What is Evidence? – Apple v World

Instructions to Jury What the foreman did
“In reaching your verdict, you may consider only the testimony and exhibits that were received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:” The foreman brought forward his personal experience of patents without opportunity for Samsung to cross-examine him: “I took that story back to the jury. Laid it out for ’em. They understood the points I was talking about.”
“(4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.” The foreman planned his defence of Apple outside the court and planned to take sides: “I could defend this if it was my patent…”
“For each party’s patent infringement claims against the other, the first issue you will have to decide is whether the alleged infringer has infringed the claims of the patent holder’s patents and whether those patents are valid.

A utility patent claim is invalid if the claimed invention is not new. For the claim to be invalid because it is not new, all of its requirements must have existed in a single device or method that predates the claimed invention, or must have been described in a single previous publication or patent that predates the claimed invention. In patent law, these previous devices, methods, publications or patents are called “prior art references.”
The foreman ignored the judge’s instruction by inventing a new rule for invalidation by processor, something that makes no sense since both Apple and Samsung used ARM processors: “…whether or not the prior art really did invalidate that patent and so with the moment I had I realized the software on the Apple side could not be placed into the processor on the prior art and vice-versa, and that changed everything”
“If you decide that any infringement was willful, that decision should not affect any damage award you give. I will take willfulness into account later.” “We wanted to make sure the message we sent was not just a slap on the rist. We wanted to make sure it was sufficiently high to be painful.”

The more I reflect on the jury’s findings in Apple v Samsung, the more appalled I am that the judge does not recall the court in emergency session to set aside their findings. To let such faulty reasoning to stand until weeks later is a travesty of justice.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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16 Responses to What is Evidence? – Apple v World

  1. oiaohm says:

    Clarence Moon the funny part is when it comes to jury instruction being disobeyed it does not matter if its a civil case or a criminal case the offence and the result is the same. Because the offence applies to disobey and order of the court that the judge can give in any court civil or criminal.

    If you dig back in the USA you will find cases in the civil court of juries being hit by this offence and miss trials because of it. Its rare and normally not talked about in law school because a person is normally not dumb enough to put on the public record they did this. So getting a miss trial due to jury doing the wrong thing is normally kind of rare due to no evidence to prove it happened.

    The instruction said that the jury was not allowed todo particular things.

    The first instruction is default instruction. This is particularly done for a reason. Each jury is meant to make up there own mind based on the facts presented in the case.

    They are meant to think for themselves with there own personal bias. The forman admits tell the complete jury his bias. The forman did not know when to keep his mouth shut. Still after the trial did not know when to keep mouth shut.

    Carence Moon
    –That is what juries are there for, namely to apply the logic inherent in one’s “peers”.–
    Read that carefully it say peers not peer. What the forman has done here has made the jury one entity a peer not peers. This is jury rigging in Australia. Since its no a verdict by your peers. This is why its now possibly a miss trial.

    The rules for juries exist to attempt to prevent peer group pressure effecting the outcome as much.

    Each member of a jury is meant to use there own reasoning powers and own experiences not the collective reasoning power and experience of everyone in the room. This is why hung juries should happen.

    There is legal responsibilities to being on a jury. Do the wrong thing it can come back and bite you.

    –You are to decide the case solely on the evidence received at the trial.–

    This clause that is said by every judge they are taught to say it. Jury need to obey this to the letter. The forman admitted to adding evidence of own experiences to the case in the jury room for every other jury member to hear. So you are discussing in the jury room you are only to talk about what has been presented. Not extend on with your own bias or experiences they are yours to make your call if you rule for or against. They are not to be told to other jury members or you create miss trial.

    If someone in a jury does not understand something there is the option to request explanation from judge. They are not to attempt to create explanation for themselves as a collective in case judge, procuctor or defence lawyer knows something they don’t and to avoid biasing each others thoughts on the case to get a true judgement of peers.

    The rules on a jury are very strict but poorly enforced.

    We really don’t want to have to go back to the start again. A miss trial is not the outcome I want. Causes the unknown to last longer.

    Lot of ways I think the judges instructions need to be updated to more plain english for the modern people to understand. Like clearly stating do not talk about your own personal experiences that relate to the case with other jury members since this is adding evidence. Mentioning this in opening arguments as increases odds of getting a hung jury particularly useful when you have a case where you are going to lose.

    Robert Pogson there is a chance the 8 other jurors did not understand the law either. Due to the fact how rarely someone gets slammed for adding there own personal experiences into to evidence pile in the jury room.

    Disobey the judges instruction as an offense you don’t need to prove Apple is linked or anyone else just it happened. He could get away with a 1000 dollar slap over wrist and having to give up everything he got for his tv talk since that is now income from crime.

    Robert Pogson
    –I am surprised that other jurors don’t come forward with their own “AHA!–
    In fact that would be a good test because each juror should have there own unique AHA moment. Also is a legal test that is allowed. If they don’t the juror most likely was ruled incorrectly. The fact the case ruled quickly was also suspect because jury’s normally argue a little bit particularly in complex cases unless other evidences has been introduced by some member of the jury so breaking the ruling of the peers and converting it to ruling of a peer.

    In fact something most judges don’t do but are allowed todo in private with the jury is ask for the AHA moments one by one in his chambers. Its time consuming yes it would cause more miss trails because cases when the wrong thing has been done in the jury room would be detected more often. Lack of own unique AHA events would show the failure that it become a ruling of peer not peers. Its a very historic option that a judge can apply if a case is ruled quickly.

  2. the reality here is I do know this section of the law…

    As the saying goes, “you don’t know Jack!”, Mr. O. Start with the fact that there was no jury instruction telling the jury not to use their own reasoning powers. That is what juries are there for, namely to apply the logic inherent in one’s “peers”. Then, too, you bring up examples that not only do not bear on the situation under discussion but are not even civil law conditions. Do you actually understand the differences between civil and criminal court cases? It does not seem to be the case.

    That is the result of your relying on Google for answers to everything. Since you do not actually understand the questions that you pose, you cannot see where the answers are utter nonsense. But go on and on, Mr. O, it gives you something to do with yourself.

  3. ch says:

    Another comment got eaten 🙁

  4. ch says:

    “So when your software breaks, you don’t care?”

    When any software I use breaks, it doesn’t matter one whiff if I can see the source code or not – I will probably not be able to fix it anyway. And you conveniently left out the rest of Thorsten’s sentence: If said software isn’t as good as some other, then the source code doesn’t matter, either.

    And, regarding breakage: If my distro decides that PulseAudio or KDE4.0 should be included even though they aren’t ready yet (or if Ulrich Drepper has another brillient idea), the source code doesn’t help me, either.

  5. oiaohm writing of Apple v Samsung, wrote, “Forman should have kept big trap shut.”

    I am rather glad he spoke. It keeps the door open for justice to emerge. It gives the judge a much easier task to overrule. I expect either or both Apple and Samsung to appeal no matter what so there is little chance of lessening the burden on the courts upstream but his speaking out might speed the process a bit, making decisions/rulings a bit simpler. It’s good evidence the jury was not reasonable. I am surprised that other jurors don’t come forward with their own “AHA!” moments after reading GROKLAW etc since the trial. I will bet some of them feel used. It might help to give a clearer picture of what went on. The foreman is incoherent to say the least. He does not seem to understand cause/effect and such.

    I think the world is a better place because this guy spoke. If I were on that jury he would not have had a chance to divert people from their task. I wonder why the young man who did try has not spoken out. I’ll bet he is pissed off/embarrassed. Perhaps he will communicate privately with the court. There is also the possibility of the judge holding an investigation, recalling jurors to explore what happened. He might consider laying charges for contempt of court and subpoena jurors. That would be very unusual and would be a last resort if she thought tampering happened. Normally a party would raise the issue. Samsung may yet. I will bet they would like to examine the foreman very closely for ties/influence to Apple. It’s hard to know whether his actions were just plain stupidity, which is not illegal, or motivated by personal greed or deliberate tampering which is illegal. It’s hard to understand why 8 others would not set the foreman straight on the duties of a foreman: moderation/decorum and the final report.

  6. dougman says:

    Re: Quite frankly, who cares?

    You did enough to compose a response.

    Re: won’t matter one bit if a user can examine the source code of app X

    So when your software breaks, you don’t care? Ok.

    Re: And that’s why you fail.

    LOL, far from it my friend. I don’t see you making money from IT. Where is your blog, forum, newsletter and web presence?

    Software freedom and open-source is the best thing for mankind.

  7. oiaohm says:

    Clarence Moon really you need to stop presuming I am wrong. Case where USA and Australian law match I will not be wrong. Your smart ass comments are wrong this time. Only case where you had big problems with me is where the two laws split from each other.

    So Clarence Moon so you believe someone disobeying a court order should walk right???? Remember the instructions of the judge to the jury is a court order with the same punishments. Miss trials have been historically required for many reasons like a person being convicted because they are black not based on the evidence.

    “I could defend this if it was my patent…” This is a direct admit of personal bias.

    Forman should have kept big trap shut.

  8. oiaohm says:

    Clarence Moon “Mr. O is a fool when it comes to the law and taking any solace from his opinion is folly.”
    If you did out your case histories you will find there is precedence for a Miss trial due to case of bias foreman in the USA.

    http://studeolegal.typepad.com/blog/2012/04/juror-using-internet-during-deliberations-held-in-contempt-why-lawyers-need-to-pay-attention.html

    Heck there was even a recent one with juror. Disobeying Judges instructions is criminal contempt of court charge in the USA. Once one of the jury is hit with a contempt charge the complete case is a miss trial. Funny enough in the USA its not a contempt change if the party gets off so not a miss trial. Its only a contempt charge if a person is convicted. Yes the Samsung vs Apple case ticks all the boxes.

    Clarence Moon the reality here is I do know this section of the law. This section of law that is almost identical in Australia and the USA. You can let person off and disobey to a point the judges instructions. But you cannot convict and disobey the judges instructions at all.

    Basically be able to prove a juror has done contempt of court is a miss trial end of story.

    Jury rigging is the Australian side. Slightly different change it has jail time where the USA one does not its basically a stronger contempt of court for a juror. Same basic result miss trial. Yes the minor difference in charge to the juror who does the wrong thing.

  9. Phenom says:

    Mr. O is a fool when it comes to the law and taking any solace from his opinion is folly

    Not only to the law. He is a fool when it comes to network and system administration, to programming, to OS design and to basic CS theory. Probably I miss a bunch, but these are the most essential to this blog. 🙂

  10. Thorsten Rahn says:

    As more developers continue to have their apps rejected with little to no context, those developers will become much more frustrated with the whole process and leave for Android.

    Quite frankly, who cares? The Android market is a mess.

    As for your walled garden paranoia, that’s exactly the same mistake Stallman and his FLOSS cronies are making. Positing software freedom as an absolute, disregarding the fact that freedom depends on the user’s perspective. It won’t matter one bit if a user can examine the source code of app X, if it’s worse than app Y. You’re always thinking that software freedom outweighs all other disadvantages. And that’s why you fail.

  11. dougman says:

    Apple is just shooting themselves in the foot, they have momentum and are now becoming lazy. When the iPOD came out, they knew that there would be copy-cats, but they didn’t care, as they were already on the second or third iteration.

    Regarding Apple along with M$ rejecting apps, this kind of rejection of an interesting and thought provoking app is what will turn people away from walled gardens.

    M$ moves toward further locking down Windows resulting in developers seeking the more open alternative of Linux. The same will happen with the iPhone. As more developers continue to have their apps rejected with little to no context, those developers will become much more frustrated with the whole process and leave for Android.

  12. Clarence Moon says:

    I think Apple and M$ could feel a lot of pain stemming from a few days’ work by one human being. Chuckle…

    Hope springs eternal, eh, Mr. Pogson? Don’t get your hopes too high, though. Mr. O is a fool when it comes to the law and taking any solace from his opinion is folly.

  13. oiaohm wrote, “you can go for a miss trial on grounds of jury rigging performed by the forman”.

    Given his public utterances, I doubt this is anything more than stupidity/confusion/bit-rot of the foreman. It happens. People err. Some are inspired to propagate their error. I am accused of that here daily. I think it did happen in this case. Apple must be horrified that their windfall is blowing away through no action of their part…

    This case which should have been just about business and technology is coming to have a life of its own. Apple has created a monster with global reach. What will happen if the judge refuses to overrule? What will happen if she bans a raft of Samsung’s products? Will consumers protest widely? Will politicians in USA in this election year notice? That foreman could be an open can of worms for software patents, use of patents to restrain innovation/trade and much more. I think Apple and M$ could feel a lot of pain stemming from a few days’ work by one human being. Chuckle… We watch and wait.

    The worst case for Apple is a wipeout of all their attacks and a black mark on their brand. Apple could lose share in USA and the economy of the USA could be harmed by Apple’s actions. The worst case for Samsung is they keep rolling on with Android/Linux. I like the odds. Further, this case will show other OEMs that the monopolies while nasty are not that tough. If even a few big OEMs abandon monopoly, Wintel and Apple’s walled garden could be smashed suddenly instead of piecemeal.

  14. oiaohm says:

    Clarence Moon
    –The time for eliminating jurors due to having faulty assessment framework, bias or incompetence, is during juror selection. It cannot be appealed.–

    Their is a catch. It can be appealed is correct. If a party slips threw like the foreman in this case and does not obey judges instructions you can go for a miss trial on grounds of jury rigging performed by the forman. Samsung has very good ground to go miss trial. Miss trial is not an appeal for alteration its lets start over we got that case badly wrong.

    He is on video admitting he did not obey judge instructions.

    The funny thing here this form jury rigging if let the offender off is not an offence. Exceeding the judges instructions and handing down something more savage than the judge or prosecutor recommended is not the jury job. Other wise the jury is judge and jury in one.

    Clarence Moon the jury is meant to make sure the Judge and Prosecutor has not gone too far. The jury is not there to excess what either has requested.

  15. To let such faulty reasoning to stand until weeks later is a travesty of justice.

    You can only wish that were so, Mr. Pogson. It is unlikely that anything here is going to be reversed or remanded on appeal. A jury is given the facts and expected to apply their own reasoning processes in their deliberations. Assessing these facts in light of their own beliefs is at the heart of the jury system and your complaints are misdirected. The time for eliminating jurors due to having faulty assessment framework, bias or incompetence, is during juror selection. It cannot be appealed.

  16. Thorsten Rahn says:

    Headline should read:

    Apple vs. Fanboys

    For the record, I thought “Scott Pilgrim vs. the World” was more entertaining. But I digress. If I remember it correctly, even Google chastised Samsung for not using stock Android, instead trying to imitate the iPhone down to the dot over the “i”. Therefore I don’t have any sympathy for Samsung here. In the long run Apple and Google will work out a deal. Case closed. But feel free to continue bickering about it at your group meetings.

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