Bloomberg News

Apple-Samsung Jury Foreman Says Google E-Mail Persuasive

August 26, 2012

Apple-Samsung Jury Foreman Says Google E-Mail Persuasive

A Samsung Galaxy smartphone, left, and an Apple Inc. iPhone 4 sit arranged for a photograph at a mobile phone store in London. Photographer: Chris Ratcliffe/Bloomberg

Jurors who awarded Apple Inc. more than $1 billion in its intellectual-property battle with Samsung Electronics Co. relied on e-mails describing Google Inc. (GOOG:US)’s influence to arrive at their decision.

Velvin Hogan, foreman of the nine-member panel, said yesterday in an interview that jurors went through a “meticulous” process of determining that Samsung infringed Apple’s products. When it came time to determine whether the infringement was “willful,” or intentional, “we knew where we had to go in the evidence,” Hogan said, referring to the e- mails. The e-mails included an internal 2010 Samsung message describing how Google asked it to change the design of its products to look less like Apple’s.

The jury’s finding that the infringement was intentional allows U.S. District Judge Lucy Koh in San Jose, California, to triple the damages next month when she considers Apple’s request to bar sales of some Samsung products.

“Certain actors at the highest level at Samsung Electronics Co. (005930) gave orders to the sub-entities to actually copy,” Hogan said. “So the whole thing hinges on whether you think Samsung was actually copying. The thing that did it for us was when we saw the memo from Google telling Samsung to back away from the Apple design.”

“The entity that had to do that actually didn’t back away,” said the 67-year-old San Jose resident.

Android System

Following a four-week trial, Apple, based in Cupertino, California, won more than $1 billion after the jury found on Aug. 24 that Suwon, South Korea-based Samsung infringed six of seven patents for its mobile devices in a verdict that may lead to a ban on U.S. sales of handheld electronics a judge deems to violate Apple’s rights. The jury was required under federal rules to issue a unanimous verdict.

Samsung has used Google’s Android free operating system to build phones that propelled it to the number one spot in the phone market. The Samsung e-mails presented as evidence during the trial included a Feb. 16, 2010, internal message describing minutes from a design meeting that was sent to “pass along only a few comments from Senior Designer Cho who went into the Google meeting yesterday,” according to the message.

“Since it is too similar to Apple, make it noticeably different starting with the front side,” according to the message, referring to one of Samsung’s tablets.

A second e-mail, dated Feb. 22, 2010, was sent to more than 30 Samsung employees.

‘Distinguishable Design’

“I am notifying you of the team leader’s directives from the executives’ meeting yesterday,” the message begins. The sixth item on the list addresses a need to “respond to the issue of design similarity for the S series,” which Samsung designer Kim Jin Soo testified was a reference to the company’s S series of smartphones.

“Google is demanding distinguishable design vis-à-vis the iPad,” according to the e-mail. “Consider design distinguishability for the items demanded by Google while maintaining the current design, and in regards to each carrier’s demands.”

Kim testified that he didn’t recall any such directives from his superiors. Looking at the e-mails at trial, he said he saw the documents for the first time the day before in preparation for his testimony.

No Breaks

Hogan said the group pressed through deliberations without any formal coffee breaks, worked through lunches, and deliberated for an hour longer than scheduled on two of the three days.

Hogan, who told the court he had served on three juries in civil cases and has two children in their 40s, spent seven years working with lawyers to obtain his own patent covering “video compression software,” a hobby of his. He worked in the computer hard-drive industry for 35 years at companies including Memorex Corp., Colorado-based Storage Technology Corp. and Massachusetts-based Digital Equipment Corp.

Based in part on that experience, jurors elected him foreman, Hogan said. The only dissenting vote was his own, he said.

The jury’s first job was to determine which patents were valid, he said.

Light Bulb

“When I got in this case and I started looking at these patents I considered: ‘If this was my patent and I was accused, could I defend it?’” Hogan explained. On the night of Aug. 22, after closing arguments, “a light bulb went on in my head,” he said. “I thought, I need to do this for all of them.”

The next day, the first full day of deliberations, Hogan said he explained his thinking to his fellow jurors. “We discussed each and every patent, each and every claim, each and every limit” described in the patents, he said.

“We took this extremely seriously, we looked at it meticulously, but the way we looked at it, a lot of things grouped together,” he said. The group cut through unnecessary work by hand-drawing a matrix on a notepad to illustrate which patents Apple said were infringed by as many as 26 Samsung smartphones and tablet computers, he said.

He said the process also helped to identify which set of legal rules to apply for the three different types of claims at issue -- utility patents, design patents and trade dress, or how a product looks.

Speeding Process

“While on the outside people thought we got through this quickly, our method was we threw some things out that didn’t need to be considered,” Hogan said.

The jury also included a mechanical engineer, an aspiring software engineer and a woman who worked for National Semiconductor Corp.

While the interests and professional backgrounds of those jurors reflect the Silicon Valley pool from which the panel was drawn, another juror works at a cycling shop and one panelist who didn’t go to college works in construction, according to court transcripts. Seven of the nine panelists said they had never served on a jury before.

Aarti Mathur, who told the court she had worked at information technology startups as a benefits administrator, spoke briefly about serving on the jury, her first, after the verdict.

‘Exciting Experience’

“It was a very exciting experience and a unique and novel case,” she said in an interview at her home in San Jose. “There was a lot to go through and we were able to sort it out.” She declined to comment further.

Hogan was issued a patent covering a “method and apparatus for recording and storing video information,” according to the U.S. Patent and Trademark Office.

“I could imagine him being very useful to the other jurors as long as he’s not trying to dominate the jury room,” said Mark McKenna, a University of Notre Dame Law School professor, in an interview before the verdict. “It could be the case that because this guy has a lot of expertise that a lot of jurors defer a lot of specific questions to him.”

Hogan’s patent isn’t the same type as those covering software features and design elements that were at issue in the trial, McKenna said.

“But the patent is not as unrelated to Apple’s as a biotech patent or a piece of farm machinery” he said. “It’s still in the tech industry.”

One prospective juror whom Apple successfully fought to remove from the case was a Google engineer who told the court he worked in some capacity with patents covering technologies for the search engine company’s YouTube unit, AdWords program and Android operating system.

Samsung’s Galaxy Nexus smartphone, which the jury found to infringe two Apple patents, was the first smartphone to use Google’s Android 4.0 operating system.

The case is Apple Inc. (AAPL:US) v. Samsung Electronics Co. Ltd., 11- cv-01846, U.S. District Court, Northern District of California (San Jose).

To contact the reporters on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net; Karen Gullo in San Francisco at kgullo@bloomberg.net; Douglas MacMillan in San Francisco at dmacmillan3@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net; Tom Giles at tgiles5@bloomberg.net


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