If I weren't posting on Groklaw, I wouldn't be posting on anything related to
patents or law. And maybe I should break the habit of following Groklaw
and other legal blogs before it becomes too much of an obsession. I will
probably stop posting fairly soon.
What I have several times done, if I
expect a long post, is to create a short container post, usually in Off Topic,
and then attach the longer posts as comments to it, so that people working down
the page would pass over them if they were not interested.
But I did
want a top-level post for Velvin Hogan. I may be wrong, but, today, the more I
look at Velvin Hogan's BBC interview, or watch to the YouTube, it seems to
become clear to me what happened in the Apple v. Samsung jury room. You
may not agree, and lawyers reading this may not agree.
Judge Koh told
the jury (in instruction 24) that “There are two ways in which a patent
claim may be directly infringed. A claim may be ‘literally’
infringed, or it may be infringed under the ‘doctrine of
equivalents.’”. Therefore the jury had to determine whether the
claim was ‘literally infringed’, applying instruction 26. If the
patent was ‘literally’ infringed according to instruction 26 then
infringement is proved and the jury should stop there. But if the accused
infringing device does not ‘literally’ infringe, but comes close to
doing so, then the jury were supposed to determine whether the claim was
infringed under the ‘Doctrine of Equivalents’ under the rules set
out in instruction 27. The same procedure ought to have been used to determine
whether prior art invalidated the patent
But Velvin Hogan's interviews
make it clear that the jury did not follow the above procedure. They skimped on
carefully reading and applying the judge's instructions on determining
infringement and invalidity, just as they skimped on carefully reading and
applying the instructions with regard to damages for infringing utility
patents.
What the jury seems to have thought it had to do to determine
infringement or invalidity was to first determine whether the claim
‘literally’ infringed under rule 26, and, if there was
‘literal infringement’, they then thought that they had to go on to
test for infringement under the doctrine of equivalents, applying rules set out
in instruction 27. The jury thought that all the conditions set out in rules 26
and 27 had to be satisfied for infringement, so if an Apple device
‘literally’ infringed a Samsung patent under the rules of
instruction 26, then the Apple device had only failed the first leg of the test,
and they then had to move on to rule 27.
In the rules as the jury applied
them, for an Apple device to infringe a Samsung patent, both the
conditions set out in instruction 26 and the conditions set out in
instruction 27 had to be satisfied. But what the law actually says (as one can
see from instruction 24) is that, for an Apple device to infringe a Samsung
patent, either the conditions set out in instruction 26 or the
conditions set out in instruction 27 had to be satisfied.
If you read
Velvin Hogan's words with this in mind, you should realize that he is saying
that both 26 and 27 are required for infringement.
The
same applies for invalidation by prior art. [ Reply to This | Parent | # ]
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