Judge Lucy Koh denies Samsung retrial of retrial but disapproves Apple’s appeal to jurors’ national bias

“The trial in the second Apple v. Samsung case in the Northern District of California will start in less than eight weeks,” Florian Müller reports for FOSS Patents. “Meanwhile, the first dispute between these parties in the same district is approaching the point of final (i.e., appealable) judgment. In an order entered late on Friday, Judge Lucy Koh, the federal judge presiding over these two Apple-Samsung cases, denied both parties’ motions for judgment as a matter of law (JMOL) with respect to the November 2013 limited damages retrial, in which a federal jury awarded Apple a $290 million replacement of a $410 million portion of the August 2012 billion-dollar verdict, resulting in a total damages figure (in the sum of both trials) of $929 million.”

“Samsung based its request for a re-retrial on several theories, one of which was centered around the allegation that Apple’s lead counsel in the retrial appealed to racial, ethnic or national prejudice. The part about bias had more than one component as well. To the extent that Apple’s counsel, in an attempt to challenge the credibility of a Samsung expert witness, referred to the possibility of information being lost in translation, Samsung’s allegations were more than far-fetched and didn’t impress Judge Koh,” Müller reports. “However, there was a portion in Apple’s closing argument that the judge does consider disappointing and troubling — in my view, that portion was not about racial or ethnic bias, but certainly an appeal to patriotism, basically suggesting to Silicon Valley jurors that the prosperity of their home region was at stake because of foreign companies copying U.S. innovators without legal consequences:”

We are extremely fortunate to live in what I’ll call the Greater Bay Area. Not only is it beautiful, but we live in the center of one of the most vibrant economies in the world. Intel, Yahoo, Oracle, Facebook, eBay, and hundreds and hundreds of other companies, including Google, and including Apple, and these companies attract talented employees at every level. Even, we heard, Samsung has opened a research center here so that they can take advantage of the talent in this area.

The companies provide jobs. They create technology that improves the way people work. And the company — and this economy supports an education system that is second to none in the world, Berkeley, Stanford, San Jose State, U.S. [sic] Santa Cruz, even Santa Clara where I went to school.

These educational institutions interact with this economy, interact with these companies and create a place that the whole world knows as Silicon Valley.

But let’s be equally clear about one thing. Our vibrant economy absolutely depends on fair competition. It depends on a patent system that encourages inventors to invent, it encourages investors to invest, and it encourages employers to hire.

If we allow that system of law to decay, investors will not invest, people will not take risks, and our economy will disappear.

When I was young, I used to watch television on televisions that were manufactured in the United States. Magnavox, Motorola, RCA. These were real companies. They were well known and they were famous. They were creators. They were inventors. They were like the Apple and Google today.

But they didn’t protect their intellectual property. They couldn’t protect their ideas. And you all know the result. There are no American television manufacturers today.

Müller reports, “Judge Koh’s order states that this was ‘troubling’… But a retrial is not warranted in Judge Koh’s opinion (and I agree).”

Much more in the full article here.

Related articles:
Desperate Samsung urges mistrial citing racism in Apple lawyer’s remark – November 19, 2013
Citing ‘racial prejudice,’ Samsung wants a retrial of its recent retrial against Apple – December 17, 2013


      1. birdy and One… Thanks for your illuminating insight and thoughtful analysis of the situation. It must be really wonderful to be at a dinner party with either of you and be able to listen to the output of such fine intellects.

            1. Thank you. Yes I am.
              But seriously, there’s a distinction. Just as I will attempt to stop physical attack on myself or another (if possible) by using physical force, I’ll attempt to stop verbal attack by using verbal force.

              That physical or verbal force looks outwardly the same, but unlike the petty little jerks above, I do not do that to someone just because I disagree with them or don’t like something their saying.

      1. Yeah well, we Americans have been taking care of those Koreans for quite awhile, and I say it’s time to end it. Let their sorry asses deal with North Korea on their own.

  1. “Apple’s lead counsel”: When I was young, I used to watch television on televisions <- BLOWHARD. Do people still talk this way? Apple can do better than this lip flapper.

    suggesting to Silicon Valley jurors that the prosperity of their home region was at stake because of foreign companies copying U.S. innovators without legal consequences <- Damned straight. The inventors get credit for and profit from their inventions. The plagiarists get buried in a slurry of their own excrement. That's not 'an appeal to patriotism'. It's JUSTICE. I don't care what planet invented what.

    1. Maybe so. But the Apple attorney showed restraint. I’d have gone straight for bringing a puppy into the courtroom and saying, “Ya know, in some places in the world, this little fella is considered a delicacy and that reminds me of watching Lassie on Television when I was a kid.” I’d be ruthless in court.

    2. Not really, the opposite holds truer. In issues between nationals and foreigners, juries and judges are typically pressured to unduly side for the foreigner, so their integrity is not attacked, regardless of their actual unbiased belief.

        1. True, in theory.

          However, Apple must live in the real world and fight its battles in the current court system.

          I’ve said it here many times. The U.S. does not have a JUSTICE system. The U.S. has a LEGAL system in which it is much, much more important to win rather than it is to be right.

          If it were a true justice system, the moment the jury handed down the first 1+ billion dollar verdict and declared certain devices infringing, the judge would have ordered Samsung to put 100% of the money in a court controlled escrow account (and required them to add to it based upon any statutory required interest) and banned all the infringing devices. If Samsung came out with modifications so that they no longer infringed, then, on a device by device basis, the judge would have lifted the ban. If Samsung won on appeal, Samsung would have gotten the money back.

          As it is, Samsung has been shown to infringe. Samsung has not paid a dime. The infringing items are not banned. There have been zero consequences for Samsung other than having to pay their lawyers (who have paid them back manyfold by improperly handing over confidential documents).

          Samsung is delaying any “final action” in order to delay the appeal — with absolute impunity. If Samsung’s tactics hold, it will drag out the appeals process — once it finally starts — for another couple of years. Then drag out a further appeal if necessary.

          Quite literally, other than funding its lawyers, Samsung will likely not have to come to terms with its illegal business practices until all those infringing items are several years past being relevant anywhere in the world. Who do you know that purchases a phone model that is six or seven years old? (To put that into context, who do you know today that would buy a pre iPhone [which started shipping in 2007] “smartphone” as a new phone, today?)

          How is there any justice in any of this?

          To reiterate, your concept is great — in theory. Unfortunately none of us lives in a theoretical world, nor does Apple.

            1. No, I lost. My post, appealing to Karma over Justice, disappeared into the ether. Which also doesn’t exist, according to Michelson, Morley, and Einstein. Is anything real?

          1. The ideal justice is worth striving for but we must know what it is in the first place. It is true that the US suffers under a legal system rather than enjoying a justice system. With small pressures from us all, it is possible to attain. Keep striving!

  2. “But they didn’t protect their intellectual property. They couldn’t protect their ideas. And you all know the result. There are no American television manufacturers today.”

    And what is wrong with stating the truth in this manner? The judge showed her bias.

  3. Koh finds Apple’s appeal to American innovation “troubling” because she is personally at the epicenter of its decomposition. Over a year after a jury verdict in her court and not one cent of Samsung’s damages have been collected and not one of their devices has been banned from sale after a finding of willful infringement.

    The only thing “troubling” about Apple’s closing argument is that they didn’t implicate Koh herself as the biggest threat to innovation in this country.

  4. I would be interested to hear what all the posters here who distrust the American court system would suggest as an alternative for resolving complex technical disputes. It isn’t great, but it beats any alternative I’ve heard of. Please enlighten us on your preferred alternative.

    If you prefer just duking it out, do bear in mind that Samsung doesn’t just build computers, TVs, and refrigerators. They also build warships. Apple stands a better chance in court than on a battlefield.

  5. Sorry for the late post. And its length; it could not be helped. Dunno if anyone is still listening in on this topic. I am a fan of Florian Mueller but disagree. Here is my take on Apple’s Alleged Appeal to Prejudice.

    1. The closing statement was an appeal to reason. The comment about TV was a concrete example to back up the preceding abstract statement about economic losses that could arise if a company’s valid IP rights are not asserted, defended, and upheld. I do see how it would be possible to interpret the statement as an attempt to incite ‘national bias’ — but this is stretching the point, as doing so requires a second-order assumption about the actual words in the statement. In my view, interpreting the statement as one with ‘national prejudicial intent’ reveals more about the reader’s state of mind than what was actually said.

    2. FM suggests ‘ethnic prejudice’ applies to the ‘lost in translation’ comment. But I am sorry: it was Samsung itself that made this issue relevant. Surely something was “lost in translation” when Samsung deleted email records that the court told them to retain? Or when when Samsung failed to maintain the privacy of Apple’s confidential contract information contrary to court order? If nothing was lost in translation, then it would appear that Samsung is guilty of flagrant disregard of the rule of law. One or the other. [And speaking of ‘ethnic prejudice’, some cultures may assign higher importance to group values than individual values; in some cultures, it may be more important to help the family/clan/group/company, than to adhere to principles of high personal integrity. We should not be naive to think that other cultures share precisely what many describe as “traditional American values”.]

    3. Judge Koh cites a paper by Judge K.A. Moore (Xenophobia in American Courts, 97 Nw. L. Rev. 1497 (2003) pp 1497 to 1550) as “empirical context” for the (putative) issue of American jury bias against foreigners, and as a basis to express disapproval and disappointment to Apple counsel. The Moore paper is cited as evidence of jury bias against foreigners in patent cases in American courts.

    But Judge Moore’s paper provides no scientific or statistical basis to support its conclusions. The paper has severe limitations. Its conclusions are not supported by its (limited) statistics and study methodology. Read the paper if you have a basic understanding of scientific method and inferential statistics; if not, ask someone who does. They will tell you that the (limited) study design cannot support the strong conclusions drawn from it. The paper also appears to be biased in its assessment of various issues raised in discussion: it appears to cherry-pick favorable arguments while dismissing those unfavorable to the author’s hypothesis of the existence of bias in jury trials. In short, Judge Moore’s paper provides insufficient basis to “substantiate” the presence of bias against foreigners in American courts — or its absence. Her research project is not designed to support any statistical inference regarding bias. For this reason, it is entirely wrong for Judge Koh to cite Judge Moore’s paper as a predicate to disapprove of a putative intent to evoke “national prejudice” by Apple’s counsel.

    To ascribe bias against foreign plaintifs in jury trials would require that the cases be confirmed as similar in all meaningful ways, and that the analyst rule out all other possible reasons that might explain the observed discrepancy in win rates by “alienage” (ie, 82% for American plaintiffs, but 38% for foreign plaintiffs). To my understanding, this was not done. And it is unlikely that a (small) sample size of just 36 cases of jury trials involving parties with mixed “alienage” would permit examination of a reasonable number of candiate variables due to limitations in statistical power. The same can be said of the 27 cases of judge-decided cases.

    The same can be said in comparing win rates between the 36 jury-decided patent trials and the 27 judge-decided trials. Comparison of win rates in these two groups is valid only if the cases hanlded by juries and judges, respectively, are equivalent in meaningful ways. Othewise, there is no reason for the win rates in each group to be similar. For example, Table 8 of Judge Moore’s paper appears to indicate that the patents in the jury trials were stronger than those in the judge-decided trials (jury cases scored hired in terms of the attributes “originality”, “generality”, and “claims” than the judge-decide cases). If this understanding is true, there is reason to believe that the win rates decided by juries should logically be higher than win rates in judge-decided trials. (Because the cases are qualitatively different.)

    Judge Koh’s reference to Judge Moore’s (flawed) paper as evidence to substantiate the existence of jury bias against foreigners in patent trials is disturbing and inappropriate.

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