Judge Koh should vacate the Apple-Samsung verdict

Jurisprudence demands that US District Judge Lucy Koh right a terrible miscarriage of justice occurring in her courtroom. The Apple-Samsung patent dispute is nothing but a mock trial. The jury ignored key instructions, failed to complete a crucial checklist, made egregious errors on the final verdict form and reached a verdict after 21 hours of deliberations. The foreman misunderstood one of the concepts fundamental to the case -- prior art -- leading the jury astray. Then there is Judge Koh, who prevented Samsung from presenting key evidence or witnesses that could have made its defense and case against Apple more credible.

Apple claims that Samsung copying iOS device designs and patents causes irreparable harm. But the greater injustice is against the South Korean manufacturer, which is branded a copycat and thief -- all while the victim of terrible misreporting by analysts, bloggers, journalists and other writers. Samsung suffers irreparable harm here, not Apple. Judge Koh let this travesty occur on her watch. She should be ashamed and do what this malfeasance demands: Set aside the verdict. Best scenario: She should deny all claims by both parties, and let them sort it all out on appeal. Acceptable: Order a new trial. She let the case get out of control. Time is long past to reel it in.

Let me be clear: This story is not sarcastic funmaking, like August 30's "Samsung is such a copycat". There, as a prelude to this story, I called the company's IFA Berlin announcements rip-offs of iPad and iPhone, using the kind of rhetoric observed among the Apple Fanclub of bloggers, reporters and other supporters. Samsung's IFA products are remarkably innovative and demonstrate just how effectively the electronics giant can compete and bring provocative, compelling products to consumers. These new products look nothing like Apple's.

Kangaroo Deliberations

The verdict came down on August 24, after less than 24 hours actual deliberations. That's a surprisingly short amount of time, considering Koh gave the jury about 100 pages of instructions and a checklist to complete. Had my daughter not been starting college that same day, I probably would have written something weekend of the 25th. Then came catch-up work after three days off. I started writing this post on August 31 but had the flu over most of the Labor Day weekend. Finally, it's ready.

Jury foreman Vel Hogan, a 67 year-old engineer, started the talk-show circuit, so to speak, soon after delivering the verdict. In the embedded video, Hogan tells Bloomberg's Emily Chang that the jury set out to "focus right on the evidence". He continues: "I wasn't confused, but there were a few of the jurors who were confused". But Hogan was very confused. Groklaw's Pamela Jones explains: "He has revealed the biggest mistake of all made by the jury, one so large I don't believe it can be ignored. At a minimum, Apple shouldn't want to win like this".

Hogan claims that initially the jury was divided and confused about prior art, which is crucial to determining a patent's validity. Samsung presented a defense largely about prior art that if accepted could invalidate most, if not all, of the disputed Apple patents. At home the evening of the first day of deliberations, Hogan suddenly realized that "I could defend this if this was my patent". This all starts at 2:14 in the video. Listen to the tone in Chang's responding "really". I don't believe him either. He answers: "Really". But not really. "And with that, I took that story back to the jury, laid it out for `em, they understood the points I was talking about".

He goes on to explain his interpretation of prior art, which even as a layperson (and someone who has covered plenty of tech legal cases) makes absolutely no sense at all. Hogan believes that because Apple or Samsung software couldn't run on either's processor, there could be no prior art.

"This is an odd statement considering that the test for obviousness is not whether features may be bodily incorporated into a prior art structure, but rather, what the combined teachings of those references would have suggested to one of ordinary skill in the art", patent attorney Scott McKeown says. Jones agrees: "His 'aha moment', as he calls it, and assuming what he says on the video is accurate, was based on a misunderstanding of what constitutes prior art".

The impact of Hogan's misunderstanding cannot be understated. Fellow juror Manuel Ilagan tells CNET's Greg Sandoval about the foreman: "He had experience. He owned patents himself...so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art". Hogan made believers out of the other jurors, quite possibly misleading their interpretation of every patent.

The BBC asked Hogan: "Do you think if you hadn't been on the jury then we might have ended up with a very different verdict?" To which he replied: "I think so. But let's not say me specifically. Let's say if there had not been an individual who had the technical background, and there had not been an individual who had gone through the process, the verdict might have been different, or it might have been the same".

Perhaps the verdict would have been different with someone of sufficient technical background or understanding of patents. Regardless, Hogan acknowledges, however tacitly, his influence over the jury.

The Untold Story

If only the problems stopped there. Perhaps Samsung should have hired better lawyers.

Apple scored more successes with motions before the court than did Samsung, and I repeatedly had déjà vu. As someone watching from afar, the ongoing rulings felt like those in the Microsoft's US antitrust trial. US District Judge Thomas Penfield Jackson's rulings from the bench repeatedly favored government lawyers. I felt similarly as Koh prevented Samsung from presenting witnesses, often because lawyers didn't file paperwork fast enough. There, fault lies on both sides. Samsung's lawyers should have filed on time. But Koh also should have put justice ahead of her timetable. Her rulings often favored Apple motions seeking to limit Samsung evidence or witnesses.

Trials like this one are as much about storytelling as lawyering and perhaps more when presenting to a jury -- who tells the better story inside and outside the courtroom. The jury must decide based on the evidence before them. If good (Apple) or bad (Samsung) lawyering keeps out evidence, then the jury doesn't hear the whole story. It's the judge's duty to ensure both parties present their story, particularly in a potentially precedent-setting patent case.

Meanwhile, as I observed three weeks ago, analysts, bloggers, journalists and other writers present a pro-Apple story, while ignoring the broader narrative.

The extent of misreporting post-verdict is frightening. While driving home from my daughter's college dorm day of the verdict, I heard BBC report that Samsung was found guilty of "stealing Apple patents". The next day NPR reported that Samsung "stole Apple technology". Both statements grossly misstate the facts. The jury found that Samsung wilfully infringed Apple patents.

The Verge's Nilay Patel, who is a lawyer as well as editor, looks at one common Apple patent myth: pinch-to-zoom, pointing out how much misreporting there is about it compared to how narrowly defined it really is.

Apple's courtroom victory is largely built on misinformation:

• The limited story Judge Koh allowed Samsung to present to the jury
• Hogan's misunderstanding of prior art and his conveying the concept to fellow jurors
• Ongoing misreporting, either because of Apple bias, poor research or legal misunderstandings

Jones captures my sentiments about the case and what it really means:

Samsung devices are flying off the shelves in America. People want them. But Apple doesn't want us to want them, or if we already do want them, they don't want us to be able to find them to buy them. And if we can find them, because Samsung comes up with workarounds, it wants to be sure Samsung's devices are uglier than Apple's and can't do as much. Noble values, indeed.

Apple's weapons in this war are patents and design patents and trade dress and whatever there is at hand that the law foolishly puts into the hands of plaintiffs determined to use the courts against its competitors.

P.S. That's not what courts are supposed to be for. And companies could try innovation instead of litigation.

Judge Koh, you allowed this travesty to occur and empowered Apple to usurp fundamental principals behind patents -- that government grants a limited monopoly in exchange for full public disclosure that allows other parties to build even better products, spurring innovation, increasing competition and improving consumer choice. Instead, your careless courtroom supervision gave Apple the launch codes to set off Steve Jobs' thermonuclear war against iPhone's Android competitors. Shame on you.

Photo Credit: Sebastian Duda/Shutterstock