Prior Art

One of my biggest beefs with the patent system, particularly in tech, is the fact that often there is prior art.

I read this thread on groklaw about the Apple/Samsung decision and the issue of prior art is raised but I am confused about it.

What I would love to know is if the jurors evaluated the prior art issues in their deliberations or whether they punted on them.

Does anyone have any clarity on this?


Comments (Archived):

  1. bfeld

    From the reporting it looks like (a) the judge excluded presentation of prior art from the trial – keeping it away from the jury and (b) the jury apparently didn’t consider prior art in their verdict. It’s secondary reporting so a little hard to tell, but if you read the summary of any of the patents, it’s clear that prior art was either ignored, excluded, or not thought about very hard.I expect the appeal will – and should – focus on the issue of prior art and invalidating the patents, along with likely procedural errors in the trial around prior art.

    1. Cam MacRae

      Indeed. Although they were still asked to decide on patent validity!The jury were required to understand 109 pages of instructions. They were required to read and understand Apple’s technical patents, Apple’s design patents, and consider Apple’s trade dress. Then they had to consider damages.They also had to consider Samsung’s technical patents, Samsung’s damages. Then FRAND and patent exhaustion.I cannot conceive of how the jury managed to make an objective assessment of each of the 700 questions they were required to answer UNANIMOUSLY in the space of 3 days. It beggars belief.

      1. Elia Freedman

        I don’t think the decisions need to be unanimous. That’s in a criminal trial.

        1. Cam MacRae

          The verdict form, dtk. no. 1890, required unanimous answers.You can read it here:

          1. Elia Freedman

            Wow. My apologies. That’s wild then. Hard to be 11 people could agree on so many issues in such a short amount of time.

          2. JLM

            .The standard was “by a preponderance of the evidence” which is the typical civil suit standard..

          3. Cam MacRae

            Quite. Mind you that simply implies the requirement for unanimous probabilistic assessment. And they got it done in 3 days.They’re clearly better men than me.

          4. JLM

            .Speculating, I suspect that the trade dress transgressions were very easy to embrace and once one transgression was embraced the others were just more of the same.A riot starts with a single bad decision and then spreads like wild fire.This decision was a riot..

          5. Wavelengths

            Where are the Texas Rangers when we need them?

          6. JLM

            .One riot, one Ranger.On Earth as it is in Texas..

          7. Cam MacRae

            It’s impossible to argue with that evaluation.

      2. Pete Griffiths

        I think the reason they were able to do it so quickly is that although there were 700 questions they fell naturally into groups.

        1. JLM

          .A single question could apply to over 25 products. Remember much of this was related to “trade dress” which is a matter of appearance rather than of patents.In reading the jury question form, it is apparent that the jury totally embraced Apple’s arguments including as it related to trade dress.This was a huge win for Apple and the decision was not even close..

          1. Pete Griffiths

            I totally agree. Basically the jury was sold when Apple put pictures of a Samsung next to the iphone. The rest was detail.

          2. JohnDoey

            Yes, it was a kindergarten case.Then after that, the jury was shown 7 years of Apple paperwork showing iPhone growing from basic prototype to shipping product, compared to 3 months of Samsung paperwork where they copied iPhone to create Galaxy.Then Samsung said, “we never copied a thing, and in fact, it was Apple that copied US!” The jury was not impressed by that, they said. If the copying was legal in Samsung’s opinion, then why deny it?Kindergarten.

          3. hypermark

            I am probably in the minority on this, but my take is that this is one of the rare cases where the patent system actually worked. We can reasonably dissect this element or that of the case, but the creation of IPhone and iOS has completely transformed the computing landscape, such that there is a BEFORE and AFTER. We give makers of Erectile Dysfunction drugs patent protection, ostensibly because it’s a high risk endeavor to create a new drug, costing hundreds of millions and taking years to bring to market? Why should Apple’s creation be afforded LESS consideration when even the basic sniff test tells us that there was nothing like it before, and it’s proven so fundamentally right as to now be “obvious?”Plus, the R&D dynamic is comparable to creating a new drug. 

          4. JLM

            .I can find no flaw with your logic. Well played.Having said that, there is no question that the entire arena of patents in our rapidly developing technology environment is going to need some attention and will otherwise be fought out in the courts.Copyrights, patents, process patents, trade dress/design patents, software patents and a myriad of other IP issues are in great flux.The actual process of applying for and ultimately receiving a patent is a bit archaic and does not convey the failsafe or safe harbor protections that one would like.I cannot fail to start from the perspective that patents are property and the fundamental right of any citizen is to their property.Having said that, I am uncomfortable with companies who obtain patent ownership as a condition of employment as there seems to be a failure of consideration and an element of unjust enrichment as to between the employer and the employee.Right or wrong, I am totally persuaded that patents are now a major impediment to innovation though I am not prepared to concede that they should therefore be done away with.Perhaps the solution lies somewhere akin to “wheeling charges” whereby users of another’s lines in public rights of way are allowed to pay a fair charge to the owner of the line for the use of the line.In this manner, the public utility ROWs are not clogged with redundant lines and the original constructor is able to recover their investment in a shotgun royalty arrangement.There is no question that our lives have been ordered BEFORE and AFTER the iPhone and iPad..

          5. hypermark

            I agree with you 200%, and IP is just one segment of many, where our system (especially the incentives) seems to be optimized around attributes over outcomes.We see this truth every day on Wall Street where the narrative is, “While technically not against the law..,” and there is no larger industry cry to do better and actually stand for something.Somehow, we need to recalibrate on how we want markets to work, where the invisible hand (policy) is good enough, and where the fist (enforcement) is necessary.

          6. panterosa,

            @JLM:disqus I believe patents are an impediment, as you state above.However, from the comments I was able to digest here in the time available to me, no one has mentioned the brokenness of the patent division itself. You must choose design OR utility patent. The best design around is where the design IS the utility and they are inseparable – like those bike racks on the street which are a series of connecting U shapes. Patent should be revised to include a category of design+utility.Form=Function is the core of design itself, and how it was taught at art school. Your medium is the message as vice versa.Choosing either design or utility makes for arguments like the Apple v Samsung a different story. The Tizio lamp suffered through imitators due to having just one patent available.

          7. JohnDoey

            Because Nerds are anti-design. They don’t respect what Apple has done. They want engineers to liberate the Apple products so they can have an “open” platform upon which to victimize consumers.The funny thing is: copy 8 lines of CSS out of a Nerd website and he will lose his sh t. He will witch hunt you all over social media because you copied 3 minutes of his work. But should Apple do 7 years of iPhone development based on their existing Mac and iPod products, then the results of that are a public service. Start cloning it all on a virus-friendly Nerd OS as soon as you can.

      3. JohnDoey

        It is easy: they focused on the trees in that forest that were on fire.That is why we already heard from a juror that the paper trail of Samsung’s copying was beaten by the paper trail of Apple’s designing. And a child can do the math on a 2010 product that is an obvious copy of a very famous, best-selling 2007 product. When you add Samsung saying we didn’t copy again and again, even though the paperwork and devices show they did, the jury felt they were being lied to.

    2. Scott

      The foreman said they considered prior art. Any prior art considered had to be entered into evidence through normal court proceedings. As with any other evidence. I presume you understand why they have those rules of evidence. Anything excluded was more samsungs fault than anyone likely so that they could preserve a reason to appeal, however tenuousAlso, the willful part is where you get to the punishment the foreman seems to imply

      1. bfeld

        Actually, it sounds like they only focused on prior art on one of the patents and then when they decided there wasn’t any, they punted on the others and assumed that there was infringement. But again, it’s secondary reporting so I have no real idea what went on in the jury deliberation, but it’s easy to see – based on the patents – how they couldn’t have punted.

        1. JLM

          .In a civil trial, a defendant must present all of its defenses in its answer to the complaint. If they fail to so plead, they cannot raise those defenses at trial.OTH, they can always raise a defense in discovery and decided not to present such evidence at trial..

          1. Tommy Chen

            It seems as though samsung’s lawyers were not very well prepared or did not know how to fight this case. From what I have read, they were pulling prior art arguments and supporting documents in the middle of trial w/o going through the prior formal proceedings. Stuff like that can only be admitted at the discretion of the judge and I think she punted most of those request.

          2. JLM

            .There are about 10 other similar trials worldwide and Apple has lost a number of them. The Samsung lawyers may have been lulled to sleep. It is hard to believe that they would not have the best lawyers that money can buy..

          3. JohnDoey

            The best lawyers don’t take losing cases like this. The jury said Samsung’s story was not even credible. Apple has prevailed in most of their cases because it is well known that they shipped a breakthrough product many years before the counterfeit products arrived on the market. iPhone was almost 2 years old before Android 1.0 was even released. Samsung’s case was a joke.

    3. JLM

      .Unless Samsung plead a defense of prior art in their original answer to the complaint and put on such evidence at trial — which would require them to admit infringement — the issue of prior art is not going to be considered on appeal.Prior art is a defense to infringement which must be raised by the defendant at trial.An appellant cannot introduce new evidence through the appeal process. An appellant can only appeal to an error or “a decision contrary to the evidence”. They do not get to introduce one iota of new evidence. It must be in the trial transcript..

      1. Pete Griffiths


    4. Pete Griffiths

      Surely Samsung’s defense was prior art? That’s why they produced evidence of early phone designs.

    5. fredwilson

      Good. I would like to know if Apple really did invent this stuff

      1. vruz

        One thing is for sure, Apple didn’t invent rounded rectangles.Plenty of prior art dating back to the tables of the ten commandments.But obviously this is a jury that wasn’t bothered by science and facts.This is not over yet.

        1. fredwilson

          Getting biblical on us! I like it

        2. JohnDoey

          Funny thing is, Apple did invent rounded rectangles on computers, in the first Mac. The story is well-known but is also in the Steve Jobs biography.But you have setup a straw man. Nobody at Apple or anywhere says that Apple invented the round rect. What has been said is that Samsung used exactly the same round rect (there are hundreds of different ones) in combination with the same colors and finishes and even icons in a deliberate effort to mimic iPhone. That is a lot harder to argue, so you just pretended Apple said they invented the round rect.Microsoft similarly did not invent the square, but if Samsung makes a phone with green and blue squares on a black background with a Segoe-looking font and hubs and 50 other features cloned exactly from Windows Phone, they will get a call from Microsoft’s lawyers.Apple also did not invent the apple, but you get that Samsung can’t use the Apple logo, right?

          1. Dave W Baldwin

            Thanks for your clarity. I guess it gets back to what exactly was ruled to be violation- the rectangle or all that is inside the rectangle?

          2. vruz

            No, that’s not right. You clearly ignore everything about Intellectual Property, so there is no point in giving you an answer.

      2. JohnDoey

        Yes, they invented it. That is why Apple’s iPhone shipped 3 years before everyone else. iPhone is made up of stuff Apple invented for the Mac, for NeXT, for Newton, for Mac OS X, for iPod.In fact, the main innovation in iPhone is it is a full Mac/iPod in a phone. It is all your favorite computing stuff from Apple, but in a handheld device. iPhone is like a greatest hits collection and you are asking if they wrote the songs.In December, 2006, the system requirements for World Wide Web (created on OS X in 1990) were 640×480 PC screen, mouse, keyboard. Then in January, 2007, Apple showed us World Wide Web running without a mouse for the first time ever. Running on a screen smaller than 640×480 for the first time ever. And they gave all that away to everyone else, including their competitors, via their WebKit open source project. The WWW on a non-PC device is an Apple invention. (See “WebKit” and “Tim Berners-Lee.”)Wait a second, you are saying, the Web was on my Palm Treo! NO. IT WAS NOT. PALM LIED TO YOU, SAME AS OTHER PHONE MAKERS. Apple delivered the actual World Wide Web, not a baby mobile Web built entirely separate and going nowhere.The multitouch was done at Apple for the Mac, and they bought FingerWorks also. iOS was developed on Macs with an overhead projector overlaying a screen onto a Mac trackpad at the turn of the century. (See “Steve Jobs” by Walter Isaacson and also the last 10 years of Apple patents.)The core OS in iPhone is just OS X with the mouse interface removed and touch out on. OS X has led the way graphics technologies, which is why iPhone was able to draw its interface in its GPU while no other phone could do that, and support multichannel audio and MIDI and video editing. There is a Mac in your iPhone.iPhone is still the only phone with a PC class C/C++ app platform. Still the only phone with no malware, no viruses.The ARM mobile chip in iPhone was originally created by Apple and ARM jointly for the Newton in 1988–1992, shipped in 1993, and all PDA’s are descended from Newton. All smartphones are descended from PDA’s. Except for 1999–2000, Apple has been shipping ARM mobiles for 19 years, and was the first to do so. Newton had flash memory, modem, touch screen, apps, calendars, contacts, email, battery, ARM, and Mac/PC sync just like iPhone, but 15 years earlier. Palm started as a Newton developer and later made their own device which outsold Newton but was much less powerful.The problem is, you think of Apple as effete designers and artists, and so you think that manly Samsung or somebody else suitably manly invented the technology in these products. No. Nobody else is even trying. They are all making ad platforms or similar. There was no market for an ARM chip that is mostly GPU until Apple created iPhone and iPad, that is why Apple does its own SoC designs. They have to create custom components because their products are different. Apple is absolutely not taking off-the-shelf components and discovering a novel way to put them together. The first iPhone had a ton of custom Mac stuff, custom iPod stuff, and it has only grown more custom since, because nobody else is even shipping ARM PC’s, let alone ones with more pixels than an HD display. Nobody else needs ARM chips designed for PC class computing. A Windows RT tablet might be such a thing, but that is 2.5 years after iPad.Also, you have to understand, nothing happened first on MS-DOS/Windows. The first MS-DOS PC shipped 5 years after the first Apple DOS PC. The first usable Windows shipped 9 years after the Mac. The World Wide Web came to Windows after 4 years on NeXT and one year on Mac. Photoshop came to Windows in version 4. Microsoft Office shipped for the Mac in 1989, years before Windows really existed. Word and Excel are 1985 Mac apps. The 3.5 inch floppy and the CD-ROM are from the Mac. Desktop publishing, music, and video were all on the Mac at least 5 years before MS-DOS/Windows. So if you have been using MS-DOS/Windows for many years, you have a skewed view of who invented everything and when things started. For example, the first MS-DOS/Windows system with built-in Wi-Fi was 2003. I bought a Mac notebook with built-in Wi-Fi and a just-works base station to match in 1999.The iPod was available to Mac users 2 years before Windows users. iTunes was available 3 years earlier on the Mac.So maybe you bought an iPhone from Samsung in 2010. Again, years behind Apple. Your gut tells you Samsung invented it. To those of us who were 2 years into App Store and 3 years into iPhone and 9 years into iPod and 26 years into Mac in 2010, you Samsung defenders sound CRAZY. Like saying Google, founded in 1998, invented the moon. No.And your gut is telling you Apple is new in “smartphones” how can they have invented so much stuff, but again, they are the first ARM mobile vendor. Apple just left the carriers and 3G/4G modems for last is all. In 2006, Apple had already shipped tons of computing, but no phone/3G. Others had shipped phone/3G, but only baby computing, a computer you barely even recognized as a computer. Since 2007, Apple showed that you can add a phone to a fully-functional 25+ year computing platform much more quickly than a phone maker can add a real computing platform to a phone. That is what made the phone vendors panic, and that is why Samsung was desperate enough to do such a blatant clone of iPhone later. Phone makers were expecting users to switch from iPod to BlackBerry as phones supported music, they were not expecting phone users to switch to iPod to get real computing.When you recognize that iPhone is just a really small Mac combined with a really big iPod, and that it descends primarily from Apple Newton from 1992, NeXT from 1988, and Mac from 1984, there really should be no more whining about what parts of iPhone Samsung invented.

        1. fredwilson

          i think palm did a lot of interesting stuff before apple did it

    6. JohnDoey

      The prior art the judge excluded:• a still frame from the 1969 movie “2001: A Space Odyssey” which was excluded because it is an image, not a phone or other mobile computing device (H.G. Wells did not invent the time machine)• the Prada phone which shipped after iPhone which was excluded because it shipped after iPhone, not prior… if you remember how stunned the world was to see the iPhone in 2007, that was not because we’d already seen iPhone before from another company. And even in 2010, iPad was panned by critics and technology people not for being a copy of other tablets, but for being TOO DIFFERENT from previous tablets. Many complained it did not have a mouse pointer and Mac apps, or insecure native apps, or a stylus, or an included keyboard.So we have the sa,e old story:• Apple releases product• Nerds pan it as TOO DIFFERENT, too experimental, a toy, not good for business• Apple spends hundreds of millions on advertising• Consumers buy hundreds of millions of the Apple product• Nerds clone Apple product and start victimizing consumers with a lookalike device that has the security and privacy features left out, gets viruses and malware, and has no apps, and gets no software updates• Apple sues the cloner• Nerds complain that they have every right to copy the Apple product, because it is EXACTLY LIKE many previous products, is an obvious design, or that’s what consumers want and they are just building what the customer wants, nothing to do with all the Apple advertising they watched, it is just organic!I watched this happen with the Mac, iMac, Mac OS X, iPod, iPhone, and iPad. There was always a period of year’s where they were totally unique products. They not only did not meet comparable products in the market, competitors were so flat-footed that they did not even respond for years, and in some cases, never responded and just went out of business.So Samsung was selling a lie from the start. They were not only caught with their hands in someone else’s cookie jar, they had their hands in the #1 most molested cookie jar in all of technology: Apple. Apple has been cloned by companies that were even larger and more evil than Samsung. So we have a guy caught at a brothel who says he was just looking for a room for the night. Sure you were, Samsung. Sure you were.C’mon people. At least pretend to have a little street smarts.

      1. bfeld

        John – re: the Mac. Did you ever see a Xerox Star or Alto?

        1. Cam MacRae

          And by OS X I assume he means Aqua.

  2. bfeld

    Here’s a more detailed Groklaw article – it’s excellent at explaining the inconsistencies with the judges instructions that is now coming out.…My favorite is the quote from the foreman.”We wanted to make sure the message we sent was not just a slap on the wrist,” Hogan said. “We wanted to make sure it was sufficiently high to be painful, but not unreasonable.”This directly contracts “Final Jury Instruction 35″”The amount of those damages must be adequate to compensate the patent holder for the infringement. A damages award should put the patent holder in approximately the financial position it would have been in had the infringement not occurred, but in no event may the damages award be less than a reasonable royalty. You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer.”The damages are supposed to “compensate for loss”, not “punish.” It sounds to me like the foreman was saying “we wanted to make sure they were punished.”There are so many things wrong with this decision and it’s easy to get crazy about it. But it’s just more evidence of how completely fubared the US patent system is at this point.We can spend money and time on lawyers and litigation or we can spend money on innovation. I choose innovation.

    1. LE

      “This directly contracts”Good example.But it’s always interesting how the law (and much of life works like this). You can get away with so many things as long as you don’t label them in a way that violates some law or set of instructions (or if you take the time to label them in a way that gives you absence of malice.)In this case the foreman didn’t even know he had to cloak his thoughts differently. Or perhaps there was no pleasure in doing what he did unless they could brag or take credit for it. Possible minor chance that he did know and simply didn’t care.

    2. Pete Griffiths

      “it’s just more evidence of how completely fubared the US patent system is at this point.:I would suggest that the lesson is much broader. We have a system in which regular people, many of them poorly educated, end up judging very complex cases. It is inevitable that in such circumstances mistakes will be made. You see exactly the same thing, for example, in white collar crime. But bear in mind that there is a big difference between the high level judgement (guilty or innocent) and the technical detail (eg damages). Juries seem to be much better at smelling out the high level than dealing with the detail. Put two phones side by side and ask ‘do you think this one copied this one?’ and you’ll probably get a sensible answer. Ask them to work through a detailed spreadsheet in accordance with pages of instructions and mistakes will be made. But those kind of mistakes can be rectified on appeal.

      1. Wavelengths

        Worse yet, people can be very well educated, sitting on that jury, and be completely clueless about the issues involved. Yet they think their education in a completely different field entitles them to make informed decisions.Consider the movie stars giving their opinions about politics on the late night entertainment shows.

        1. JLM

          .Holy shit, are you kidding me? I have been waiting breathlessly to hear who Matt Damon is endorsing. WTF?.

        2. Pete Griffiths

          Very true.

    3. Todd Werelius

      “Relatedly, the ability to get a design patent on a user interface implies that design patent law is broken…”Too true, some UX guy applies an analog from the real world (usually not even the first to do so) and suddenly no one can ever use it again without permission.I am not anti-IP but when the patent system is stretched to include simple primitives it’s completely broken IMO.

  3. kidmercury

    congratulations to apple for patenting the rectangle.

    1. Wavelengths

      I’m patenting the wheel. (That includes the circle.)

      1. kidmercury

        lol you should take after your name and patent the wavelength too. you could sue anyone or anything that makes a sound! 🙂

        1. Wavelengths

          I already did that. Just try to sue me.BTW, that also includes light, thought, communication between dolphins and whales, and a number of other things I’ll be you haven’t thought of. (But when you think of them, you’ll be using brainwaves in different wavelengths!)I am particularly offended by people who break the sound barrier.

      2. bfeld

        Too late. I’ve already submitted a patent for the circle and given the first to file rule, …

        1. Wavelengths

          I was going to ask who used “Foundry” first, you or the Boulder nightclub, but I see the club is out of business. Did they lose the suit?

        2. Luke Deering

          I just patented the patent system

        3. Mark Essel

          prior art

          1. Cam MacRae

            Nah… what you’ve got there is an azimuthal projection of an oblate spheroid 😛

          2. Mark Essel


          3. Matt A. Myers

            Nope, @bfeld:disqus is just older than he looks and he drew the first map ever, too.

    2. fredwilson

      I think there is prior art there

    3. raycote

      It is not the rectangle!The genius is clearly to be found in the rounded corners.

      1. JohnDoey

        So what you guys are saying is that the following is NOT an iPhone, it is some other thing?Works with iPhone (image)…You look at that simple interplay of lines in the image above and you don’t see the famous iPhone from 2007, the controversial phone that was panned by every competitor as a toy yet became the best-selling, highest customer satisfaction and most-profitable phone on the market?What do you see if not iPhone? Do you see a Samsung Galaxy phone from 2010, three years after iPhone became the best-selling phone on the market? Because if so, then you now understand why Samsung lost the case.

  4. ErikSchwartz

    My brother in law is an attorney for MoFo who worked on the case. I have been pissing him off on this subject for the last 6 months.The whole system is screwed up. Get rid of design patents (trademark and copyright will suffice). Get rid of software patents.Expand the window to have the public comment on applications vis a vis obviousness and prior art presentation (right now it is 60 days from date of publication of the application).

    1. JimHirshfield

      Oh, but don’t you love your nieces and nephews? Why would you want their daddy out of work? 😉

      1. ErikSchwartz

        Heh. They don’t have kids.That said the sum total of brainpower and money that went into this trial is staggering. Hundreds of lawyers (very bright people despite their career choice) and ten of millions of dollars could have been put to far better use.

        1. JimHirshfield


        2. kidmercury

          +1 for the lawyer diss

    2. LE

      “I have been pissing him off on this subject”It’s interesting that even talking to you, his brother in-law, he can’t admit that some of your points are valid but simply not in his best interest! I can understand why he can’t admit same points publicly of course.It’s important to always be able to see the view of the other side in order to be able to defeat the other side. (The “other side” here being people who want to do what you suggest.)Most likely what will happen is that attorneys will realize they have to take the lead and re-write at least some of the rules lest the pendulum swings to much and kills the goose. This is why industry groups form. That way the government can claim that things are under control and no new laws are needed that industries can manage themselves.

    3. fredwilson

      Yes. Yes. Yes.

  5. Max Yoder

    As many have said already: We’re in a lot of trouble when a rounded rectangle is deemed proprietary.

    1. Wilhelm Reuch

      But it was not the rectangle. Or the green handset icon. It was the combination of all these small pieces. You cant copyright single letters. And there is so much prior art in single letters. But you can claim copyright on a novel – despite that technically it just contain single letters.Samsung copied waaay to many of these small pieces. And got smacked. But the world is not coming apart – they can simply hire a few designers and make up their own pieces nd continue. I may feel even less than an iPhone – but that is good isnt it? And for those who likes the iPhone feel – can always just get an iPhone.I dont see the big deal in the Samsung/Apple verdict. BI see that americans seems to dislike Apple – well, Apple should pack up all their stuff, forget about whining cry-baies and move over here to the EU. They are more than welcome.Is it the PC-compbtible ancestry that make eveyone so intent on having a system where everything looks and feels the same? Where everyone share a single operating system?Prior art? If you are looking for prior art of single letters. Thats easy, they are everywhere. For the novel … probably not unless you are dealing with a copy.

      1. Max Yoder

        I was being hyperbolic to show my distaste for our patent system that is currently costing us billions upon billions of dollars in unproductive litigation.You make some fine points. But I lose all interest in debating someone when they needlessly insult my overactive tear glands.

  6. William Mougayar

    If there was prior art indeed, then this points to the flaws in Patent approvals because a Prior Art search is something that should be done before submittals, and furthermore the approval office must verify that there were no prior art or similar inventions. And the period of public comments would have caught these.What is needed is to trace back the time when Apple submitted these patents and find out what prior art existed then.Incidentally, last week Google just launched a Prior Art finder tool:

  7. kenberger

    Not related to your Prior Art point, but I’m starting to buy the argument that this verdict left to stand could actually bring a mid- to long-term win for Android:

    1. fredwilson

      The whole thing is nonsense. They have and will continue to engineer around this stuff.

      1. kenberger

        Of course. And I’ll go a step farther and say that Samsung and possibly the greater Android world gets big benefits for that paltry $billion fee.

  8. William Mougayar

    Another thought on this is that proving prior art could be difficult and nebulous because by the time there is evidence of it, a lot could have been happening months and years prior to that.There are long periods of R&D activity that precedes any visible patent or market signals, and that is where the contention exists. 2 companies or individuals half way across the world could be thinking about the exact same thing and working on the exact same project without any evidence that any one of them is copying the other. They can arrive at the same conclusions without even knowing about each other. That happens all of the time, especially in book writing with authors.What matters more is if there is evidence that someone actually copied the work of one party into their product.

    1. Cam MacRae

      Interestingly, arriving at the same place at the same time by independent means is a valid defence against allegations of copyright infringement, where it is exceedingly unlikely to occur, but not patent infringement, where there is ample historical evidence of such occurrence.

      1. William Mougayar

        But if both Apple and Samsung had been experimenting in their labs with round corners on a smart phone (if that’s one of the claims) since 2003 for e.g., but only one of them applied for a patent, then what?

        1. Cam MacRae

          That depends on whether the other made their invention public: Trade secrets are not normally considered prior art.

  9. Foreigner

    It boggles me that a jury is called upon to judge these matters. You’d be hard pressed to find a judge who can understand and process all the information relevant to this trial, I can’t imagine a jury having any sort of productive, rational deliberations in this case.

  10. J. Andrew Rogers

    A distinction that is being lost on many people is that some of the patents in question were design patents and others were functionality patents. They have different standards for what constitutes “prior art” since design patents are akin to trade dress.Samsung was burned on the design patent issues because they apparently went to great effort to copy the designs i.e. it was not coincidence. That this could be documented seems to have sealed their fate on that point. Samsung tried too hard to look like Apple instead of producing a unique product in a similar form factor. (Copying the designs of successful products has been the modus operandi of Samsung for a long time, so it is not surprising.)Functionality patents are another matter and prior art is much more important for those in the way most mean it. If there is prior art for Apple’s touchscreen gesture patents then those can be invalidated. However, from what I can gather that was almost secondary to the design patent issue for this case and little effort was made to invalidate them (assuming there is prior art).This looked to me less like a fight over actual functionality patents and more about Samsung copying Apple’s design and trade dress. I would view it in this light. Apple is using this case as a warning to the ubiquitous product cloning industry that operates in Asia.

    1. Pete Griffiths


    2. JLM

      .The trade dress implications are very, very important for the reasons you have enunciated..

    3. fredwilson

      Thanks. That is very helpful.

  11. JLM

    .This trial is a wonderful reminder why nobody in business ever wants to leave their fate to a jury.Juries are only as good as their members who are selected by the plaintiff’s and defendant’s lawyers through a process called “voir dire”.Obviously the lawyers are looking for jurors who will be sympathetic to their case.In a case like this — American company v Korean company — the calculus is very sharp. A splash of jingoism with that patent infringement?Apple had the advantage of being the plaintiff — goes first and last. Gets to present and rebut at the end of the defendant’s counterclaims. It is always better to be the plaintiff as many such things are matters of first impression.Prior art is a defense to patent infringement and therefore it must be placed into evidence by the defendant. It is, like a lot of defenses, a very dicey decision as it requires the defendant to ADMIT their infringement but to justify it by attacking the patent. It is a risky defense.The other problem with a prior art defense is that it might not stick on each and every patent. Or it might not carry the entire charge.The worst possible outcome could be that the jury would decide that it applied to two of the patents but not to the others. In this case, the defendant is screwed both at trial and on appeal — because they admitted their offense. They cannot change their evidence on appeal.This case will be appealed but you have to recognize that no new evidence comes into the trial at appeal. You have to live with the trial record as played. You cannot introduce new evidence or take another defensive tack or strategy. Therefore, unless the prior art argument is in the trial transcript, it will not get further considerationRemember that Apple was asking for over $2B in damages. You have to know that they put on such evidence at trial, so while it seems $1B in damages is a big number it is really only less than half of what Apple contended.While any juror can say what they want after the trial, it is not part of the trial record and it is not sworn testimony. Unless there is some allegation of jury tampering or other misconduct, the jurors’ comments will never be considered.At the end of the trial, the defendant’s lawyers could have polled the jury. This is a very dangerous thing as it becomes part of the trial record. The defendant’s lawyers will reach out to every juror to find out how the deliberations went. Most jurors will not respond but some will want an extension to their 15 minutes of fame.Remember this case has been tried in other countries with Apple losing many of these cases. This was the hometown boys v the Koreans and Apple got the verdict it wanted.Know that Apple did not do this for money, it did this to provide a modicum of discipline to the marketplace.This $1B is almost a rounding error in the Apple – Samsung business relationship. It will likely be paid out in trade.This was an exercise in nationalistic jingoistic lawyering and alpha uber business macho. Round one goes to Apple.I want to know the combined legal fees..

    1. fredwilson

      You amaze me JLM. You are a fountain of knowledge

    2. LE

      “who are selected by the plaintiff’s and defendant’s lawyers”We can simply cut the entire process down to the skill of all the people involved in managing this case. From those picking the lawyers to the actual lawyers handling the case and their strategy. Even whether the lawyers got enough sleep and didn’t have anything dragging them down (health, sickness, family problems) while preparing and arguing the case. This, like many battles, comes down to shaving body hairs to gain an advantage over the competitors.In the end it’s up to the jury. But anyone who thinks (not saying this is your argument btw) that you can’t work hard to enhance the outcome by this hard work, and effective rhetoric etc. is simply book smart and not street smart.

    3. Pete Griffiths

      A lot of great points here.I have one quibble.”Prior art is a defense to patent infringement and therefore it must be placed into evidence by the defendant. It is, like a lot of defenses, a very dicey decision as it requires the defendant to ADMIT their infringement but to justify it by attacking the patent. It is a risky defense.”I don’t think this is true and I don’ think they had a choice but to present prior art.Apple’s strategy was simple, put an allegedly offending phone next to an iphone and say ‘just look at them, it’s obvious they copied us, right?’ and the bottom line is that a jury, no matter how poorly educated, can judge such a thing. They obviously agreed with Apple. So now Samsung is on the back foot. They don’t have to agree and stipulate the phones do indeed look incredibly similar, why would they? But if they suspect that the jury believes they do look similar and hence as a first approximation there indeed was copying, they now have no choice but to try to present prior art to invalidate the design patent. I don’t see how they are admitting anything here.

      1. JLM

        .I agree with your logic and I think you are absolutely right in the reasoning.As a simple matter of rules of administrative procedure, the defendant would have to list their affirmative defenses in their answer or in their subsequent amended pleadings.The trade dress implications are as obvious as you indicate. If Apple introduces a product and the next Samsung product morphs into the Apple trade dress — game, set, match..

        1. Pete Griffiths

          Yep. Simple story and Joe can understand. My closest friend is a litigator and I had another very close friend who was a criminal defense attorney. They both had exactly the same position – juries are good at understanding simple stories and smelling out stories that don’t make sense and bad at the detail and technicalities. And of course, it tends to be easier for a lawyer to tell a convincing story when it’s the truth. 🙂

    4. Marjan Ghara

      Excellent analysis. Thank you!

    5. William Mougayar

      I’d like to know if either side changes their lawyers after this verdict. If they do, it means they weren’t happy with the outcome. If they don’t, it means it was a show for the rest of us, because neither party got what they really wanted.

      1. JLM

        .Apple is turning back flips.Both of these companies hired their appellate lawyers before the opening statements.Appellate work is a very refined specialty within the law. It is not the same as litigation.Litigators are gunslingers. Appellate lawyers are assassins..

    6. JohnDoey

      Samsung pays the legal fees.This case was not about phones for Apple. They are protecting their TV from Samsung right now. Whatever the Apple TV looks like and however it functions, those are off limits to Samsung, now. And Samsung’s brand is a late night TV punchline and examples of their copying are an Internet meme, now. If Samsung copies Apple’s TV, they will be a laughing stock and in court the jury will take 15 minutes to come back with a finding for Apple.Apple is also warning all hardware makers that they are not the same Apple that got pushed around in the 80’s by IBM and Microsoft. This time around, no cloning. Do your own work, make your own product, identify and sell to your own users, without lying to them that it is just like an Apple product.Microsoft looks bad right now, but they are building the only viable alternative to Apple. Others have not even started. Android (almost all of which is v2.3) was to phones what Windows XP was to PC’s — a swan song. Lots of crappy hardware and viruses, no system updates, collapsing under its own weight. The technology is too old and too derivative and too badly managed and lacks too many essential modern features. Java apps cannot compete with the native C/C++ on iOS, Mac OS X, Windows, Xbox, PlayStation, Wii. There is not even a software update system in Android. Apple solved that in 1998. The graphics and GPU support are not modern. A tiny division of an advertising company cannot fix that. It is not “good enough” — it is just better than feature phones, which are as end-of-life as the white box generic PC’s that XP shipped on, like relics of the previous century.So Samsung has to create something that is legitimately their own if they want legs. I predict they are done in phones, within a couple of years, though. The current generation of ARM is enough PC power for most people, most of the time. You can edit HD on iPad and it is fluid. The killer mobile apps of the next few years are all going to be Mac/PC power tools. GarageBand and iMovie were previews of this generation from Apple, same as Infinity Blade is a kind of preview of what all games will be doing on iPad over the next year or 2 after. Samsung phones do not support PC class native C/C++ code, but that is what all the PC class apps are written in. So when there is a legitimate 3D modeling tool on iPad with millions of lines of Maya code running in it, it would take 5 years or more to rewrite in Java for Samsung, but only a year to port C from Mac to iPad. And Apple has further advantages in their advanced frameworks. The reason my iPhone 4S can record a 16 channel music and audio session with Apogee USB microphone and wireless MIDI instruments over Wi-Fi is because CoreAudio from the Mac is in iOS. CoreAudio is like all of the wires and cables from a music studio, but digital. Whatever musical instrument or audio device you plug into CoreAudio, it all just works. CoreAudio runs the right virtual cables. Samsung has nothing like that.Similarly, Samsung is proud of the Wacom-technology stylus in their latest tablet, but there are no apps. I have a Wacom+Mac since early 1990’s, running a photoshop and Illustrator the whole time. All that Mac tech is going to show up on iPad year after year after year, but actually working. Samsung has nothing like that. They are not ready to compete at the PC class level of the next couple of years of mobile apps and games.Nerds tend to dismiss the computing needs of consumers as being so small they can be served by something “good enough” but that is not true. Consumers need more security, more curation, more management than Nerd Computers, and most consumers do not have PC’s (they may have access, but not their own PC) so when they get a computerized mobile, that is their primary PC. For a Nerd their phone may be their 3rd PC. Kids at schools that have no musical instruments need GarageBand on the computer they use for school work, and they need iMovie like kids used to need pens. These are professional quality PC class applications that have interfaces that are optimized such that you can use them without reading a manual or taking lessons. Instant work gets done with them. The core of these apps is the most popular pro video editor and pro audio editor. These are tools with decades of heritage. There is nothing like that in Java, the Web, or on Samsung devices. And there are hundreds of thousands more Mac apps coming to iOS. Avid and Diet Coda are 2 recent examples.

  12. Pete Griffiths

    There was a great deal of evidence of prior art. But bear in mind that this should be construed somewhat differently for design patents.

    1. William Wagner

      The design patents Apple held were very specific, and every Android device having 4 buttons instead of one would have been non-infringing to them…

  13. Alex Mashinsky

    Prior art issues are handled by ex parte deliberations with the patent office. If there was dispute about prior art Samsung would have asked the USPTO to re examine the Apple patents and most probably the Judge would have delayed the trial until such review would have taken place. Apple already successfuly defended their patents against others so prior art is not an issue on this trial.

    1. fredwilson

      So you cannot use prior art as a defense in a patent litigation?

      1. Phillip Trotter

        You can but correctly it should be used to question the validity of the patent -not defending against an infringement claim. At least that has been the main consistent ruling in US courts since Tate Access Floors Inc. v. Interface Arch. Res. Inc., 279 F.3d 1357 (Fed. Cir. 2002).To defend against an infringement, the defendant must show that their product does not infringe on the patent filed by the patent owner. If a patent owner can convince a jury that given the evidence, the defendant’s product has features matching the patent description than it is more likely than not that the defendant will be found to infringe. Prior art does not really play a role here -since the question being ruled on is not “did something exist before this patent was granted”- but rather “does the device infringe against the filed patent description”.Prior art should be used to challenge the validity of a patent. In the later case a jury has to rule on the judgement of the Patent Office in granting the patent in the first place. To prove invalidity, the challenge must prove by the much higher “clear and convincing evidence” standard that the patent is invalid. This is where prior art fits in. IF you can give enough evidence using prior art to convince the jury that the Patent Office clearly made a mistake then you can have the patent declared invalid.So if company A sues company B for infringement and company B has genuinley designed their product based on prior art, company B must first try to challenge the validity of the patent before the infringement proceedings.

        1. fredwilson

          Thank you

    2. Pete Griffiths

      Alex – is this correct? At the time of examination there are such discussions. But after the patent is granted it is surely a valid defense to present prior art and thereby seek to invalidate? And when you say they had successfully defended, what is the process you are implying? That they were in a threesome with an infringer and the patent office?

  14. Bruce Warila

    a note on prior art.. I backed a startup ten years ago that was just awarded a pile of claims (wireless user interface instantiation and cross-platform app development); ten years ago it was difficult to surface prior art. Moreover claims can sit unpublished in the patent queue for years (ours did). For most of the software claims filed 5-10 years ago, spray-and-pray was a strategy. Going forward however, you are not going be able to claim ignorance of (published) prior art with a straight face.

    1. Pete Griffiths

      This is a really good point. And of course it’s not just prior in the patent system. We can search the hell out of things now.

  15. Todd Werelius

    Every time I see what can get a patent my jaw drops.I can’t wait until I can figure out how to patent gravity and then charge everyone a royalty for using it.

  16. Person

    The jury awarded millions in damages for devices they deemed non-infringing. They just wanted to get home to their beer and TV. They couldn’t be bothered to do the job correctly. They obviously don’t care about the impact this will have on competition and prices of smartphones in the US.How is it that the rest of the world had quad core smartphones in April? Where are the US quad cores? Patents.India decided patents were not more important than the lives of those needing AIDS medication. It’s time we decide: Do we stop having the latest high tech goods so one company can milk the nation by selling last year’s hardware at this year’s prices? The jury has spoken…

  17. Pete Griffiths

    If we put technicalities aside for a moment what is the story that Apple told? They are basically saying – we invented the iphone, a new look device, and Samsung copied us. Very simple story. Easy for a jury to digest. They were then able to put Samsung phones side by side with the iphone and they did indeed look very similar. Hence for the average Joe, it passes the smell test of copying. So now at the high level, Samsung is on the defensive. So now the jury has to understand 2 things. (1) even if Samsung did copy, what’s the law here? Does Apple have a right to redress? And here again Apple could tell a simple story. Look at our design patents. These clearly show that the real iphone is protected by tradedress. So once again, Samsung is on the defensive. So the story shits to another simple question (2) were the design patents valid? And here is where Samsung tried to argue prior art to invalidate the patents. Evidently, the jury didn’t find the evidence they presented convincing.At the end of the day Apple told a very simple story and Samsung weren’t able to convince the jury that (a) their phones didn’t look like the iphone – key point! (ii) Apple didn’t have valid design patent protection. All Samsung had to do to win over the jury was either (a) point to the pictures of the iphone next to theirs and so, wtf??? these don’t look anything like each other, do they?, or (b) produce evidence of prior art that looked enough like an iphone. Obviously they failed on both counts.Once you lose the simple story you are basically doomed. All you can hope for is technical grounds for appeal. And given that the case is non-trivial, the instructions were lengthy, the jury is human, and Samsung has a huge amount of cash, their lawyers will find such grounds.Jury trials aren’t decided on technicalities but on the best simple story that wraps the details up neatly. Litigators are salesmen. Apple had the best pitch.

    1. Cam MacRae

      Right on.Did you read this?…It smells like bullshit, but I hope to god it’s true.

      1. raycote

        Sounds very contrived ?

        1. Cam MacRae


      2. Techman

        That is a good post. Stuff like that should happen every day; Apple is not as good as everyone thinks they are. @fredwilson:disqus did you see this?

        1. Cam MacRae

          Oh I don’t know. I think they’re pretty damn good, and on the whole have pushed the industry forward in leaps and bounds. Whether ego in the upper echelons has caused them to prioritise consolidation over continuing to push remains to be seen, but their current course of action does not bode well.

    2. Wavelengths

      Copyeditor query: was this a Freudian slip? Did you actually mean to say “shifts”?”So the story shits to another simple question (2) were the design patents valid? “

      1. Pete Griffiths

        freudian indeed 🙂

    3. fredwilson

      I think that is very true

      1. Richard

        This was primarily a design Patent case. The standards set by the Fes Circuit are worth a read. A good example of a controlling case is Vanguard Identification Systems v. Kappos, 407 Fed. Appx. 479 (Fed. Cir. 2011)

        1. fredwilson


      2. Bilal Jaffery

        I am wondering if Jury trial was the right choice in this case? This sets a precedent against many future setbacks to come. Google, are you watching?

    4. LE

      “Once you lose the simple story you are basically doomed.””the jury is human,””Litigators are salesmen. Apple had the best pitch”Going by your great analysis Apple followed a strategy that they use for their products as well. (Popularized by Ray Kroc.)”Samsung has a huge amount of cash, their lawyers will find such grounds.”Which of course becomes a huge management distraction.

    5. Techman

      So true. I agree — Samsung could have done better. I’m not lawyer, but I think they could have at least re did their story before they presented it.

    6. JohnDoey

      The jury said they were convinced by the Samsung internal documents showing how they copied iPhone, and by the evasiveness of Samsung executives who said no we never copied anything. One or the other was true, but not both. Once one side is found to be lying, you are in trouble. But anybody who knew what an iPhone was in 2010 could plainly see Samsung was making counterfeit iPhones.Apple did not have the best pitch. That is a variation on the idea that only Apple’s marketing is good. The products are also great and sell themselves. Apple had the truth on their side. They brought the jury 7 years of homework showing how they designed iPhone, and they brought the jury 3 months of Samsung homework showing how they copied iPhone. Itmis cut and dried, unless you were hoping to victimize consumers on faulty counterfeit iPhones with no security with your malware or multi level marketing.

  18. Matt A. Myers

    Just stumbled upon this TED talk again..…Would be nice if the tech industry followed the fashion industry. The quality and creativity that would exist would be extraordinary.

    1. fredwilson

      We do in parts of it

  19. JLM

    .OK, I am going out on a limb here and suggest that this will turn out to be a candidate for the Rahm Emanuel Marketing Genius Award.Rahm, you will recall, almost singlehandedly drove the Chick-Fil-A sales to a new record, reportedly 4.5 times higher than the highest record sales ever in the history of the chain. Rahm, a true marketing genius.Any of you Harvard MBAs able to duplicate that feat? I didn’t think so.I suggest that Samsung is now the equivalent of Apple, a feat which could not otherwise have been achieved but for the Rahm-esque implications of this trial.Let’s put this into context.Samsung has $23B cash on hand, more or less.Samsung makes about $4.5B profit per quarter.Samsung could not buy this kind of relevance, authenticity, brand awareness or reputation for $1B. Apple has given it to them.Sure, there is $1B at stake here but that is chicken feed given the size of the market.If my math is right, this all devolves to $8 per device royalty. For a co-marketing agreement with Apple?The other thing is that Samsung devices are very, very good — apparently as good as Apple?I am going to nominate Apple for the Rahm Emanuel Marketing Genius Award of 2012..

    1. fredwilson

      Well played

    2. Todd Werelius

      Good analog!After reading… and preceding the results… (both already posted by Brad I think)Seems like a good chance it might get tossed out, or won on appeal, then the cost is a lot less than that. LOL

    3. raycote

      It seems very unlikely that Apple is not keenly aware of this marketing effect but rather that Apple has weighted its decision to go ahead and litigate based on future product considerations and slowing down the fast followers?That may or may not be a good value proposition decision on their part?But Apple may be arrogant enough, based on insider knowledge of their own product pipeline and their track record at disruptive success, to believe that they have perfected a formula for serial product disruption that warrants that trade off?

      1. JLM

        .Law of Unintended Consequences?It is truly amazing to look back and see how short a period of time that the “tablet” has been with us. Incredible advance.In this short period of time, Apple has gone from absolute complete dominance to a large but not commanding marketshare.I have had an iPad and now I use a Nexus 7 — based on the observations in this community and from Fred himself — for $200 and complete satisfaction.Apple has let the peloton close the gap. And the world of Apple will never be the same.Of course, they have ridden that wave to the highest market cap in history, so “salut, Apple!”.

  20. Wavelengths

    Is Ramin spamming? I fail to see the point.

  21. Ricardo Diz

    In these posts, it seems to me that a lot a people don’t distinguish the idea of not agreeing with how the patent system works today, from how the system should be applied when a patent exists…

  22. Richard

    Yes and No”For example, Samsung referenced clips from ‘Space Odyssey’ and ‘Tomorrow People’ in its opposition to the preliminary injunction in a general discussion of the background of the field. Samsung did not, however, argue that these references supported an invalidity or non-infringement theory. That Samsung changed tack after the close of fact discovery to include these references in their invalidity theories likely prejudiced Apple, who was not made aware during the preliminary injunction proceedings that Samsung intended to rely on these two prior art references for invalidity.”

  23. Miles Rose

    From my inital read of this there are two items which come to mind. Best buy consumers bought a Samsung tablet and returned it because I thought it was an Apple IPad and second the Samsung spec which, from first look, seemed to minic the look, feel and functionality of the iPad.

  24. Jorge M. Torres

    Late to the game, but I’ll take a shot at answering Fred’s question.Back when I was a patent litigator, I was involved in dozens of cases and even went to trial on a couple of them. I don’t remember a case that didn’t involve aprior art defense. I think it’s fair to say that the vast majority, maybe 95% (guessing here), of patent infringement cases involve an accused infringer who raises a prior art based defense.Prior art defenses are categorized into two general buckets known as anticipation and obviousness. The gist of a prior art defense is that the patent owner was not the first to invent the claimed invention or that the differences between the prior art and what is claimed would have been obvious at the time of the invention. There are also defenses that are not based on the prior art that are outside the scope of this conversation.In this case, I think Fred is asking 1) were prior art defenses at issue, and 2) if so, did the jury actually consider them in rendering their verdict upholding the validity of the Apple patents?With regard to question 1, the only definitive way to know is to attend the trial or read the official trial transcript. There is a shortcut: look at the final jury instructions. It’s fair to say that if Judge Koh instructed the jury on something, it was at issue in the case. As you can see on pages 44-46 and 66-70 of the final jury instructions (available here:, Judge Koh instructed the jury on anticipation and obviousness for utility patents as well as design patents. If you want to know the nitty gritty of Samsung’s prior art defenses, you have to read the official trial transcript.With regard to question 2, the only definitive way to know what factored into the jury’s decision is to interview the jurors. More often than not, deliberations remain secret, and the parties, courts, and public are left to speculate on what took place in the jury room. One thing is for sure: our legal system, which is based on trial by jury for many legal causes of action, gives great deference to duly rendered jury verdicts. They are difficult, but not impossible to overturn.One bug in the jury system is the fact that jury verdicts are usually black boxes. It can make appellate review particularly difficult, and the courts really depend on counsel to educate them on what happened at trial.The task of overturning the verdict now falls on Samsung’s trial lawyers (through a series of post-verdict motions that are sure to be filed) and any appellate specialists that they may hire to start work on an appeal to the US Court of Appeals for the Federal Circuit. The soundness of the jury’s verdict, i.e., whether that verdict is supported by the evidence obtained at trial, will be a main focus of the legal dispute in the near term.Fred, hope this comment gives you some clarity.

    1. fredwilson

      Thanks. That’s an awesome comment/answer

    2. charlieok

      Given the importance of a jury verdict, and your description of jury verdicts as black boxes which make appellate review difficult and which can be best understood by interviewing the jurors, I’m wondering if there is some extra significance when jurors talk to the press about how they reached their verdict.Brad Feld noted in this thread a pretty glaring discrepancy between the jury instructions and a juror’s account in an interview with a journalist. Could something like that have a meaningful effect on the appeals process?

      1. Jorge M. Torres

        Jury interviews, when properly conducted, can be helpful for developing strategy for the next trial or for surfacing misconduct that could serve as grounds for a new trial. They are not evidence, however, and the key question going forward is whether the evidence obtained at trial sufficiently supports the jury’s verdict when viewed under the relevant legal standards. In post-verdict motions that will likely be filed, Samsung’s argument will be that the evidence compelled only one conclusion: the Apple patents are invalid. Samsung will argue that the jury’s verdict is not supported by the evidence, and its lawyers will ask the judge to enter a judgement in its favor “as a matter of law,” thereby setting aside the jury’s verdict. If there are multiple ways of looking at the evidence, or if reasonable minds could disagree on a question of fact, then the judge must defer to the actual or presumptive findings that are consistent with the verdict the jury rendered. She cannot substitute her own judgment for that of the jury under those circumstances. This is a distinguishing feature of the American approach to trial by jury in civil cases.

    3. Britt O'Halloran

      Disqus comment voting FTW. I knew the top answer here would have a great explanation.

  25. Abdallah Al-Hakim

    The discussion below is the most informative that I have read about the Samsung-Apple fight since the verdict was announced. Thanks for starting this conversation Fred

  26. Wavelengths

    BTW, I see that Prince Harry has given up his Facebook page, which he maintained under an assumed name. I guess we’ll all have to come here to avc to find out about his exploits!

  27. SEB

    1- can you imagine if this legal circus applied to the car industry? Did BMW/Mercedes/Audi ever file any complaint against Japanese/Korean manufacturers for blatantly copying their designs?2- can Samsung/Asus/archos/dell/htc sue apple if/when they release their 7″ tablet?

    1. William Mougayar

      Good points.

    2. JLM

      .There are almost no foreign car design patents in the US. The work product did not originate in the US.In what jurisdiction would the Euros have sued the Asians?Having said that, this is a perfect example of how a free flowing system provides superior products and serves the ultimate customer.Have you driven a Ford Expedition lately? It is a great car..

    3. JLM

      .On another note, Samsung and other Korean consumer electronics companies have a horrible reputation of stealing, reverse engineering and selling in Asian markets American electronics of all kinds. Same can be said of China.Korea is a country which did not produced reinforcing steel and within 5 years was the foremost shipbuilders in the world. They stole every bit of that expertise and technology..

      1. William Mougayar

        When the Japanese hired the Germans to copy the Americans, they wanted a name for that first car within 3 days. The Germans answered: Dat soon? The rest is history 🙂

      2. Tom Bakalis

        No doubt. Remember Samsung’s phones pre iPhone? The Blackjack and an almost flawless copy of Motorola’s Razr. Why innovate when you can copy. Koreans, to their credit, are very nationalistic and will more often than not buy Korean products. I spent 3 weeks in Korea this past June and Samsung phones outnumbered iPhones by 10 to 1 according to my unscientific poll.

      3. Aviah Laor

        Patents issues aside, Apple succeeded to create a leverage over production facilities after the US lost so many to Asia. Microsoft is moving there with the Surface device. Google, maybe, is just handling overseas the US lucrative stronghold for decades – consumer operating system – for free (however, if Apple is going to block everybody, it’s no good either)

    4. William Wagner

      Have a funny story about the car industry from a former co-worker in the lighting industry. Subaru in the mid 60s hired him to get their headlights up to par with American standards. When he arrived he saw that they had bought a Chevy, and done a plaster mold to carbon copy its headlights which didn’t exactly work out for them. So his job was to teach them how to design good headlights from scratch. Really amazes me how people will readily drive a Honda, Toyota or Subaru and then hate on Samsung for making economical alternatives to Apple products.

  28. Dave W Baldwin

    Prior Art- we had a discussion about this last year sometime. That was the post I offered the idea of random people on the street holding up rectangles (junk, drawn on cardboard) and so on.If I remember, Samsung showed in European Court, the clip from 2001 Space Odyssey. the cafeteria scene where there were rectangles in/on the table the crew were using to read/look at leisure.Now, if Samsung had the chance to go after Prior Art and just screwed it up… their fault.I would use the patent of rectangle against Apple in marketing.

  29. Sam

    Random individuals deciding on the merit of technology patents is just mystifying, a real circus!

  30. Michael Diamant

    In my world of consumer products, prior art has to clearly communicate the specific utility that the invention provides so that an average person in the industry canunderstand it. Things that coincidentally look the same and are publicly available but do not described per the specific invention do not count. Also, companies looking to copy someone else’s specific IP that want to protect themselves can try to invalidate the existing patents through prior art that is accepted by the courts.Having had to protect various patents and copyrighted art from counterfeiters and copy-cats, I can tell you that the law is never black and white (in fashion it’s said a 10% change institutes an original design, but what is 10%? the color? the materials used? some decorative add-ons?) It’s said that features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of can be protected by copyright. And by law copyrights (as opposed to patents) don’t give the designer much protection, and are much less protective of the IP holder than patents. I can easily see how the apple interface meets even the looser standards of copyright.Also, if you don’t defend your IP actively, you LOSE your IP. So if you believe your patents and copyrights are valuable you must defend. Eventually if you let enough people copy you and do nothing about it, you loser your IP. Apple has no choice in this case.Lastly, it’s never black and white, it seems juries consider motivation and the desire of the copier to do damage, stifle creativity and innovation, etc. If a big company blatantly steals the designs of a small one, even if you could argue both sides of the case, the jury may decide to side with the smaller one or at least the one that’s more obviously the innovator.Many times, the willingness of one company to spend the legal $s over the other will determine pre-trial outcomes of disputed IP!

    1. fredwilson

      Great comment Michael

  31. JohnDoey

    There isn’t any prior art. There were no iPads before Apple introduced iPad, and there were no iPhones before Apple introduced iPhone. This shouldn’t be controversial.If you are struggling with it, you should remember that the reaction of the entire consumer electronics industry and tech people to iPhone and iPad was not “hey, they copied our product!” — it was utter f’ing jaw-dropping amazement, closely followed by outrageous criticism: “those are terrible products that break fundamental rules of Nerd Dogma and will never sell, and Apple ought to be ashamed that they are imprisoning users in a walled garden where they can only consume content, not make it, because they have no keyboard.” I had an iPhone in 2007 and people stopped me on the street either to gawk at its strangeness or tell me I was crazy to buy a phone with no buttons.Samsung attempted to introduce a still from a science fiction movie as prior art for iPad, which is like saying H.G. Wells invented the time machine.Further, when you try to play prior art in computing with Apple, it is hard because they shipped the first PC, first graphical PC, and first ARM mobile, which was the Newton. The ARM chip that is all the rage in smartphones was created by Apple and ARM jointly for the Newton in the early 1990’s. When you trace the family tree of all smartphones and all iPods and all PDA’s, they all go back to Apple Newton. Before Newton, ARM was a desktop chip. Newton also had a full-face touch screen, apps, contacts, calendars, modem, flash storage, battery, browser, email, Mac/PC sync, and so on. So the idea that somebody invented the smartphone and Apple owes them is deliberately ignoring the fact that smartphones are all descended from PDA’s, which are all descended from Apple Newton.What you have in Apple vs Samsung is Elvis Presley vs an Elvis impersonator. Easy case. Before they started impersonating Apple, Samsung already impersonated Nokia and RIM and Palm. There is your priors right there.

    1. fredwilson


  32. SEB

    I just had to post this picture circa 2001 which constitutes ‘prior art’ by definition, Bill would have been a perfect witness defending this case…

    1. William Wagner

      “Minority Report” (2002) has bounce back and pinch to zoom

  33. Aaron Fyke

    From Reddit (yesterday):Jury foreman in Apple vs Samsung case admits they didn’t consider prior art: “it was bogging us down”.…””In fact we skipped that one,” Ilagan continued, “so we could go on faster. It was bogging us down.” …”…So, it looks like they punted.

  34. William Wagner

    Apples software patents for bounce back and pinch to zoom actually don’t and can’t really cover those things because there was prior art. It’s evident they initially tried to patent very broad claims about multitouch, and then pared back their claims on appeal. Their claims cover some very specific actions that I haven’t been able to reproduce on the iphone or knockoff HTC devices. I would imagine they would be good for games and graphics manipulations programs on touch screens but they don’t cover pinch to zoom or bounce back.From my reading of the transcripts and commentary it makes me understand how the jury foreman mislead the rest of the jury into interpreting the “ideal embodiment” of the patents as the “claims” of the patents.. You can write 50 pages of ideal embodiment for one claim, that ideal embodiment won’t be what’s covered by the patent – but in Apple’s case their reputation and excellent jury selection enabled them to do that.This is the foreman who held his own patent on a TiVo with a Keyboard, i’m sure he bedazzled the rest of them with his knowledge but completely misled them into misinterpreting the extent of the patents in question.Actually as far as design patents go Apple had a very specific design: one button in the center bottom (among other nuances of the shape); the fact that all android phones have 4 buttons should have rendered them non-infringing right away.

    1. William Mougayar

      And before that, there was the HP 150 from 1983-85, the first touch screen PC. Does anyone remember it? I programmed the damn thing in BASIC back then to simulate a patient data monitoring system. You could control each pixel to do something.

      1. Pete Griffiths

        hell no )

      2. fredwilson

        Prior art

        1. William Mougayar

          And the HP-95 from 1991…I can’t remember if you had it on your antique toys shelf? That was the first useful PDA. When I left HP in 1995, I remember I bought back my company 95 so I could keep it.

    2. fredwilson

      Yup. Read it too. Excellent

        1. fredwilson

          Thanks. I will check it out

  35. Michael Topolovac

    I can’t speak directly to the Apple decision, but having had some first hand experience with how the USPTO deals with prior art, it appeared to me to be rather broken.A few years ago I had the surreal (and rather expensive) experience of a patent fight (via re-exam vs. jury trial…so a bit of a different thing then the Apple case) over a product my previous company invented (underwater HID light we chose not to patent as it struck us as too obvious) that was copied 5 years later by a competitor who filed and was granted a patent.In short, they got granted a patent on our invention, then tried to extort licensing fees to continue to sell the product we invented that they ripped off.A multi-year $100K+ fight ensued that we eventually won, but to this day I am still at a loss we ever had to fight it. We actually won on some combination of obviousness and prior art patents, but not our actual invention. In our case the USPTO – post a granted patent – didn’t consider us being first to invent and first to bring to market as relevant for prior art.

  36. Prokofy

    This article completely blows away all those saying the patent system is “broken,” or the jury is not educated, blah blah. Fred will hate it. But it’s the truth:

  37. JohnDoey

    That is not a phone, and Apple’s multitouch patents predate Jeff Han by many years. iPhone was many years in the making. iPod was almost an accident, the Mac was a restoration project, but iPhone/iPad were The Next Big Thing that Steve Jobs essentially came back to Apple to create. In a very real way, the Mac was restored between 1997–2001 so that it could be used as a foundation for what ended up being iPhone/iPad.Today, multi-touch seems like some kind of gold mine. 6 years ago, almost nobody cared about it outside of Apple, and the few who did, did not know what to do with it. The reason multi-touch is valued today is because Apple built a multi-touch product plus APIi and now there are a million practical uses for multi-touch. The value in there is not inherent — Apple created that value. Apple created the product. Apple educated the users (only 6 million of us bought the original iPhone.) Apple ported the Web to multi-touch. Apple put the gold into the mine. iPhone is just iPod v2. The touch scroller is replaced with a touch screen. iPods are replacing phones. Apple did that. Nobody else.

  38. Yusuf

    By that count Microsoft should have patented AJAX, DOM, CSS, iFrame and other stuff. I guess there would be no Chrome browser then. We would all still be using IE6, the best browser in the world.