Back in August I explained that the record verdict in the now infamous Apple/Samsung patent row may have been the result of a confused jury foreman. In public statements made shortly after the verdict, the jury foreman explained to Bloomberg (here), that his “aha moment” in assessing the alleged obviousness of Apple patents was when he realized that the Apple software would not work on the processor of the prior art. This was an odd statement considering that the test for obviousness is not whether features may be bodily incorporated into a prior art structure, but rather, what the combined teachings of those references would have suggested to one of ordinary skill in the art. In re Keller, 642 F.2d 413.
Not surprisingly Samsung has seized upon this statement, along with other alleged misconduct/bias as a basis to request a new trial. In their motion, Samsung explains that:
. . .Mr. Hogan’s self-reported conduct during the jury deliberations presents the “reasonable possibility” that extraneous material “could have affected the verdict.” Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000). In post-verdict interviews with the media, Mr. Hogan said that he told his fellow jurors an accused device infringes a design patent based on “look and feel” (Estrich Decl. Ex. N), that an accused device infringes a utility patent unless it is “entirely different” (id. Ex. M), that a prior art reference could not be invalidating unless that reference was “interchangeable” (id. Exs. L, N), and that invalidating prior art must be currently in use (id. Ex. O). These incorrect and extraneous legal standards had no place in the jury room.
The motion is an interesting read (here). I am guessing that the jury foreman may now be rethinking this experience as one of the ”high points of his life.”