Right on schedule, attorneys representing Samsung have filed an appeal a month after the company’s glorious failure in its IP faceoff against Apple.
Quinn Emanuel, Samsung’s firm, has taken the jury misconduct route as a way to get the $1 billion dollar verdict tossed. How exactly does Samsung argue the jury — which returned a verdict after only two days, and originally tried to award damages on patents that weren’t infringed — screwed up?
Let’s just say loose lips sink ships, and might even scuttle billion-dollar patent verdicts….
CNET reports Samsung is singling out “loquacious” jury foreman, Velvin Hogan, for allegedly bringing personal experience as an electrical engineer to the jury room:
In an interview with CNET a day after a verdict, juror Manuel Ilagan said that Hogan used his understanding of the process from his own experience with patents to sway the jury. “Hogan was jury foreman,” Ilagan said. “He had experience. He owned patents himself…so he took us through his experience. After that it was easier.”
And, in a video interview with Bloomberg TV, Hogan said: “Some were not sure of how prior art could either render a patent acceptable or whether it could invalidate it. What we did is we started talking about one… (I) laid it out for them.”
In a live Q & A with readers on Gizmodo, Hogan didn’t explicitly say he used his experience to make a decision, but he wasn’t exactly modest about his background either. One commenter asked, “How technologically inclined would you say the jury was? I’ve read everywhere that it seemed like the decision was quick.”
Hogan responded in wonderfully truncated internet prose:
I am an EE for 40+ yrs I own patents, this is my industry. There were two other with experience in this industry they did not own patents.”
Another commenter wondered if the jury knew how important the case was while it was in progress. Hogan was all like “Derrr”:
Because of my back ground I did. It was an honor to serve. I spoke to the other jurors about this from the get-go in the Jury room.
At least one Gizmodo commenter was not impressed. The commenter raised the same kind of issue that Samsung is worried about. Namely, after explicitly telling Judge Lucy Koh (as CNET reminds us) that he would be careful not to bring outside experience into jury deliberations, why is Hogan’s background and personal expertise all of a sudden so important to his analysis of what went down?
Do you believe that you may have inadvertantly acted as an “expert witness” when dealing with the other jurors during deliberation?… Being an EE, and having had a patent issued to you does not make you a patent lawyer or an expert in the field of smartphones. It’s not comforting to hear you mention your own “expertise” on these issues when talking about being a juror in this case.
It may be a long shot to get a new trial based on this type of alleged misconduct, but it’s been done before. And hey, it’s gotta be more effective than begging. Quinn’s brief, one of several filed over the past week, lists several Ninth Circuit cases involving jurors found to have brought in information not included at trial.
Samsung also requested that jurors be prohibited from talking with the press going forward to avoid any more foot-in-mouth situations.
Whatever the court orders in the short term, Hogan may want to put a lid on it regardless, lest his “experience” cost not just some dignity, but the entire verdict.