Most recently things haven been working out quite well for Samsung in the build-up to the Apple v. Samsung jury deliberations. But there's one item on which it has backtracked. Shortly after midnight, the parties filed a stipulation under which Samsung withdraws its objection to the idea of letting jurors access the Internet.
While both parties expressed concern that over-the-air (OTA) system updates of exhibit devices could result in the installation of designarounds and in jury decisions on false premises (the basis for which would never become known), I find it hard to believe that Samsung's concern was genuine. After all, Samsung has made significant changes to its devices (since Apple started enforcing intellectual property rights against it) in an effort to steer clear of infringement. Those designarounds, whether successful or just attempted, are considerably less likely to be deemed infringing than the original operating software. Samsung even fought very hard (but unsuccessfully) against sanctions relating to its designarounds. If a juror inadvertently updated an exhibit device, Samsung would simply get what it didn't achieve by other means.
To the extent that inconsistencies in the operating software running on different exhibit devices might confuse the jury, that would also benefit Samsung, whose primary pre-trial objective has been to muddy the water.
Apple itself actually knows how tricky those OTA updates can be. At the end of a report on an Apple v. HTC hearing in Munich, I mentioned that one of the HTC devices Apple's counsel had purchased surprisingly had designaround functionality installed when presented in court -- and nobody knew why.
The first sentence of Samsung's objections to a proposal Apple made on Sunday for how to tell the jury to avoid OTA updates shows what Samsung really wanted -- for whatever reason or set of reasons, it didn't want jurors to have Internet access from the jury room:
"Apple's request to allow jurors to access the internet on devices in evidence during their deliberations should be denied because there is a substantial risk that the admitted exhibits will be unintentionally modified, resulting in risk of juror error."
What could the jury do with Internet access? Given the diversity of Internet content, there are various possibilities.
Jurors would be unlikely to search for information on the case, such as some of the posts here on this blog. They know they are not allowed to do that. If anyone wanted to breach the rule, he or she would do it secretly and not in front of other jurors. If you have a dozen or so jurors, there's always a possibility of one or two violating the rules, but it's unlikely that the jury would unanimously agree on a breach. What might happen, though, is that someone surfs to a general news site such as cnn.com or usatoday.com and sees a headline relating to the case.
While jurors are not allowed to do their own research on the case, it may not always be easy to draw the line if someone looks up information on some general topic, such as "design patents". Again, I doubt that it would happen in the jury room.
Samsung may simply have opposed Internet access for jurors because it thought it had better chances if there isn't much that the jury can do with those exhibit devices. It may have thought that the more time jurors spend actually using those devices, the more likely they will identify the infringements alleged by Apple.
Anyway, OTA updates certainly pose an interesting problem to jury trials. Most exhibits never change. Some exhibits in other cases may change as well (for example, their quality may deteriorate with time), but OTA updates are more subtle (unless a jury is fully aware of the problem), and they can be initiated by device makers or carriers.
But it appears that Samsung realized that it could not argue that the jury should not be allowed to do what smartphones are used for most of the time. It stipulated to Apple's device handling instructions with only limited modifications since the first draft. By far and away the most significant change is that Internet access will take place exclusively over the court's WiFi network. Jurors are told not to insert SIM cards:
"Some of the devices have SIM cards in their packaging. These SIM cards are not to be inserted into the phones."
Another addition is that the instructions show two on-screen update notifications, not just one. And the final sentence of the instructions now places even more emphasis on the instruction to turn down updates:
"If you see such a screen, you must decline the request to update the system. Select 'Install later' or press the 'home' or 'back' button to exit the notification screen."
The wording is the same as in Apple's original proposal. Only the emphasis is new.
Judge Koh approved this stipulation a few minutes ago (shortly after 1 AM local time).
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