Apple v. Samsung: The Lesson We May Have Learned from the Jury Trial

Since 2010, Apple and Samsung, the two smart phone titans who combined over 45% of the market share, have clashed in a legal war on a scale rarely seen in business history. Their billion dollar patent lawsuit was undoubtedly the most famous patent case of the 21^st century thus far.  On August 24, 2012, the jury of the Apple v. Samsung trial in the U.S. District Court for the Northern District of California ruled that Samsung infringed on Apple’s patents and ordered Samsung to pay over one billion dollars in damages. But given the complexity of the case, which involves, among other things, construing claim language of several cutting-edge high-tech patents, many commentators cast doubt on whether the jury of the case truly understood the complicated factual issues to make an informed decision. This article skims through the key issues of the trial and demonstrate the current patent trial system maybe flawed because it is almost impossible for a lay jury to make well-founded decision for such complex cases.

A little background of the jury panel first: Among the nine jurors who decided the Apple v. Samsung case, one member had prior experience with patents. Only four of them owned a smartphone and three owned tablets. Although the jury panel was not composed of jurors who are tech fanatics, they are certainly not tech novices either. Five of the nine jurors worked for IT companies and one juror is even a patent holder.

During the trial, the jury was first tasked to make decisions on whether the Apple patents are valid (aka, not predated by prior art).  The question of prior art is a difficult one—since most inventions are derived from existing ones, the jury first needs to determine whether the patent at issue has novel attributes that are not the same as those derived from existing inventions. Sometimes the difference can be very subtle to distinguish even for persons having ordinary skill in the art. Moreover, even a novel feature is found. the patent must also be non-obvious. The obviousness question confounds even seasoned patent attorneys because it must be determined in light of the patent filing date, meaning that the invention must have been non-obvious at the time the invention was made.  One juror on the panel actually admitted that the jury skipped the prior art question and moved on to the infringement questions because it is too formidable of a job for them to apply the entire abstract legal analysis rather than making a decision based on their intuition. 

Subsequently, the jury needed to decide whether Samsung’s products infringed Apple’s patents. And if the jury found that there was infringement by Samsung, then it must determine the amount of monetary damages that should be awarded to Apple to remedy this infringement.  The jury was asked to fill a verdict form that included 700 questions regarding patent infringement. The whole process of filling the lengthy verdict form took the jury about twenty-one hours. After the jury turned the jury form into the court, the judge found a misapplied damages totaled nearly two million dollars. The implications of these facts are staggering: either the case is too complicated to the extent that mistakes are unavoidable, or that by not answering the fundamental questions of Apple’s patent validity, the jury had already decided Samsung has infringed Apple’s patent regardless of whether Apple was actually entitled to those patents.


Perhaps what we have learned from the case is that when the facts or jury instruction become so complicated, the jury may simply go with their gut feeling, rather than using evidence to decide the issue. And when patent dispute become so sophisticated, juries are not the best means for fact-finding. In fact, in Japan, the Tokyo High Court established the Intellectual Property High Court of Japan (“IP High Court”) in 2005 to serve as a special branch of the High

Court, with exclusive jurisdiction over intellectual property matters. South Korea, much like Japan, has a specialized Intellectual Property Tribunal. The German patent system even has different courts to handle infringement and validity matters separately. Therefore, it may be time for the U.S. to consider establishing a special patent court to render more predictable and accurate decisions for patent cases. 

Baker's Dozen: The Unseen Thirteenth Juror in Kentucky Courts

            It is not at all unusual for a court to select one or two alternates in a trial proceeding so that there is a fail-safe should one or two of the original jurors be unable to deliberate in the final stages of the case. Sometimes jurors become sick. Sometimes jurors are disqualified by the court from continuing in their duty as a juror. However, if all of the original jurors are capable of deliberating, the court usually dismisses the alternate jurors so that only twelve jurors deliberate on the fate of the case.

            However, in Kentucky, this is apparently not always the case. In June the Supreme Court of Kentucky heard two consolidated cases from defendants convicted on drug related charges in which there was an overlooked thirteenth juror in deliberations. In Kentucky, the alternate is not named before the court clerk randomly chooses them and removes them from the jury prior to the jury being sent into deliberations. However, in the cases discussed in Sevier v. Kentucky, the court clerk in each case inadvertently failed to remove the alternate juror from the jury and the mistake was not realized until the jury had returned from deliberations with their unanimous decisions to convict. The defendants appealed on the ground that the extra juror constituted an outside influence on the juries and therefore the convictions should be reversed and remanded for retrial, citing persuasive authority from Wyoming and Maryland. However, the Supreme Court of Kentucky determined that, because the thirteenth juror was unknown, unlike the cases in Wyoming and Maryland where the alternate juror was pre-selected and so should have been automatically excluded from the general jury, the addition of the unknown juror could have benefitted the jury and the defendant by adding an additional perspective which may have prolonged deliberations and gave the defendant a greater chance of being acquitted because the state was then “required to convince an extra juror to reach a unanimous verdict.”¹

            However, the logic of the Kentucky Supreme Court seems to overlook an obvious problem. The addition of an extra juror who should not have been in the deliberation room in the first place, despite the fact that this extra or alternate juror had not been identified, constitutes an outside force that could adversely affect the final judgment of the correct twelve jurors. The mere fact that the outside force could have been any one of the thirteen jurors in deliberations in these cases does not remove the fact that there was one juror in the room who should not have been there. We all know that two wrongs don’t make a right, so the decision of the Kentucky Supreme Court to let the decisions of these tainted juries stand simply because the extra juror could not be identified is wrong. The procedural rules of the Kentucky legal system were not followed and the Supreme Court should have recognized that such a potentially egregious harm requires a reversal of the conviction and a retrial on the matter, with only twelve jurors deliberating.

"Could Not Ask For More"1: Juror Questioning of Witnesses During Trial

An exciting reform to the jury process is allowing the jurors to ask witnesses questions.  Most states allow judges to pick whether they are going to allow this, but 11 states prohibit it.  Arizona has permitted jurors to ask questions since 1992.  And only Arizona, Indiana, and Colorado allow jurors to ask questions during criminal trials.  The advantages and disadvantages of this reform are hotly debated.

Anecdotally, a few Arizona attorneys gave reasons why they like the reform in this article:

“I think (the practice) has resulted in fewer hung juries,” Eazer said. “I think issues that might have hung them up before are getting resolved.” 

“It's amazing how some of the most obvious questions escape the notice of everyone involved in the process,” Fields said. “They usually result in some sort of constructive progress.” 

This reform also aids counsel in arguing a case successfully.  The lawyers will benefit from the jurors questions and subtle communications because the lawyers will be able to determine if their presentation is confusing or not effective based on the jurors’ questions. [2]  Also, jurors’ questions could reveal a “bias or improper considerations . . . that if left undiscovered or unchecked would taint the jury’s deliberations.”[3]  An example of this would be if a juror asked if a defendant had insurance, which could trigger the court to explain again what the jury can or cannot consider.[4]

Andrea Krebel of The Jury Expert praises this reform, but lists some potential disadvantages, such as making the trial longer, causing attorney’s strategy to suffer, making jurors feel angry or embarrassed when their question is not answered, and encouraging jurors to weigh their questions more heavily than other questions.  However, in general, the empirical evidence does not find that these things affect the jury negatively.

According to the same article, these potential disadvantages are not to be feared.   In fact, juror questions can help with confusing cases, such as patent cases.  Jurors can ask for clarifying information about issues they are confused about directly from the witnesses, and the lawyers can seek to clarify further with future witnesses.  In addition, if jurors ask questions during the trial (not every jury asked questions in study-trials where it had the power to), the lawyers can have a glimpse of what issues the jurors think are important and can tailor arguments to better fit what the jury in interested in. 

Finally, Krebel advises how to ask a judge to allow questions.  In many states, it is up to the judge whether juror questions will be allowed, so lawyers should ask during the pre-trail conference when discussing trial procedure.  If the judge is resistant, lawyers should be familiar with the case law and rules governing questions and can even show the judge the empirical studies (and blog posts!) embracing the reform.

This reform is gaining credibility, and I think judges should allow juror questions in the courtroom because of the potential advantages and because the supposed disadvantages are being disproven and can be managed.

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[1]  "Could Not Ask For More" by Sara Evans

[2] A. Barry Cappello & G. James Strenio, Juror Questioning: The Verdict Is In, Trial 36.3, 45 (2000).

[3] Id.

[4] See id.

   

Apparently I Would Be a Bad Juror Because I’m Not Married, Don’t Pay a Mortgage, and Like Beyonce

On the October 21st broadcast of Fox News’ “The Five,” co-host Kimberly Guilfoyle discouraged young women from serving on juries. She stated, “Young women on juries are not a good idea…They don’t get it! They’re not in the same, like, life experience of paying the bills, doing the mortgage, kids, community, crime, education, health care.” When another co-host said that young women have every right to serve on juries, Guilfoyle answered with “I just thank and excuse them, so they can go back on Tinder or Match.com.” As a young female, I found these comments highly offensive and ignorant. As a future lawyer, I would not mind have many of my young women peers serve on a jury as we are just as capable of being impartial jurors as any other generation eligible for the civic duty.

In my opinion, my fellow young millenials (women in particular) are more open-minded to differing views and less racist than our parent’s and grandparent’s generations. We have also faced our fair share of adversity including war and a recession hitting during our years of obtaining employment, a situation that has forced many to take on early responsibility while being thrifty and creative enough to get by on the few opportunities that were available. Not to mention that we are the first generation that is expected to balance each and every activity and extracurricular, now accessible by both sexes, including a number of experiences that our elder fellow eligible jurors may never have dreamed of. All of these experiences have shaped our abilities to render verdicts when called by our country to serve as jurors.

Just because I do not pay a mortgage, have children, or have a husband, does not mean I am not aware of the issues that those in my community face. It does not mean that I do not have the same concerns about safety, or that I would be more or less harsh on a company being sued for damages simply because I have less equity and savings than a 45 year old woman. My want to sympathize, or lack thereof, with a certain plaintiff or defendant will most likely only vary slightly from any other person on the jury, and my attitudes will be a reflection of my life experiences and what has influenced me rather than my age, gender, or appreciation for social media and pop culture. Also, why do only young women make poor jurors or voters? How do any of my male peers have any more responsibility or ability to make decisions?

Does a jury made up of middle aged and elderly people make any more sense? How can they use their common sense and experiences to judge a young criminal defendant or less worldly civil plaintiff or defendant any better than a young person? My entire life I have felt that adults looked down on me as a younger person and would not give my ideas as much value as they may have deserved. My hopes in attending law school were that this sense of injustice would be lessened in the legal world, however it is comments like Ms. Guilfoyle’s that only perpetuate this idea and will turn my young women peers off from serving as a juror if they are going to be looked down upon or dismissed simply because they grew up with N’Sync instead of The Beatles. Our job as lawyers should be to encourage jury service so that we have the largest number of qualified jurors to choose from and we should be choosing them based on their attitudes and life experiences rather than their demographics.

Another Fox News commentator also spoke about young women and termed them “Beyonce” voters (because they are single ladies) since they tend to be more liberal and because they depend on the government since they are not depending on husbands. Aside from the sexist nature of this comment, by focusing only on their age, marital status, and gender, lawyers, judges, or politicians would be ignoring the vast complexity of these women’s lives and short-changing their ability to serve as impartial jurors or as competent voters. There has also been much discussion regarding the changing demographics of jurors in New York, specifically Brooklyn, that has led to the term “hipster juror” who is a more well-off, educated, “law and order” type. Defense lawyers are up in arms because these jurors will not have the experiences to identify with their poor minority defendants. But, “do we want jurors to get to the truth, or just be "pro defendant"?  What is missing is any call for justice and truth.”

I know that I am not the prototypical young female potential juror, however I still believe that lawyers should take a lot more than our appreciation for Taylor Swift and Snapchat into account when deciding if we could take the job of being a juror seriously.

Video Evidence: Should Lawyers Think Twice Before Introduing It In Court?

New advanced technology is entering the courtroom as evidence and researchers are beginning to explore the idea that this new advanced evidence is playing a major role in influencing the juror’s outcome of the case. Recently, New York University and Yale University teamed up to conduct a study on the effect that video evidence has on jurors, and if it makes individual’s bias stronger. In particular, they asked the individuals in the study to watch the videos as if they were jurors and then access the punishment.

These researchers found that “where people look at when they watch the video evidence varies wildly and has a big impact on bias in legal punishment decisions.” This study aimed to find why people fail to be objective when confronted with video evidence. These researches conducted two different experiment groups that in total watched three different videos. The first group watched two different videos, each a 45 second video depicting an altercation between a police officer and a civilian. The second group, to eliminate potential bias toward or against police officers, watched an altercation between two college students. When participants watched the videos, the researchers used eye-tracking technology to gauge where the participants were fixating their focus.

 In the first study the researchers found that “among participants who looked frequently at the police officer, the degree to which they identified with his social group predicted biased punishment decisions. Participants punished the officer far more severely if they did not identify with his group than if they did. By contrast, among participants who looked less often at the officer, group identification did not affect punishment decisions. Attention shifted punishment decisions by changing participants’ interpretations of the legal facts of the case.” The same group of participants were asked to view another video, this time some were instructed to watch the police officer and others were instructed to watch the civilian. The eye-tracking technology confirmed that they followed their directions and the results “echoed those of the first experiment. Those who followed directions to pay closer attention to the police officer rather than to the civilian saw his actions as more incriminating and sought to punish him more severely if they felt little social connection to police officers. In other words, close attention to the videotape enhanced participants’ pre-existing biases of police rather than diminishing them.” The third video was watched by a new group of participants. These finds were consistent with the first two findings. The results showed that close visual attention enhanced biased interpretations of what transpired and influenced punishment decisions.

This study should be noted by practicing attorneys that appear before juries. Attorneys should consider the effects that video evidence may have on a jury. Although the prosecutor or defense attorney may believe the video will help win his or her case through “hard evidence” it may also hinder the case if the jury pays close attention to the video and thus develops strong bias while watching the video. These biases can ultimately influence their punishment decisions.

Has The Media Tarnished The Reputation of Civil Litigation

Since the infamous ‘hot coffee’ tort cases of the 1990s many Americans express the sentiment that our society has become far too litigious. Indeed, many people regard civil lawsuits as little more than greed-fueled grasps for undeserved fortunes. The result of the negative popular perception of civil lawsuits has a deleterious effect on the legitimacy of civil jury awards and civil litigators. Civil litigators are often stigmatized as rapacious opportunists who earn a living engaged in thinly veiled barratry. This unfortunate characterization of a class of lawyers may have more to do with selective media coverage and sensationalism rather than a lamentable decline of the legal profession.

Authors Neil Vidmar and Valerie Hans reveal that despite the commonly held belief that civil lawsuits usually lead to large awards, the truth is quite the opposite. In fact, data collected in 2001 showed that the average award in a civil case was a mere $27,000.[1] Moreover, only 8 percent of all cases resulted in awards over one million dollars.[2] If the majority of civil cases result in such modest awards, why, then, is public perception so negative?

According to Vidmar and Hans, the popular criticisms of civil litigation may be unfounded and due largely to the disproportionate media attention received by a small number of questionable cases.^[3] Essentially, small awards lack entertainment value and are therefore underrepresented in the media. Calls for improved responsibility and ethics in the media coverage of trials are generally focused toward the interest of fairness for defendants in criminal trials. However, the distortion of civil suit awards in the media undermines the legal profession and stigmatizes civil litigators unjustly. Indeed, in a 2001 study commissioned by Robert A. Clifford regarding the effects of public perception of lawyers he concluded, “Although the public acknowledges the need for lawyers when in trouble, the people surveyed expressed distrust in having to turn to an attorney. Their negative views, however, stem in particular from highly publicized cases and from disparaging advertising.”

Mr. Clifford describes the problem of Americans’ perception of attorneys as a result of how Americans are educated about the judicial system. Rather than by direct observation or participation, most Americans learn about the judicial process from the media. This, according to Clifford, is the wrong way to go about informing the public about who layers are and what they do: “If this country’s legal system is to survive and indeed thrive, we must embrace Alexis de Tocqueville’s notion that the jury system must be honored and, in fact, revered. Americans should not be formulating their opinions necessarily and solely on what novelists and entertainment producers have to say, nor on Jerry Springer’s or Joan Rivers’ standards.” 

Data collected by Vidmar and Hans demonstrate that civil litigation is unjustifiably maligned by the media for entertainment value. The relationship between lawyers, the public, and the media demands greater responsibility from journalists when covering civil cases. Indeed, fair and balanced coverage of civil trials is necessary to preserve the legitimacy of the jury system as a whole.

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[1]  Neil Vidmar & Valerie P. Hans, American Juries, at 283 (2007).

[2] Id.

[3] Id.