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Apple v Samsung round 2

I have just read an interview on the BBC news website that makes me think an appeal could be coming from Samsung against the jury finding that they infringed Apple's patent.

In England and Wales, we do not have juries for patent disputes any more.  Nowadays juries are used only in criminal and coroners courts.  When a jury does sit in a criminal court it is illegal for the press to report on the deliberations of the jury.  In fact nobody should even be asking any jury member what was discussed in the retiring room let alone reporting it.  Now, I know things are different abroad, which is interesting because you get to hear how juries reached their conclusions and that is helpful to British lawyers, like me, who may want to adapt particular elements of their presentation where a trend appears to present itself.

In this country, juries take the law from the trial judge especially where a jury member has a different opinion on the law!  Lawyers, including judges, are now allowed to sit on juries in English criminal trials.  In one case, a judge of the Court of Appeal (Criminal Division) found himself sitting on a jury in a criminal trial.  I'm sure the trial judge was a bit nervous!  But, the appeal judge promised that he would take the law from the trial judge and would not give his legal opinion to other members of the jury.

In the Apple v Samsung case, the jury foreman says that because he works in the tech industry in California (co-incidentally where Apple is based) he has a good knowledge of US patent law.  At one point, he states that had he not been on the jury with his specialist knowledge then the jury may have reached a different conclusion! 

In another portion of the interview, the foreman suggests that while in the jury room he analyised and fully considered the source code provided by Samsung for it's pre-iPhone and post-iPhone telephones.  He says:
"... 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."
The important part to my mind is that he appears to be saying that he read the source code and, effectively, provided evidence to the rest of the jury about why Samsung's case was wrong.  It's worth remembering that this may well be what the American's call BS.  They were only deliberating for 21-hours and had 700 questions to decide upon so he can't have spent all that long pouring over code.  It may well be a man trying to big himself up.

In this country a jury must decide the case on the evidence before them, they should not be seeking outside evidence or generating their own evidence.  I don't know if that rule is different in Californian civil courts.  If the rule is the same in California then this could be a good ground of appeal.  In the British courts we had a jury producing their own evidence by smuggling a Ouija Board in to the jury room and attempting to contact a murder victim to ask if the defendant was guilty or innocent.

These are just a couple of points that occur to me from reading the foreman's interview transcript, I'm sure a patent lawyer with all the evidence could find more appeal points.

Big American companies are famously litigious... let's find out whether Big South Korean ones are too.


  1. Given this case was mostly about the look of the operating systems I find it very unlikely one could look at the source and determine it wouldn't work on one or another phone and suspect your BS assessment to be correct.

    While the OS is different (as is the API) the CPU has very little to do with it as the compiler handles that for the programmer these days.

    Even if the hardware were an issue that'd be an entirely different part of the OS (IE: drivers, modules etc.) to the parts that determine how the interface looks and such things are kept separate for precisely that reason.

  2. I think you maybe right. I don't know anything about US law except what I see on TV and I remember an episode of Quincy ... Quincy was excluded from a Jury for using his specialist knowledge to interpret and question the evidence in front of him and the jury.
    Of course this was a criminal matter...and fiction...

  3. Hi,

    My guess is that the source code was entered into evidence, and then he contributed some analysis to the deliberations... maybe jurors should deliberate in isolation from each other to prevent discussion of the evidence... but I'm not aware of any legal system where this is the case.


    1. Hi,

      That's an interesting idea... can't honestly claim to have ever thought about the idea of making jurors come to their own independent decisions before.

      My point though really was that based on his claims he seems to have gone way beyond discussing the evidence as presented by the parties and into territory where he is actually giving his own expert evidence of the raw materials. Imagine if a forensic evidence were to sit on a jury and in the retiring room he looked at evidence and produced his own analysis and reached his own conclusions. That would be wholly wrong as neither of the parties could reply to his "evidence" to the rest of the jury.

      There would be absolutely nothing wrong with him listening to the opposing arguments and using his knowledge to help other members of the jury understand the issue.


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