Apple versus Samsung: Jury foreman justifies $1bn verdict

 
Samsung Galaxy S and iPhone 4 The judge in the case could still treble the amount of damages Samsung has to pay because the jury said the infringements were "wilful"

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The verdict in the recent Apple-Samsung patent trial in the US has sent shockwaves through the tech industry.

The jury ruled that Apple be awarded $1.05bn (£665m) after its South Korean rival infringed several of its software technologies and designs

Samsung's own claims of patent breaches were rejected.

The decisions have been picked over at length by both the media and public. Questions have been asked: Did the jury spend enough time considering the facts? Was a Californian jury inherently biased? And, based on the evidence, was the verdict wrong?

Velvin Hogan was the foreman in the jury. He is chief technology officer at Multicast Labs, which develops video technology for the web, and was familiar with the US patent system before the trial.

Velvin Hogan Velvin Hogan said his familiarity with the US patent system helped the jury reach its verdict so quickly

He spoke to the BBC to address concerns he had about some of the reports, and asked that it be known that he had not been paid for this or any other interview.

What follows is an edited version of the conversation. A full transcript is also available:

What was the crucial bit of evidence that convinced you to give a verdict that was so decisive in Apple's favour rather than Samsung's?

One of the most decisive pieces of evidence was reading the minutes for myself of a meeting that was held at a very high level between Google executives and Samsung executives.

It was for a tablet and Google was concerned that for the sake of their operating system that the look and feel and the methodology that they [Samsung] were using to create their tablet was getting too close to what Apple was doing.

And in the memo themselves - remember this was minutes - they stated that Google demanded that they back away from that design.

And later there was a follow-up memo among themselves, these executives, and in black and white it says: we elect to not pass this information down to the divisions that were actually involved in the design.

So, from the sake of the engineers they went merrily along continuing their design not given any orders to back away.

They knew nothing of that meeting. To me that kind of raised a light bulb in my head that when I got in the jury room I wanted to read the minutes of that meeting myself.

When we went into deliberation in the jury room we not only had all the physical evidence of everything that was presented, but we also had sealed source code in its entirety from both sides, we actually had the memos that were talked about in the trial... and there was a piece of evidence after a piece of evidence that just clearly stacked up.

Drawing if Apple versus Samsung lawsuit The jury deliberated for 21 hours before reaching its verdict

A lot has been made about the original interview you gave to Reuters in which you said you wanted to make the award sufficiently high to be painful to Samsung, but not unreasonable. There has been concern this might have be prejudicial and the awards should have been based on the facts alone.

I have tried to make it clear that it wasn't an attempt [to take] a punitive standpoint. And it wasn't necessarily focused at Samsung - that is where it had been taken out of context.

The jurors wanted to send a message to the industry at large that no matter who you are - whether you are Apple, whether you are Samsung, or anybody - if you wilfully take the risk to cross the line and start infringing and you get caught, and again I emphasise wilfully, you need to be prepared to pay the cost for that.

Apple graphic submitted as evidence Apple presented this chart as evidence that Samsung had changed its approach after the iPhone had been unveiled

There were two issues, looking at Apple's case: whether Samsung had infringed their patents and whether the patents were valid. Why weren't you convinced by Samsung's arguments that Apple's patents were invalid since prior art existed showing similar ideas?

Prior art was considered.

But the stipulation under the law is for the prior art to be sufficient to negate or invalidate Apple's patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.

And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error.

So the point being, at [a bird's eye-view from] the 40,000 foot-level, even though the outcome of the two seemed similar, the internal methodology of how you got there was entirely different. One could not be exchanged for the other.

And that is the thing that most people at large do not understand about the legal system. And as a result of that you have heard a lot of hype in the media about did we turn our back on prior art.

Samsung graphic Samsung used this image to suggest there had not been a sudden change in direction after the iPhone

There had speculation that Samsung might be awarded damages as well because of its claim that Apple had infringed its technologies.

What was key to us... is that [the technologies] had to be interchangeable.

And so consequently, when we looked at the source code - I was able to read source code - I showed the jurors that the two methods in software were not the same, nor could they be interchangeable because the hardware that was involved between the old processor and the new processor - you couldn't load the new software methodology in the old system and expect that it was going to work. And the converse of that was true.

Do you think if you hadn't been on the jury then we might have ended up with a very different verdict?

I think so. But let's not say me specifically.

Let's say if there had not been an individual who had the technical background, and there had not been an individual who had gone through the process, the verdict might have been different - or it might have been the same.

I believe that the jury system in this country stands. The individuals would have ultimately come to a verdict. It might have been a lot longer.

But what definitely would have been required is passing more questions to the judge and having them come back. In our case we didn't have to.

Do you have a concern that this case and the verdict given could encourage further patent litigation?

Yes. I have no doubt that, number one, this case for this country is historical. It's a landmark case and, as people have said, we set the bar rather high. But as jurors we took the job seriously.

What needs to be understood by those outside that are watching this and listening to it, no matter whether we or anyone else feel personally that the patent procedure in this country or the patent system is broken or sick, we as jurors were sworn to abide by the rules and the stipulations in law as they exist today, at the time we made the decision.

iPad and Samsung Galaxy Tab tablet computers The jury rejected Apple's claim that the shape of its iPad had been infringed by Samsung

And personally, do you think it is broken and sick and needs reform?

I believe we definitely need to continue the discussion. What I applaud is the fact that there is a discussion going on. Not everybody agrees with me or agrees with the decision that we made.

But that's OK. Whether I believe it is sick or broken or needs to be fixed or not, the rules are today what they are.

But if the community of engineers at large believes that it needs to be changed or re-reviewed, this court, this trial, and this set of jurors - myself included - was not the genre for that. It was not the right place.

That wasn't our authority and it wasn't what we were supposed to do.

A lot has been made of the idea that Apple may have ultimately been gunning for Android rather than just specifically for Samsung. Do you think this verdict will have implications for other companies who use Android?

No.... Those two operating systems can stand side-by-side, even though there is some similarity. The way those two operating systems function are sufficiently different enough that there is no infringement.

Just to make it clear, the phone that I have is a Motorola Droid 3 and the reason I'm mentioning that is because it is in the record, it was told to the judge and told to the court when asked that question.

And it is of a slider variety so it has a normal keyboard, and for that reason it's not among the 26 accused phones. It uses icons, and they are more than sufficiently different than what the iPhone, what Apple uses.

Samsung's Prevail, Galaxy S2, Droid Charge and Galaxy S A hearing has been scheduled for December to consider Apple's demand that eight phones be banned from sale

At the 40,000 foot-level there are some what you would perceive to be similarities. When you look at how the code is running and what the outcome is you will find that when you compare even that phone against the current patents that Apple is using, there is no infringement.

My point is that the consumer at large does not have to lose functionality. But the methodology that is used by the company building that can get as close as they want to to that line of infringement, but just don't cross it.

Don't cross the infringement line, make some changes so that you're not going to cross it and then innovate like crazy.

And that's really the most important part. And I think Samsung has the capability, perhaps like no other on the globe, to be able to do it sufficiently fast enough that they are not going to lose any revenue.

A lot of people have said this case happened in Apple's backyard, so what else would you expect?

Yes, this trial took place in San Jose in the heart of Silicon Valley and Apple is located just down the road west of where the trial was, and two of Samsung's divisions are here down the road north-east of where this decision was made.

Everybody knows Samsung, everybody in this valley knows Apple. There is absolutely no ground to say that Apple had a hometown advantage.

Certainly it did not influence any of us on the jury panel.

 

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  • rate this
    +1

    Comment number 237.

    It's a user interface.. the look and feel of these is driven by how poeple use them, they are going to be similar whether copied or not! User interfaces are created by looking at tasks people perform, if the tasks are the same, the interface will be similar.

    You have to go out of your way to create something new and different, which users may not be comfortable with.

  • rate this
    +4

    Comment number 236.

    having owned both handsets i can honestly say that samsung is leaps ahead of apple, the s2 and s3 are great devices and far more open source than the 4s. Just a shame to see these court battles, end of the day samsung is still the better company.

  • rate this
    +3

    Comment number 235.

    Apple's reputation is damaged more by that disastrous piece of garbage i-tunes than by anything Samsung do to them. How many people have had all their data wiped by plugging the "wrong" phone or i-pod into the "wrong" laptop?

  • rate this
    +8

    Comment number 234.

    If Apple develop a car, pity all the current car makers who Apple will sue for design infringements as Apple patents every curve and technical design under the sun.
    As someone that works in IT, this judgement is scary and should have been thrown out.

  • rate this
    +8

    Comment number 233.

    In my humble opinion, the verdict is totally biased and unfair. This verdict effectively kills a non-american company who can compete with Apple. At the end of the day, we, the consumers are the losers.

  • rate this
    +4

    Comment number 232.

    Hmm so Apple have patented a shape found in Nature?
    I carnt wait for Apple to sue the earth for daring to produce something in it's patented shape lol

    Seriously how many shapes are possible for a touch screen phone?

  • rate this
    +1

    Comment number 231.

    This decision is going to cost Apple a lot more than $1 Billion in sales

  • rate this
    +10

    Comment number 230.

    I think Steve Jobs summed this up before his death, "We have always been shameless about stealing great ideas" (1996) Apple fans seem not to know alot about the company they love so much, Apple are not the best tech company out there but rather the best marketing company in the world right now (Maybe even in its history) Samsung should just get a south korean court to fine Apple $1bn...

  • rate this
    +5

    Comment number 229.

    The US patent system is rapidly falling into disrepute and was a shambles long before this ruling. They've been giving out patents for prior art for years. If the United States wants any respect by countries like China then it might want to get its own house in order first. oh, but China actually assembles all of Apple's products doesn't it?

  • rate this
    +5

    Comment number 228.

    thinks it's a case of - heads u win if USA - tails u loose if u r not
    an american company wins massive damages against a foreign company in an american court well that is suspect or is it mmmmm

  • rate this
    +40

    Comment number 227.

    I have both an iphone and a samsung S2 (one work, the other personal)-which one do I prefer? The samsung! it's much more user friendly, the design is better thought out. I now let people try both phones when they are considering a new phone and 90% have gone on to buy the samsung. Yes there are similarities between the two, but when switching between the two you also notice their vast differences.

  • rate this
    +5

    Comment number 226.

    Apple's success comes from marketing, not from there behind-the-times technology. They convince masses that they are the best and that everyone wants to copy their design. However, given that Android is a far more powerful OS than Apple's and Samsung have capitalised on that, Apple are miffed and feeling rather insecure, especially as they infringed patents to get to where they are now.

  • rate this
    +6

    Comment number 225.

    Perhaps Apple could use some of that money to compensate those affected by the suicides at the ipad factories in China?

  • rate this
    +1

    Comment number 224.

    "Samsung are now taking the lions share of the mobile phone market (38% was quoted on the BBC website)"

    You see, I don't quite "get" that.
    Most people I know have an iPhone (though im converting them toward Android) A lot of people call a smartphone an iPhone, most people call my Google Nexus7 an iPad. Apple cant pretent to be the poor underdog AND be one of the biggest corps in the world!!

  • rate this
    +5

    Comment number 223.

    what is worrying about this case is that it has already been heared in 2 countires, and in both, the US Bully Boys lost,
    what they then do, they hold it in the good ole US, and hey, they win hands down.
    the next case should be heared in China,Russia, Iran, Syria, and then see who wins
    this is nothing about justice,its pre meditated market dominance for the future

  • rate this
    +8

    Comment number 222.

    I would love it if Samsung now refused to deal with apple at all! lets see them make the butt ugly brick - I mean iPhone4 without samsung components. Lets see how many days it takes for apple to come crawling!

    Apple are infamous for "acquiring" technology - who invented the mouse again? NOT apple!!!

    Utter hypocricy

  • rate this
    +6

    Comment number 221.

    @157 reason for Samsung over iphone is easy, its better
    have had and used both, Samsung is a lot better

  • rate this
    +24

    Comment number 220.

    Just getting a bit silly, I do think the US courts and jury did rule in favour of one of its own! rightly or wrongly as technology designs are generally years in development so at times it can be coincidental two companies have the same idea.

    This spat will go on longer http://www.bbc.co.uk/news/business-19433019 as tit-for-tat cases that in the end the winner is the lawyers, not the consumers.

  • rate this
    +1

    Comment number 219.

    The Apple/Samsung saga and Mitt Romney portray Americans as idiots. But they aren't all idiots.

  • rate this
    +5

    Comment number 218.

    Ironically this could be bad for Apple. For so long they have been perceived as an anti hero to Microsoft. This verdict now moves them into the same sphere as Microsoft with sales etc being hit.

 

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