The more the former Samsung v. Apple jury foreman Velvin Hogan talks to the press, the clearer it becomes that Samsung has grounds for a mistrial. Most recently, Hogan told his Bloomberg interviewer that his "aha" moment was based on what legal scholars believe to be a misunderstanding of what constitutes prior art. It's maddening to read his statements and know that the logic behind the verdict in the biggest tech case in years was incredibly flawed.
In discussing the first patent on the list given to jurors, Hogan said they got into a heated discussion about the prior art presented at the trial – or the evidence that Apple may have actually lifted innovations from other companies in their design of the first iPhone. Hogan and the rest of the jury discounted the evidence for this reason:
The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.
Except that's not a reason for disqualifying prior art, according to Groklow:
That isn't disqualifying for prior art. It doesn't have to run on the same processor. It doesn't have to run at all. It can be words on a piece of paper.
In fact, the word "interchangeable" doesn't show up on the jury instructions once!
The jury instructions explicitly said that "prior art" doesn't have to run on ANY processor. By Hogan's own muddied logic, Samsung hasn't infringed on any of Apple's patents, since Android and Linux don't run directly on iOS or an Apple chip.
Clearly, Hogan was confused. And he probably confused the entire jury as to what constitutes legitimate prior art. Because he thought of prior art in such a narrow sense, Samsung could easily argue that he misunderstood the jury instructions, which would be grounds for a mistrial. It could, and probably will, cast doubt on the entire verdict. According to Groklaw:
This statement by the foreman is, to me, the biggest goof of them all. And since his story is that this is what he used to persuade the rest, who were otherwise favoring Samsung, it means the entire verdict is now seriously in doubt.
The "first patent" on the list Hogan is referring to covers the "bounce-back" feature – a cornerstone of Apple's lawsuit against Samsung. Samsung's main evidence that they had not infringed was that Apple's patents were not valid since the "bounce-back" feature was actually first shown on the DiamondTouch system developed by Mitsubishi (here's what it roughly looked like).
But the patent claims functionality on "portable multifunction devices" – ie, anything. Not just devices with "the same processor."
Hogan keeps making media appearances – first on Bloomberg, then the BBC and yesterday in a chat with Gizmodo readers. And in each and every appearance, he displays a startling misunderstanding of the instructions given to the jury (seems like he hasn't even re-read the instructions since the trial). I find it particularly shocking that he keeps on using this word "interchangeable" –which he seems to have literally lifted from thin air. The word that gave Hogan the right to skip over all evidence against Apple wasn't mentioned once in the jury instructions.
(Top photo: screenshot from Hogan's interview with Bloomberg)