Samsung is down but not out

By Graeme Burton
03 Sep 2012 View Comments
Olympic Edition Samsung Galaxy S3

When the jury delivered its verdict in the intellectual property infringement case between Apple and Samsung, many people were taken by surprise.

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Not only did it take just two-and-a-half days to deliver its verdict in a case that would have taken most juries weeks, but the decision was emphatic: the jury agreed that almost all the patents that Apple claimed Samsung had infringed had, indeed, been infringed. Not only that, but it also agreed with Apple that it had not infringed any of Samsung’s patents.

The judgment means Samsung now has nothing to lose from contesting the verdict in the most aggressive manner possible. And it will start by pointing to a number of inconsistencies in the jury’s decision-making.

For example, the jury initially awarded Apple compensation for infringements relating to a number of Samsung products, such as the Galaxy Tab 10.1 LTE, that it later decided did not infringe any of Apple’s patents. Striking out those awards cut more than $2m (£1.25m) from the $1.1bn (£660m) compensation Samsung had originally been ordered to pay Apple.

More seriously, some of the admissions in media interviews by foreman of the jury Vel Hogan indicated a number of shortcomings in the jury’s deliberations.

Hogan, it was revealed, is a patent holder himself and used his own patent as an example when the jury was making its deliberations to convince the rest of the jurors that Samsung’s claims of prior art in relation to its design patents were invalid.

“I realised that the software on the Apple side could not be placed into the processor on the prior art and vice versa,” Hogan told Bloomberg Television.

Yet the same could be argued of Samsung’s supposed use of that patent. In any case, the patent claims applicability to all “portable multifunction devices” – so prior art ought also be applicable regardless of the platform on which it was performed.

Another juror, Manuel Ilagan, said that they had effectively reached their decisions after the first day, according to widespread reports. “Hogan holds patents, so he took us through his experience. After that it was easier. ...we debated that first patent – what was prior art – because we had a hard time believing there was no prior art, that there wasn’t something out there before Apple.” The rest, he added, was easy.

“It’s easy to just go down those different [Samsung] products because it was all the same. Once you determine Samsung violated the trade dress [the visual appearance of a product], the flat screen with the bezel... then you go down the products to see if it had a bezel. But we took our time. We didn’t rush,” he said.

Hogan was even reported telling a court representative that the jurors had reached a decision without needing to resort to the 105-pages of instructions – something he subsequently denied.

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