, where he says how he uses prior knowledge (which he had sworn not to) and as above says himself how he completely messes up how prior art should be examined.

        Also how is El Reg only now running this story? this was covered by Groklaw on the 7th of October! http://www.groklaw.net/article.php?story=20121004050859829

      2. Vic

        Re: A technical question occurs...

        > pretty much he lead the jury to their decision

        He claimed that the jury was about to find for Samsung, until he had his "a-ha" moment.

        If there's to be any semblance of propriety in this case, this verdict needs to be overturned. I've no idea how much of Apple's case was legitimate, and how much bluster, but the jury verdict was such a monster mess it cannot possibly stand...

        Vic.

  10. Anonymous Coward
    Anonymous Coward

    Not grasping at straws at all

    Are they going for 6 degrees of separation now?

    1. Anonymous Coward
      Anonymous Coward

      Re: Not grasping at straws at all

      No 7 and you are not allowed to have owned any electronic device or lived on earth - or or be male or female. Apart from that.

  11. Anonymous Coward
    Facepalm

    Ok this is going a bit far into silly territory.

    But my Samsung washing machine broke down last weekend, so I guess that makes me biased.

  12. Lars
    Coat

    The jury

    Cases like these should not be put to a jury. It is a lottery of 50/50.

    1. 100113.1537
      Thumb Up

      Re: The jury

      Which is why they ALL get appealed. More work (and money) for the lawyers.

    2. Anonymous Coward
      Anonymous Coward

      Re: The jury

      Samsung would have loved those odds - the reality is they were into the courtroom expecting to lose. I'd slap them with 3x damages for it being wilful as they were a Apple supplier and privy to more details / in a position of trust.

      1. Geoff332

        Re: The jury

        Is your name Velvin Hogan? You sound just like him!

  13. Anonymous Coward
    Anonymous Coward

    Samsung = desperate. Pay up and move on.

  14. DF118

    Jeez Reg, this news is about a fortnight old.

    1. Ted Treen
      Trollface

      I rather think...

      ...that it's somewhat more than a fortnight old.

      Still, nothing gets in the way of a Leach trollfest.

      1. Anonymous Coward
        Anonymous Coward

        Re: I rather think...

        Think you mean leech

      2. DF118
        Pint

        Re: I rather think...

        TBH I didn't actually read the article and gave the author the benefit of the doubt by assuming she was perhaps referring to this, re the latest court filings (v.interesting), since the "news" that Velvin Hogan fucked it up is so old even my mum has heard it.

  15. Anonymous Coward
    Anonymous Coward

    What next he was biased against Samsung as a friend once owned a Samsung telly that developed a fault. Or he once got bitten by a Snake and both have S's. Come on.

    1. DF118
      FAIL

      How about instead of posting snarky pish you go read some factual sources on just how much this guy has actually fucked up the trial?

  16. toadwarrior

    If Samsung knows all this about him then why did their side accept him? Sounds like they intended to use the juror as a get out jail free card so I'd turn down their request.

    1. sabroni Silver badge

      Because they found out about this after the verdict. Though apparently apple knew beforehand and despite legal precedent kept quiet about it... Hey, just joining in the "conjecture is fact" feel of this thread!

      1. Geoff332

        That's basically Samsung's argument.

        Apple has said, "You should have known beforehand! You probably did and you didn't tell anyone." On that basis the Jury's history should not be a valid argument for a mistrial (i.e. it's Samsung's own fault).

        Samsung, in response, produced a signed affidavit saying they didn't know (lawyers lying to the court is pretty serious). In turn, they have said, "OK Apple: when did you figure it out? If you knew before the trial, then you had an obligation to tell the court as this was obviously a potential source of bias. If you didn't know beforehand, then is is reasonable to expect us to have done something that you didn't?"

        It's not that they're accusing Apple of anything: they're merely attempting to neutralise Apple's argument and keep there appeal alive.

    2. DF118
      Meh

      @toadwarrior

      Interesting question, and exactly the same one (in not so many words) that Apple asked Samsung. Apple wanted to make the point that if Samsung didn't know until after the trial then it was THEIR responsibility to have found out.

      Samsung have answered that they did not know beforehand, and now they are demanding the same of Apple since either Apple did know before the trial and did not volunteer material facts, or, like Samsung, they did not investigate Hogan because - as Samsung said all along - there was no reason to. Surprise surprise, Apple don't want to answer, and now Samsung is asking the court to compel Apple to disclose the info.

      The following is from Samsung's motion to compel:

      "Samsung will respond in due course in its reply to this remarkable and untenable suggestion that it should have extra-judicially investigated a sitting juror’s bankruptcy despite its lack of relevance to any question asked on voir dire. But in order to have a full and fair opportunity to reply to Apple’s “waiver” argument, Samsung is entitled to know when Apple first learned of Mr. Hogan’s undisclosed Seagate litigation, including whether it knew of Mr. Hogan’s misstatements to the Court prior to Samsung’s post-trial motion and nonetheless concealed that knowledge from the Court. Apple’s answer to that question is relevant both to whether Apple complied with its obligation to disclose known misrepresentations to the Court and whether a reasonable litigant in this case should have discovered Mr. Hogan’s untruthfulness sooner than Samsung did. Apple has refused to disclose this information despite Samsung’s request. Samsung therefore respectfully requests that the Court compel Apple to disclose when it first learned of Mr. Hogan’s undisclosed Seagate litigation....

      "If Apple knew that Mr. Hogan’s statements were untruthful all along and stood silent in order to gain a tactical advantage from the seating of a biased juror, Apple’s misconduct would itself warrant sanction and relief and certainly must be disclosed. If, on the other hand, Apple, like Samsung, did not know that Mr. Hogan had been untruthful until after the verdict, that is relevant evidence that Samsung’s reliance on the presumptive veracity of Mr. Hogan’s voir dire responses during trial was reasonable. Apple cannot fault Samsung for not discovering juror untruthfulness while refusing to disclose whether and when Apple itself discovered this untruthfulness."

    3. rvt
      WTF?

      In fact, both Apple and Samsung had to age with the jury before staring this case. Both samsung and Apple could object against the jury that was chosen, and both agreed all was in good order.

      Samsung both Apple did know the background of all people. Samsung was just stupid enough to not verify each and every person when they could.

      I am sorry to say for all fanbois, but samsung had it' chance to object but they didn't do so. May be they where just to confinsed that they would win so it didn't matter? Who know...

      1. DF118
        FAIL

        @rvt

        Understanding fail. Go read up some more.

  17. Alan Johnson

    Bias is not the main argument

    The guy may or may not have been biased but the more substantial problem is that he has publically stated that he advised the jury on what was or was not valid prior art, and that this made a big difference to the jury. His stated criteria for the prior art was totallly, laughably wrong, going completely against the Judges directions and common sense for anyone with any sort of technical background.

    Samsungs main defence was prior art so his intervention removed any chance (IMO) of samsung receiving a fair trial. The judge in this case doe snot seem to have been very even handed and judges are rightly reluctant to use jury conduct to overturn verdicts so we will hav to wait and see.

  18. stephajn

    National Bias as well?

    I am sure SOMEONE must have brought out this fact before, but it really does beg the question...

    Apple is a US based company correct? And one of the most valuable companies in the world blah blah blah.

    Samsung, based out of South Korea is now challenging a US based company in the mobile phone business and doing quite a good job of it too!

    Putting aside jury bias...is it possible....just POSSIBLE that there is a lot of country bias as well in this regard? US court favours their own home based business especially due to the failing economy? Who knows...perhaps I am stating something obvious and already discussed into the ground, but it sure does make one wonder when in other parts of the world, Apple is being handed their ass in some other cases. The UK case comes to mind.

    Comments? Anyone?

    1. Anonymous Coward
      Anonymous Coward

      Re: National Bias as well?

      wanker

      1. Anonymous Coward
        Anonymous Coward

        Re: wanker

        Not quite as big a wanker as someone who comes on here and makes multiple ill thought out and churlish anonymous posts, all bigging up Apple, all claiming Samsung deserved to lose and none with any valid, sensible point.

        Let me guess, are you posting from the united states of "patent a rectangle"?

  19. Arion

    So what now

    Its often been argued that in a jury trial, you're depending ln the wisdom of a group of people too stupid to get out of jury duty. This case shows both that a little knowledge is a dangerous thing, and that having juries deliberate behind closed doors, opens the way to a huge miscarrage of justice.

    Whether or not the result should have been different in this case is immaterial. What matters was that it looks very likely ( assuming this retard is telling the truth in interviews, and that other jurers followed his lead ) case of a ridiculously unfair trial. Even if Samsung should have had that verdect returned, it shouldn't be from an unfair trial.

    What is the way forward? What are the advantages of the current jury system that we want to maintain, and what are the problems with it. How would you address those problems, while maintaining the advantages, and indeed requirements?

    Personally I think a court official should observe all deliberations, and intervene if the jury are misbehaving. This court official would be a few feet away from the deliberators, and communicate only in writing. He/she would be able to nip trivial transgressions in the bud, with a reminder of the jurys obligation/judges orders, would refer more serious cases to the judge, and would report at the end on whether or not the jury followed correct procedure.

  20. rvt
    Devil

    Sammy, please move on. You copied stuff from apple, and now you have to pay, also be glad that the judge didn't ask you to put. Note on your website like the childish judge in the UK did.

    1. Shagbag
      Thumb Up

      I'm lovin' your posts...

      ...only because of the responses they get. What you say is complete an utter crap and you know it, but your intention in posting them is working: people are taking the bait. lol.

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