113 Comments

Summary:

A jury awarded $1.05 billion to Apple after the “tech trial of the century.” The award raises questions about the patent system and innovation — but also about why a jury was allowed to decide it in the first place.

Jury 2

Unless you spent the weekend under a rock, you’ve heard that a jury ordered Samsung to hand Apple $1.05 billion for violating its patents. The verdict and month long trial has captivated tech types but also provides more ammunition for critics who say juries shouldn’t be deciding these questions in first place.

Background

The jury in Apple-Samsung confronted hundreds of questions, some of them on topics obscure enough to make an intellectual property lawyer blanche — design patents, patent exhaustion and so on. Yet, they were done in less than three days. As Abovethelaw editor, Elie Mystal, mused “It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin?”

A more damning criticism came from the popular Groklaw site which pointed out a series of basic errors by the jury: a decision to award $2 million for a patent that Samsung hadn’t infringed in the first place; a decision to assign damages based on punishment, not compensation.

This type of slapdash decision-making lends support to Judge Richard Posner and others who argue that it’s time to end jury trials in patent cases. Here are three more reasons Apple v Samsung should not have gone before a jury:

Reason 1: Jurors can be influenced by brand loyalty

Let’s remember that the jurors who decided the case were not Blind Justice but consumers who are influenced by brands.

That influence can be considerable. According to Robert Kozinets, a marketing professor at York University, “brand communities” that emerge around products like Apple’s are supplanting religions or neighborhoods as a source of personal identity. He says that Apple today has greater ideological power than many countries.

“That identification with Apple will lead to community and a sense of loyalty. It also leads to a sense of empowerment that can lead people to step up and protect it because they know there are so many others like them.”

There’s nothing wrong, of course, with defending Apple (or Google or Microsoft). The problem is that brand loyalty can interfere with patent policy. When asked to decide a patent case, juries are likely to go with emotion over evidence — deciding a case based on brand loyalty rather than the law at hand.

In the case of Apple-Samsung, the trial was about a beloved American brand versus a foreign competitor. Not only that, but the trial took place in Silicon Valley, right in the heart of Apple land. This was like asking Boston Red Sox fans to judge the conduct of the New York Yankees.

In this climate, it’s no wonder that the jury appears to have made their decision based on a desire to “send a message” to Samsung rather than parsing harder technical questions about whether Apple’s rectangle and “bounce-back” patents should have existed in the first place.

Reason 2: Juries are too easily swayed by “he’s a copycat”

During the trial, Apple offered an easy-to-follow narrative that is familiar to anyone who has been in grade school: “That’s my idea. He took it and pretended it was his.” Samsung on the other hand had to explain why, even though Apple had patents, it was not infringing and that the patents were not actually valid patents and so on. One story is crisp and clean, the other is furtive and guilty-sounding. Guess which story has more punch in the hands of a trial lawyer?

In the words of Posner: “patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats.”

Unfortunately, these simple narratives distort what patents are all about. Patents are not primarily about stopping copycats (that’s why we have trademarks) but are instead a form of industrial policy based on 20-year monopolies. If the policy is effective, it produces more innovation. If the patent policy is not effective, it creates monopolies that harm competitors and consumers. In Apple-Samsung, there’s a good chance we’re doing the latter; we may regard Apple as an innovator and Samsung as a copycat — but that doesn’t mean it’s a good idea to award Apple sweeping monopolies that may raise prices and stunt the smartphone market.

Patents are as complex as other industrial policies like subsidies or regulatory regimes. When disputes arise, they should be put before an expert tribunal rather than a jury that is easily swayed by schoolyard “copycat” narratives.

Reason 3: Jury trials over patents are a waste of money

Apple and Samsung will spend  from $20 million to $500 million in legal fees, according to sources surveyed by the Wall Street Journal. While the companies would have blown a bundle no matter what, the jury presence added millions to the tab. This figure doesn’t even take account of the costs to the federal justice system or to the jurors and their employers. And for what? To respond to questions likely beyond their capacity and that will, in any case, be picked apart on appeal.

There’s a faster, cheaper and more efficient way to handle this. As Judge Posner proposes, it makes sense to stuff future patent disputes into a corner of the US Patent and Trademark Office.

Juries are not responsible for all that ails the patent system. But getting rid of them would be a useful step.

(Image by Junial Enterprises via Shutterstock)

  1. Solid well reasoned post !

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  2. Fernando Maneca Monday, August 27, 2012

    This is also a great example of Free Market gone awry: “Why compete when you can litigate.”

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    1. No, this is an example of common sense. If Samsung was capable of innovating like Apple, it would have been Samsung that would have come up with iPhone first — for they had been in the mobile industry too long and kept producing the same less-than-desirable phones and not-so-good user interface. If not for iPhone, we wouldn’t have the so-called (and wrongfully claimed) ‘better-than-iphone’ galaxy phones today. When you guys get time, go through all the evidence (not a random one, but all of them from both sides) submitted to the jury. It’s not the ‘manipulative’ aspect of the jury, but the human common-sense that played in this trial.

      It’s actually the users of Samsung devices (that don’t know who established the modern smartphone market the way it is) that have blind-folded their eyes with their Samsung phones/tablets that have simply followed Apple’s design to the new market. It sounds very easy to rule off Apple and say they are simply trying to keep the market for themselves by means of legal battles; but that’s because it’s not your company and it’s not you who spent billions in redesigning the smart phones like never before so people finally wanted to buy them, and it’s not your hard-work that’s just copied by Samsung — it you were in Apple’s shoes, I bet you would argue differently.

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      1. Tell me, how can anyone on this earth patent a rectangle with round edges? That is like patenting cars because it has four wheels. I don’t care much for Samsung, but what Apple is doing here is absurd…

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      2. Clearly Samsung is capable of innovating given the fact that they have been in the market for so long compared to Apple. What Apple relies on heavily is standards based patents to get the wireless, BT, WiFI and other radio technologies which if they didn’t they would be DOA on their phone. Of course they don’t actually want to pay anyone for the patents their use without permission so they wait for someone to sue, take in BILLIONS in sales and pay out a few million in penalties, cost vs profit Apple plays their own game.

        I would say Samsung bet these patents should not have been, and would not be enforceable and in this first go round they lost. I have my concerns that a jury arrived at a decision of “sending a message” so quickly and ignored some of the directives by Judge Koh. Bottom line is this case is far from over and it will be quite some time to come before we see any cash paid if at all.

        Google states that their stock OS does not infringe on these patents based on their implementations and perhaps the best way for Samsung to achieve record sales, stay out of the legal fray and continue to push latest and greatest tech is to use STOCK ANDROID, this way they can update more quickly, easily and efficiently. Besides no one really likes Touch Wiz anyways.

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      3. Earl, that’s what you think the entire patent war is about — rectangles with round edges? The patents are way more than that covering design as a whole including internal component layouts, user interface, and icons. That’s why I said, please learn all about this case before saying something silly like that.

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      4. @Raja,
        No. It is you who does not understand what this trial was about. It has NOTHING to do with internal component layout!
        Besides the ridiculous argument that they own rectangular shape with rounded corners, they argue that some of the icons play in their trade dress, such as the green phone icon. What do you want a phone icon to look like? Have you ever seen what a phone logo look like on a pay phone on the street (those that still exist)? Are you so shocked that green means GO, and red means STOP? Do you think Apple invented the a musical note to denote a Music icon?
        They also argue that a row of 4 icons is exclusive to Apple? Don’t you think it has something with the width of a finger? The Galaxy Note has 5 icons per row. – The Tabs have 7 or 8. They are just wider and more fingers fit.
        I would wish you try to read the article and understand the underlying problems in jury patent trials before going with your knee-jerk reaction.
        The fundamental issue is that these juries are dealing with issues that are fundamentally beyond their capacity to understand them.

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      5. I guess all the monitor manufacturers would go bankrupt soon because the monitors are so cheap and now have to pay loyalty fee to Apple.

        Apple, through their R&D, come up with the idea of rectangle shape screen with round corners. I guess their designers, R&D just come out of a cave and would never see a monitor before. Hilarious.

        Oh, I forgot that Apple was inspired from some monitors look, and perhaps, one of those could belongs to Samsung.

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      6. Samsung had a phone with rectangular shape and rounded corners before iphone, but apple removed that phone from evidence and samsung was not allowed to show their own evidence, because they were a little bit late… on appeal it will be different

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      7. Here’s my view on it all:
        Apple have managed to, no Apple (thanks to the LG Prada) have saw what was coming next, refined it and pretty much led most smartphone makers down that path. During this process they have managed to patent what should be the STANDARDS for this generation on touchscreen ‘smart phones’

        Now we have strategic ‘choke points’ created by Apple to stunt the opposition and thanks to their potential duopoly with microsoft you can’t make a phone that has a flat, rectangular touchscreen device with a bezel.

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      8. Ok fanboy answer me this. Lets say I make this new cool laptop that I market really well and it becomes a huge success. Now I decide I changed the laptop market so it now belongs to me. So I submit a patent for a hinged screen attached to a keyboard and the “geniuses” at the USPTO decide to grant it. Is it ok for nobody else to be able to create a laptop in the traditional sense ever again?

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      9. “If Samsung was capable of innovating like Apple, it would have been Samsung that would have come up with iPhone first “. Couldn’t the same be said for Apple then? If Apple was capable of innovating they would have invented the first cell phone. I understand that the first cell phones came out in the 80′s; however, time has no bearing on innovation. Apple took an existing idea (cell and smartphones in general) and improved on it. We all know that the original Galaxy S looked alot like the iPhone…and it probably infringes on trade dress. But newer phones such as the Galaxy Nexus or the S III do not look like iPhones…they are clearly different devices that have improved on the iPhones original innovations and that is what this whole fight is about…how can Apple patent a rectangle with rounded corners and glass on the front…that would be like patenting the inclusion of a speaker and microphone on a cell phone and then suing people for it…it is obvious and thus should not be protected under IP laws

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      10. Maybe you should look at the “2006 Samsung iPad” and see who came up with the basic look first before deciding who can innovate. At least Apple’s patent on Samsung’s case design wasn’t upheld. If we had a more sensible legal system, Samsung would not be charged $2 million for a patent claim that Groklaw found they never violated, nor would we have groups with legal authority insisting things like demonstration of products that predate the iPhone product group at Apple and include the same iPhone features in question don’t count as prior art. I don’t have the stomach to check more than 3 of these patents, but so far, giving Apple a patent for the look of Samsung’s product is the most sensible.

        I will admit that Apple is often first to market with market changing products, but they’re not very innovative. Someone has always beaten them to market on technical terms, but it usually lacks a level of quality for mass appeal.

        P.S.
        Smartphones date back to 1994, with most of iPhone’s features being on the market before Apple had a product to sell. The only thing new that I know of was a phone having multi-touch.

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    2. This kind of reply always makes me shake my head. It’s not a “free market” when there are government regulations that enforce monopolies, which is what patents are – monopolies enforced by government regulation – not “free markets.”

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    3. Would you rather have, “Why innovate when you can duplicate?”

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      1. what an original and innovative comment

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      2. Apple fanboys are mentally ill.

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  3. How much did google paid you for this article? Can you be detailed about that pls?

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    1. Sean, give me a break. Comments like yours show why it may be impossible to assemble an impartial jury for a patent trial. No one at GigaOM accepts money or favors for coverage (it’s unethical and, under FTC rules, illegal)

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    2. Sean,
      What part of the article do you object to? Can you be detailed about that pls?

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  4. The same could be said of much of our civil litigation system. They are crazy expensive, and not sophisticated enough to determine important business matters, contracts, etc. I guess juries make sense for criminal matters, for our safety, they make no sense at all in civil matters.

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  5. This is hyperbole and link bait. If you can explain how the jury got it wrong, by all means, go for it, but don’t crap on the system with a straw man argument.

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    1. If you don’t think reason #1 is at all considerable, then you are merely using a straw man argument.

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      1. “Could be influenced” doesn’t mean “influenced.” Again, show me where the jury made poor decisions based on the testimony and evidence, not what could have been.

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    2. Do you think taking about 2 minute per question to answer 700 questions in such a complex case is considered properly evaluating the case? Not even bothering (or accounting in my math) to reading and understand the more than 100 pages of jury instructions?

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      1. On dating site, they usually ask has more than 100 questions about yourself. The first 70 answer is truly about myself, which I took time to read, the rest is about someone else that I don’t even think I answered those questions. 700 questions about something that you don’t even know? I guess the juries truly answered first 30 questions, the rest, either random mask the answer or be influented

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    3. Read the Groklaw link that is cited.

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  6. This is a great post… I hope that things change, because this case was silly. The fact that the jurors said “we wanted to send a message” just shows that it’s not about what was right but what they felt.

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  7. I’ve heard a lot of opinion about the jurors, but I’ve heard nothing about the quality of Samsung’s Lawyers. Better lawyers — a better outcome for Samsung. Perhaps they were holding back for the appeals process?

    Apple had something truly special and unique when they invented the iPhone. But the patents didn’t really identify what that was. Maybe it’s not possible to protect a complicated, amalgam of technology with a handful of patents.

    At the end of the day, even though Apple prevailed, Samsung can still make an iPhone killer.

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    1. Oh I agree with you Samsung’s legal team was not on the ball, late filings, misteps abound and perhaps Samsung will chose to replace them going forward (or not since they would be at a disadvantage or worse off starting from scratch). But their legal team seemed to make a lot of errors.

      I also find issue with Judge Koh and the time allotted for each side, it seems as though Samsung had literally two legal cases to fight vs Apple’s single case. Samsung had to defend position of being accused of infringing on patents that may or may not (or should or should not have ever been approved) plus they had to rush to prove Apple violated their patents. I don’t see Samsung going after Apple on the Intel patent issue if they actually felt it was a non-starter due to patent exhaustion.

      Still Apple has ZERO issue with stealing others patents without paying or negotiating payment and they have been sued many times in the past and lost, but with their cash on hand they could fight any legal action and really never lose any money.

      Yet Apple FAILS to sue any of the phone mfg’s in China over what is litteraly blatant copying right down to the singular round button, physical design and layout etc. Apple just doesn’t seem all that interested in fighting the battles in China, perhaps they should learn to legally enforce their patent claims in every market.

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  8. You could make the same points in other areas of the law.

    (1) Juries are influenced by brand loyalty (the “thin blue line” of police in criminal cases for example, or a favored local shopkeeper in a slip-and-fall lawsuit brought by an out-of-towner)

    (2) Juries are too easily swayed by all kinds of strange things (the lawyer’s necktie, the witness’s fumbling for words)

    (3) Jury trials consume a lot of money no matter what the area of law.

    But 9 times out of 10, a jury of ordinary people does a better job at figuring out who’s lying and who’s telling the truth than a judge would.

    Moreover, in the United States, you have a constitutional right to a trial by jury for anything serious. It would require an amendment to change that. Are you sure you want to put the Bill of Rights at risk in the amendment process just because a few high profile patent cases aren’t handled perfectly?

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    1. What judge Posner is proposing is to fight the validity of patents in the USPTO. It is the USPTO that is granting these wide scope patents, and they should be dealing with the mess they are creating.

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      1. USPTO is who issued all those bad patents in the first place. They approve everything hard enough to read and hope that courts will sort out the rest.

        Patents on obvious things and patents on things with clear prior are are a consequence of USPTO. Before USPTO can decide patents disputes, it should first fix its own broken internal processes.

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      2. Judge Posner is right the patent laws need fundamental change. What if another company had patented sharper square edges. No other company would be able to produce a phone( without paying a licence at least). WP8 has resizable tiles which are in essence are widgets does Android now sue Microsoft (I think they should – payback). The point is somethings in design are logical other are unique. Rounded edges square grid layout phone icon etc are logical. Resizing widgets voice command etc can be considered unique features. Apple has patented fundamental design based on evolution and ergonomics. Samsungs error was it idolised the iPhone but actually made a better product. Lesson see what others are doing and do it better.

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      3. Perhaps the answer is a forced review of the patents. A patent appeal if you will, where the accused asks for a clarification of the patent in question to make certain it’s valid. Prior art claims could be introduced as well and if a review of the evidence proves that the patent shouldn’t have been issued, the USPTO would revoke the patent.

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    2. Actually, the constitutional right to a jury is only applicable to criminal trials, not civil. Just the same as “beyond reasonable doubt” applies in criminal trials and “preponderance of evidence” is for civil trials. To understand the difference in criminal vs. civil, ask OJ Simpson (sorry ’bout bringing him up).

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    3. The Bill of Rights guarantees the right to a “jury of your peers.” How exactly are these 9 people peers to either Apple or Samsung?

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  9. Why were these “reasons” not presented before the verdict came out? Had the verdict favored Samsung would these “reasons” be any different? It seems everyone has suddenly become smart enough to comment on everything from jury’s intelligence to their use. This is really second rate journalism.

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    1. +1

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      1. If this the the first time you two have heard of this issue, you should come out for some sun a bit more often. This is not a new argument about patent trials.
        This has been going on for years, and it is getting worse with the wide scope patents being granted, the propagation of patent trolls, and the strategy by some tech companies to use the courts and questionable patents to protect market positions.

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    2. None of these arguments are new. They have been around for decades. Recently though the problem has been brought to the forefront by massive patent trolling. Also if you hadn’t noticed this huge trial just took place over patents that are EXTREMELY broad and general. Hence all the articles about how fubared the patent system has become.

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  10. So now we’re throwing out our whole legal system? Um… yea… I think some IT folks have let this whole thing get to their head a little. Today has been one of the biggest jokes on blogs with rabid Fandroids spewing hate all over the place. What a joke.

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    1. The joke is people choosing to keep a blind eye on a failing patent system that is no longer serving the purpose it was intended.

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      1. So you wouldn’t change your stand if the jury had favored Samsung?

        I am no Apple fan, neither do I own any of their products. But I have some sense of design and aesthetics and I know how difficult it is. And Apple deserves to protect it’s designs. Simply saying Apple had patented a rectangle really goes to show how little techies understand design. Which also explains why Samsung always wanted to and actually copied Apple’s designs.

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      2. Man, the bit I don’t understand is that the Android fans seem to think it is fair that a company can copy all the parts of a phone that they absolutely hate. It makes no sense whatsoever.

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      3. But it is – its helping Appl..I mean Ameeiv…I mean China have a monopoly

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      4. 888Charled

        Perfectly astute observation.

        What this trial showed is how biased Fandroids are and that justice is the least of their concerns.

        Because the outcome was against their wishes

        1. The jury is composed of only idiots

        2. The judge is an idiot

        3. Apple is evil

        4. The patent system is broken

        5. Creating special effects in movies is the same as inventing (I’d love to see the Fandroids howl if some ever invents the warp drive how you can’t patent it because George Lucas alread “invented” it in Star Wars

        Now if the jury rule in favor of Samsung, Fandroids would then claim

        1. The jury is smart like them and that’s why they were able to rule in 21 hours

        2. The judge is super smart like them

        3. Apple got what it deserved precisely because it is evil

        4. The patent system worked

        5. This proves that Samsung can legally copy the phone they all hate so much

        The fact of the matter is, the only biased ones are Fandroids themselves. Doesnt matter how the jury foreman clearly explained in interviews how they efficiently went about determining infringement.

        Talk about bitter frothing-at-the-mouth weeping and knashing of teeth of Biblical proportions. Like this article.

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      5. gautamonline: If you can explain to me, and everyone else, just how the iPhone’s rectangular shape provides a unique and distinctive feature that’s exclusive to ONLY the iPhone, then please go ahead.

        Until then, in my eyes at least, a rectangle is still a rectangle, no matter how hard you try to change it.

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    2. That argument can go both ways. Considering possibilities, if Apple had lost, iPhone supporters would be taking the same stance the Fandroids are taking.

      The joke is that you think being an Android fan is a bad thing.

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      1. no, the joke is the patent system

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  11. It is not good to offend others by saying that how much did he or she get paid for expressing his or her own thoughts that do not match with yours. We are exchanging ideas and thoughts with others to learn what other’s are thinking, and also to express my own thoughts to others.

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    1. Thanks for the thoughtful comment, Thomas. I often wish internet debate could involve more thinking and less screaming.

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  12. Game Center Games Monday, August 27, 2012

    This was very well thought out, and a very great post. But we all know that everyone was using either a flip phone or a Blackberry when the iPhone came out. It is kind of hard to deny that?

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    1. AND, everybody was using a WIRED phone before Motorola came up with the wireless phone – it does not give them a monopoly on the concept – just their implementation.
      Ideas are NOT patentable – only implementations are.

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      1. Since implementations are patent-able, that is the exact reason why Apple patented “rectangle with rounded corners”. And please do not say that Apple design is obvious. It was not so obvious before iPhone came along.

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    2. Have you heard of Pocket PC? have you heard of LG Prada? have you heard of Neonode?
      Having the first commercially successful implementation is a fortunate accident of timing, combined with very good engineering packaging and software implementation skills. And, none of these should give them a monopoly on this natural evolution of a device.

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    3. Prakash Bhimani Tuesday, August 28, 2012

      Long before iPhone was launched, there were full touch screen phones running on windows mobile os. I do agree that apple made a much better product, but that does not give them right to say they are the inventors.

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    4. And Blackberry was a rectanglar phone with a grid of icons on the phone screen.

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  13. Rediculous. This post is pure drivel.

    So all 9 jurors were Apple Fanbois? So because Samsung copied Apple, the jury couldn’t be expected to find Samsung not guilty of copying Apple? So Apple isn’t entitled to the protection of the law because it costs money?

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    1. You would make for a good juror in this trial: Reason # 2 certainly works on you.

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    2. The jury were 9 americans protecting the American company against the evil foreign company, sending a message to the world.

      So, USA once again send the same message to the world. USA offers unfair protection to its own companies and enforces unfair unprotection of other countries’ companies in all of their Free Trade alliances like the Trans Pacific. Maybe Samsung should discontinue the supply of electronic components to USA, like Google did with Belgium CopiePresse news conglomerate.

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  14. The phones Apple chose to show case were PocketPC era phones dating back to early 2000 to mid 2000 time frame. The UI was designed by Microsoft and NOT Samsung so you can’t blame Samsung for that. All of the early phones had flat displays so how is that a patented feature of the iPhone.

    Palm OS was nothing more than a UI with colorful icons (or B&W /Greyscale in the early days) so in essence Apple copied Palm OS for the UI.

    I have owned devices for BlackBerry, Palm OS, WebOS, iOS, PocketPC Touch and Non Touch (Smartphone), and of course Android OS so I am well versed in the positive and negative aspects of each OS and the fact that a colorful grid of icons existed long before iOS.

    From my vantage point of reading the case Samsung should have to put the amount into an escrow account pending the final outcome of their legal wrangling and subsequent appeal(s). After all just because a Jury who rushed through the decision making process “sent a message” does not mean Apple actually won until Samsung is fully out of appeals. After all if Samsung had won, Apple would be appealing.

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    1. Prakash Bhimani Tuesday, August 28, 2012

      Couldn’t have said it better. Totally agree.

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  15. B. P. Williams Monday, August 27, 2012

    Unfortunately, sites keep quoting GrokLaw, which only presented an partial version of the jury’s post-decisoin statement. The jury based damages on compensation for lost profits in a proper manner. Jury discretion came into play in calculating those profits. The jury picked a number somewhat higher than Samsung’s calculation (to send a message), but much lower than Apple’s number. Their process was well reasoned and the jury did much better with the technical issues than I expected a priori. The whole patent system is in disarray, but the jury was not the problem in this case.

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    1. Good points. I would also say that to pounce on the jury for making a clerical error of $2m and try to characterise it as them trying to punish Samsung unfairly is stupid.

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  16. By the way, your post seems to imply the jury rushed their verdict. They had just been through a process that lasted over a month listening to arguments on both sides. So they clearly understood the issues before retiring. They pretty much found for Apple on their first day of deliberations. After that, it was just an admin job, ticking boxes and calculating damages. Three days was about right in my opinion.

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    1. Phil, I appreciate you taking the time to post but please meet the argument I’m making. I’m not laying Apple doesn’t deserve legal protection or that this jury was a bunch of blundering idiots. I’m suggesting that these type of patent cases raise extremely complicated technological and legal issues with implications for the country’s overall industrial policy; such questions are simply ill-suited to a jury.

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      1. As I see it, the court has acted to apply the law and the jury played their part very well. The complex issues you raise are not the province of the jury, nor are they the province of the courts for that matter. They are things that are enacted by the lawmakers and policy makers of a given country. If you disagree, then you should blame the legislative, not the legal system.

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      2. Jeff, I could not agree more with you. But all of us outside USA knew that Apple will win the case if the case were presented in USA.

        IMHO I firmly believe USA is using unfair practices like your patent system to obtain huge advantages in the world market. Things like SOPA, PIPA, ACTA, lobbying from Google, Microsoft and many other companies are influencing the legal system of many countries to protect the US Monopolies on these countries.

        So, in Apple vs Samsung trial, IMHO I think the appeals will only adjust the amount of money for Apple’s compensation, nothing else.

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    2. How do you know they all understood what are on their hands?

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      1. Because the evidence presented by both Apple and Samsung and by the Judge would have informed them. That is their job. Are you suggesting that a jury are incapable of understanding a patent?

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  17. This is one of the best arguments I have seem since the fast track verdict was reached.
    Although some jury members may be super intelligent, most of people of such caliber either cannot be located or they want to find an excuse so they can do intelligent things they enjoy doing instead of being tied unknown number of days sorting out all the matters which may or may not make sense.

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  18. If brand loyalty was a measurable deciding factor then Samsung would have won the case, or at least faired better than they did.

    Pictures of Android prior to iPhone release and after iPhone release say all that needs said.

    Btw, I do not use an iPhone.

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  19. Sorry Jeff your link bait article shows how out of their depth some journalists. Expert on everything and knowledge of little. Poor article.

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    1. Forgive me, Gerhard, but this seems like a throwaway comment. It would be helpful if you could identify the portions of the article to which you object.

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  20. Nice, concise article. Having read and engaged in considerable discussion about this case, I particularly agree with your point #2 regarding people being swayed by others being copycats. The fact is that great products are the results of continuous improvement, or product evolution. Sometimes, that evolution comes from within a company or from a single inventor, but more often, companies leapfrog one another, building on the good ideas of products of another. While this may annoy each preceding inventor who cries ‘foul’, it leads to a much faster and more effective product evolution. That’s what competition is all about.

    Few in our society would argue that 100% copies should be allowed. However this case is not about complete knock-off products – it’s about similar or derivative products. Yes, Samsung has built on the aesthetic that Apple brought to the wide population, but they’re also building upon it. They’re trying to create a compelling enough product that people actually want to buy it. If they were crap, people would just keep buying other products.

    Look at the automotive industry. Show people basic sedans built by Toyota, Honda, and several other manufacturers. Most won’t be able to differentiate them, and yet you don’t have Honda or Ford running around suing Toyota for making the Camry. Instead, you have them building unique features into each. Often, it’s the subtleties that make the user experience better and close the sale. Sometimes it’s just the performance. That’s great, that’s the nature of competition – markets converge on a popular form factor then differentiate products in other ways. Unfortunately, Apple has convinced many that the form factor is THE factor, so people just look and cry “copycat”

    As you noted, there are specific LEGAL issues that these cases need to consider – issues that are beyond the depth of juries. No, this doesn’t mean they’re idiots, it just means that they’re not qualified or trained to make these types of decisions in a rational manner. Would one pick a handful of random people to help determine what disease ailed you?

    Many replies to your article seem offended by the thought that you’re trying to tear down the entire legal system when instead, you’re trying to help it improve the quality of the judgments. I think those having knee-jerk critical reactions to this article might also want to look at the end of your by-line where it notes that you “practiced intellectual property and media law “

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    1. How about showing them a Porsche? Would they recognise the difference then? Apple want to differentiate their iPhone from other phones on the market. Is that so hard to understand?

      As for the specific legal issues you allude to, why don’t you specify them so we can all know what they are?

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      1. Karen Kazaryan Tuesday, August 28, 2012

        You do know that most of Porsche cars are based on Volkswagen models? the irony.

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      2. So you can’t tell the difference between a Porsche and a Volkswagon? Should have gone to specsavers perhaps.

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      3. Samsung phones have faster processors and bigger storage than Apple Phones. So Samsung will be the Porsche and Apple maybe the Camaro or the Corvette, right? (Maybe Samsung will be a Hyundai or KIA after all they are Korean).

        The iPhone is not a Porsche anyway. And everybody in the world can differentiate a Corvette against a KIA or Hyundai or a Porsche.

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  21. Thanks for the kind words, Ted. You stated my point perhaps more eloquently than I did. Your auto example is bang-on — it would be bad for everyone if car companies started to assert patent rights over the design and function of a sedan. The challenge for courts and legislators right now is to pare the patent system so that it’s granular enough to reward certain inventors without side-swiping entire industries.

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    1. Jeez why is everyone comparing mobile industry to the car industry? Is mobile tech as old as car tech? Is the growth rate of both the industries the same? Are the people running the 2 industries the same? Is the car industry as competitive today as the mobile tech industry?

      Just because all the cars have 4 wheels now does not mean that all the phones should be rectangles with rounded corners.

      And talking of cars.. what about this link: http://www.bbc.co.uk/news/technology-16197664

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      1. Why should anybody (specially when they are not even the first there) have a monopoly over rectangles with rounded corners.
        This is a ridiculous argument!

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  22. Jeff is a lawyer so he understands legal issues far better than non-lawyer technology journalists, but this article strikes me as filler that Om cooked up because GigaOm needed more page views today.

    In federal civil cases as I’m sure Jeff well knows, the parties can choose a bench trial. End of story. In other words, choice exists. I know. I spent 10 weeks of my life working on a trade secrets bench trial.

    For whatever reason, the parties or at least Apple chose a jury trial for this case. Again, end of story.

    Jeff would only have a point if the parties had no choice.

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    1. Apple is really a marketing company first. They know that they can make a compellingly easy to comprehend presentation for a jury (even though it is the lawyers making the case)

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      1. Priceless! Absolutely priceless. You could also say that the Lawyers channelled Steve Jobs reality distortion field using a ouija board.

        Or maybe Samsung was just guilty.

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  23. Best article so far i’ve read these days. Even so i saw alot ifans + nationalism won’t give a second though but apple is always right. firstly apple’s processor made by samsung, display screen made by sammy, lg… , assembly in china. china could celebrate of apple’s winning becoz they sure got more jobs while american’s unemploment at risk. My point is we all should need to calm down and listen, learn, think. we can’t presume 100% right becoz 9 jury says so. look at the iraq. even the whole american’s goverment said iraq’s owned nuke but till now it’s bs.

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    1. Apples processor made by Samsung… therefore Samsung can have all Apples IP? Not really dude.

      Because America (and her Allies) invaded Iraq on a false premise… what? People get things wrong? They were looking for an excuse and found one, and I don’t want to shock you too much, but they didn’t care whether it was true or not.

      Of course people get things wrong, But Samsung are still able to ask the judge to set aside the jury verdict. And then can appeal to a higher court. So don’t worry, Samsung will still have many opportunities to overturn this, but it’s not looking good for them.

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    2. “firstly apple’s processor made by samsung,”
      To an Apple exclusive design, using Apple’s IP, which is why Samsung don’t use it.

      “display screen made by sammy,”
      Again to Apple’s own design.

      Samsung are just a foundry and manufacturing plant in both these cases. This is like saying that Technicolor are responsible for a movie because they process the final print.

      “My point is we all should need to calm down and listen, learn, think. we can’t presume 100% right becoz 9 jury says so.”
      Samsung agreed to be judged by a jury of their own peers. Live by the sword die by the sword. You’d have been dancing on Apple’s grave had the outcome been the opposite.

      Not entirely sure that you can compare Apple’s win with some kind of tin foil hat government conspiracy theory, perhaps you should just stick to the facts,

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      1. Design is not the same as requirement. Apple is Samsung’s customer. Apple orders Samsung to manufacture processors, screens and other components with compliance on Apple’s requirements.

        Like when you order your pizza with a list of ingredients. Are you going to claim you are the designer of these pizzas? Neither the pizza maker can claim they are the designer I guess.

        The point is, patenting ideas should not be allowed. Maybe Apple is the firts succesfull implementator of rectangle-rounded cornered smartphones, but they didn’t invented first.

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  24. Joe Frederick Tuesday, August 28, 2012

    Google’s Android OS had multitasking built in before IOS. It had the drop down notification bar before IOS. Should Google sue Apple for those obvious copycat features?

    Those two features in addition to widgets, which I am sure Apple will probably impliment in the future, are what sets Apple and Android phones apart… At least used to set them apart. Two out of three have been copied by Apple.

    It is also funny to notice that in every picture of the two devices side by side they compare the Apple’s “home screen” to Samsung’s application list, not it’s “home screen”. With the addition of widgets, scrolling or live wallpaper, and the bulk of third party application icons that most users actually add to their home screens, the devices look nothing alike.

    Android users probably spend 95 percent of the time with the phone on the home screen choosing what apps they want to run, not scrolling through page after page of application listings. Therefore if you are going to compare apples to apples (pardon the pun, lol) then compare the actual user experience and not Apple’s home screen (which is nothing but a list of applications) to Samsungs utilitary, secondary function of listing it’s applications.

    If Apple can sue for similar aesthetics and win then it is really overdue for them to be sued for the things that really matter in terms of functionality. The pull down notification was a blatent copy from Android and that alone is a much bigger impact on the user experience than icons that look similar.

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    1. Timothy Weaver Tuesday, August 28, 2012

      Actually, iOS has had multitasking built in from day one – it just wasn’t available to non-Apple apps. Second, the much touted notification system “from Google” was actually first introduced on jailbroken iOS devices as it was developed by a third party – who was later hired by Apple to build the functionality into iOS. People can continue to make their arguments about the facts in the Apple v Samsung case, but it’s already been decided. It’s kind of like debating who should have won the last Super Bowl. The results are in.

      But your underlying point is valid. If any entity gets a patent, they are fully within their rights to enforce it. The system – both the courts and through private negotiation – has actually been quite capable of working it out. And that’s what will happen in this case. Apple and Samsung will enter a cross-licensing agreement that is mutually satisfactory.

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  25. As suspected, supporters of Samsung (or rather the same old crowd that just can’t accept that anything good ever comes out of Apple) will not be satisfied until they get the outcome they want. So the patent system is broken. Now the jury system. And if, after all the appeals are exhausted, you still don’t get the answer you want, I assume that will mean the American justice system is broken.

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  26. I watched Bloomberg interview the jury foreman yesterday and He said when asked that he did not own a single Apple product and neither did many of the other jury members. So I don’t think this was a case of brand loyalty. If we don’t have a jury decide this type of case then who? A judge, most of the time they have less technical knowledge then a jury. A panel of “experts”? What type of experts? Patents experts or tech experts?, who is going to appoint them? The jury system may not be a perfect system, but it is the best we’ve got

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  27. This article is garbage. Jurors saw that Samsung BLATANTLY said to their designers to copy the iphone. The designers did, they are/were wrong. (That’s stealing) even google says, “Hey stop copying the iphone!) and SSung ignored it. THAT is why the jury rules how they did.

    It doesn’t take a genius to figure out that SSung wanted to take the easy route and copy someone elses successful product because they felt it was ok to steal it. – The court proved they thought like this and that is why they have to pay. Who cares about what is patentable etc, as that is just something to hide behind after the facts came out that they copied. “Um sure we stole the designs and wanted it to be just like the iPhone, but you shouldn’t be allowed to patent that, so we think it’s ok to steal..” Blah, Blah – that just make the peole defending it look like idiots. Not to mention also looks like you agree it’s ok to steal. Nice way to show yourself on the web.

    Any other verdict besides what was presented, with the evidence shown, would’ve been a reason to complain, but saying otherwise is just ignorant says a lot about what your values are. (it’s ok to steal as long as you can find an excuse to make it ok in YOUR mind) Thank goodness the jurors saw through the fluff and nailed SSung.

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  28. Isn’t it the role of lawyers in jury cases to help explain these issues to juries in a way that gets rid of the 3 problems you have with juries in patent trials?

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  29. Without the Jury system, the richest people on earth would be Judges in high tech federal jurisdictions.

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  30. Timothy Weaver Tuesday, August 28, 2012

    You make a lot of unsubstantiated claims about jury bias and lack of competency. For those who disagreed with the jury’s decision in the Apple v Samsung case, this will probably be an attractive premise. But Samsung also had very capable lawyers also sitting in the courtroom, agreeing to the jurors, and presenting a case.. Apparently, they didn’t present a very compelling case to the people they agreed to allow to make the decision.

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  31. Jeff,
    Have you listened to the Bloomberg interview with the jury foreman? He would dispute much of your article.
    I would also ask why you think a panel of judges would be immune to Reason #1 and Reason #2?

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  32. Working for a company that had to pay $300M for a suit that stated it used ATM networks as the patent violation….when an ATM network never once existed in our sites, I can say that jury trials are useless.

    How is a jury of the general public supposed to make accurate rulings on technology? It’s just not possible.

    A reform of this entire system with regards to what can and cannot be patented in technology needs to happen.

    Apple is the third coming of IBM. IBM started as the giant monster, with Microsoft following them and now Apple. A company with pockets so deep they can hardly be stopped. They are in a position to now manipulate the market as a monopoly by sheer financial strength.

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  33. I think it comes around full circle a bit. Patents (and Trade Marks, Trade Dress, Community Design, etc.) have an intent to protect the innovators. Apple clearly thought Samsung ripped them off. The court has to wade through technicalities and legalisms and the jury uses these to help enforce the essence of the law. I’d rather have a jury making the rulings than some unknown bureaucrat in the back corner of the USPTO, as the article put it. After all they are all people, so brand loyalty and other potential biases are just as likely in a bureaucrat. In fact, if anything, a jury of 9 people vetted by both sides is probably more fair than any bureaucrat.

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  34. Mark Tarrabain Tuesday, August 28, 2012

    If ‘X’ gets done by somebody before Y ever does it, but Y happens to be the first one to get some fame for it, is Z wrong to imitate Y by doing X, when Y didn’t ever invent X?

    Who cares if Samsung was copying Apple? All that they were copying was stuff that Apple did not invent or originate, and even at best is obvious. the very fact that you can take an iOS device, or any of the devices that preceeded it with a similar interface, to somebody without any prior training and they can manipulate the user interface, heck… you can even give it to a freakin’ 3 year old and they don’t have a problem, pretty much irrefutable points to the notion that the design notions which Apple are trying to claim exclusivity over are simply extremely natural, intuitive, and – most importantly – obvious. A point on which a patent is supposed to be refused.

    Now granted, most of the devices that existed before the iPhone which sported similar user interface components which Apple is now evidently claiming total ownership of existed only on platforms that were not geared for mass market consumption – typically priced in the +$10K range, but they certainly existed. Apple did not innovate them. And again, their interfaces were very easy for people to use without any prior training because the gestures and corresponding graphical feedback were intuitive, natural, and obvious (which is why nobody bothered trying to patent it before… because everybody before Apple already realized that those things were obvious).

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  35. T-mobile are selling (for a limited time) 4 Samsung phones 2fers:
    Galaxy S II 4G (white face) which appears to be an exact copy of an iPhone in white
    Galaxy S III 4G which looks like a newer version of an iPhone (except Samsung branded)
    Galaxy S BLAZE 4G that looks a copy of an older iPhone
    Galaxy EXHIBIT which looks like an iPhone wannabe (but not close)

    Looks like the jury came to the right verdict GigOM.

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  36. Robert MacAnthony Tuesday, August 28, 2012

    Interestingly, the bulk of the comments on this story support the author’s position. The whole discussion here and elsewhere degenerates into a bunch of fanboys squaring off against one another, with the name on the device (Apple or Android or Samsung) being the only important factor in determining which side of the issue a person supports. It is a ridiculous situation, really.

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  37. Why are most of the articles after the trial about the general discussion about the patent system and if the Jury was capable of making such a decision?
    Let’s face it: Everybody with a little bit of common sense must agree that Samsung blatantly copied Apple, made a lot of money with it (compared to Palm and Microsoft, who decided to implement their own ideas) and was hoping to get away with it. Luckily the jury didn’t let them.

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  38. Oh my god, even Google agreed with Apple and told Samsung to not copy the iPhone that closely.

    What part of that don’t you understand.

    Note to the author… So it’s ok by you if I take from now on every article you write, change a few words and publish them with my name as the author?

    Oh I can’t do that? It will stifle creative writing if I can’t copy your articles.

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  39. When you selectively state that certain cases are no longer subject to trial by jury, you open the door for future cases to follow the same pattern. Trial by jury isn’t perfect, but its far better than trial by a single person who suffers from the same challenges as the three reasons listed above.

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  40. Actually the definition of patent has to either republish or redefined. May be patent owner are clear about the copycat. why I can’t built something similar to already existed thing but with different methodology or technology. The question arises are what they have applied patent for ? is it the methodology or technology or the material or everything. If everything then Patent system and implementer has to understand that it will not only hinder free economy but also encourage Monopoly and impose restriction and loss for ultimate consumers. If not everything then why not a copycat create the same thing using something which is not patented ( Well you . It’s all manipulation of patent system architecture because it is not robust and has many many weaknesses and loopholes. And the article is right, we should not have jury in patents verdict especially in software patent verdict.

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  41. I think the proposal to replace juries with a tribunal of experts in patent disputes is more dangerous than the ills it proposes to remedy. (1) the patent system is itself a legal process, and to exclude plaintiffs from due process would be wrong. (2) Empaneling a jury free of bias and susceptibility to being swayed is the job of the trial attorneys; (3) ”Experts” can be biased too, but there is no appeal from that, and (4) a panel of programmers would look at the code, determine that different subroutines and methods had been called, and conclude that therefore it is impossible that a look and feel issue could have been copied.

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  42. Hi Jeff, this is really interesting thanks. I discovered it after writing on the subject too – from a design perspective, check it out: http://lizzieme.wordpress.com/2012/08/29/not-allowed-rectangles-with-round-corners-in-design-narrative/ I realise this looks like spam – not sure how to get around that one!

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  43. Doesn’t the America Invents Act (AIA) begin to help out with litigation like this later this month?

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  44. Patent office rules and regulation was followed by juries.

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  45. In general oriental cultures do not innovate. That is due to a cultural belief system that does not favor those who think or act outside of the norm. They do not tolerate mavericks very well. What those cultures do extremely well is build others idea very well and make small, but not radical, design improvements. That is why those cultures are very well know for manufacturing but not engineering. Not only the odds but the information in this case point towards Samsung copying Apple. if it were not for Apple exactly what product would Samsung be selling now? How would it look, act and feel?

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