Sunday, August 26, 2012

Regular Men and Women Not Legal Experts

There is lots of commentary about the Apple victory over Samsung in its mega patent case and the $1.05B damages award, punitive damages to follow.  The patent cognoscenti seem to be appalled that the jury reached a verdict so quickly.  How could they decide such a complex case in 21 hours.  How could regular men and women really understand such hard stuff.

A lot of folks in the very industry from which these patents have a tendency  treat regular people like idiots who are just not smart enough understand technology, the law, or heaven forbid, a patent.  There, there, don't worry your silly little head, let the professionals handle this.

This disturbing trend was noted in a report in the Wall Street Journal on the jury deliberations, "The case, one of several in Apple's global campaign to defend the designs of the iPhone and iPad worldwide, has ignited a debate other whether the proliferation number of patent cases should be decided by regular men and woman not legal experts."

The problem with the patent system may just be its the reliance on legal experts and the patent cognoscenti.  The patent cognoscenti are very good at talking to each other but not so good at explaining to us regular guys what is patented, why it was patented, and why we should care.  Maybe there just isn't  enough participation by regular men and women, or a demand to make patents understandable.  Maybe more regular guy participation could force more transparency on what inventions are and why they need to be protected.

The WSJ interviews with the jury reported that the jurors listened to the hours of instructions from the Judge before deliberations started.  The jurors stayed focused on the list of decisions they were being asked to make and stayed on task, and kept track of the evidence they were provided with.  They avoided off-task discussions and conversations.  They went through the list of decisions one by one working diligently.  (Isn't that what jurors are asked to do?)  The jurors noted that Apple's lawyers did a better job of presenting their case.  Ok, so what's the problem?

Well it looks like the tech lawyers and their minions are distressed.  A news item arriving via Seeking Alpha states, "This is farce," says tech legal site Groklaw, incredulous Apple-Samsung jurors took only 21 hours to deliberate over a 700-question form one lawyer says would take him 3 days to understand. Groklaw is also unimpressed with contradictory statements made by jurors, several verdict inconsistencies, and the fact jurors reached a decision without reading a 109-page instruction form.

Ok, so we read the instruction form and the list of questions the jury had to answer.  The instruction form, link above, may be 109 pages long but most pages have two sentences of text on them.  The instructions are clear and well written.  It took about fifteen minutes to read from start to finish and we weren't sitting in the court room listening to the judge's instructions verbally before being given the document.   But then "one lawyer" who says it could take him 3 days to understand the instructions may have a different perspective.  Maybe he was looking at it from the perspective of 3 days, 24 hours, $350/hour = $8,400.  (Patent lawyer at $800 per hour = $19,200)  Read the instructions yourself.  You decide.

Here's a link to the verdict with the 700 questions.  The jurors were dealing with a family of products and the questions had to be answered for each one.

Frankly, if all of the information written about patent law was written in the way the Judge presented it, it would go a long way to "fixing the patent system" that everyone thinks is broke.  Consider the language on Anticipation.  Here is how the Judge Lucy Koh explained it to the jury:

Here is a list of the ways that either party can show that a patent claim was not new:

– If the claimed invention was already publicly known or publicly used by others in the United States before the date of conception of the claimed invention;

– If the claimed invention was already patented or described in a printed publication anywhere in the world before the date of conception of the claimed invention. A reference is a “printed publication” if it is accessible to those interested in the field, even if it is difficult to find;

– If the claimed invention was already made by someone else in the United States before the date of conception of the claimed invention, if that other person had not abandoned the invention or kept it secret;

If the patent holder and the alleged infringer dispute who is a first inventor, the person who first conceived of the claimed invention and first reduced it to practice is the first inventor. If one person conceived of the claimed invention first, but reduced to practice second, that person is the first inventor only if that person (a) began to reduce the claimed invention to practice before the other party conceived of it, and (b) continued to work diligently to reduce it to practice. A claimed invention is “reduced to practice” when it has been tested sufficiently to show that it will work for its intended purpose or when it is fully described in a patent application filed with the PTO.

– If the claimed invention was already described in another issued U.S. patent or published U.S. patent application that was based on a patent application filed before the patent holder’s application filing date or the date of conception of the claimed invention.

Now see if you can figure it out from the MPEP, the Manual of Patent Examination Procedures here, here, or here.  (These are just a few but you get the gist.)  Head exploding yet?

Then you read the links from Groklaw including the "live blogging" by The Verge, which features among other things commentary on one of the attorneys wearing a polo shirt, you have to wonder if the press really understood what was going on as well as the members of the jury.  (Full disclosure - I love The Verge and their weekly podcast.)  

Back in the pre-Verge, This is Your Next Days, Nilay Patel and Josh Topolsky came to verbal blows over patents during one of their podcasts. (Here's the link to the podcast - the patent discussion starts at around the 5o minute mark.)  It sounded like many a discussion we have had on Freedom to Operate with folks who didn't understand you just can't copy a "cool feature" for their new product or tell you that they are doing something "just like Apple."  We are fans of more discussions, more information, and more transparency in the patentsphere.  Oh, and requiring assignees to disclose who owns what.

The bottom line here is that the patent fight isn't over.  There are sure to be appeals.  It's really bad form to slam the regular folks on their decision and defer to the legal experts who love complexity and obfuscation.  Maybe the infringement was obvious to the jury.   The jurors were asked to make a decision based on the evidence at hand.  Maybe that's part of the problem with the patent system.  Patents are an asset that are inaccessible by regular men and women and have been left to the legal experts alone for too long.