Lots of news about Apple vs. Samsung (and vice versa) in both the US and Europe today. In the US, judge Koh dealth two blows: one to Samsung (no retrial based on juror misconduct), the other to Apple (no permanent sales ban). In Europe, in the meantime, Samsung announced it will cease all lawsuits injunction requests against Apple… But only in Europe.
A blow to Samsung…
The blow to Samsung was expected, and looking at Koh’s motivation, hard to argue against. As most of you will remember, Samsung aimed for a retrial based on juror misconduct. The company claimed Velvin Hogan, the jury foreman, hid information during the discovery process. Koh pretty much said that it’s Samsung’s lawyers’ own fault for not asking the right questions during the discovery process.
“Samsung cannot use post-verdict statements unrelated to any potential bias to restart the clock on its obligation to investigate,” Koh argues, “What changed between Samsung’s initial decision not to pursue questioning or investigation of Mr. Hogan, and Samsung’s later decision to investigate was simple: the jury found against Samsung, and made a very large damages award. This is precisely the situation that courts have consistently found constitutes a waiver of the juror misconduct claim.”
In addition, Samsung also argued that the interviews Hogan gave after the trial constituted evidence that he had unfairly swayed the jury by introducing “incorrect and erroneous legal standards” into the process. This, too, was thrown out by Koh; she argues that nothing Hogan said during post-trial interviews constitutes as “incorrect and erroneous legal standards”.
The likelihood of success here was always small, so it’s no surprise Koh denied the motion for a retrial. Still, I remain that Hogan’s post-trial interviews paint the picture of a man out to award as many damages as possible, and that he was hell-bent on bringing in a guilty verdict. However, gut feeling and pictures painted are not reasons to restart a trial – especially not one as ridiculous as this one.
…and a blow to Apple…
Moving on, it’s not a good day for Apple either. Cupertino had to suffer a pretty big setback: Koh refused to grant injunctions on the 20 devices found to infringe on Apple’s patents. Of these 20 devices, only 3 are still being sold today, and injunctions on devices no longer sold is pointless.
More importantly, though, Apple has failed to convince the judge that it has suffered irreparable harm from Samsung’s infringement – a crucial requirement for granting an injunction. Koh argued that the software patents in question – tap-to-zoom, pinch-to-zoom, and rubberband scrolling – were not crucial features of the Samsung devices in question, and that they did not drive sales of the devices.
To establish irreparable harm, Apple must show that “the infringing feature drives consumer demand for the accused product.” Apple did not establish at the preliminary injunction stage that the ‘381 patent was central enough to Samsung’s products to drive sales, and has not established that fact here either. Nor has Apple established that either the ‘915 or the ‘163 patents actually drive sales of any Samsung products. Neither statements about broad categories, nor evidence of copying, nor the conjoint survey provides sufficiently strong evidence of causation. Without a causal nexus, this Court cannot conclude that the irreparable harm supports entry of an injunction.
In normal people speak: Apple’s software patents are insignificant and they are not worth a sales ban. Of all the legal talk in these two US court orders today, this is probably the most uplifting message for those of us who hate software patents with a passion.
Apple also argued that it should get a permanent sales ban based on dilution of its trade dress. Here, too, Koh disagrees with Apple, and for a very simple reason: of the Samsung products found by the jury to dilute Apple’s trade dress, none are still on the market. This means there’s no harm being done to Apple, and as such, a sales ban would serve no purpose.
Apple will appeal this decision, so this case will be dragging on for a while.
…while Samsung backs off in Europe
To round off this stint of legal news, Samsung has just announced it will cease all lawsuits injunction requests against Apple currently underway in Europe. This means that Samsung will drop all cases injunction requests in Germany, the UK, France, Italy, and The Netherlands – a massive boon for the legal system and consumers alike, since this frees up a lot of resources better spent on, you know, stuff that isn’t totally pointless wrapped in fifty shades of irrelevance. Like phones without TouchWiz.
“Samsung remains committed to licensing our technologies on fair, reasonable and non-discriminatory terms, and we strongly believe it is better when companies compete fairly in the marketplace, rather than in court,” Samsung’s PR blurb goes, “In this spirit, Samsung has decided to withdraw our injunction requests against Apple on the basis of our standard essential patents pending in European courts, in the interest of protecting consumer choice.”
The real reason, of course, is that Samsung’s European cases against Apple weren’t going all too well anyway – worse even than Apple’s European cases against Samsung – so there’s nothing to be gained from continuing them. Wrap it all up in some nice consumer choice spin nonsense, and there you go, instant karma.
It’ll be interesting to see what Apple’s move in Europe is going to be like. Will the company feel pressured to abandon its patent abuse, or will it continue, public opinion be damned? I’m seriously hoping for the former, but the latter is probably more likely.
Automatically waiving samsung’s rights because they were supposed to have discovered Hogan’s relationship during voir dire, even though he explicitly lied to the questions…please! That should be grounds for disbarring this judge.
Even someone who favors apple’s pro-patent position should recognise that justice cannot be served when it allows jurors to knowingly serve under false pretences.
I wasn’t aware he had lied, can you post the questions and answered that contain the lie and the source for the information. Thanks
Tony Swash,
“I wasn’t aware he had lied, can you post the questions and answered that contain the lie and the source for the information. Thanks”
You can read all that in the court transcripts linked in the article. Basically, samsung should have discovered the facts before a verdict was reached. If it weren’t for Hogan’s big mouth after the trial, we may never have learned about his bias, so in a sense we’re “lucky” that the truth came out, even if the court refuses to grant a fair trial based on it.
Edited 2012-12-18 17:02 UTC
Here is what Judge Koh actually says on the matter in the linked document above:
“As an initial matter, it is not clear whether Mr. Hogan was intentionally dishonest. Neither party has conclusively shown whether Mr. Hogan intentionally concealed his lawsuit with Seagate, or whether he merely forgot to mention it when asked by the Court whether he was ever involved in a lawsuit, or whether he believed that the answer he gave had sufficiently responded to the Court’s question. Further, it is not even clear that Mr. Hogan knew of any relationship between Seagate and Samsung. Mr. Hogan left Seagate’s employment in 1993, and his lawsuit against Seagate was nearly two decades ago. Further, as detailed above, Mr. Hogan repeatedly stated that he had no bias toward either party, and could be a fair and impartial juror. However, because the Court finds that Samsung waived its right to object to Mr. Hogan’s answer even if it was dishonest, no evidentiary hearing or factual finding regarding Mr. Hogan’s state of mind during that portion of voir dire is required.”
“However, the statements cited by Samsung (Motion at 3) neither show that Mr. Hogan favored Apple nor show that he was being deceitful in voir dire. The statements Mr. Hogan made after the verdict only reveal his gratitude for being part of what he considered a “landmark decision.—
“When Mr. Hogan commented on the damages the jury ultimately found in favor of Apple, he specifically stated that the “message†was “to the industry at large†and “not just Samsung.†Id., Ex. J at 1. This is consistent with Mr. Hogan’s repeated confirmation during voir dire that he did not have any bias toward either party, and could be fair and impartial. There was also nothing in the post-verdict statements on which Samsung relies that referred to Seagate, bankruptcy, lawsuits, or any other information Mr. Hogan allegedly concealed.3 Thus, Mr. Hogan’s comments cannot serve to trigger Samsung’s investigation obligations.”
“Mr. Hogan gave several post-verdict interviews in which he recounted the legal standards that were utilized during deliberations to enable the jury to reach a verdict. See Estrich Decl., Exs. L, M, N, O. These statements, however, all pertain to what occurred during jury deliberations, or to the jurors’ mental processes – evidence specifically barred by Rule 606(b). Samsung does not argue that Mr. Hogan introduced any outside knowledge specific to the facts of this case.”
“Samsung does not suggest that Mr. Hogan improperly consulted another source during jury deliberations, nor that he introduced any factual material whatsoever.”
Edited 2012-12-18 17:40 UTC
Yes I read what the judge had to say. But there were obviously some lies of omission about the earlier lawsuit, and more lies that would pan out in the course of the trial and would have been difficult to spot at the outset.
This judge said the court has no choice but to assume jurors will carefully follow their instructions. The deliberation process is protected such that all evidence from deliberations must be thrown out even when instructions were not followed. Maybe from a legal standpoint, the judge’s hands are tied? (I doubt it, but I guess it’s possible).
From a moral standpoint it’s a perversion of justice that a member of the jury can intentionally lead others to apply faulty standards of patent law to send a message. Add that to his voir dire deceptions.
This is an extraordinary case. As I said before, even if you are pro-apple on the matter, hopefully you don’t justify the jury practices that went on during this trial. I guess maybe to some, the ends will justify the means.
No, actually, you and Samsung have presented zero evidence of any lying whatsoever.
But, but, but there must be because Samsung lost!
There is no evidence the Foreman lied. At all.
Samsung’s own incompetence caused this. They didn’t do their due diligence during the selection process.
I just find it extremely funny how delusional some people were about Samsung’s prospects during this entire trial. I lied, some people still are delusional.
Apple has a much better chance of winning injunctions on appeal than Samsung does of winning an appeal.
The real perversion of justice is how Samsung, despite being found to infringe, willfully, and violate Apple’s trade dress, was not handed injunctions across all the infringing devices.
A billion dollars doesn’t change the fact that they illegally leveraged Apple’s technology and trade dress to gain a foothold in the market which has netted them way more.
There is absolutely no way that will stand in an appeals court. I can imagine Samsung being granted sweeping injunctions which can easily be extended to apply to other devices.
Samsung right now, would be FOOLISH to not be frantically changing what they’ve been deemed to infringe. There really is little gain in playing these little stupid lawyer games (Jury Foreman was biased!!).
Nelson,
Believe it or not, it’s not just about who won after the verdict came in. If samsung lost in a fair trial, then so be it. But everyone should at least be entitled to a fair trial, and this one was anything but. Even if you want to blame samsung for not picking up on Hogan’s conflict of interest, there’s no excuse for what he did leading the jury to apply his own legal standards after his personal “revelation” as to how to interpret patent law in this case. The entire preceding was handled exceptionally poorly, the judge even prohibited prior art that could invalidate apple’s patents. The entire trial was a joke, this was all publicised well before the verdict came in, so don’t anyone pretend this criticism is coming in only because of a disagreeable verdict.
If you believe apple would have won the trial no matter what, that’s fine, but the way in which this trial was conducted and the partiality of the judge is never the less very disturbing.
If this case were between parties X and Y instead of apple & samsung, I doubt anyone would be nearly as eager to “support” the practices that were applied in this trial.
Trials have a clear process, and its the job of the Judge to move the ball forward. Samsung had plenty of time to present the prior art using the correct process to do so, but didn’t. That’s their bad.
If there were no order in the court, these things would drag on for far longer than they have. If (hypothetically speaking here) just being right were enough to win cases, then lawyers wouldn’t need to exist.
Samsung’s lawyers should have known better, but didn’t. Or so the narrative goes. It could be that they’re just raising this issue because they lost.
I’m not completely insensitive to Samsung’s requests, but I’m increasingly wary about the demonization of the Jury.
Nelson,
“Trials have a clear process, and its the job of the Judge to move the ball forward. Samsung had plenty of time to present the prior art using the correct process to do so, but didn’t. That’s their bad.”
Actually I think they did, but the judge barred it? I don’t have the energy to continue our debate, I’m just going to try to agree to disagree. Great, this saves us a lot of time doesn’t it?
Wrong. Why even claim the contrary in the form of a question? They attempted to submit it way past stated deadlines said they could do so.
No, like the Juror selection, Samsung royally screwed up the entire process of presenting evidence and submitted it way, way, way past their deadline.
A Judge has to balance between the process of the trial and what the law is. That’s their job. It happens every day in the US.
Evidence is ruled out on technicalities every day (For a real good one, look into the exclusionary rule with warrantless searches. You could find a room full of dead bodies and I could be red handed, but if the evidence is obtained illegally its inadmissible)
Nelson,
Yes, the evidence was late, but the schedule itself was disputed. Also apple changed the patents it was asserting against samsung in it’s preliminary injunction to give them even less time to prepare. Given the tremendous scope and depth of a dragnet required to invalidate patents, it doesn’t surprise me that samsung didn’t have enough time to submit evidence for discovery. Still, the law is the law I suppose.
http://www.fosspatents.com/2011/07/apple-and-samsung-now-bickering-…
One thing that’s still extremely troubling though is it was apple, and not samsung, who introduced F700 to the trial as evidence of samsung’s infringement against apple. And yet somehow samsung were still not permitted to refute this with the fact that samsung was developing this very model even before the first iphone.
http://www.androidauthority.com/samsung-apple-trial-leak-release-ev…
The judge just kept on tossing apple favors like this, it wasn’t really a fair trial.
You’ve gone from arguing that Samsung was perfectly within their right and that Koh was acting inappropriately to stating: “Still, the law is the law I suppose.”
Which is it?
That’s because the F700 was an utterly shit phone that completely failed on the market and didn’t embody in any significant way the patents that Apple was asserting. However, once it was denied as evidence of prior art for Samsung, PJ FUDed it into being PROOF that Apple had somehow stolen a Samsung design. The same sort of assinine and unsupported “proof” she’s been arguing Hogan’s post-trial comments represented — i.e., legally irrelevant and not proving anything whatsoever unless you already made up your mind based on her FUD.
Unlike Samsung, Apple submitted it properly and in a timely manner. You’ve again flip-flopped from “the law is the law, I suppose” to slandering the judge as providing favors to Apple.
jared_wilkes,
“You’ve gone from arguing that Samsung was perfectly within their right and that Koh was acting inappropriately to stating: ‘Still, the law is the law I suppose.’
Which is it?”
Nelson pointed out the fact that deadlines were missed by samsung, and I agreed with him.
“That’s because the F700 was an utterly shit phone that completely failed on the market and didn’t embody in any significant way the patents that Apple was asserting.”
Reread my post and check your facts, *apple* submitted a picture of the F700 as evidence that samsung was changing it’s own products to look more like the iphone. Samsung was prohibited from telling the jury that the F700 model was designed before the iphone. Koh deserves plenty of notoriety for that judgement.
“PJ FUDed it into being PROOF that Apple had somehow stolen a Samsung design”
Take it up with PJ. I’m not a sheep clinging to someone else’s opinion as gospel. I can make up my own mind, thank you very much.
“Unlike Samsung, Apple submitted it properly and in a timely manner.”
Once apple submited evidence, samsung should have been allowed to counter with their facts, otherwise why bother having a trial at all after discovery? The court’s failure to allow jurors to hear the truth about samsung’s design predating the iphone may very well have tainted the verdict.
Yes, Apple submitted a document surveying the landscape of phones being pushed before/after the iPhone announcement which included a page that provided a screen size dimension comparison between the F700 and the iPhone. This evidence was presented to show a market shift, not to establish prior art.
Yes, Samsung attempted to make a new argument of prior art using new evidence a few weeks before trial using a new document as evidence, and they were barred from doing so.
No, there is absolutely no notoriety to this decision.
Look. Apple too wanted to file a few extra pages and exhibits (it did try quite often)… Apple had more patents that it wanted to sue for infringing (that it dropped to please the court and expedite proceedings), more witnesses it wanted to call, more evidence it would have liked to submitted, more arguments it would have liked to make, arguments it would have liked to change or bring up anew, etc, etc. It tried often, and Apple too was denied, sanctioned, scorned, mocked, chided, had its knuckles wrapped, had its minutes and pages counted, etc.
You don’t see much lingering on Apple being denied any of these opportunities to improve their case. No moaning and gnashing that Apple was denied the opportunity to present what Apple thinks is its most effective and persuasive case. Both parties acted (rightfully) aggressively, and shop was kept very clean. The decisions for and against both parties are evident and show a fair proceeding. Apple tended to err on the grandiose which actually hindered their efficacy; Samsung presented more futile and redundant claims that wouldn’t have been very effective even if they were permitted.
Why? Why should Samsung be allowed to present new evidence along a new argument outside of the discovery schedule simply because Apple had appropriately entered evidence on a completely different argument and seemingly it inspired some inept lawyers to attempt to pull some last-minute lawyering? Do you have a legal basis for this? Or did you just want something to be good for Samsung?
The F700 as prior art is the second most pathetic argument, second only to the juror misconduct argument.* Claiming the F700 as the magic bullet that could-have, would-have, should-have gets tedious. These arguments are the last refuge of a loser.
* Wait. There’s still the photoshopping/evidence tampering argument and a few more weak offerings I had put out of mind… I’ll have to think about this…
Edited 2012-12-19 05:11 UTC
jared_wilkes,
“Yes, Apple submitted a document surveying the landscape of phones being pushed before/after the iPhone announcement which included a page that provided a screen size dimension comparison between the F700 and the iPhone. This evidence was presented to show a market shift, not to establish prior art.”
It was a pretty stupid mistake by apple, since that design shift was happening BEFORE the iphone, but the judge didn’t allow samsung to correct the information presented to the jury. It would have been an embarrassment for apple.
“The F700 as prior art is the second most pathetic argument, second only to the juror misconduct argument.”
Whether you think it’s pathetic or not, it’s how prior art works. Juror misconduct is not something to take lightly either, even if it gets dismissed on technicalities.
“Claiming the F700 as the magic bullet that could-have, would-have, should-have gets tedious. These arguments are the last refuge of a loser.”
Samsung lost, not me. Even someone agreeing with the ultimate verdict should expect better case handling out of our courts. This one was a fiasco, and the judge deserves at least some of the blame, along with samsung and apple I’m sure.
Edited 2012-12-19 05:37 UTC
You do realise that the only case Apple has actually won was that case.
Every other case Apple have lost. What’s more, in the UK Apple were forced to publicly announce the Samsung did not copy Apple.
In the dozens of cases of Apple vs Samsung, Apple have only won one, and that was on Apple’s home turf and with a massively biased foreman. Yet people like yourself ignore all of the above and just focus on this one verdict while proclaiming that everyone else is delusional for believing otherwise.
Is there no mechanism to simply correct the old article?
EDIT –
Oh it did. It just cleared the old comments too.
Edited 2012-12-18 15:17 UTC
“The real reason, of course, is that Samsung’s European cases against Apple weren’t going all too well anyway – worse even than Apple’s European cases against Samsung – so there’s nothing to be gained from continuing them.”
Huh… across many posts for many months, you’ve stated innumerable times that Apple was losing everywhere but in the U.S. Now it turns out that by “losing” you meant not losing as much as Samsung. Odd.
The real reason isn’t the strength of their case. It’s the threat of an EU antitrust decision. Otherwise, Samsung would be dropping injunction requests in other venues, particularly the US, besides Europe.
You do understand that losing 10-0 is worse than losing 2-0, right?
Right?
I know that if your opponent is losing more than you that is a net win.
Eh, no. Not here. These suits and countersuits run alongside each other, and have little effect on each other. Apple winning a sales ban on the Galaxy SII has no bearing on the chances of Samsung winning a sales ban on the 4S, because they involve entirely different devices and patents.
Pretty basic stuff, but alas.
Shhh… walk away 😉
This has always perplexed me in the jury-trial system. How is it that we trust average uneducated people to carry out correct decisions in highly complex and frankly arcane areas of discourse? Contrast how jury trials are done with scientific peer-review. The review process is anonymous, reviewers are chosen on track record and competence in the relevant field, and the reviewers never interact directly with the authors of the reviewed work or with each other (and thus there is next to no chance of emotional bias, tampering or banding). As such, the result depends, as far as is possible, on actual merit.
As an example of an incompetent jury, one need look no further than this trial’s jury foreman, when he said in a later interview recalling a prior art issue: “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.” Had there been even a single software engineer or perhaps even software patent attorney in the jury, he would have called BS on that immediately (one patents algorithms, not the specific machine instructions). This statement was just grade A nonsense from a technical and legal perspective, but it sounds legit to people not familiar with the field.
Because this flies in the face of the very foundations of democracy and would cause the entire legal structure to grind to a halt and cease functioning?
If a court could only seat a jury of qualified legal professionals who also happen to be experts in any particular area at question at trial (this could range from computer science, patent law, homicide, forensics, drug trafficking, domestic abuse, psychology, and on and on — offering covering multiple areas within the same trial), one would likely never face a jury of your peers — in fact, every court would be very hard pressed to ever fill all the seats in a jury box with such rigorous requirements.
Just don’t use a jury trial at all. It’s a medieval and barbaric practice that has no place in any modern, democratic, just society.
Errr, the whole the foundation and the logic behind a jury system has everything to do with democratic procedures aiming towards a just outcome.
However, the implementation is certainly archaic especially when it comes to IP law which has become very complex. The average person is not fit for such proceedings as they have little time to get around ideas that people spent an entire college degree learning.
A jury of individuals specialised on the matter at hand might sound reasonable but the problem there is that you’re very likely to run into conflict of interest issues.
I know you don’t like trial by Jury, but it happens to have been a key component of securing liberties in England and Wales during and after the mediaeval age.
Questions;
1) What role have mediaeval English liberties have had in forming the basis of modern Human Rights acts around the world, including in the English Bill of Rights, the US Constitution, the UN and the EU? Discuss.
2) Would liberties be better protected if “the man on the Clapham omnibus” was removed from proceedings, and his tasks passed to a state appointed representative? Discuss.
There is so much wrong with this statement, I’m almost at a loss as to where to start deconstructing it first.
1) Your statement is just plain false. Jury trials are used pretty much only in common-law systems (containing a small portion of the world’s population). Now look at e.g. those poor Europeans! (hint: it’s satire) So even without a jury, legal systems seem to work just fine.
2) Democracy is a form of government, which is (hopefully) distinct from the judiciary.
3) Most importantly, and I can’t stress this enough: justice isn’t a democratic process! We don’t get to decide democratically on what the truth is. Justice, like science, is dedicated to the pursuit of truth and what really transpired, otherwise it would just devolve into a tyranny of the majority – see ancient Athens for an experiment in that.
And yet systems like this (though not precisely as much as the scientific peer review meritocracy) routinely operate in most of the world, i.e. in countries which do not have jury trials, but trials are instead decided by a qualified judge or panel of judges.
Jury trials is one of those foreign concepts I just can’t wrap my brain around, no matter how much I try. A bunch of idio… Sorry, “peers’, who have no desire to do what they do, get to decide guilty or no. Even if you only have a tiny modicum of knowledge about the workings of the human mind, you should know full well how utterly nutterly butterly this is.
Every person who ever ends up in court – traffic violation or murder – should be judged by people who know their shit and who are trained to do so – not by a bunch of bored morons.
Edited 2012-12-18 20:40 UTC
It is a strategic legal maneuver if you wish to appeal to emotion, something a panel of 12 people are more susceptible to.
You do have the right in most jurisdictions to waive a Jury trial.
Jury trials are not as common as people would think, a lot of cases are decided before they even get to trial.
Wow, that is one cynical view you’ve got there!
It’s pretty annoying that this kind of arrogance has crept into the left. The assumption that the public are all idiots has led us to such fantastic decisions as:
1. Speed cameras.
2. Many thousands of health warnings on everything.
3. Bans/limits on alcohol, tobacco.
The original left movement was one of faith and optimism in the general public, and the view that people were capable of deciding their own fate. Whence came socialism, communism etc.
This has now been replaced with an arrogant, cynical view that people are simple minded idiots who need hand-holding. This is clearly revealed by those annoying folks who are constantly trying to “raise awareness”, which is a nice way of saying: “brow beat the plebs into caring about things I think they should care about”.
It’s a pretty short hop from the view that people are too stupid to be on a jury, to thinking that they are too stupid to vote.
Here’s someone explaining personal freedoms a lot better than I can:
http://mpegmedia.abc.net.au/rn/podcast/2012/09/cpt_20120924.mp3
Edited 2012-12-19 08:13 UTC
It is no assumption that the average person is highly susceptible to a myriad of cognitive biases, especially in high-stakes cases. Attorneys in common law systems are educated how to exploit these biases, there are practices for favorable jury selection based on case, etc.
You are espousing a trivial libertarian ideological standpoint, that given freedom, people would know what’s best for them – essentially a form of radical libertarianism. That is factually just plain not true. Besides example 2 (which I’m not sure about), both 1 (traffic regulations in general) and 3 (regulation of hazardous substances) have, as a matter of fact, reduced deaths among the general populace from these risks.
Again, an extreme libertarian viewpoint. What you fail to appreciate is that humans are a social species and thus we form superorganisms called “societies”. These are more than the simple sum of the capabilities of their members, and thus work naturally to protect themselves from harmful influences. This needs to be balanced with individual concerns, or the society devolves into a tyranny.
Perhaps saying that some people are too stupid to vote isn’t that crazy after all. Look at the 2008 presidential election in the US – how on Earth was it possible that somebody as vapid as Sarah Palin stood a real chance of being elected to the second highest office in America? Or 2012 and Romney’s comments that he believes in an apocalyptic return of Jesus to the Mount of Olives. A doomsday loonie stood a very real chance of being elected president in a country with the largest stockpile of nuclear weapons on Earth. When you have somebody like that in office (elected by popular vote, mind you!), is this: [ http://www.youtube.com/watch?v=3CdKuLRmg8k ] really such a remote scenario?
Who gets to decide who’s too stupid to vote? Who gets to decide whether the elite who make that decision have the right kind of intelligence to make that system? Institutions and rules are important, and I don’t think the post you’re responding to is anywhere near as libertarian as you suggested, but fundamentally even the strictest system must comes down to trusting your fellows. Healthier for society to take a risk on a significant minority of its own being plonkers and base itself on trust than to try to exclude them and base itself on distrust.
That, of course, is largely why meritocratic systems haven’t been implemented – it’s hard to find a good standard for that and agree to use it (“intelligence” is no easily quantifiable metric).
He criticised regulating hazardous substance use, such as alcohol/tobacco consumption – sounds pretty hard-line libertarian from my point of view, especially when you consider that we know, unambiguously, that these substances can cause significant harm, they regularly do, and that regulation has lowered the incident rate.
Fundamentally, I’m not arguing for anything else, but I am arguing in placing trust in qualified people vs. just the grey masses. This becomes especially clear when dealing with matters where tolerance for error is very small, e.g. medical doctors, engineers, scientists, etc. We do not elect them by popular vote, they earn our trust on track record. All I’m asking for is that we use the same principle in the judicial process as well (the “track record” being composed of accurate judgements, not on how many people they incarcerate – a common misconception of justice in the US).
The main problem with your argument is that you think that because people can sometimes behave this way, that they always behave this way. Worse than that, you are prepared to deal with people in a guilty-until-proven-innocent manner. Scary.
You also use words which demonstrate (in my view) a lack of tolerance for views that differ from your own. You twice dismissed my point of view as “trivial”, and “extreme”, which was clearly an overreaction. You then went on and vindicated my second point by agreeing with it (viz. Voting).
Perhaps it is this inability to take a more balanced view that may be responsible for your dislike of democratic institutions like juries, and voting. These things inherintly require a level of trust and acceptance that I fear you lack.
I don’t doubt your motives, but I would be very careful if I were you. Most dictatorships begin this way, and even to the end maintain a viewpoint that “the people just need guidance”. It’s a slippery slope.
Do you dispute that the human psyche is rife with cognitive biases and faults of various sorts?
I never said that. I said that, on average, most people are easily manipulated – it’s the only reason why things such as cold reading, channelling and yes, even religion, work. That being said, I have never advocated for changing the voting system. I was speaking hypothetically (that’s why I started with “Perhaps”) in an attempt to point out a problem and that it needs solving.
I can dismiss arguments once I provide reasons for doing so. My reason is that your points 1 and 3 have been shown to be factually false. Traffic regulation and control of hazardous substances has, in all instances, resulted in a safer environment and fewer casualties. Please note the difference between “control/regulation” and “banning”.
So for not taking the extreme view that these things can only be best decided by democratic vote I am considered not balanced? Uh huh…
My dislike of juries stems from my knowledge and experience of how easily people are manipulated. I would be all for juries with a certain number of modifications to the judicial process.
As for voting, it’s more complicated than that. On paper, democracy is great, but it expects the electorate to have a certain educational level. I support a general right to vote simply because all alternatives are worse. In theory an enlightened monarch would probably be best, but then, those are pretty hard to come by (read: impossible, I don’t want a monarchy).
Can you support this claim? Because I don’t think it’s true. From what I can recall, most dictatorships have been established in sudden popular uprisings or military coups with the notable exception being Nazi Germany. The PRC, USSR, Iran (under the Shah), Iraq, etc. were all established as dictatorships without ever consulting the people.
Interestingly most totalitarian dictatorships (concerned with every aspect of its peoples’ lives, even thoughts) did begin with a popular uprising of some kind, or at least popular support, as with the Nazis. On the other hand most ‘hands off’ dictatorships (concerned only those aspects of their peoples’ lives that directly effected the dictator/s power and wealth) tended to be started by elites, often by coups.
Not making a point relevant to the debate, just an observation. And no, I’ve nothing to back it up.
You’re right, in principal.
Unfortunately, the one thing that jury trials are very good at defending against is corruption and institutional unfairness.
Juries are not perfect, by any means, but without a judicial system that has public engagement, and can be trusted by even the type of person who makes up a usual jury, it’s hard to be able to rely on in to be fair.
In this case, I would argue against a jury trial, the matters being decided are too abstract* for untrained people to appreciate, but for normal cases, jury trials are like democracy.. shit, but less shit than the alternatives.
* legal abstractions, not conceptual abstractions
I was going under the presumption that the original post was arguing for jury trials of vetted experts in the fields covered by the trial. Which I assure you is quite impossible. If your argument is for the elimination of jury trials entirely, that’s another matter entirely.
However, I assure you that Americans, if afforded the opportunity to ban all jury trials by their peers, whether intelligent or not, in exchange for a bench trial conducted solely by judicial professionsals, the vast majority are going to choose the idiots… or at least choose to have the idiots as an option whether or not a bench trial benefits them in a particular scenario.
Edited 2012-12-18 21:22 UTC
1a. Maybe it was a mistake to speak about democracy generally, but I’m not suggesting that because many nations have a judicial system without jury by peer, they cease to be a democracy… However, I am saying that democracy is defined by participation. Yes, through representation in most cases but also active participation. Yes, I believe democracy cannot be epitomized by a government which lacks public/peer participation in the judiciary… particularly when there are functioning democracies which do have it as an option. Thus it is an assault on democracy, generally. Secondarily, it is also an assault on this country’s democracy specifically.
1b. And, that is additionally, it would cause our, America’s, judicial system to not function because juries would never be finalized (again, I was presuming a hybridized jury-expert replacement. If you, like Thom, can’t understand why America is founded under a hybridized common law/civil law system and propose that America drops its judicial system for one it rejected, well… that’s so foundational and easy for me to understand, I don’t even know where to begin explaining why that is and why that will never change… )
2. Umm, the judiciary is certainly a part of the government. Democracy can certainly run through it. There is nothing logical about saying: the judicial should not be democratic. Just as the police, the sewers, park services, other utilities, (maybe) medical services, and even the legislative, or (maybe) executive branches of a government are parts of the government. And these representational units of government can and, in most cases, should be democratic — in some form or another or when appropriate as an option.
3. Justice is best served, most undoubtedly, when it is most democratic. It can only be approximated at all, in society, through democratic processes. You cannot separate justice as simply “the judiciary”, apart from the other branches of government. The law is never practiced in an philosophically pure state where the legal/moral code is known, unchanging or where the truth can always be ascertained and agreed upon. Maybe you think that of your own country’s non-participatory mode of adjudicating the law… Maybe you are American. I don’t know. But I personally find civil law systems (most strictly civil law systems still embody democratic processes despite their lack of juries) just as fallible, if not more so, as common law systems.
For some reason, this is obvious to me: that democratic processes throughout all government functions in conjunction with other representational/civil hybridizations of governmental functioning is always a good — and that justice, as it was prior to the founding of America and as it is in America since, should never be some technocratic bureaucracy and never will be. I think it’s highly flawed and often complete shit, but I still love this system more than any other. Absolutely. I can’t really follow your whole — the judiciary is not a part of the government, it shouldn’t be democratic — line… Different strokes for different folks.
Again, there was a misunderstanding. If the argument being afforded by the opposition is now: America needs to abandon its common law/civil law hybrid system that affords the option to a jury trial by a panel of your peers and fellow citizens in some cases, then I think we’re pretty close to all agreeing that Apple has legally and rightfully sued Samsung in the U.S. for patent, trademark, and trade dress violations.
Edited 2012-12-19 00:40 UTC
Jury by peer sounds mighty lofty, except that in this case (and I would argue probably in most cases) it wasn’t. The peer of Samsung and Apple isn’t some random dude from Arkansas, but instead the likes of LG, Google, Microsoft, etc.
You participate by electing your representatives. You’re just playing with words here.
And yet much of the world manages to function perfectly happily without them. So again, it’s sweet that you believe it, it’s just that it is factually not true.
This comment stinks of American exceptionalism and is quite insulting to the rest of the world. What you’re saying, in a sense, is that some other country, by not following the American justice model, is somehow less democratic. Those countries, however, would claim that America’s justice system, on the other hand, is geared towards dispensing uncivilized mob justice.
It’s merely an assault on your childish notion that democracy is the be-all-end-all in all matters. There are very real examples of democracy getting it badly wrong (e.g. the trial of Socrates).
Can you please point me to some resource that shows that the US rejected a former system of judiciary not based on common law? Because from what I understand, the US inherited the common law system from the former colonies, which in turn had it implemented long before by the British (hint: common law isn’t an American invention).
I can see you believe “democracy is da best!” as almost some sort of holy truth, but this only conspires to warp your reasoning, like in the Samsung-Apple case, where you’re essentially trying to defend a bad judgement (it’s a fact that the foreman’s standard for dismissing prior art is wrong) in order to save your beloved justice system. A rational person would be looking to fix it.
While formally correct, it was not what I was getting at.
Perhaps I should have phrased it more accurately: the judicial process shouldn’t be democratic. There are also problems with the justices themselves being democratically elected, but that is an argument for another day.
Of the above you cite only the executive and legislative are democratically elected. The rest are not. I sure hope members of the medical services in your country aren’t elected by popular vote, but are appointed based on their track record.
And this is exactly the fault of your reasoning, right there. The truth is not subject to democracy. To say so is to say that king Canute’s idea of commanding the tide not to come in wasn’t totally insane.
What you’re essentially saying is that truth can be determined by democratic processes, i.e. popular vote. If that is, why don’t we determine scientific progress by popular vote? Here’s a hint: because it doesn’t really work.
I should have clarified I was talking about the judicial process, not the office itself.
I never said that every case is always clear-cut. I’m merely calling for a change in the process to more correctly approximate the truth based on what we have learned in the scientific process. Our judicial processes were developed in an age when “witnessing” was equivalent to “evidence”, before science defined what cognitive biases are, before we could gather prints, DNA samples, A/V footage etc. Most common law justice systems are still stuck largely in medieval times.
Yes, I can see it is obvious to you, but you can’t explain it. Democracy isn’t the magic bullet you imagine it to be.
Never say never.
And here you show it clearly. You have an emotional attachment to the way things are, rather than a rational one. It’s understandable and natural, but consequently you will not listen to rational argument. It’s like trying to reason a believer out of a particular religion – they don’t believe it for rational reasons, so rational arguments will not work.
It really boils down to this: it theory jury systems sound lofty and fantastic. But in practice, it’s a bunch of uneducated dimwits who are trying to slice through a complex process and frequently get it badly wrong (or use the wrong reasoning to get to conclusions), as in the Samsung-Apple case.
The problem is that it wasn’t a panel of their peers. It sounds lofty when you put it in, but it just wasn’t and probably isn’t in most cases. In most cases, juries consist of uninformed members of the public which do not grasp concepts such as emotional bias, the Dunning-Kruger effect and how easily people are influenced by authority. Even though a total redesign of the common law processes is nearly impossible, some adjustments could be made to make the process less error-prone.
saso,
I think Hogan, the foreman, was technically competent, but he certainly wasn’t supposed to be educating the rest of the jury members by himself. When he explained how samsung’s patents were invalid because they couldn’t be interchanged on different CPU architectures (which we know is BS), and why apple’s should hold, he disobeyed the court’s instructions. Other jurors were interviewed after the trial and said the deliberations went much faster after applying Hogan’s standards for patents.
The Court disagrees that Hogan disobeyed the Court’s instructions.
jared_wilkes,
“The Court disagrees that Hogan disobeyed the Court’s instructions.”
No, the judge simply dismissed activities that happened in deliberations under “Rule 606(b)”. The incorrect legal methodologies applied were revealed to the press by Hogan and other juror members.
No, that is not all. Yes, Koh, correctly states that post-jury comments about deliberations are inadmissible, but she also never identifies a single action that occurred in deliberation to show that Hogan violated any jury instruction — as she was very careful to go through each argument put forward by Samsung whether or not the alleged evidence put forth by Samsung was admissible or not.
jared_wilkes,
Now you are being dense. I know *she* doesn’t identify the erroneous legal standards used during deliberation. Samsung *did* however, she just dismissed it outright as inadmissible.
“Even if the standards related by Mr. Hogan were completely erroneous, those statements would still be barred by Federal Rule of Evidence 606(b) and cannot be considered in deciding whether to hold an evidentiary hearing.”
Your previous statement here is ignorant or dishonest, take your pick…
“The Court disagrees that Hogan disobeyed the Court’s instructions”
You willfully ignoring that “Even if” that you yourself quoted?
To fully lay bare the ignorance or willful misinformation of your comments, here is your quote in context:
“Samsung does not argue that Mr. Hogan introduced any outside knowledge specific to the facts of this case. Even if the standards related by Mr. Hogan were completely erroneous, those statements would still be barred by Federal Rule of Evidence 606(b) and cannot be considered in deciding whether to hold an evidentiary hearing.”
i.e. Koh isn’t just saying it’s inadmissible. Nor is Koh merely saying that Samsung didn’t produce evidence of such outside knowledge… She’s stating that Samsung didn’t even have the balls to make the argument that you are claiming is made evident because Pamela Jones says so. So to recap: Samsung didn’t even make the argument you claim is clearly in evidence because it was untenable, such “evidence” is inadmissable, and the Koh doesn’t buy the argument that there were outside facts improperly used to sway the jury even if that argument had been made and the evidence was admissable.
Edited 2012-12-18 20:05 UTC
jared_wilkes,
For god’s sake man, the post we’re talking about is right here!
http://www.osnews.com/thread?545687
Your not talking about outside knowledge, your talking about following instructions. The judge concedes very clearly that any erroneous statements by Hogan during deliberations would have to be barred as evidence. She’s taking a legal shortcut and claiming it doesn’t matter whether the wrong instructions were following during deliberations because it’s inadmissible as evidence anyways.
Therefor THE COURT DID ***NOT*** DISAGREE THAT HOGAN DISOBEYED THE COURT’S INSTRUCTIONS. The court chose to dismiss any such evidence without further consideration.
I’m going to save us both a lot of trouble here and just agree to disagree right now since I feel this isn’t going to go anywhere.
Edited 2012-12-18 20:58 UTC
No shit, Sherlock, what do you think I’m quoting?
I’m quoting the fuller quote that YOU quoted! Do you know what you are talking about?
Yup. Strange how Pamela Jones never explained that everything she has been harping on for several months and you continue to want to use is completely useless, huh?
No, no legal shortcut. This is the law. But she doesn’t limit her ruling to denying this “evidence”, she provides further argument why Samsung’s arguments do not hold whether or not this “evidence” was submitted. Hence, that big glaring EVEN IF in your OWN quote.
Yes, it did. Or rather it found that Samsung cannot support its contention that he lied or violated the Court’s instructions. Regardless of whether or not Samsung can use post-trial statements.
Please do. I think people who even want the same things as you would agree you aren’t helping yourself or the argument.
Edited 2012-12-18 21:06 UTC
jared_wilkes,
The court dismissing Hogan’s statements as inadmissible is not the same thing as the court claiming he did not disobey instructions. I suspect you probably misspoke, so do you mind if we just drop it? If not, will you just agree to disagree with me instead of us arguing in circles?
Correct. I’m not claiming it is however. I am claiming that Koh specifically addresses each of Samsung’s potential arguments regardless of whether or not she can consider Hogan’s statements.
No, I did not mispeak.
I don’t mind if you drop it. I do mind if you presume what I think and continue to spout mistruths. If you choose to continue, I will choose to continue to contradict you.
You’ve said this already — it’s you going in circles. Go ahead and stop doing so if you’d like.
jared_wilkes,
“Correct. I’m not claiming it is however. I am claiming that Koh specifically addresses each of Samsung’s potential arguments regardless of whether or not she can consider Hogan’s statements.”
Great, I’m truly glad we can finally agree.
Your self-deluding if you think I just agreed with you.
jared_wilkes,
“Your self-deluding if you think I just agreed with you.”
Did you consider it offensive that we might agree on something? Because if my point was correct, and I don’t disagree with your clarifications, then that’s a sign of agreement.
I suppose this explains why you rejected my offers to agree to disagree. So my final words in this thread are thus: Let’s disagree to agree
Maybe you are just not smart.
You are claiming that the Judge did not address the arguments based on the post-trial comments because it was inadmissible.
I’m claiming that she found the evidence inadmissible but still explained why the arguments didn’t carry.
If you think we are in any form of agreement, you are not smart.
Go back to my early post with the quotes from the ruling. Four of the five quotes address how Samsung’s argument (all four of the five are based on post-trial comments) fail — despite the post-trial comments being inadmissible.
Edited 2012-12-19 05:48 UTC
Well, I have give credit where credit is due and congratulate you on that display of trolling prowess. Not only have you done a perfect parody of the stereotypical angrily-defensive Apple fanboy, but you also managed to string someone along for, what, 20-30 replies?
And what’s more, you accomplished that by just replying to every point your opponent made with:
“That’s not the case, what really happened is [a description that’s almost identical to the one you’re replying to, with a one or two minor wording changes].”
A strategy that’s brilliant in obvious simplicity. Truly, sir, you are a master debater.
If post jury comments on deliberations are inadmissible in court, they might as well have never happened.
It makes no material difference.
Well, it was expected that Judge Koh would deny Samsung’s request for new trial, etc – mostly because she denies between 66% and 90% of what they request, and grant Apple’s requests in about same proportions. So nothing unexpected.
That said, it is highly unlikely that it would stand on appeal – e.g. she’s very likely to be overruled – especially when the sum of all her orders are reviewed, which I think would reveal at least a little bias towards Apple.
So it just helps clear the way for appeal.
Hopefully, she’ll step aside when the appeals court sends it back for another trial.
Its interesting how people who have been wrong about every facet of this trial could so boldly make such a prediction.
How so?
It’s been widely known for a long time that the Judge has been favoring Apple in her decisions. If you keep up with the case you can very well see it. This just seems to be more of the same; while yes not everything Apple asked for was granted, it also seems to be along the lines of “well, I can’t give you this because the law doesn’t allow it”. Wear as for Samsung it’s more like “I don’t like you, don’t believe you, so here go ask someone else.”
Samsung actually has quite a few things ready in the appellate bucket that can very easily change the case.
It can’t possibly be the fact that Samsung’s lawyers are incompetent. Nope, not at all.
Face it, the way they handled this trial from start to finish was foolish. A lot of what came back to bite them was their own doing. If they made themselves a bed of nails, they have no right to complain about back pain.
Your claim is that this was anticipated because the judge is making decisions based on a predetermined proportional measurement. This is pure delusion. Even a legitimately, corrupt judge working illegally to benefit one party isn’t stupid enough to use a ratio to make rulings. You have to be the biggest fool in the world to believe that anyone else would believe that such an argument is widely held. I don’t even know someone who generally agrees with you on prinicple who thinks this was aniticipated based on some past ratio of rulings. This is how stupid and foolish your justifications are.
People widely believed this would be overturned because it is difficult to overturn a jury verdict and there has been very little evidence presented by Samsung to suggest that they could ever get anyone to overturn this verdict.
Nonsense. Apple-haters, patent-haters, Florian-Mueller-haters, and self-deluded groklaw-lovers have fooled themselves into believing so. By no means is this a widely held opinion.
It’s pretty clear that I’ve followed this case more closely than you from your comments, and no, I don’t see what you see. Your paraphrasing of how you perceive Koh’s views toward Samsung speak volumes in themselves.
You’ll be clinging to your excuses even when all appeals have been exhausted and you have utterly, definitively been proven wrong. See you in a few years.
Edited 2012-12-18 20:56 UTC
I never said she set out to do a certain ratio. Only that that there is a ratio that significantly favors Apple.
Yes, it is difficult to overturn a jury verdict. However, there has been enough said and enough evidence presented to call the verdict into question – a question that can only be answered through a new trial.
Let’s see:
Florian Mueller is one of the biggest FUD producers out there that has pretty much gotten everything wrong about any trial he ever wrote about. He doesn’t have a very good track record when it comes to reading courts, and has an obvious bias through being paid by Oracle and Microsoft – usually not revealing so until forced to admit it.
Groklaw – currently being recognized as one of the top 100 law blogs, one of the top 10 technology law blogs, by ABA Journal (http://www.abajournal.com/blawg100).
Hmmm…I think I’ll go with Groklaw.
However, you want to phrase it, I will reiterate: that is a nonsensical and not widely held view.
In your opinion. However, it is not a widely held view that there is enough to question the verdict. The majority opinion is that the verdict will likely stand because Samsung lacks the arguments and evidence to overturn a jury verdict.
Again, your opinion. I can easily argue that Florian has been more correct than PJ. I would further argue that PJ has generally been wrong about what Florian has or has not claimed — i.e. she has been FUDing herself.
I wholly acknowledge that Florian is biased. I do this with all sources of information. However, I evaluate and judge their evidence and arguments on my own irrespective of their source. Maybe you should do the same with respect to Groklaw?
A bunch of groklaw fans voted in an online poll. Woopty-doo.
You do realize that Groklaw fans could not simply get Groklaw into that list as they have little to do with ABA Journal. Rather ABA Journal first selected Groklaw for that list based on the quality of the material at Groklaw in their opinion – one that more reflects the legal community than merely Groklaw “fans”.
They got on the final list via online poll (i.e. useless); they were selected for consideration because the audience of one of the very few technology/law blogs is certainly the loudest.
I see no evidence that the ABA selection proves that PJ is more correct than Florian or that groklaw is free of FUD or errors.
As biased as Groklaw might be in their conclusions they do a nice work attending trials and posting official documentation rather than just jumping to their own opinions like *cough*fosspatents*cough* plenty of other blogs do.
That alone warrants IMO recognition as a law blog, even if you don’t agree with PJ’s interpretation of the presented docs.
I agree: Groklaw does do a great job of assembling publicly available documents, gathering comments by its audience members who are able to attend, and/or pointing to some other coverage. I do not see PJ abstaining from providing an opinion, find her opinion not well-supported by law, find her arguments, generally and legally, completed flawed and marred by her personal bias, and quite often she has been wrong of late.
For months now, she’s been handwaving and pointing, going: “Look, look, don’t you see. This proves that Apple is lying and evil and must be destroyed and will lose… and even if they don’t lose, everything will definitely be overturned in the end because they are evil, their patents aren’t valid! The judge is corrupt, inept, duped by Apple’s deception, in bed with Apple, just protecting the American company, a complete fool who will assuredly be overturned, clearly favoring Apple, clearly out for Samsung! Samsung is being denied justice! She’s denying them at every turn (not for perfectly valid and common legal decisions that would likely be applied by any other judge) but because she has it out for them! Look, look here’s proof that the jury foreman lied in open court, did so intentionally because nearly 20 years ago he was canned by Seagate and now Samsung owns less than 10% of Seagate so he has it out for them, and he’s a criminal, completely lied to the judge and all the other jury members and he got them to all change their minds and forget their own obligations to uphold the law and their own understandings of what the law is, it must have been mind control, in fact, he didn’t even let them vote, he filled out all the ballots himself.” (Of course, a very much overbroad and exaggerated generalization, but you get the gist. Don’t misinterpret my hyperbole as attempting to accurately present her — I am merely trying to avoid cutting and pasting literally hundreds of comments in order to paint a picture…)
I look at what she writes and what she sees as obvious, and I only see the law playing out as it has been, not her fantasy world. For the most part, the primary thing coming out of groklaw these days is unsupported FUD… and they do do a bangup job of collecting publicly available documents. (Of course, these days my PDF viewers and other sources of information are better than her old school, open source site presentation and speed to posting. But I am a stickler for completeness so there is some appreciation.)
Edited 2012-12-19 01:16 UTC
PJ is not a law expert (and she clearly states that fact often in her articles). She’s biased (it’s a blog after all) and tries to find support for her own opinions and expectations from the posted docs, which means she’ll quite some times be wrong.
The point though is that at least they present the whole documentation for you to read and draw your own conclusions much unlike Fosspatents, which is another highly biased blog which has proven to be wrong about as often as Groklaw, if not even more.
I’m mentioning Fosspatents because that’s the source most media is quoting in their news articles, and not Groklaw.
“Judge in California rules in favor of company based in California. In other news, a study reveals that water makes things wet, film at 11.”