Wednesday, August 29, 2012

Jury in Apple v. Samsung "Skipped" Prior Art Because It Was Bogging Them Down

The court decision in the Apple v. Samsung case recently decided is a bizarre combination of errors, misjudgments and apparent incompetence at all levels.

The jury foreman in a recent interview confessed that he had a "light bulb moment" after the first day of jury deliberations and was thereafter able to convince the rest of the jury members that the most controversial Apple patents in the case were valid -- because he, the foreman could defend them and could argue to his fellow jury members that there was no prior art.

The impact of that on the jury was described as follows by jury member Manuel Ilagan, who is quoted by Greg Sandoval at in Exclusive: Apple-Samsung juror speaks out:
"The decision was very one-sided, but Ilagan said it wasn't clear the jurors were largely in agreement until after the first day of deliberations. "It didn't dawn on us [that we agreed that Samsung had infringed] on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce-back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art -- because we had a hard time believing there was no prior art."
"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down.""
[block emphasis added by LawPundit]
Prior art has a tendency to do that, to bog down patent claims.

The person who served as jury foreman of the just decided Apple vs. Samsung litigation is himself a patent holder, which has raised questions about that patent and about his potential bias in favor comrade-in-arms neighboring patent holder Apple.

His patent is United States Patent: 7352953.

At best, just read the materials yourself and check out the links:

United States Patent: 7352953:
Method and apparatus for recording and storing video information

A personal video recording/storage apparatus for downloading streaming video and data contents from a number of sources and storing the video files to an internal storage device, such as a disk drive. The apparatus further has the ability to offload the video files (e.g., originally stored in the fixed storage device) to an internal removable media storage device. The video files stored in the internal storage devices may thereafter be retrieved, processed, and provided for viewing on demand at a later time (e.g., on a standard television set, a high-definition television set, flat panel display, computer monitor, or an equivalent output device). One embodiment of the invention includes an apparatus equipped with a wireless keyboard and software that enables a user to access the Web and email services, edit recorded material, download new coder/decoder (Codec) software, order a movie on demand, and/or perform other functions.
. . .


The present invention relates generally to video systems, and more particularly, to a method and an apparatus for recording and storing video information.

Personal video recording and storage systems are known in the art. Such systems typically download streaming video to an internal fixed disk drive, which may thereafter be retrieved for viewing on demand. However, such systems typically have a small and limited storage capacity and can therefore only store a limited number of movies along with data contents. As can be seen, techniques that allow for recording, storage, and replay of a large number of video files are highly desirable.


Preferred embodiments of the invention provide a personal video recording/storage apparatus for downloading streaming video and data contents from a number of sources and storing video files to an internal fixed storage device, such as a disk drive. Furthermore, one preferred embodiment of the invention offers the ability to offload these video files (e.g., originally stored in a fixed storage device) to an internal removable media storage device. The video files stored in the fixed and/or removable storage devices may thereafter be retrieved, processed, and provided for viewing on demand at a later time (e.g., on a standard television set, a high-definition television set, flat panel display, computer monitor, or equivalent). "
You can read that description 20 times and you will still never have a clue as to what "non-obvious" invention or discovery it allegedly involves that was not preceded by significant prior art. Recall, the legal standard is that an invention or discovery to be patentable must be non-obvious to a person versed in the art and can not be anticipated by prior art.

As far as we can tell, US Patent 7352953 is no more valid than the Apple patents that were erroneously found valid in the instant Apple v. Samsung case.

The jury foreman in his jury capacity was perhaps subconsciously arguing in favor of HIS OWN patent, which apparently took seven years to be granted.

See also

Sean Barrett @nothings
Jury foreman convinced Apple/Samsung jury Apple patents were valid. He filed "TiVo+editing" patent 3 years after TiVo.

Apple v. Samsung: Meet the foreman of the jury - updated at Fortune, CNN

Rick Merritt, EE Times, Jury foreman in Apple vs. Samsung had 'light bulb moment'.

It is really all quite bizarre.

The jury foreman was supposed to be paying attention to the specific instructions of the judge to the jury rather than focusing on his own inventor-like "light bulb moment".

The only actual EUREKA moment that we see in this case is the clear and dominant "Aha!" recognition that the patent system is broken and that jury trials like these on major patent questions are silly jokes beyond reason.

How to Reform the Patent System by Enforcing a Strict Concept of Obviousness as the Normal Development of the State of the Art

What is "non-obvious" about a normal development of the state of the art?

Here is an interesting question. Please name TEN "non-obvious" inventions in the last 10 years that were NOT anticipated by the state of the art. Only 10. You know, things out of nowhere that somebody discovered. Uh....

We have not found anyone able to do that.

Although the legal standard is that "obvious" inventions are not patentable and that only "non-obvious" inventions and discoveries deserve the protection of patentability, the reality of patent practice in the legal system has nothing to do with that legal standard.

Rather, to believe USPTO stats, 500,000 "NON-OBVIOUS" inventions and discoveries are made every year by patent applicants and HALF of those are granted as "bolts from the blue", things no one could have anticipated. Of course, that is nonsense.

In fact, if there were even 2,500 bona fide "non-obvious" inventions or discoveries among those 250,000 -- as judged by the normal development of the state of the art -- that would already be a miracle.

The problem is that modern patent practice seeks to patent many normal "obvious" developments of the state of the art...

and that is the principle reason that the patent system is broken.

If only "non-obvious" inventions or discoveries were actually patented and if every patent application to the USPTO had to contain a short paragraph specifically declaring what is "non-obvious" -- and why it is non-obvious, given the state of the art --  in the patent application, then the number of patent applications per year would drop dramatically.

We could care less about the theoretical "teachings" that the confused Federal Circuit throws out as a standard. Few inventors pay attention to "teachings". Rather, they are guided in their work by the state of the art. We want to know e.g. whether an invention is dependent upon the materials and tools that are made available by the state of the art. A good example here are thinner handsets enabled by thinner manufacture of solid state electronics. Sorry, but a "thinner" handset in such a case is "obvious" and should not be patentable for that feature. This applies across the board to ANY invention.

To what degree is it enabled by the state of the art and what has the alleged inventor actually ADDED that is "non-obvious" to the state of the art and how significant is that addition, or is it just a normal development of the state of the art. If the state of the art is at 9, and then we go to 10. That is obvious.

The patent applicant in EVERY case should have to explain WHY his or her allegedly non-obvious invention was not made 10, 20, 50, 100 or 200 years ago -- for the legal presumption should be that inventions or discoveries, as they in fact are, are usually normal developments of the state of the art at any given time, relying on the technological state of things in their era.

What has happened over the last 50 years is that the granting of patents for obvious state of the art developments has led to "a patent culture" and that culture finds more and more patent applications being made and more and more patents being issued, thus creating a massive roadblock to innovation.

 Number crunching Patents, Population and Demographics in the USA
  • More than 500,000 patent applications per year at the USPTO
  • ca. 250,000 patent grants per year at the USPTO
In recent years the USPTO has been inundated by an average of about half-a-million utility and design patent applications per year, of which an average of somewhat less than 50% have been granted.

As one can see at U.S. Patent Statistics Chart Calendar Years 1963 - 2011, ca. 50 years ago there were only 90,982 utility and design patent applications in 1963, as compared to 535,188 such applications in 2011.  That is nearly a six-fold increase (535188/90982=5.9). Total patent grants in 1963 were 48,971 but in 2011 there were 247,713 patents granted, a five-fold increase (247713/48971=5.0).

In that same period, the population of the United States increased from 179,323,175 in 1960 to 308,745,538 in 2010, a 1.7-fold increase, meaning that patent applications and grants have increased 3 or more times the rate of population growth -- and much of that population growth in the USA has been in demographic working sectors that make few or no patent filings.

For purposes of better comparison of the data, even if we restrict the data to U.S.-origin patent application filings only (and filter out the foreign patent applications), then we find 66,715 U.S.-origin patent applications in 1963 as compared to 247,750 U.S.-origin patent applications in 2011, a 3.7 fold increase (247750/66715=3.7), more than twice the rate of population growth.

Accordingly, an unhealthy "patent culture" has developed, which is contributing to the breaks in the patent system that we see.

Patent Wars Postings by Tim Worstall at Forbes are Worth a Read

Tim Worstall has some recent postings at Forbes on the patent wars and his writings are definitely worth a read, especially in terms of gauging the actual effect of the bizarre Apple vs. Samsung court case in Cupertino, California.

Worstall's contributions are:

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