Thursday, July 12, 2012

Samsung wants to put roughly 700 questions before the jury -- Apple: only 49

Late on Wednesday, Apple and Samsung filed, with a view to the trial that is scheduled to start on July 30, their proposed jury verdict forms and the questions that prospective jurors will be asked when they are selected from the "venire" (persons that have jury duty). The parties' proposals could hardly be further apart.

The most striking difference between the proposed verdict forms is that Samsung wants the jury to provide very fine-grained answers, resulting in a total of roughly 700 (!) questions (spanning 40 pages), while Apple proposes only 49 questions (spanning 6 pages) for the jury.

Apple may have oversimplified the issues in a few respects, but Samsung's proposal is simply not practicable. The poor jurors would have to spend a significant part of the rest of their lives in the San Jose federal courthouse. Samsung has two obvious objectives:

  1. to muddy the water (hoping that a confused jury won't be able to agree on much); and

  2. to demonstrate to Judge Koh that a further narrowing of Apple's claims is supposedly necessary.

The huge number of proposed jury questions is mostly attributable to the level of granularity that Samsung has chosen. For example, it wants the jury to provide a separate yes-or-no answer for the infringement of a given patent claim on a per-product basis, even though the operating software running on the accused devices will often have a consistent implementation of a given patent, or even if there are multiple colorably-different implementations, we may be talking about two or three implementations for some of the patents. Another example is that Samsung wants the jury to allocate each component of the total damages figure among the three Samsung legal entities that Apple is suing (Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc.; Samsung Telecommunications America, LLC).

There can be no doubt that Samsung has already achieved its objective of creating confusion. Its proposed form contains various formatting errors, and Samsung defines the acronym "SEA" as standing for "Samsung Electronics Co., Ltd.", though it's clear that it meant "Samsung Electronics, America, Inc."

Apple's proposal aggregates related findings. Samsung wants as much disaggregation as possible. The court will want to ensure that the case remains triable, but with the multiplicity of intellectual property rights-in-suit and accused products in this case, the jury will have to answer enough questions that, for example, the derivation of a total damages figure is reasonably clear. Otherwise there would be a problem if any part of the decision was successfully appealed.

Samsung certainly wouldn't mind if the complications caused by the parties' disagreement on the structure of the jury form resulted in a delay of the trial.

We will know Judge Koh's reaction pretty soon.

The jury selection questions indicate what kinds of persons a party considers ineligible for jury duty on this case. Samsung apparently wants to exclude Apple fanboys: three of its proposed questions relate to ownership or use of an Apple product (or related plans). Samsung is particularly concerned about bias against Asian companies, and of the possibility that people may have protectionist tendencies due to the current state of the economy:

"4. Do you have any negative impressions or opinions about South Korean companies or business people?"

"5. Do you think many Asian companies steal what others have created and sell products based on copied innovation?"

"6. Have you been negatively impacted by the recent economic downturn?"

One of Samsung's proposed questions has to do with Apple's FRAND-related antitrust counterclaims:

"7. Do you think most companies with monopoly power would end up abusing their monopoly power in the marketplace?"

Samsung also wants to know if people have read or heard about the dispute, and if so, from which sources. If any of you (the readers of FOSS Patents) happens to be among the potential jurors that day, answer truthfully and you probably won't have to serve.

Apple also asks questions about the "impression" of the dispute that people may have formed. More generally, Apple is interested in a candidate's "thoughts or impressions of the U.S. Patent system". In Oracle v. Google, a programmer who opposes software patents was deemed ineligible. The same would be the case here. This doesn't apply to high-ranking judges, of course.

Apple's first two jury selection questions are all about how people view the issue of copying and taking ideas from others:

"1. Have you ever created or developed something and had the idea taken from you? If yes, please explain."

"2. Have you ever been accused of taking the idea of another? If yes, please explain."

There'll be lots of technical detail to discuss at this trial, but the strategic battle is the one over copying vs. competition. That's the underlying theme of Apple v. Samsung. Where does the scope of protection of Apple's innovation end and Samsung's freedom to compete begin? Even the upcoming trial won't answer that question in all respects, but it can provide clarity with respect to some technical patents, design patents and trade dresses.

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