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Judge in Oracle v. Google Explains What Jurors Must Not Do

106 points by esolyt 14y ago

jerrya 14y ago
That's an interesting article, but is it grounds for an appeal? Or could it be seen as an instance of jury nullification?
- SwellJoe 14y ago
  It feels like the opposite of jury nullification. It grants more power to the state to protect patents than the law has ever been used for. Nullification is historically used as a check on the state, rather than a tool to make the law mean something completely different and much farther reaching. And, of course, it's generally used in criminal cases. But I don't know how the appeals process will go. I have no idea what makes an appeal possible in a civil case.
- zmmmmm 14y ago
  > but is it grounds for an appeal It sounds like one of the few angles that possibly could be used as grounds for an appeal. Clearly the jury did not execute their duties correctly in this case and it's been fascinating and quite surprising how openly and freely they have revealed their own willful ignorance. But that ignorance is the product of three things: Samsung's failure to educate them, Apple's failure to educate them, and the judge's failure to instruct them well enough. Samsung and Apple's failure's are clearly not going to be grounds for an appeal ("Your honor, we need an appeal because our lawyers are incompetent!"). The only thing left is if Samsung could show that that Judge Koh did an unusually bad job in instructing the jury. If she instructed them just fine and they still completely ignored her - then I don't see how this will be useful in getting an appeal. I'm hopeful that Judge Koh will be embarrassed enough by the outcome that she'll dramatically reduce damages or even facilitate the process of an appeal herself. It's pretty clear something has gone wrong here, and if I was a prominent judge I would not want my name attached to it in the history books.
- danielweber 14y ago
  Jury nullification isn't "let's nullify what the jury did."
- kaffiene 14y ago
  It's not Jury Nullification: they didn't decide that they should not apply the law, they misunderstood the law (and ignored the Judge's instructions).
option_greek 14y ago
Wow, so it's not just the duty of the Samsung lawyers to weed out trouble some jurors (from their perspective) but also the duty of the judge to educate the jurors on this issue. Of course, we don't yet know whether the judge in the apple trial has issued these instructions. edit: Also, this puts aside the debate about whether a more technical jury would have given a different verdict.
- saraid216 14y ago
  Absolutely. A judge's job is to make sure that everyone understands the law itself. That's one of two central purposes of a judge in a courtroom (the other being that he interprets what the law means in an official capacity). In a very real sense, he is the Law Incarnate.
ChuckMcM 14y ago
While I find this all sad and disheartening, I really wish we'd get better insights into what Samsung's lawyers are doing about it rather than all the complaining about how badly the jury did their assignment. Surely if there is a way to use this in either a motion for a mistrial or to force a judicial review they not doubt would be filing it.
- blrgeek 14y ago
  They still have time to file their appeal - since they're going to be filing against the whole jury verdict. Eagerly waiting for that and the groklaw review.
tjoff 14y ago
I'm quite skeptical as to how you could ever come to a fair conclusion with a juror that isn't supposed to know about the field specifically. How are you supposed to make an argument that some software patent is trivial to someone that hasn't programmed a single line in their life? It would take years to educate someone as to how computers and languages work for them to get any reasonable idea about what the case really is about.
- taligent 14y ago
  It is the role of the lawyers to explain their position in layman's terms. Having programming experience is absolutely not a requirement for understanding the technicalities of what software does. If it was we would see Testers, Producers, Business Analysts, Project Managers etc with programming skills. But we don't. And yet almost every software project has these people deciding, testing and understanding what is being built.
  - tjoff 14y ago
    Having programming experience is absolutely not a requirement for understanding the technicalities of what software does No, but having experience and knowledge about computers in general is required to make a decision on, say, whether a mouse-over event is innovative. There's a short clip of Feynman describing the problem here: http://www.youtube.com/watch?v=wMFPe-DwULM&feature=player_detailpage#t=66s http://www.youtube.com/watch?v=wMFPe-DwULM&feature=playe... And yes, people are that clueless about "computer stuff" that they could just as well have been from another planet.
- jallmann 14y ago
  > I'm quite skeptical as to how you could ever come to a fair conclusion with a juror that isn't supposed to know about the field specifically. If the burden of proof wasn't solely on the lawyers, we'd end up with situations where jurors apply their own preconceived notions or misguided "knowledge" towards the case, much as the foreman has done here. This seems to echo the reasoning for the patent system's definition of prior art. The burden of proof for prior art is scoped to the patent system itself. Something is prior art only if it's an obvious extension of something already patented, not if something else similar but unpatented exists in the wild. Not sure if this applies to the design patents of this case though.
d0de 14y ago
I think it would be near impossible for someone who has passed the patent bar to genuinely set aside their "specialized knowledge" when hearing a patent case. In fact, I will flat-out assert that it's impossible, because when you become a domain expert in that way, you internalize a great deal of the training. If one side flubs an explanation of prior art or of some other term of art, the rest of the jury may be confused or be under a misapprehension and the patent attorney will not be. You'd have to be both unusually self aware and a saint to i) recognize the misapprehension you would be under in that situation if you didn't have domain knowledge, and ii) try to reach a decision as if you were under that misapprehension. In other words, I think it's a complete fiction to tell people to set aside professional training and the knowledge and background that comes with that when they're acting as a jury member. If you were hearing a civil case involving programming, would you be able to set aside your knowledge of programming and hear the case as if you were a layperson? I wouldn't.
- alttag 14y ago
  Not only do I agree, I'd take it a step further: the jurors should be expected to use their specialized knowledge. Yes, they should rely primarily on what's presented, but the application of knowledge is important. Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful?
  - adgar 14y ago
    > Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful? The point of forbidding juror's own personal ideas about the law from the jury room, as you suggest people must do, is to reduce the likelihood that people screw it up. So there are less instances of this happening. You're somehow arguing that the foreman's error, based on his own beliefs, is evidence of what already happens anyway (we can't do any better) and thus extrapolating that people should use their beliefs more. Why don't we spend a little more energy and time teaching jurors how to read jury instructions? Teaching them to be confident enough with that reading to challenge bullshit like the foreman here presented? Make them better jurors, not just throw our hands up and say "use whatever you want when you deliberate, the trial was just for fun anyway."
taligent 14y ago
PJ's bias is getting ridiculous now. When you read this line that the foreman "used knowledge from that experience to convince the other jurors that Samsung's prior art was not valid" you are led to believe coercion occurred. When in fact there is no evidence of this at all. Likewise the foreman "played his own role as an "expert", to decide the case" makes it seem like the foreman was the one making all the decisions. I've been on two juries in the past and everyone takes the role seriously. Especially for a high profile and expensive case as this one. So are we really going to let this picture be painted that one person made the decision here ?
- johsoe 14y ago
  From: http://www.theverge.com/2012/8/31/3280361/apple-samsung-jury-foreman-velvin-hogan-interview http://www.theverge.com/2012/8/31/3280361/apple-samsung-jury... "Hogan said he was one of a pair of jurors that served as the de facto technical experts of the nine-person panel." And: "Except for my family, it was the high spot of my career," Hogan said about the trial. "You might even say my life." A holder of a patent on video compression himself, he said he recognized that the case represented a "landmark decision," and that he was pleased he'd been selected "because I wanted to be satisfied from my own perspective that this trial was fair, and protected copyrights and intellectual property rights, no matter who they belonged to."
- esolyt 14y ago
  He was obviously heavily influential. One of the jurors, Ilagan says: "Apple said they owned patents, but we were debating about the prior art. Hogan was jury foreman. He had experience. He owned patents himself…so he took us through his experience. After that it was easier."
- vacri 14y ago
  I don't see any hint of coercion in the article. It seems to me that you're showing bias in thinking so. The foreman is painted as using his prior experience to influence the other jurors, in a manner that he shouldn't have. He isn't painted as being a standover man.
- recoiledsnake 14y ago
DirtyCalvinist 14y ago
It seems to me that all this wrangling and instructing juries is an argument for having dedicated, technically and juridically trained jurists decide these cases.
- philwelch 14y ago
  By the same token, you could say all the "wrangling" around political campaigns is an argument for dictatorship.
- columbo 14y ago
  A random pool of people is nearly impossible to corrupt. Make someone's full-time job as a juror and the system WILL corrupt. A pool of "experts" will become a bidding war and only the large pocketbooks will win. Everything from patent infringement to murder will be based not on the letter of the law but on how much money you are willing to use in bribes. I'm really surprised to see this even be something that needs to be debated. Randomized juries is like a fail-safe against judicial corruption. Every case is a unique pool of individuals, you simply cannot take one person out of the country (say, a full-time expert juror) and blackmail them for life. You've got one trial, 12 random people, and only one shot to convince, appeal, coerce, intimidate or bribe.
  - saraid216 14y ago
    > I'm really surprised to see this even be something that needs to be debated. I've seen it come up in other places for other, arguably nobler, reasons. ("Fixing" unemployment by preferring the unemployed as jurors.) But yeah, taking out the randomness is a bad idea, with a huge, huge burden of proof on why it'd be better another way.
  - pfedor 14y ago
    A solution used in many countries including some definitely first-world countries (Japan, Germany, France, Sweden) is to have a mix of professional judges and lay judges. Seems that it preserves the benefits you talk about, at the same time fixing a lot of the problems we see with jury incompetence.
  - 14y ago

106 points by esolyt 14y ago

That's an interesting article, but is it grounds for an appeal? Or could it be seen as an instance of jury nullification?

SwellJoe 14y ago
It feels like the opposite of jury nullification. It grants more power to the state to protect patents than the law has ever been used for. Nullification is historically used as a check on the state, rather than a tool to make the law mean something completely different and much farther reaching. And, of course, it's generally used in criminal cases. But I don't know how the appeals process will go. I have no idea what makes an appeal possible in a civil case.
zmmmmm 14y ago
> but is it grounds for an appeal It sounds like one of the few angles that possibly could be used as grounds for an appeal. Clearly the jury did not execute their duties correctly in this case and it's been fascinating and quite surprising how openly and freely they have revealed their own willful ignorance. But that ignorance is the product of three things: Samsung's failure to educate them, Apple's failure to educate them, and the judge's failure to instruct them well enough. Samsung and Apple's failure's are clearly not going to be grounds for an appeal ("Your honor, we need an appeal because our lawyers are incompetent!"). The only thing left is if Samsung could show that that Judge Koh did an unusually bad job in instructing the jury. If she instructed them just fine and they still completely ignored her - then I don't see how this will be useful in getting an appeal. I'm hopeful that Judge Koh will be embarrassed enough by the outcome that she'll dramatically reduce damages or even facilitate the process of an appeal herself. It's pretty clear something has gone wrong here, and if I was a prominent judge I would not want my name attached to it in the history books.
danielweber 14y ago
Jury nullification isn't "let's nullify what the jury did."
kaffiene 14y ago
It's not Jury Nullification: they didn't decide that they should not apply the law, they misunderstood the law (and ignored the Judge's instructions).

option_greek 14y ago

Wow, so it's not just the duty of the Samsung lawyers to weed out trouble some jurors (from their perspective) but also the duty of the judge to educate the jurors on this issue. Of course, we don't yet know whether the judge in the apple trial has issued these instructions. edit: Also, this puts aside the debate about whether a more technical jury would have given a different verdict.

saraid216 14y ago
Absolutely. A judge's job is to make sure that everyone understands the law itself. That's one of two central purposes of a judge in a courtroom (the other being that he interprets what the law means in an official capacity). In a very real sense, he is the Law Incarnate.

ChuckMcM 14y ago

While I find this all sad and disheartening, I really wish we'd get better insights into what Samsung's lawyers are doing about it rather than all the complaining about how badly the jury did their assignment. Surely if there is a way to use this in either a motion for a mistrial or to force a judicial review they not doubt would be filing it.

blrgeek 14y ago
They still have time to file their appeal - since they're going to be filing against the whole jury verdict. Eagerly waiting for that and the groklaw review.

tjoff 14y ago

I'm quite skeptical as to how you could ever come to a fair conclusion with a juror that isn't supposed to know about the field specifically. How are you supposed to make an argument that some software patent is trivial to someone that hasn't programmed a single line in their life? It would take years to educate someone as to how computers and languages work for them to get any reasonable idea about what the case really is about.

taligent 14y ago
It is the role of the lawyers to explain their position in layman's terms. Having programming experience is absolutely not a requirement for understanding the technicalities of what software does. If it was we would see Testers, Producers, Business Analysts, Project Managers etc with programming skills. But we don't. And yet almost every software project has these people deciding, testing and understanding what is being built.
- tjoff 14y ago
  Having programming experience is absolutely not a requirement for understanding the technicalities of what software does No, but having experience and knowledge about computers in general is required to make a decision on, say, whether a mouse-over event is innovative. There's a short clip of Feynman describing the problem here: http://www.youtube.com/watch?v=wMFPe-DwULM&feature=player_detailpage#t=66s http://www.youtube.com/watch?v=wMFPe-DwULM&feature=playe... And yes, people are that clueless about "computer stuff" that they could just as well have been from another planet.
jallmann 14y ago
> I'm quite skeptical as to how you could ever come to a fair conclusion with a juror that isn't supposed to know about the field specifically. If the burden of proof wasn't solely on the lawyers, we'd end up with situations where jurors apply their own preconceived notions or misguided "knowledge" towards the case, much as the foreman has done here. This seems to echo the reasoning for the patent system's definition of prior art. The burden of proof for prior art is scoped to the patent system itself. Something is prior art only if it's an obvious extension of something already patented, not if something else similar but unpatented exists in the wild. Not sure if this applies to the design patents of this case though.

d0de 14y ago

I think it would be near impossible for someone who has passed the patent bar to genuinely set aside their "specialized knowledge" when hearing a patent case. In fact, I will flat-out assert that it's impossible, because when you become a domain expert in that way, you internalize a great deal of the training. If one side flubs an explanation of prior art or of some other term of art, the rest of the jury may be confused or be under a misapprehension and the patent attorney will not be. You'd have to be both unusually self aware and a saint to i) recognize the misapprehension you would be under in that situation if you didn't have domain knowledge, and ii) try to reach a decision as if you were under that misapprehension. In other words, I think it's a complete fiction to tell people to set aside professional training and the knowledge and background that comes with that when they're acting as a jury member. If you were hearing a civil case involving programming, would you be able to set aside your knowledge of programming and hear the case as if you were a layperson? I wouldn't.

alttag 14y ago
Not only do I agree, I'd take it a step further: the jurors should be expected to use their specialized knowledge. Yes, they should rely primarily on what's presented, but the application of knowledge is important. Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful?
- adgar 14y ago
  > Yes, there may be instances where a jury foreman misinterprets the law, but that can happen anyway, so why attempt to enforce the unenforceable and pretend domain knowledge isn't important or useful? The point of forbidding juror's own personal ideas about the law from the jury room, as you suggest people must do, is to reduce the likelihood that people screw it up. So there are less instances of this happening. You're somehow arguing that the foreman's error, based on his own beliefs, is evidence of what already happens anyway (we can't do any better) and thus extrapolating that people should use their beliefs more. Why don't we spend a little more energy and time teaching jurors how to read jury instructions? Teaching them to be confident enough with that reading to challenge bullshit like the foreman here presented? Make them better jurors, not just throw our hands up and say "use whatever you want when you deliberate, the trial was just for fun anyway."

taligent 14y ago

PJ's bias is getting ridiculous now. When you read this line that the foreman "used knowledge from that experience to convince the other jurors that Samsung's prior art was not valid" you are led to believe coercion occurred. When in fact there is no evidence of this at all. Likewise the foreman "played his own role as an "expert", to decide the case" makes it seem like the foreman was the one making all the decisions. I've been on two juries in the past and everyone takes the role seriously. Especially for a high profile and expensive case as this one. So are we really going to let this picture be painted that one person made the decision here ?

johsoe 14y ago
From: http://www.theverge.com/2012/8/31/3280361/apple-samsung-jury-foreman-velvin-hogan-interview http://www.theverge.com/2012/8/31/3280361/apple-samsung-jury... "Hogan said he was one of a pair of jurors that served as the de facto technical experts of the nine-person panel." And: "Except for my family, it was the high spot of my career," Hogan said about the trial. "You might even say my life." A holder of a patent on video compression himself, he said he recognized that the case represented a "landmark decision," and that he was pleased he'd been selected "because I wanted to be satisfied from my own perspective that this trial was fair, and protected copyrights and intellectual property rights, no matter who they belonged to."
esolyt 14y ago
He was obviously heavily influential. One of the jurors, Ilagan says: "Apple said they owned patents, but we were debating about the prior art. Hogan was jury foreman. He had experience. He owned patents himself…so he took us through his experience. After that it was easier."
vacri 14y ago
I don't see any hint of coercion in the article. It seems to me that you're showing bias in thinking so. The foreman is painted as using his prior experience to influence the other jurors, in a manner that he shouldn't have. He isn't painted as being a standover man.
recoiledsnake 14y ago

DirtyCalvinist 14y ago

It seems to me that all this wrangling and instructing juries is an argument for having dedicated, technically and juridically trained jurists decide these cases.

philwelch 14y ago
By the same token, you could say all the "wrangling" around political campaigns is an argument for dictatorship.
columbo 14y ago
A random pool of people is nearly impossible to corrupt. Make someone's full-time job as a juror and the system WILL corrupt. A pool of "experts" will become a bidding war and only the large pocketbooks will win. Everything from patent infringement to murder will be based not on the letter of the law but on how much money you are willing to use in bribes. I'm really surprised to see this even be something that needs to be debated. Randomized juries is like a fail-safe against judicial corruption. Every case is a unique pool of individuals, you simply cannot take one person out of the country (say, a full-time expert juror) and blackmail them for life. You've got one trial, 12 random people, and only one shot to convince, appeal, coerce, intimidate or bribe.
- saraid216 14y ago
  > I'm really surprised to see this even be something that needs to be debated. I've seen it come up in other places for other, arguably nobler, reasons. ("Fixing" unemployment by preferring the unemployed as jurors.) But yeah, taking out the randomness is a bad idea, with a huge, huge burden of proof on why it'd be better another way.
- pfedor 14y ago
  A solution used in many countries including some definitely first-world countries (Japan, Germany, France, Sweden) is to have a mix of professional judges and lay judges. Seems that it preserves the benefits you talk about, at the same time fixing a lot of the problems we see with jury incompetence.
- 14y ago