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With a mighty crescendo, the jury has returned a verdict in the Apple v. Samsung suit.  And the verdict is… guilty!  Well, at least lots and lots of infringement, and even more damages.  At first, it was $1,051,855,000 in damages.  However, that later became $1,049,343,540.  But hey, what’s $2.5 million between, well, enemies?  However, this difference in damages might belie a more troubling and uncomfortable possibility about this verdict, that it was based on something other than the law.

An excellent summary of the goings-on after the verdict is available at Groklaw.  To start, there is the small matter of the $2.5 million.  It turns out that the jury made a slight mistake in awarding Apple damages for some Samsung device that the jury decided did not infringe Apple’s patents.  It appears the connection between infringement and the awarding of damages wasn’t fully formed in the minds of the jurors.

This is where the sausage is made

As unsettling as that is, it’s merely the first in a chain of apparent missteps by the jury.  As reported by Groklaw, the jury foreman stated “the jurors had reached a decision without needing the [jury] instructions.”  Given the complexities of patent law, it is unfathomable that a lay jury can arrive at a logical, legally maintainable decision without reading the damn instructions.  On top of this, there’s the fact that the jury returned their verdict in three days.  Three days to carefully analyze each allegedly infringement of each device against each claim.  Given the amounts in controversy, in addition to simply performing their sworn duties, three days seems grossly inadequate for every count to be given its due consideration.

Comments from another juror seems to support the contention that the jury failed in its task.  A CNET interview with juror Manuel Ilagan quotes Ilagan as saying “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, so we could go on faster. It was bogging us down.”  When jurors skip analyzing prior art to determine the validity of a claim, they unequivocally shirk their responsibilities.  The audacity to simply omit this analysis because it is difficult to perform makes me irate and does little to bolster the concept of jurors as suitable triers of fact in difficult patent cases.

In my last post I discussed a variety of theories that are commonly used in   calculating damages.  I have to apologize, for I omitted a crucial one, where the jury makes it up.  If not making it up, the jury in this case certainly used something other than actual economic damages suffered by Apple in awarding damages.  Again quoting the jury foreman, “we wanted to make sure the message we sent was not just a slap on the wrist. We wanted to make sure it was sufficiently high to be painful, but not unreasonable.”  Never mind that damages awarded by the jury are not punitive, but compensatory.  Of course, had the jurors bothered to read the instructions, this is something they likely would have been informed of.

A growing chorus of experts and journalists anticipate some degree of reversal of this verdict, and I am in agreement.  The multitude of errors committed by this jury, and the serious consequences, monetary and otherwise, are too severe to go ignored an unaddressed.  Let’s hope the courts can sort out this mess.