The latest Apple-Samsung verdict awarding $1.05 billion to Apple for wilful infringement of Apple?s patents casts serious doubts on the effectiveness of the jury system for such highly technical issues. The surprising speed (21 hours) in which the jury returned a verdict seems to suggest a decision based on whims, impressions and prejudices. How could Apple, the great blue-eyed American icon, the most valuable brand, the legacy of Steve Jobs be wrong? It?s easy for any American to assume that the ?Korean guy? copied Apple?s technology! In fact, one female jury member, during the jury selection process, reportedly answered to the question about why she was considering buying an iPad: ?I love the technology. I mean, you could sit around in the yard and play with it. Apple comes out with really, really nice stuff.?
The judge (incidentally, of Korean origin!) had given 119 pages of instructions on August 24, 2012, which took me, a lawyer with a bit of technology background, hours to only partially understand. A jury of nine ordinary people understood the intricacies of patent law, technology and calculated the damages within 21 hours! According to one juror, they were swayed by both the pictures of the Samsung phones before the iPhone came out and those after the iPhone, and also the explanations of the jury foreman, who was an engineer with a couple of patents to his name. A bit about the jury composition: seven men, two women, five jurors above 50 years of age, six college grads, two unemployed; a bike-shop manager, an electrical engineer, a municipal worker, a human-resources consultant, a sales and marketing executive, a social worker, and a network-operations employee: not a group you would expect to answer 700 questions within a matter of hours regarding alleged infringement by both companies involving highly technical issues!
More importantly, out of the six patents where the jury has held there was infringement by Samsung, three are essentially design patents. A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. In order to be patentable, an invention must be novel, non-obvious and useful, and must exhibit a new characteristic that is not known in the body of existing knowledge in its technical field (?prior art?). A design is, no doubt, a creative work that is, and should be, subject to protection. However, the clubbing of a design with a patent gives it the colour of an ?invention?, which it is not. The common man, on reading the verdict, would believe that Samsung copied Apple?s technology but that is not the case. A design which becomes widely used and accepted becomes generic. As argued by Samsung lawyers, but not accepted by the jury, the design elements of iPhones were covered by prior art as all touchscreen phones look more or less alike. All TVs look pretty much the same?they?re all boxes, flatscreens and minimalist designs. The BlackBerry was a game-changer but later everyone came out with a Qwerty phone. Apple could not be given exclusive rights to black screens and ?rectangles with round edges?. Even for the other three patents: bounce back, pinch-to-zoom and tap-to-zoom features are functionalities. A patent should relate to the technology behind the functionality or the feature and the feature itself should not be patentable as that would stifle innovation. It was not even Apple?s case that the software codes underlying such functionality had been copied. Further, similar features existed in other gadgets before the iPhone. There was merit in Samsung?s arguments of prior art as well as invalidity of the patents but the jury thought otherwise.
Even if there was similarity in the design or the functionality, it is extremely doubtful that an average user would be deceived into buying Samsung phones thinking he was buying an iPhone. Any buyer who actually did that needs smartbrains not smartphones! And consumers do not buy Samsung phones only for their similar design or the bounce back, pinch-to-zoom and tap-to-zoom features. As argued by Samsung, top reasons for buying Samsung/Android phones were wanting to stay with the same service provider, the Google brand, larger screen, preference for Android applications (being Open Source) and better integration with other Google services. For the jury to assume that the three patents significantly influenced a buying decision and then work out damages is extremely simplistic, to say the least.
Regarding the Samsung claims for infringement of utility patents, surprisingly, the jury verdict questionnaire combined all the four patent claims in one question: Question no 24! While each of the six Apple claims were required to be answered by the jury through a distinct question. After answering questions 1 to 23 in favour of Apple, awarding $1.05 billion in damages, and in the words of the jury foreman ?wanting to give Samsung more than a slap on the wrist? ? and clearly holding Samsung as the ?bad guy?, which ?reasonable person? would then seriously consider whether the rights of the bad guy could have been infringed by someone like Apple?
No doubt these, and other arguments, will be taken up in appeal but the case demonstrates the increasing use of the court process, not merely as a vindication of rights, as a clear corporate strategy to take out competition. Given that Samsung supplies $11 billion or more of parts to Apple, it is likely that Apple?s strategy may be to eventually settle with Samsung and use this victory to block the challenge to iPhone dominance by Android. By the time developers and manufacturers adapt/modify their products to avoid infringement action by Apple, Android could get killed in the market.
Such decisions raise doubts about public benefits by allowing monopoly in ?ideas? through the patent regime. Android has been made Open Source so that no one can restrict or control the innovations of others, but with this verdict Apple has obtained the right to do exactly that. At what stage would the industrial development of modern society be if the inventor of the wheel had obtained a similar verdict?
The author is managing partner of boutique law firm Naveen Goel Law Offices
